Liabilities and Damages in International Commercial Agreements

Reduce your exposure to risk and liability in your contracts in two essential days

Why you should attend this seminar

Now is not the time for weaknesses in your commercial contracts when risk and liability have to be kept to a minimum. During the negotiation of international commercial agreements, the exact exposure in relation to damages is often not properly identified, anticipated or understood. Frequently, the parties are:

• Unaware of the true nature of the law of damages in the chosen governing law of the contract
• Unaware of the fundamental differences of approach in the Common Law and Civil Law systems
• Unaware that their attempts at limiting or excluding their liability may be ineffective

This specialist two-day seminar has been expressly developed to focus exclusively on this subject. The seminar offers a wide-ranging and detailed understanding of the law of damages under English law with comparisons to Civil Law jurisdictions. Presented by international specialists in the field, the seminar shall enable participants to effectively draft and negotiate contracts with knowledge and confidence.

Who should attend this seminar?

• Lawyers working in business, government and private practice
• All those working in a legal context but not necessarily having law as their underlying professional qualification, including contract managers, commercial managers and directors

What are the objectives of the seminar?

As a result of attending you will be able to:

• Identify the potential risks presented by international commercial agreements
• Understand what is recoverable and why
• Be able to effectively address the exclusions and limitations of liability
• Familiarise yourself with the remedies available, and the most advantageous situation and context in which to tactically apply them
• Master the impact of time limits, Force Majeure and the burden of proof
• Grasp the quantum of damages under Common and Civil Law

Comparative workshop sessions

A special feature of this programme is the comparative workshops sessions led by internationally qualified facilitators where specific clauses will be examined through their different interpretations in varied jurisdictions.

Introduction

• Key differences in civil and common law
• Identifying potential legal risks
• Fundamental distinctions
• Emerging trends
• Drafting approaches
• Introduction to comparative exercises Pre-contract agreements – background and drafting
• NDA’s, MoU’s, Letters of Intent
• Pre-contractual liability
• Good faith
• Confidentiality agreements – binding?
• Templates of pre-contract documents
• Re-drafting template documents

Time limits

• What is limitation?
• The purpose of a limitation period
• Computation of the period
• Key English limitation periods
• Special cases
• Personal injuries and death
• Latent damage
• Standstill/tolling agreements
• Continuing wrongs

Exclusions, limitations and maximum liability

• Liability for personal injury or death
• Liability for late delivery, performance or similar
• How to limit the maximum aggregate damages
• Fundamental breach v breach of fundamental obligation
• Specific examples of limitation of liability clauses from different jurisdictions

Force Majeure, Frustration and Economic Hardship

• The concepts of Force Majeure and Economic Hardship
• Doctrine of Frustration
• Changing circumstances and unforeseen events
• Hardship clauses
• Defining the events
• Typical claims
• The termination period
• Re-execution/re-negotiating
• The legal effect

Retention of title clauses and similar securities

• Purpose of the clauses
• Legal analysis
• Sample clauses
• Recent cases
• Other securities

COMPARATIVE WORKSHOP SESSION: PART 1
Practical workshop where, using a case study as a basis, clauses will be examined that are interpreted differently in different jurisdictions, including:

• Force Majeure
• Exclusion clauses
• Approaches to interpretation

Direct, indirect damages and consequential loss

• Types of damages
• Damages for breach of contract
• Back-to-back contracts
• Physical damages
• Costs and expenses
• Waste
• Loss of profit
• Consequential losses and expenses
• Loss of opportunity, expectation and amenity
• Examples of clauses from common and civil law

Q & A interactive session – identifying types of damages

Liquidated damages and penalties defined – comparative analysis

• Recoverability of liquidated damages and penalties
• Rules of interpretation and evidence requirement
• Types of contract to which the rules do or do not apply
• Types of clause to which the rules do or do not apply
• Templates with comparative clauses

Choice of law, jurisdiction and arbitration: Part 1 – choice of law and jurisdiction

• Legal basis
• Applicable law in the absence of choice
• Limits of choice of law
• Natural place of jurisdiction
• Choice of forum clauses
• Limits of choice of forum clauses

Choice of law, jurisdiction and arbitration: Part 2 – arbitration and dispute resolution

• Choice of arbitration; drafting of an arbitration clause; avoiding pathological
  clauses
• Alternative dispute resolution – conciliation, mediation and ADR
• Enforcement: The New York Convention and beyond

Expert Speaker

Arun Singh (PROF) OBE, FRSA is an international lawyer and consultant to an international law firm. He was formerly a partner and Head of Commercial Law at KPMGLegal and partner at Masons (now Pinsent Masons).

Arun has advised on disputes and collaborations in a wide range of jurisdictions including inn Europe, countries in West and East Africa, India, Bangladesh, China, Hong Kong, Saudi Arabia, UAE, Qatar, Pakistan, Libya, Jordan, Syria, the U.S., Caribbean, Russia, Israel, Lebanon, Egypt, Thailand, Singapore. Arun is cited and ranked in Chambers Guide of the World’s Leading Lawyers. He concentrates on international investment, joint ventures, licensing of technology, research and development, M&A, energy, outsourcing and corporate governance in developed and emerging markets. He also handles international legal risk management matters. Arun advises a range of international organisations. He is a Visiting Professor in International Business, Leadership and Negotiations at Salford University Business School, Senior Associate at Oxford University’s Institute of Legal Practice and teaches international leadership and negotiations at the University of Cambridge. He has facilitated programmes in Europe, Asia, the Middle East and the U.S.

He is a recognised corporate educator and a non-executive director of two international investment companies one of which is listed on the London Stock Exchange chairing the Audit Committee and Investment Committee. He was appointed an OBE by HM the Queen in January 1999 for services to international trade, investment and intercultural management. Arun is an editor and contributor to a number of publications, including Thorogood’s Special Report on Business and Contract Law, facilitator for company programmes and corporate speaker to conferences.

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This course qualifies for the following CPD programmes:

• Solicitors Regulation Authority: 11.00 hours
• General Council of the Bar: 11.00 hours
• Cert: 11.00 hours

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• ArcelormIttal France
• ATR
• Cisco Systems GmbH
• Debiopharm SA
• Dell
• DSM Food Specialities BV
• Elion Ettevdtted Aktsiaselts
• ESA/ESTEC
• Eurogenetec SA
• First Data
• Hermes Softlab DD
• Ingram Micro Europe BVBA
• Mattel UK Ltd
• Metso Power Oy
• Müller Dairy (UK) Ltd
• NOKIA CORPORATION
• Novellie, Verardi & Mitchell
• PetroFina SA
• Post Danmark AS
• SAS
• SCom Group Ltd
• Seadrill
• Shell UK Ltd
• Sony Ericsson Mobile Communications International AB
• StatoilHydro ASA
• Studio Legale Negrini
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• UC4 Software, Inc
• Zagrebacka Banka dd