Considerations for cross-border contracts

1. Law: What will the law of the contract be? If it is appropriate that this is English law, the contract should clearly specify that English law governs the contract. This ensures predictability in case of disputes. Although note that this will often depend on where the parties are based, where the services are performed and/or where the goods are delivered.
2. Jurisdiction: What will the jurisdiction of the contract be? The preference may depend on the circumstances and the location of the parties. This ensures clarity about where any legal dispute will take place. English courts are often preferred due to their impartiality and expertise in commercial matters. However, where IPR matters are relevant, ideally a party would want to be able to bring proceedings in any jurisdiction relevant to prevent infringement.
3. Language: What language is the contract drafted in? If the law / jurisdiction is English, then ideally the contract would be written in English to avoid any ambiguity or interpretation issues.
4. Currency: In what currency will payments be made? The contract should clearly specify the currency to avoid confusion and potential currency exchange risks.
5. Dispute: There should be a procedure to follow before the parties proceed to the court system, following a dispute. Contracts may include provisions for dispute resolution mechanisms such as arbitration or mediation, as litigation (especially cross-border) can be complex and time-consuming. Alternative dispute resolution can be a more time and cost effective method to resolve a dispute. The forum for any ADR should also be considered.
6. Tax: Are there any tax considerations? Be aware of any tax implications arising from cross-border transactions and include provisions to address them in the contract. We would suggest that you take advice from a tax advisor for this.
7. Export Controls: Do you need to comply with cross-border rules and regulations? The parties should specifically ensure compliance with relevant export control laws and regulations applicable to the transaction.
8. Intellectual Property Rights: Are there any IPRs? The contract should clarify ownership, licensing, and protection of intellectual property rights. Ensure that nothing is breached arising from cross-border arrangements.
9. Termination and Exit: What will happen on termination? Ideally the contract would include provisions detailing the process for terminating and addressing potential exit scenarios.
10. Force Majeure: What happens in the event of force majeure? The contract may include provisions addressing force majeure events that may affect the performance of the contract, especially in cross-border transactions where geopolitical or environmental factors may come into play.
11. Confidentiality and Data Protection: What confidential information or personal data is being shared? The contract can address data protection and confidentiality requirements to safeguard sensitive information in compliance with relevant international laws such as GDPR and other cross-border acts and provisions.
12. Insurance and Indemnity: Is insurance required, or an indemnity? The parties should consider including provisions for insurance coverage and indemnification in the contract to mitigate risks associated with cross-border transactions.
13. Notices: How will notices be sent between the parties? If the parties are in different locations, a hard-copy notice sent to an office may take time to reach the destination. The contract could consider other forms of notice, including email or appointing a representative in the relevant country to receive notices.

Consulting with legal experts with expertise in international transactions can provide valuable insights and ensure comprehensive coverage of all relevant aspects in the contract. If you would like to discuss your overseas agreement with us, please contact our Commercial department. Please note that we can provide advice in accordance with English law, but we can liaise with overseas lawyers if needed.