JJUA55109U Drafting and Negotiating International Contracts
Because of globalization, contracts are frequently concluded between parties from different countries and legal traditions. In order to save resources at the negotiation stage, such international contracts are very often based on standard forms. In some areas of law, the most frequently used standard contracts originate from legal traditions which are very different from Danish law, most often common law. In spite of the increasing internationalization of contract law, the Danish legal education is still to a large extent oriented toward the national Danish market, so that legal graduates lack knowledge and skills when asked by their first employers, in Denmark or elsewhere, to draft, analyze and negotiate international contracts.
This course aims at filling this gap, and is relevant for the students who wish to seek a career as practicing lawyers or in-house counsels in law firms or companies active on international markets. In this manner, this course contributes to making our master degree more valuable in a directly recognizable way for the people recruiting candidates from The Faculty of Law, nationally as well as internationally. Drawing from the course director’s extensive experience as practicing attorney and in-house counsel, in Denmark as well as abroad, the course adopts the perspective of the contract drafter and/or negotiator and uses real-life examples and case studies, mainly from the construction and offshore energy industry and, to a lesser extent, from the international sales area.
Among others, the following topics will be discussed:
- Sources of international contract law (transnational sources, standard forms of contract, restatement of principles)
- Legal background of the contract: the applicable law
- Contract formation and validity : freedom of contract and its limits, public procurement procedures
- Chains and networks of contracts (subcontracting, back-to-back contracting etc.)
- Contract interpretation and its impact on contract drafting
- Usual boilerplate clauses (for instance entire agreement clauses, representation and warranties, no waiver clauses etc.)
- Time and time management in long-term contracts: work schedule, rate of progress, delay, disruption, extension of time and liquidated damages, prolongation costs
- Dealing with changes of circumstances: variation (change) orders and their impact on time and price, hardship and force majeure
- Performance bonds and guarantees, insurance matters
- Risk and liability: liability for delay and defects, remedies, limitations and exclusions of liability, agreed liability regimes
- Jurisdiction, claims and dispute resolution, in particular multi-tiered dispute resolution (project-integrated mediation, dispute review boards and dispute adjudication boards) and international commercial arbitration.
The methodology employed is a combination of legal dogmatics and the comparative method.
The course will combine lectures, including one by a practitioner from an internationally active company, with individual and group discussions as well as exercises of drafting and negotiation of important contract clauses.
Knowledge: understand and explain contractual terms and concepts as well as contract clauses, their function and how they interact with one another as well as with the applicable law
Skills: identify the law applying to the contract, identify important contract clauses and gaps/missing links in a contract, doing legal research in order to identify and find the relevant legal sources allowing to answer questions about a contract, assess one’s legal position as well as the other party’s, understand the other party’s motives and arguments, formulate one’s arguments to the other party in an appropriate manner, critically assess the other party’s proposals
Competences: draft, analyze, review and negotiate international contracts.
Selected chapters of the following works:
- Marcel Fontaine, Philip De Ly, Drafting International Contracts – An Analysis of Contract Clauses, Martinus Nijhoff, Leiden and Boston, 2009 : Chapter 3 (83 pages), Chapter 4 (43 pages), Chapter 5 (67 pages) = 193 pages.
- Fabio Bortolotti, Drafting and Negotiating International Commercial Contracts – A Practical Guide, International Chamber of Commerce, Paris, 2008: Chapters 2, section 8.2 ( 9 pages), Chapter 6, sections 2 and 3 (10 pages) = 19 pages.
- Ellis Baker, Ben Mellors, Scott Chalmers, Anthony Lavers, FIDIC Contracts: Law and Practice, Informa Law- Routledge, Oxon, 2009, Chapter I = 16 pages.
- Axel-Volkmar Jæger, Dr. Götz-Sebastian Hök, FIDIC – A Guide for Practitioners, Springer, Heidelberg, 2010, Chapter III (9 pages), Chapters VI and VII (76 pages), Chapters 11-13 (59 pages), Chapters 19 to 22 (80 pages) = 224 pages.
- Joseph Lookofsky and Ketilbjørn Hertz, EU-PIL – European Union Private International Law in Contract and Tort, 2nd ed., Djøf Publishing, Copenhagen, 2015, Chapter 3, p. 71-110 = 39 pages.
- Joseph Lookofsky, Understanding the CISG, 4th (worldwide) edition, DJØF Publishing, Copenhagen, 2012, Chapter 1, p. 1-9 (8 pages).
- Sune Troels Poulsen, Peter Stig Jakobsen, Simon Evers Kalsmose-Hjelmborg, EU Public Procurement Law, 2nd ed., Djøf Publishing, 2012 – or a newer work taking account the recent change of rules in this area
- Roger Fisher, William Ury, Bruce Patton, Getting to Yes: Negotiating an Agreement without giving in, RH Business Books, London, 2012, chapters I to III (145 pages).
- Howard Raiffa, The Art and Science of Negotiation, Harvard University Press, Cambridge (Massachusetts) and London, 1985, Part II, Section 9, p. 119-130 (11 pages).
- Additional material provided by the course instructor – in all not more than 750 pages.
- Apply legal methodology to identify and analyze complex legal issues
- Make qualified legal decisions and reflect critically over the decisions made
- Give legal advice by taking the general background of the contract (factual, legal, economic and political) into account
- Independently plan, lead and deal with complex work processes
Since the course deals with some contractual features which are characteristic of longterm contracts, it is an advantage – but absolutely not a requirement – that students have followed the elective course "Længevarende kontraktforhold" at bachelor level.
- 15 ECTS
- Type of assessment
- Oral examination, 20 minutesOral exam with preparation, 20 minutes
- Marking scale
- 7-point grading scale
- Censorship form
- External censorship
- Exam period
Spring: May 29 - June 2, 2017 (preliminary dates)
Please see "Academic calendar" on KUnet.