Since our inception, ABLI has always wanted to examine issues that arise in cross-border contracting with the view of “providing practical guidance”, a key tenet of our mission. Through various conversations we have had with stakeholders over the years, we zeroed in on the constituency who is perhaps most concerned about and affected by the uncertainty and the cost of negotiation involved in cross-border contracting: the in-house counsel.
Between April to June last year, ABLI conducted a survey with this very group. We oriented the survey questions towards contracting risks in four main areas: “formalities”, “substantive”, “supervening” and “international”. Eleven top issues surfaced. For example, 94% of the respondents worried that clauses on limitations of liability and indemnities may not be valid or work as intended under foreign law. About 75% had concern about dealing with foreign or dual language contracts.
The survey findings are shown in the PDF attached.
Armed with this knowledge, we are delighted to announce that we have embarked on the journey of trying to tackle those issues. Our ambition is to come up with a standard-form contract that can be enforced in a majority of Asian jurisdictions and where risks are, relatively speaking, allocated in a balanced manner to both sides. Since such a contract is produced by a neutral body and the risks are relatively evenly allocated, parties may rely on this contract as a common baseline for their negotiations so that time and cost can be saved as there will no longer be much need to negotiate certain points back and forth.
To aid this mission, ABLI has enlisted the help of more than 15 law firms and other individual experts to look at most of the top governing laws and contracting jurisdictions emerged from the survey. They are Australia, China, India, Indonesia, Japan, Malaysia, Singapore, the Philippines, Thailand, Vietnam, plus English law and New York law.
Frequent updates by jurisdiction will be posted while we work towards our end goal.
We also welcome any contributor who wishes to join us on this journey. Contact us at [email protected].
image by Gabrielle Henderson from Unsplash.