Drafting and Negotiating International Contracts

Because of globalization, contracts are frequently concluded between parties from different countries and legal traditions. Such international contracts are 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. The course adopts the perspective of the contract drafter or negotiator and uses real life examples and case studies. Since the teacher practiced mainly in the area of (international) construction law and since the course is based on her practical experience, the course has a strong focus on international construction law, but many contractual mechanisms presented in the class are also used in other areas of law.

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
• 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.