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Trans-Jurisdictional Transactions
This three-part series has analyzed the complex issues that arise throughout the dispute resolution process of cross-border transactions. In this final installment, we look to the beginning and discuss how proper planning and effective drafting of the dispute resolution provisions can infuse predictability and reliability into cross-border business deals.
The Drafting Phase
A contract is intended to grind predictability into the culmination of the deal. Parties negotiating cross-border agreements rightfully place their greatest emphasis on memorializing the business terms, such as price, delivery, and warranties. Still, the success of all business deals ' international or otherwise ' is distilled to the simple concept of consideration, i.e., what each party receives from the deal. When that consideration breaks down, the injured party turns with fervor to collect its due consideration. Yet, because of the discomfort of discussing dispute resolution concepts before negotiations are concluded, deal-makers frequently pass on discussing the ugly concept of dispute resolution and simply cross their fingers and hope a dispute never arises. Common sense, however, dictates that to maximize the transaction's consideration, the negotiation over the dispute resolution provisions should be competently negotiated as a significant business term.
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