Commercial Law

In a recent development that will likely be of interest to lessors and other parties conducting business in Europe, the American Bar Association has urged the U.S. government to sign, ratify, and implement the Hague Convention on Choice of Court Agreements (the 'Choice of Court Convention'). The Choice of Court Convention accomplishes many goals that have long been sought by the United States. Most importantly, it provides a mechanism for the recognition of certain judgments rendered by U.S. courts, namely judgments resolving a dispute arising out of a commercial agreement that was submitted pursuant to an exclusive choice of court agreement. (See American Bar Association, Recommendation adopted by the House of Delegates (Aug. 7-8, 2006), at www.abanet.org/intlaw/policy/investment/hcca0806.pdf.)

In this age of regulatory and prosecutorial focus on corporate compliance, companies increasingly are relying on special outside counsel to conduct internal investigations into potential wrongdoing. Sometimes, these investigations are prophylactic: A company may want to understand the consequences of its current hiring practices so it can develop standard operating procedures to better ensure compliance with anti-discrimination laws. Because this sort of proactive, self-reflective investigation generally proceeds without outside scrutiny, counsel has the time and space to conduct a deliberate investigation.

The current popularity of real estate as an investment class has fostered a favorable environment for the sale of shopping centers, among other properties. With demand seeming to outstrip supply and competition fierce among institutional purchasers, many shopping centers are now sold before the retail spaces therein are fully leased and income producing. Because institutional purchasers typically require a minimum level of return on their investment dollar, they typically will not accept full responsibility for the completion of project leasing. Accordingly, in such early sale transactions, sellers frequently retain some measure of post-closing leasing risk.

An improperly drafted description of the premises can produce unintended results such as changes in the rent, the granting of unintended tenant rights, or even termination of the lease.

Every successful entrepreneur understands that you must know your audience before making a business pitch. This same cardinal business rule applies to commercial office developments and renovations; a developer or owner interested in pursuing a green building project needs to be prepared to justify the green rationale to different audiences having a stake in the project. Investors and lenders will want to know how the green components impact development and operational costs. Prospective tenants will have an entirely different focus — they will want to know how the green features will enhance the company's image or impact employees' use of the space.

With the amendments to the Federal Rules of Civil Procedure (FRCP), precedent-setting adverse sanctions against some of the largest corporations and growing regulatory requirements, the need to become 'litigation ready' has been like a large snowball, gaining mass and momentum. The indisputable need to become litigation ready has arrived, and the snowball continues to get bigger and faster as it heads down the mountain. With the FRCP amendments, Dec. 1 has come and gone and guess what? Nothing has exploded.

In-depth analysis of important verdicts.

Discussion of important cases.