Magna Charta the interviews ING 036

THE

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CHARTA

INTERVIEWS

ISSUE 036 • november 2016

MAGNA

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START 10 APRIL 2017

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MAGNA CHARTA THE INTERVIEWS FEATURES

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EDITORS

LETTER

WHO IS MARJON IJPELAAR

WHO IS K AMILA VAN DER page

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t /m

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POL

WHO IS ARLET TE HOFSTAD - BOOT

WHO IS HELEN SWAFFIELD

QUESTIONS & ANSWERS

I S S U E 0 3 6 • NOV E M B E R 2 016

THE INTERVIEW: COMMON LAW OR CIVIL LAW? WHEN THE DEVIL IS IN DEFINITION

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INTRODUCTION I N T H I S N E WS PRI N T F O U R L AW Y ER S W O R K I N G W I T H VA RI O U S A S PEC T S O F T H E I N T ER N AT I O N A L C O N T R AC T L AW C O M E TO G E T H ER TO D I S C U S S T H E D E V ELO PM EN T S A N D C H A L L EN G ES .

W E , M EE T E AC H OT H ER , AT T H E I N G H E A D Q UA R T ER I N A M ST ER DA M . A LT H O U G H A L L O F U S D E A L O N A DA I LY B A SI S W I T H I N T ER N AT I O N A L C O N T R AC T L AW, W E A L L C O M E F R O M D I F F ER EN T W O R K I N G EN V I R O N M EN T S , D I F F ER EN T LI N E O F B U SI N ES S A N D E V EN D I F F ER EN T C O U N T RI ES .

T H I S M A K ES T H E D I S C U S SI O N E V EN M O R E I N T ER EST I N G A N D LI V ELY. T H ER E A R E F E W PA R T I C U L A R ST I M U L AT I N G TO PI C S T H AT A R E TO U C H ED U P O N; TO N A M E O N E A M O N G OT H ER S: A R B I T R AT I O N T R EN D A N D D E V ELO PM EN T. W E H O PE YO U W I L L EN J OY I T! K A M I L A VA N D ER P O L H E A D O F D ERI VAT I V ES T E A M , I N G B A N K

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WHATEVER THE WORLD THROWS AT YOU, TAKE IT ON

www.avdr.nl

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MARJON IJPELAAR

M A R J O N I J P E L A A R (19 8 4) S TA R T E D H E R C A R E E R A F T E R O B TA I N I N G A M A S T E R D E G R E E I N D U T C H L AW A N D E U R O P E A N L AW A S L E G A L C O U N S E L AT G R O N T M I J (SWECO). IN DECEMBER 2010 SHE CHANGED TO DAF TRUCKS NV IN EINDHOVEN, A N D R E C E N T LY S H E I S P R O M O T E D T O A S E N I O R L E G A L C O U N S E L P O S I T I O N .

D U R I N G H E R F I R S T Y E A R S AT DA F S H E A DV I S E D T H E C A P T I V E L E A S I N G C O M PA N Y PA C C A R F I N A N C I A L E U R O P E O N A L L L E G A L M AT T E R S . S I N C E 2 0 13 SHE IS RESPONSIBLE FOR DAF’S DISTRIBUTION AGREEMENTS, INTELLECTUAL P R O P E R T Y R I G H T S , P R O D U C T L I A B I L I T Y, C O M P E T I T I O N L A W A N D C O R P O R AT E HOUSEKEEPING.

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K A M I L A VA N D E R P O L

K A M I L A (19 7 8 ) I S S TA R T E D H E R L E G A L C A R E E R I N P O L A N D ; S H E H A S W O R K E D F O R P O L I S H A N D G E R M A N B O U T I Q U E L A W F I R M S S P E C I A L I S I N G I N B O A R D C O N T R A C T, COMMERCIAL L AW AND COMMODIT Y HEDGING. AT T H E S A M E T I M E AT T E N D I N G A J U D G E B A R I N T H E B R E S L A U R E G I O N . I N 2 0 0 6 S H E H A S S TA R T E D W O R K I N G F O R I N G B A N K N V, I N T H E R I S K D E PA R T M E N T, N E G O T I AT I N G F I N A N C I A L M A R K E T S D E R I VAT I V E S C O N T R A C T S . S O O N A F T E R MOVING TO LEGAL FINANCIAL MARKETS OF ING BANK NV WHERE SHE NOW HEADS T H E A M S T E R DA M D E R I VAT I V E S L E G A L T E A M , W H I C H D E A L S W I T H B R O A D VA R I E T Y O F I N T E R N AT I O N A L D E R I VAT I V E S M AT T E R S; I N C L U D I N G B U T N O T L I M I T E D T O I S DA , F I N A N C E L I N K E D I S DA N E G O T I AT I O N S O N B E H A L F O F I N G B A N K N V; G L O B A L PRODUCT COVERAGE.

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A R L E T T E H O F S TA D - B O O T

A R L E T T E H O F S TA D - B O O T (19 8 3 ) I S L AW Y E R ( S E N I O R A S S O C I AT E ) AT T H E C O R P O R AT E & C O M M E R C I A L L I T I G AT I O N P R A C T I C E AT N A U TA D U T I L H N .V. I N A M S T E R DA M . S H E L I T I G AT E S A N D A DV I S E S I N T H E F I E L D O F C O N T R A C T L AW. A R L E T T E R E P R E S E N T S N AT I O N A L A N D I N T E R N AT I O N A L C L I E N T S I N D I S P U T E S O N COMMERCIAL CONTRACTS. A R L E T T E G R A D U AT E D F R O M T H E FA C U LT Y O F L A W O F L E I D E N U N I V E R S I T Y W H E R E S H E O B TA I N E D H E R M A S T E R ' S D E G R E E I N C I V I L L AW I N 2 0 0 7 ( C U M L A U D E ) A N D S T U D I E D AT T H E U N I V E R S I T Y O F L O N D O N . I N 2 0 0 9 S H E O B TA I N E D A M A S T E R ' S D E G R E E I N E U R O P E A N L AW AT T H E U N I V E R S I T Y O F A M S T E R DA M A N D J O I N E D N A U TA D U T I L H I N T H E S A M E Y E A R . A R L E T T E C O M P L E T E D A N I N - D E P T H S P E C I A L I S AT I O N C O U R S E O N N AT I O N A L A N D I N T E R N AT I O N A L C O N T R A C T S ( C U M L A U D E ) AT G R O T I U S A C A D E M Y I N 2 0 15 .

S H E I S A M E M B E R O F T H E A S S O C I AT I O N F O R D I S T R I B U T I O N , F R A N C H I S E A N D A G E N CY L AW ( V E R E N I G I N G D FA ) A N D T H E D U T C H C O R P O R AT E L I T I G AT I O N A S S O C I AT I O N ( V E R E N I G I N G C O R P O R AT E L I T I G AT I O N ) . A R L E T T E I S A D M I T T E D T O THE AMSTERDAM BAR.

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H E LE N SWA F F I E L D

HELEN IS A PRACTISING BARRISTER AND MANAGING DIRECTOR OF HELEN S W A F F I E L D A S S O C I AT E S LT D . H E L E N H A S O V E R 2 0 Y E A R S E X P E R I E N C E I N COMMERCIAL AND PUBLIC L AW INCLUDING COMMERCIAL CONTRACTS AND R E G U L AT I O N , E U L A W, I N T E R N AT I O N A L O U T S O U R C I N G A N D P R O C U R E M E N T, C O M P E T I T I O N , F R A N C H I S I N G , S U P P LY A N D D I S T R I B U T I O N A N D I P R . H E L E N A P P E A R S I N T H E H I G H C O U R T, C O M M E R C I A L C O U R T A N D T E C H N O L O GY A N D C O N S T R U C T I O N C O U R T A S W E L L A S C O M M E R C I A L A R B I T R AT I O N S A N D A D J U D I C AT I O N S . H E L E N H A S A F R E N C H L AW A C C R E D I TAT I O N A N D H A S A D I P L O M A I N E U L AW F R O M T H E U N I V E R S I T Y O F S T R A S B O U R G . H AV I N G W O R K E D AT B O T H T H E E U C O M M I S S I O N A N D T H E E U C O U R T, S H E S P E A K S F R E N C H A N D R E A D S S PA N I S H . H E L E N H A S A N E X T E N S I V E P R A C T I C E I N L I T I G AT I O N , C O M M E R C I A L C O N T R A C T S A N D S K I L L S .Â

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STUDI BURGERLIJK P

12 SEPTE

K Mr. drs. P.J.J. Vonk

senior raadsheer Hof Den Haag, rechter-plaatsvervanger

Rechtbank Noord-Holland

KORT GEDING 44 | AVDR webinars abonnement 2017

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mr. A.V.T. de Bie

raadsheer Hof Amsterdam

CONTRACTENRECHT

EREIS PROCESRECHT

EMBER 2017 – 16 SEPTEMBER 2017

KRAKAU Mr. drs. G. van Rijssen

raadsheer Hof Arnhem-Leeuwarden

HOGER BEROEP

Mr. R.J.Q. Klomp

raadsheer-plaatsvervanger Hof Amsterdam

SCHADE VERGOEDING

AVDR webinars abonnement 2017 | 45

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THE

INTERVIEW COMMON LAW OR CIVIL LAW? WHEN THE DEVIL IS IN THE DEFINITION

For companies active in cross border trade two important trends are at work: the burden of regulation is increasing and at the same time an international harmonization of rules is going on. Negotiating and drafting a contract is getting more complex because of this, but it also creates new possibilities for amending to local rules and even mixing common and civil law.

I’ll start my questions with you, Marjon. Can you give me one, just one, important development in international contract law? What do you think is going to happen?

“In general, I think there is a clear trend in international contract law to choose for arbitration instead of national courts”, says Marjon IJpelaar, senior legal counsel at DAF Trucks NV. “Especially in relation to agreements with parties located outside the European Union. In Europe there is generally a tendency in alignment of general principles of contract law especially in B2B transactions, which makes it easier to explain certain clauses of the agreement, as there is a more common understanding.”

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Arlette Hofstad-Boot, senior associate at the commercial litigation practice at NautaDutilh N.V., believes : “As a result of harmonization between member states and evermore European regulation, there is more and more influence of European contract law. In recent case law, there is high emphasis on protecting or safeguarding the rights of consumers. That’s the main focus from Europe. You have to deal with this in business to business contracts involving consumer products and also in business to consumer contracts. There is an ever increasing cross border trade and contracts are becoming more and more complex because of this growing European dimension.”

Rapprochement with the civil jurisdiction More complex and more European.

Helen, what do you think about the trends in common law?

“I think arbitration is especially interesting from a common law perspective,” says Helen Swaffield.

“Brussels regulation, which deals with jurisdiction, is completely different to arbitration. But it has improved the enforceability of judgments across Europe so much, that it is probably winning the case for civil justice, as distinct from arbitration. But if we are choosing arbitration, my colleagues and I are looking at the extent to which we can enforce the award. And that very much depends on the local situation. So whilst you do have plenty of choice, you still have the problem of enforcement. So if you choose India, if you choose, Saudi, you still have to understand what the enforcement possibilities are.”

Emphasis on arbitration

Kamila, what’s your opinion about the change, the development, the trend?

“I would definitely agree with all the colleagues here,” says Kamila van der Pol, head of the Derivatives Team of ING Bank in Amsterdam. “First, we see more and more cross border regulations, many of them coming from the EU. Of course they directly change the national law. And I

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think this is the trend we see, especially we in the world of banking. We’ve already seen a huge amount of legislation coming in. At the same time, I see a lot of arbitration. That is absolutely a trend. In other parts of the world, like the Middle-East, you see this trend even more emphasized.”

If the choice is for arbitration, then for which country and for which institution? What do you know about the possibilities once you’ve made this choice?

“I think arbitration is especially interesting from a common law perspective,” says Helen Swaffield.

“Brussels regulation, which deals with jurisdiction, is completely different to arbitration. But it has improved the enforceability of judgments across Europe so much, that it is probably winning the case for civil justice, as distinct from arbitration. But if we are choosing arbitration, my colleagues and I are looking at the extent to which we can enforce the award. And that very much depends on the local situation. So whilst you do have plenty of choice, you still have the problem of enforcement. So if you choose India, if you choose, Saudi, you still have to understand what the enforcement possibilities are.”

The contractual crossroads

Arlette, what are, in your view, the challenges for 2016?

“I think the major challenge is to stay up to date with all developments. The European legislation, like Helen just mentioned, the Brussels I-bis Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, but also other regulations and harmonization rules. So the real challenge is to be aware of the things that will come. Prevention is better than cure, so take this into account when drafting contracts, but be also fully aware of this wisdom when litigating about a contract.”

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And what does that mean from a NautaDutilh perspective?

“'For us at NautaDutilh, that means a constant look out to keep us up-to-date so we can advise our clients on the latest developments. Each week we have at least one meeting where we discuss all developments in the field of contract law and we read the specialized magazines.

For our clients we organize the so called ‘NautaDutilh Update seminars’, like the one we had last April, about (international) contract law. In October this year we will have another NautaDutilh Update about a different topic.

And of course we send our clients newsletters.”

The same challenges for DAF Trucks, Marjon?

“Yes, for a company lawyer they are the same. The way we try to stay updated, is reading newsletters from law firms and visit seminars which give a real and practical update on the latest developments.”

And for you, Helen?

“For us, the challenge for 2016 has been, in a word, Brexit. In fact it’s more than a challenge, it’s a crossroad, contractually. It will have a major impact on contract law, because so much of it, as my colleagues have said, is now European.“

Last but not least, Kamila, what do you think is the major challenge for you?

“For us, it will definitively be dealing with the changes coming from regulatory sites into the market world of derivative, and one in particular: the implementation of EMIR. This is big time impacting of course in derivatives contracting on the international market. We, in sales, will have to implement only certain pieces of EMIR and that on itself will have a big impact on our work.”

Don’t let yourself be rushed

What are the do’s and don’ts regarding contract negotiation? I would like to have a short answer, only one do and one don’t. I start once more with Kamila.

“Are you referring to content or to the way we are negotiating in international contracts? It’s a good but broad question. I’ll refer to the way we negotiate. For us, it is very important that we always check the enforceability,

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whether a guarantee is embedded in a contract. Before you agree on something, you will have to decide the choice of law. That’s the do, I think. The don’t is to let yourself be rushed to negotiate. You definitely should take your time and read everything very carefully. Your counterparty may involve a law firm which drags you into pretty complex negotiations. Before you know, you have agreed to something which is not enforceable for your site.”

“The do is indeed to check if your contracts are enforceable under local law,” Marjon comments. “For instance, we have dealer agreements, which always have to be checked if they are competitive with the local laws, When negotiating, you need to understand what exactly you’re negotiating about, so you can explain the counterparty why this or that clause needs to be in. In my experience, your proposal is better accepted if you have a real valid explanation. So not really knowing what you’re talking about and not being able to explain the reasoning behind It, is a real don’t.”

The context of the contract

You work with international contract, that’s English law, or maybe even an English contract. Can you see a clear difference with Dutch contracts?

Could you say: this is something I typically read like this, but in common law it means completely the opposite?

Helen gives an example: “Take liquidated damages. Until the recent changes, they could be very different and be treated very differently in the different jurisdictions. But really, you’re talking about interpretation, and you have to understand the context of the contract, the background to the contract, the reasons for the contract, the purpose for the contract. And so, my do would be to fully understand what the parties are trying to achieve. My don’t is, do not forget to consider the worst case scenario. Ask your client, your organization, what could possibly go wrong? And work back from there.”

Arlette has another example: “The entire agreement clause. I always get a lot of questions about that one.

Entire agreement clauses have a different meaning in common law than in civil law countries. From a Dutch law perspective, you look beyond the strict wording of the contract itself and try to identify the intentions of the parties. For instance, statements made in the negotiations are relevant for the interpretation of the contract. So under

Dutch law, you can’t say, the document containing the contract is the entire and only agreement. You have to take all circumstances around it into consideration. And from a common law perspective - if I understand Helen correctly -there is more emphasis on the wording of the contract.”

A private dictionary between the parties

Helen remarks that this leads to an interesting situation: “Because we have now two opposing supreme court decisions. One which says, ‘look at the background’, and the other one which says, ‘look at the detail. Look at the words in the contract and nothing else’. That’s common law. We are looking at it on a case by case basis. So it’s very flexible ánd unpredictable.”

The same is true regarding a termination clause, says Arlette: “Be careful when drafting a termination clause, because under Dutch law termination can have different meanings. There’s termination in the sense of ‘opzegging’ but there’s also termination for cause in the sense of 'ontbinding' in case of a breach of contract. Then you are dealing with a completely different rule and a different clause in the Dutch Civil Code, with different implications as well. So if you’re drafting a contract under Dutch law but in English language and you just mentioned termination, you will definitely get misunderstandings about the exact meaning. Of the do’s when negotiating and drafting contracts, one of them is absolutely primordial to be: to be clear and specific about your intentions. This way you prevent discussions afterwards when you go to court or even before that, when you’re are just quarreling about the interpretation of the contract.”

Helen points out the helpfulness of definitions in this respect: “I know they tend to make the contract very long, but definitions put the matter beyond doubt. The more you can define and be consistent with your definitions, the easier it is to create a private dictionary between the parties.” >>>

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Does that apply to DAF Truck, Marjon?

Are you dealing with contracts as if they were a dictionary?

“We have some definitions, but not in an extensive way.

You asked before about the different terminology in common law and civil law contracts. One example is the term indirect damages. This is a totally different concept under civil and common law. Under Dutch law, indirect damages are not directly caused by the harmful event.

In our agreements, we therefore define what indirect damages are. Because it’s such a broad term, you have to avoid misunderstandings.”

Stick to Dutch law

My next question concerns the choice of law when negotiating with a foreign company. Will it be common law or civil law? What are you going to choose and why?

DAF has a preference for civil law, says Marjon: “Because that’s the system we know and if we have litigation, it’s also easier for us to understand the risks.”

So if the counterparty opts for – say – Indian law, you would enter a ‘no go area’, maybe even skip the whole deal?

“As a company lawyer, I only point out the risks of course.

Assuming the risks, by concluding a deal is always a business decision. We as Dutch lawyers don’t know the Indian legal system. Of course we can consult an Indian lawyer to be informed about the main risks, but Indian law also evolves and changes, so that’s a risk in itself. We always try to stick to Dutch law, or at least to a law system which we know would be a civil law system.”

Never a deal under Indian law.

“It depends. If it’s a sales contract and we are paid in advance or there is a secured retention of title to the asset, the risks are small. But if you’re negotiating a dealer agreement for an indefinite term, then there are more risks involved.”

Arlette asks if DAF ever uses the Vienna Sales Convention.

“And do you sometimes use a choice of law for a certain part of the contract, while the other parts are governed by another choice of law? Although it’s mentioned in the books, it’s not so practical in a negotiating process.

Still, it might be a solution.” “We never did that, choosing two sets of law,” says Marjon. “The Vienna convention is

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applicable to our sales agreements. And if this convention doesn’t give a solution, we refer to Dutch law. Besides that, our general terms of sales determine that in the European Union, the Dutch courts have jurisdiction.

Outside the European arbitration is chosen. Place of arbitration is Amsterdam, according to the arbitration rules of the Dutch Arbitration Institute.”

We trust in common law

Kamila, what’s your opinion concerning the choice of law?

Common law or civil law?

“The majority of our contracts are in common law. Because obviously we are dealing with a very specific product, the derivate. The concept itself is coming from common law, so there is a rich case law already. Of course we want to be sure that we can benefit from this. Nevertheless, if we’re dealing with French counterparties or German counterparties, the contract will be based on the German standard or another national equivalent of standard derivative contracts. There will we go for German or French law.”

So you make your choice according to counterparties. If you go to Spain, it’s common law?

“It’s common law, indeed.”

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And why is that?

“Just as I said: our concept originated in common law. We know common law, we have a rich case law. This makes it easier for us to draw a contract. And should there be any litigation, we can predict which way it will go, at least in a worst case scenario. Ultimately it’s a question of trust. We trust in common law.”

Gains in different jurisdictions Helen remarks that she has observed a distinct trend. “Of course we can’t talk about individual clients. What I have noticed though, is that more and more local elements of the organization are allowed to put in their own choice of law clause. It’s incredible, really, but I think things are aligning such that you can have one precedent with a few small amendments and use it across the world, because the concepts are roughly equivalent. Now, there will be some amendment of course, but there is a desire to try and get some international agreements, which can be slightly amended locally, but reflect the contracting philosophy of the multinational organization.

They will have some ideas about how they want to contract generally, put those in their precedent documents

and then just have some minor changes locally. That’s becoming very popular, because it’s more about the area, the sector, as Kamila was saying. This is about derivatives, so we know about this sector. It’s also about engineering, about manufacturing. And those ideas are universal ideas. So I think the choice of law is about getting the core contracting philosophy of the organization.

And then you adapt it wherever you happen to be.”

Then it’s becoming ever more important to know in which direction different jurisdictions evolve, in order not to miss out on an opportunity?

“Yeah, there are some elements, depending on if you’re a purchaser or a supplier. There are wins in different jurisdictions, for sure.”

Arlette when I come to you with a contract and there will be the question of the choice of law. Is this question ever more pressing?

“Of course as Dutch lawyers, we can only advise on Dutch law, because we’re specialists in that field. For that part I agree with Marjon, that you like to have a contract drafted and governed by the law that you’re fully up to date and aware of. I like to see a contract which is governed

by Dutch law, because only then I know all ins and outs and risks and opportunities when drafting a contract and negotiating it. At the same time I agree with Helen that, because of the harmonization, the differences between countries are getting less and less. That doesn’t mean you can allow yourself to be less than fully aware of all the details and recent developments in the country of the law you choose. Clients not only expect this, they must be able to rely on us to do so. ”

The last question is about the absolute no-go when negotiating a contract.

Can each of you name one for me please?

For Arlette and Marjon it’s the limitation of liability clause.

Helen also has her deal breakers: “If you’re selling, it’s the exclusion clause, if you’re buying, it’s about the indemnity.”

Kamila mentions changes to the standard calculation clause in derivates contracts. “When you’re terminating derivatives contracts you come up to an amount payable from one party to the other. It’s basically a very standard way of calculation, very complicated, but also developed over the years and with a rich case law. Obviously it’s very standard in a common law contract and so specific, that if you change certain components on what you’re actually going to take in your calculation, it can be extremely dangerous.”

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QUESTIONS & ANSWERS

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Questions by: Magna Charta

MARJON IJPELAAR

Which contractual clause are you/your clients struggling with when negotiating a contract?

The most common struggles when negotiating contracts are related to indemnification clauses. Moreover, usually all penalty clauses are subject to discussion and the reasons to terminate the contract with immediate effect. Another clause which is often subject to discussion is the law applicable to the contract.

Which contractual clause is frequently subject to litigation?

If we go to court, which is rare, mostly the termination clause is subject to litigation. Is the termination justified?

What issues do you face with termination clauses in international contracts?

We do business based on standard agreements with our distributors and suppliers. Our dealer agreements contain a termination clause in line with the Code of Good Practice of ACEA (European Automobile Manufacturers Association). Sometimes we experience difficulties when terminating dealers with immediate effect, is the default under the agreement justifying an immediate termination? And in some jurisdictions it is not allowed to terminate an agreement with immediate effect when the counterparty is subject to insolvency procedures.

KAMILA VAN DER POL

Which contractual clause are you/your clients struggling with when negotiating a contract?

I certainly have to point towards broad/various Event of Default and Termination Event.

Which contractual clause is frequently subject to litigation?

I do not have direct experience here, but if I would have to think what that would be in the derivatives world and under English litigation I would have to point on the calculation of close out amount and the close out mechanism itself.

What issues do you face with termination clauses in international contracts?

Again I would have to refer to the Event of Default and Termination Events under the derivatives contact; It is very important to carefully draft such clauses.

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ARLETTE HOFSTAD-BOOT

Which contractual clause are you/your clients struggling with when negotiating a contract?

When talking to clients, one of the things we regularly discuss are the limitation of liability clause and indemnification and warranty clause. The limitation of liability clause and indemnification and warranty clause are important elements of the contract. At the end these clauses determine who bears the (economical) risks of the contract when something went wrong with the execution of the contract.

Which contractual clause is frequently subject to litigation?

A specific clause that is frequently subject to litigation is the limitation of liability clause. In case of a breach of contract, parties involved in litigation wish to limit or exclude their liability by invoking the limitation of liability clause. In practice, such clauses are often challenged.

What issues do you face with termination clauses in international contracts?

As said, be careful when drafting a termination clause, because under Dutch law 'termination' can have different meanings. Termination in the sense of 'opzegging' and termination for cause in the sense of 'ontbinding' are different law concepts with different implications. This is for example important in case of force majeure. A force majeure situation does not prejudice someone's right to invoke termination of the contract because of breach of contract. In short, be clear and specific about your intentions and be fully aware of the implications of the drafted clause.

HELEN SWAFFIELD

Which contractual clause are you/your clients struggling with when negotiating a contract?

The indemnity causes the greatest difficulties. There are many hidden dangers to think about. For example: in what circumstances is the indemnity operated? When can the indemnity be avoided? Finally the process of the indemnity is that it adds a debt to the contract and not liability. This means that it is potentially more powerful as there are few duties upon the indemnified to mitigate or avoid their loss.

Which contractual clause is frequently subject to litigation?

I am involved in litigating many different clauses. Price can cause some difficulties, particularly when it is subject to amendment or variation outside the processes of the contract. It can raise issues of authority who made the variation?

What issues do you face with termination clauses in international contracts?

Selecting the correct jurisdiction and applicable law is now a challenge for those of us practising in the UK after Brexit! I have seen that arbitration is becoming more popular.

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18 | AVDR webinars abonnement 2017

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DE DRIE BELANGRIJKSTE ARBEIDSRECHTELIJKE UITSPRAKEN 2016 M r . P. d e B r u i n M r. W. J . J . We t z e l s P r o f . m r. G . C . B o o t Ta f e l v o o r z i t t e r : M a a r t j e H o f h u i s

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Colofon

Uitgave Redactie

Academie voor de Rechtspraktijk Etienne van Bladel AriĂŤn Pons Sharon Olivier van Genderen

Ontwerp en realisatie

Mark Pollema Manon van Roosmalen

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Academie voor de Rechtspraktijk Interne cursuslocatie Kasteel Waardenburg G.E.H. Tutein Noltheniuslaan 7 (navigatie: nr 1) 4181 AS WAARDENBURG T: 030-220 10 70 Traditionele cursussen T: 030-303 10 70 Webinar cursussen F: 030-220 53 27 E-mail: info@avdr.nl

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