Formación a Medida - Aprenda el uso, la terminología y las expresiones del INGLES JURIDICO PARA LA CONTRATACION INTERNACIONAL


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Programa

I. LANGUAGE ADVICE

  Style advice

  • Relatively short sentences and paragraphs
  • Plenty of white space
  • Active verbs
  • Few adjectives and adverbs
  • English is simpler than Spanish. Your English should be extremely simple
  • Number and/or alphabetize all paragraphs/subparagraphs etc. so that each section can be conveniently cited

  Use and misuse of technical legal terms: refrain from using technical terms if you are not certain of their meaning and proper usage

 

II. THE BASICS OF THE ANGLO-AMERICAN CONTRACT

For the Anglo-American legal contract, there rarely is aneed to cite a lot of legislation or to register contracts

Government Influence: Common Law/Civil Law

  • Tradition/Stare Decisis
  • Public Policy: e.g. Labor Law (Civil Law protects jobs!)
  • Common Law and consumers
  • Tendency to enforce more Contracts at Civil than at Common Law
  • Greater use of extraneous and parole evidence at Civil Law
  • Role of Jury (Evidence/Parole Evidence)

Identify Parties Thoroughly

Foreword (Premessa): State reason for the Contract

  • ('Whereas...'-but you certainly do not have to use this word)
  • 'Why are we here?' 'Why do we want to conclude this contract'. This should be a very short story, not a novel

Offer/Acceptance/Purpose/Consideration: in detail, what are the parties giving to or doing for each other, i.e., money or some other 'quid pro quo'

Counteroffers: Battle of the Forms

Contracts of adhesion or shrinkwraps (for big complex deals nowadays, there is more negotiation, than offer/acceptance)

Is Contract for a Legal Purpose?

'Essential Terms' of a Deal: quantity, quality, price, when delivered, where delivered, who delivers, who insures, when payment, how payment?

What happens when there is Ambiguity in the Contract?

  • Court intervention to imply a contract or to throw out a contract
  • Even for essential terms such as price, the court/adjudicator may intervene
  • Importance of prior dealing

In the interests of (or against whom) should the ambiguities in a Contract be interpreted?

Letter of acceptance

'Anonymous' signatures: who signed

 

III. PRINCIPAL CONTRACT CLAUSES

Dispute Resolution Clause: Mediation, Arbitration, Litigation Clauses

'Whole Contract' or 'Entire Agreement' –so–called 'Integration Clauses'

Choice of Law Clauses: Vienna Convention on the International Sale of Goods 'CISG', Brussels Convention on Jurisdiction, Lex Mercatoria, INCOTERMS

Avoid Penalty Clauses

Payment Clause

Controlling Language Clause if the contract is in more than one language

Number of Originals or Counterparts Clause

Where to send Notices Clause

Assignment of Rights/Delegation of Duties

Condition Precedent/Condition Subsequent

Force Majeure

  • Explain your own definition of this term
  • What occurrences do you wish to include?
    * Related doctrines 'Frustration' and 'Duress' and Reliance' damages
    * What do we mean when we say 'doctrine' in common law?

Optional Clauses

  • Legal/Attorney’s Fees Clause
  • Consequential Damages Clause (Liable or not liable for)
  • Interpretation of Headings Clause
  • Definitions Clause
  • Represent and Warrant Clause
  • Good Faith Clause (as opposed to Bad Faith-the standard is an objective one: what does the reasonable man think?)
  • Disclaimer (of liability) Clause
  • Payment of Taxes Clause
  • Export/Import Permits
  • Time is of the Essence Clause

 

IV. FUNDAMENTALS OF NEGOTIATION

Fundamentals of Negotiation

  • Communication in a cross-cultural environment (misunderstandings)
  • Importance of knowing and using your 'Best Alternative to a Negotiated Agreement' (BATNA) in negotiations
  • Win/Win... creating value: be hard on the problem, not on the opponent.

Pre-Contract: Letter of Intent/Memorandum of Understanding/ Letter of Comfort

  • What purpose?
  • Importance of correct wording: It does not matter so much what you call it as it does what the document says
  • How to avoid having your intentions misinterpreted
  • Negotiating in good faith vs. in bad faith

 

V. BREACH/AVOIDANCE OF CONTRACT AND AFTER

For what reasons can one breach/avoid and how should one communicate it?

How much time? What the contract says or, what is 'reasonable' under the circumstances

Minimize damages

The Reasonable Man

 

VI. ADR/INTERNATIONAL CONTRACT LITIGATION: THE IMPORTANCE OF DISPUTE RESOLUTION IN THE INTERNATIONAL CONTEXT

Arbitration/mediation ADR have to be considered viable alternatives

Discuss Arbitration/ADR vs. Litigation

Examine the drafting of dispute resolution clauses: negotiation, mediation, arbitration




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