DraftingandNegotiatingContractsinCross-TheRiskDoctor.pptVIP

.au Bridging the Divide: Drafting and Negotiating Contracts in Cross-Border Transactions The Risk Doctor 5 June 2012 Andrew Godwin Melbourne Law School Objectives: to consider the challenges that arise when lawyers draft and negotiate cross-border contracts to identify tips and techniques for overcoming those challenges Point of reference/comparison is China and Chinese counterparties Today’s seminar Impact of Law on the drafting Clauses that appear odd to a Chinese lawyer Clauses that appear odd to an Australian lawyer Impact of language Choosing the right terminology The impact of language clauses Plain language and the benefits for translation Impact of culture Attitudes towards contracts Negotiations and the impact on drafting Strategies and techniques Topics Key factors in the drafting process LAW ATTITUDES TOWARDS CONTRACT LANGUAGE Common law approach to contracts: Entire agreement Parol evidence Literal approach to interpretation A deal is a deal (pacta sunt servanda) Civil law approach to contracts: Civil and commercial codes Principle of “good faith” Change in circumstances (rebus sic stantibus) Impact of Law on the drafting This Agreement is the entire agreement of the parties on the subject matter and replaces all representations, communications and prior agreements in relation to the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of the provisions contained in this Agreement. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement. What appears odd to Chinese lawyers – an entire agreement clause The Parties, adhering to the principles of equality and mutual benefit and after friendly consultations, have agreed to enter into this Agreement. PRC Contract Law Article 5???  The parties shall observe the principle of fairness in defining each other‘s rig