JJUA55109U  Drafting and Negotiating International Contracts

Volume 2017/2018
Content

Because of globalization, contracts are frequently concluded between parties from different countries and legal traditions. Such international contracts most 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, particularly 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 young legal graduates lack knowledge and skills when asked by their first employers, in Denmark or elsewhere, to draft, analyze and negotiate international contracts in English. 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, the course contributes in making our master degree more valuable in a practically recognizable way for the people recruiting candidates from the Faculty of Law, nationally as well as internationally. Drawing from the teacher’s extensive experience as practicing attorney and in-house counsel in Denmark and 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 dealt with:

  • Sources of international contract law (transnational sources, standard forms of contract, restatement of principles)
  • Legal background of the contract: private international law (jurisdiction, applicable law, recognition and enforcement of judicial decisions)
  • Contract interpretation and its impact on contract drafting
  • Contract formation and validity : pre-contractual documents, freedom of contract and its limits, introduction to public procurement procedures
  • General principles of drafting and negotiating international contracts (collaboration between legal department and business unit, engagement of foreign counsel) and common boilerplate clauses
  • Contract administration and payment mechanisms in long-term contracts
  • 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
  • Chains and networks of contracts (subcontracting, back-to-back contracting etc.) and collaboration forms (different types of joint ventures)
  • Performance bonds and guarantees, insurance matters
  • Risk and liability: liability for delay and defects, remedies, limitations and exclusions of liability, agreed liability regimes
  • Claims and dispute resolution, civil litigation contra commercial arbitration, adversarial processes contra mediation, hybrid and multi-tiered processes

 

The methodology employed is a combination of legal dogmatics and the comparative method.

The course will combine interactive lectures, including one by a practitioner guest speaker, with individual and group discussions as well as exercises of contract drafting and negotiation.

Learning Outcome

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 books:

- Joseph Lookofsky and Ketilbjørn Hertz, EU PIL - European Union Private International Law in Contract and Tort, Djøf Publishing, Copenhagen, 2015

- Joseph Lookofsky, Understanding the CISG, 4th (worldwide) ed., Djøf Publishing, Copenhagen, 2012

- Fabio Bortolotti, Drafting and Negotiating International Commercial Contracts – a practical guide, International Chamber of Commerce, Paris, 2013

- Ellis Baker, Ben Mellors, Scott Chalmers, Antony Lavers, FIDIC Contracts: Law and Practice, Informa, Oxon, 2013

- Axel-Volkmar Jæger, Götz-Sebastian Hök, FIDIC – A Guide for Practitioners, Springer, Berlin-Heidelberg, 2010

- Roger Fisher, William Ury and Bruce Patton, Getting to Yes – Negotiating an Agreement without Giving In, Random House Business Books, London, 2012

Additional materials provided by the teacher.

Detailed information on the materials used and where to find them will be posted in the course’s room on the faculty’s e-learning platform no less than one week before the start of the course.

The course builds on the knowledge of contract law and law of obligations acquired during the first part of the law studies. The course will help the students develop the following competences:
- 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
The course does not require that the students have completed any other MA course. Since the course deals with some contractual features which are characteristic of long-term contracts, it is an advantage – but absolutely not a requirement – that students have followed the elective CEVIA course Længerevarende kontraktforhold at bachelor level.
- Lectures
- Group discussions
- Case studies (case analysis and presentation)
- Drafting and negotiation exercises (individual and in teams)

A larger part of the course will be composed of practical exercises where the students will be asked to analyse legal decisions, draft (and, towards the end of the course, negotiate) contract clauses as well as to present their findings to their peers and to the course instructor. The students’ knowledge on the theoretical parts of the course will be continuously tested through short quizzes and exercises.
The course will be taught in English and on the basis of course materials in English. A reasonable command of English is thus recommended.
Oral
Individual
Collective
Continuous feedback during the course of the semester
Feedback by final exam (In addition to the grade)
Peer feedback (Students give each other feedback)

 

The students’ knowledge on the theoretical parts of the course will be regularly tested through short quizzes and exercises so that the students will be able to assess their level on a continuous basis.

Credit
15 ECTS
Type of assessment
Oral examination, 20 minutes
Oral exam with preparation, preparation 20 minutes, examination 20 minutes
Marking scale
7-point grading scale
Censorship form
External censorship
Exam period

Week 23 - Monday, Tuesday, Wednesday, Thursday

Re-exam

Week 31 - Wednesday, Thursday, Friday

  • Category
  • Hours
  • Seminar
  • 56
  • Preparation
  • 356,5
  • Total
  • 412,5