15/6/18 Top Ten Tips in Drafting and Negotiating Contract (Part 4)

  1.  Personnel

Be attuned to distinctions in legal personnel in overseas jurisdictions. For example, in Japan, both bengoshi (Japan-qualified lawyers) and Japanese nationals with overseas qualifications work with English-language contracts. Don’t be surprised if a member of one group in a given jurisdiction has views regarding the strengths and weaknesses of the different groups. And in some countries and companies, contract managers might exert as much influence as the lawyers.

  1.  In Negotiations, Expect the Unexpected

In international transactions, you might find yourself negotiating issues that you hadn’t expected to encounter. For example, the other side might insist that “force majeure” be grounds for nonpayment of existing debts, or that liability for breaches of confidentiality be capped. It might be that the person on the other side isn’t familiar with how such deal points are usually handled. That’s not necessarily to their discredit—how “boilerplate” issues are handled in domestic U.S. transactions can be more a matter of habit than logic.

  1.  Negotiation Logistics

Even in domestic transactions, the back-and-forth between the parties can be a source of frustration. That can be aggravated when you add an international component.

For example, erratic use of Microsoft Word’s “track changes” feature can make a draft misleading, in that changes aren’t marked or it’s not clear who made changes. If a counterparty in an overseas jurisdiction isn’t used to technology for showing changes, discuss with them beforehand procedures to follow when exchanging drafts—the simpler the better.

If the parties are in different time zones, you might gain credit—credit that you could call on at some other point in the transaction—by agreeing to schedule a call at a time that is during regular working hours for the other party but less convenient for you. (Mind you, nothing is gained by your being half-asleep during that call!) Also, if you agree to fly from the U.S. to Lahore for a key face-to-face meeting, that might help negotiations go more smoothly and earn you a measure of goodwill.

Remember also that in some cultures it’s expected that meetings begin with a prolonged exchange of pleasantries.