International Contracts: from deal to design, from draft to disputes

• Our Best Efforts to Define Best Efforts
• Negotiation: Deals and Disputes
• Pre-contractual good faith
• Culpa in Contrahendo
• Preliminary Documents
• Capstone: Drafting Exercise: Letter of Intent or MoU

This module focuses on the pre-contractual stage, from initial negotiations to preparation of the various preliminary documents that often go before the final contract itself.

• Does it make sense to include a best efforts clause?
• Do I have to act in good faith when negotiating a deal?
• And I always thought that a Letter of Intent was less binding than a Memorandum of Understanding…

• Structure and Organization
• Building Blocks
• Introductory Clauses
• Operative Language
• Boilerplate
• Third party beneficiaries, assignment, and delegation
• Capstone: Worst Contract in the World?

The second module covers the basics of contract structure, organization and drafting, focusing on the components that make up a contract and the terms used to signal each component. We will also consider contract boilerplate, the clauses which usually appear at the end of your document but are never looked at until there’s a problem.

• So, what’s the difference between will and shall, anyway?
• If I put a term in the recitals, is it always non-binding?
• And what am I really prohibiting if I restrict assignment of the entire contract?

• Risk Assessment
• Representation, warranty, condition
• Managing risk inside and outside the contract
• Between signature and closing
• Third party approvals and post-contractual covenants
• Capstone: Malldevco

A contract is just one of the tools we can use to manage risk in a transaction. This module covers some risk-management mechanisms both inside and outside the agreement. We will also see what actions need to be taken as the legal relationship between the parties evolves over time.

• Since representations and warranties always seem to go together, are they the same thing or different?
• If penalty clauses are unenforceable but liquidated damages are OK, what’s the difference between them?
• Is a contract clause always the best way to manage risk?

• Litigation
• Mediation
• Conciliation
• Arbitration
• ADR Clauses
• ICC Arbitration
• Terms of Reference
• Capstone: Arbitration Case Problem

While we hope that contracts will be performed and each party obtains what it sought from the deal, we know this is not always the case. This module covers the alternatives available to a party when a contract is breached, either in courts or using one of the methods of alternative dispute resolution.

• Is a conciliator the same as a mediator?
• What happens if I need to apply foreign law in a dispute being litigated before a US court?
• I always thought arbitration proceedings were confidential…