05 April 2012 #Dispute Resolution
The International Association of Contract and Commercial Management (“IACCM”) has recently launched a survey to uncover which terms of a commercial contract are subject to the most frequent negotiation between the parties. A link to this survey for those that are interested in participating is attached here.
The aim of the survey is not only to find out which terms are subject to the most detailed negotiation to give an indication about the terms that are most important to the parties, but also to identify which terms become the subject of dispute in the event that the parties subsequently fall out. Previous studies have indicated that there is a discrepancy between the two categories which has led to the conclusion that the parties’ focus when negotiating and entering into new contracts does not focus on the most important areas.
We advise on many contractual disputes that arise between our clients and other parties and the most frequent cause of these disputes is either poor drafting or lack of attention to detail when entering into the contract. For example, in our experience, one clause that is frequently ignored is a clause expressly stating which national law will apply to the contract. Such clauses frequently become very important whenever there is a dispute since the law applicable to the contract will affect all aspects of the dispute over the contract.
The IACCM’s aim in conducting the survey is to try to draw participants’ attention to these discrepancies between the kinds of terms that are relevant to parties at the time that the contract is entered into and the clauses that subsequently become subject to dispute in the hope that in future, such clauses are more carefully considered by the parties at the outset so that disputes can be avoided where possible.
Those who take the survey will apparently be among the first to know the results but we would endeavour to provide an update to reveal the results once they are published in the coming months.