Negotiating International Business Transactions An International Litigator

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Negotiating International Business
TransactionsAn International Litigators
Perspective

• 9 June 2004
• Tim Hardy
• tim.hardy_at_cmck.com

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Introduction

• An international litigators perspective
• The benefit of hindsight
• The dangers of standard clauses
• Liquidated damages
• Entire agreement
• Heads of terms
• Waiver
• Lessons learned from unravelling a Joint Venture

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• Value with an understanding of your cos

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Typical Dispute No. 1
Purchaser
Manufacturer
Governing Law Jurisdiction
?
?
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Entire agreement clauses

• An attempt to limit liability in a contract to
  exclude representations made outside the contract

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Entire agreement clauses

• Two effects
• Prevent one party from asserting that the
  contract is not the sole repository of the
  contract terms
• Attempt to negate liability for misrepresentation
  Watford Electronics v Sanderson CFL Ltd 2001
  All ER (D) 290

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Issues

• Agreement cannot be modified unless in writing
• Cannot exclude liability for fraudulent
  misrepresentation
• Waiver

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Typical Dispute No 2
Software Designer
Purchaser
Manufacturer
?
?
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Typical Dispute No 3
Purchaser
Governing Land Jurisdiction
Contractor
?
Sub-contractor
?
?
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Typical Dispute No 4
Marketing Contractor
Employer
Computer/Software Supplier
?
?
?
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Typical Joint Venture
Clients Operating Company
PR Specialists
Computer Supplier
Shareholders
Employer
Clients Holding Company
Contracting J.V.
PR Specialists
Computer Supplier
Clients Operting Company
Subcontractors
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Conclusions

• Negotiate contracts that will work
• Negotiate in good faith
• Choose a style of negotiation that best suits you
• Experiment with different styles

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