Legal Drafting for International Lawyers

Of course. Legal drafting for international lawyers is a distinct and sophisticated skill. It moves beyond the domestic, formulaic approach to a more strategic, clear, and flexible one, designed to bridge different legal systems, languages, and business cultures.

Here is a comprehensive guide to the principles, challenges, and best practices of legal drafting for the international context.

I. Core Philosophy: The "International Style" of Drafting

The goal is not to impress with complex legalese, but to communicate with precision and clarity across boundaries. Think of yourself as a bridge builder, not a gatekeeper of obscure knowledge.

Key tenets of this style include:

• Clarity Over Tradition: Avoid Latin phrases, archaic terms ("herein," "forthwith"), and common law-specific jargon that may be meaningless or misleading to a civil law lawyer.


• Precision Through Simplicity: Use plain English with a consistent, defined vocabulary. A shorter, clearer sentence is almost always better than a long, convoluted one.


• Foresight and Flexibility: Anticipate disputes and different legal interpretations. Draft provisions that are robust enough to be interpreted similarly by courts in different jurisdictions.


• System Neutrality: Where possible, avoid concepts that are unique to one legal system (e.g., common law "trusts" or specific types of civil law securities) unless absolutely necessary and fully explained.

II. Key Challenges in International Drafting

III. Essential Clauses in an International Agreement

These clauses require extra attention in an international context.

• Preamble / Recitals ("Whereas...")


• Purpose: Sets the context, the parties' intentions, and the background. This is crucial for interpreting the contract's purpose, especially in civil law jurisdictions.


• Drafting Tip: Be concise but accurate. The recitals can be used to interpret the operative parts of the agreement.


• Definitions


• Purpose: Creates a self-contained dictionary to ensure consistency and avoid ambiguity.


• Drafting Tip: Capitalize all defined terms (e.g., "Affiliate," "Confidential Information"). Be expansive and precise. If you use "including," consider adding "including, but not limited to."


• Governing Law (Choice of Law)


• Sample Clause: "This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales."


• Note: The phrase "non-contractual obligations" (e.g., tort claims) is critical and reflects modern English law principles.


• Dispute Resolution


• Arbitration is common:


• Sample Clause (ICC Arbitration): "All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be [London, UK]. The language of the arbitration shall be English."


• Key choices: Institution (ICC, LCIA, SIAC, etc.), Seat (legal place of arbitration), Number of Arbitrators, Language.


• Jurisdiction


• If using courts instead of arbitration, be specific.


• Sample Clause (Exclusive Jurisdiction): "The parties irrevocably agree that the courts of [Zurich, Switzerland] shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement."


• Force Majeure


• Purpose: Excuses performance due to unforeseen events beyond a party's control.


• Drafting Tip: Do not rely solely on a standard domestic clause. Define events carefully, considering international supply chains, political unrest, and pandemics. Reference internationally recognized standards like the UNIDROIT Principles.


• Notices


• Purpose: Specifies how formal communications are delivered.


• Drafting Tip: Include modern methods like email, but specify deemed receipt times (e.g., "on the next business day if sent after 5 pm at the recipient's location"). Provide addresses for all parties.


• Entire Agreement (Merger Clause)


• Purpose: States that the written contract is the complete and final expression of the agreement, superseding all prior discussions.


• Drafting Tip: This is crucial to prevent a party from relying on pre-contractual statements (which may be treated as binding in some jurisdictions).

IV. Practical Drafting Tips & Techniques

• Use the Positive and the Active Voice:


• Instead of: "No payment shall be made by the Buyer unless the Goods have been delivered." (Passive, negative)


• Write: "The Buyer must pay within 30 days of the Delivery Date." (Active, positive)


• Structure for Readability:


• Use numbered sections and sub-sections.


• Use bullet points and lists for obligations, conditions, and representations.


• Keep sentences and paragraphs short.


• Avoid Ambiguity:


• "And/Or": Avoid this. It's ambiguous. Use "A or B or both" if that is the intended meaning.


• "Reasonable": Define what is reasonable in the context or provide an objective standard.


• "Time is of the essence": If you mean it, state it explicitly for the specific obligations where it applies.


• Be Consistent:


• Use the same word for the same concept every time. Don't switch between "Vendor," "Supplier," and "Seller" for the same party.


• Consider the "Counterparty Test": Read the draft from the perspective of the other party's lawyer, who may be trained in a different legal system. Is it clear to them?

V. Useful Resources for International Drafters

• Principles of International Commercial Contracts (PICC) by UNIDROIT: A restatement of international contract law principles that can be used to interpret or supplement domestic law.


• Convention on the International Sale of Goods (CISG): The default law for international sales of goods between businesses in contracting states. You can opt-out if you wish.


• Model Clauses from Reputable Institutions: The ICC, LCIA, and other arbitral institutions provide model arbitration clauses.


• Style Guides: A Manual of Style for Contract Drafting by Kenneth A. Adams (focuses on U.S. law but its principles of clarity are universally valuable).


• International Plain Language Movements: Groups like Clarity (clarity-international.org) advocate for clear legal writing worldwide.

Conclusion

For the international lawyer, drafting is a strategic exercise in risk management and communication. By embracing clarity, anticipating cross-border complexities, and using precise, system-neutral language, you create documents that are not only legally sound but also effective tools for facilitating successful international business relationships.