New_Method

III. Contract formation. Negotiating

The contract formation process typically involves negotiating the terms and conditions of the agreement. Negotiating can be carried out face to face and/or in writing, with the use of both contract templates and term sheets.

While a great deal of the negotiating process takes place today via e-mail, face- to-face negotiating continues to play an important role. Undoubtedly, the ability to negotiate well in English depends to a large extent on experience. However, negotiating skills can be improved by learning about how negotiations are generally conducted and which techniques are employed by good negotiators.

34. Listen to the first part of an excerpt from a seminar held at a law firm for some of the firm's recently hired young lawyers and tick the topics that the speaker will cover.

1.preparing for a negotiation

2.phrases and expressions for negotiators

3.using agreement templates and term sheets

4.classic 'tricks' used by negotiators

5.general negotiating techniques

6.dealing with objections from the other side

7.different types of agreements usually encountered

8.recognising a good deal

9.role-plays

35.Listen to the second part of the seminar and answer these questions.

1 What do you think the speaker means by horse-trading?

2 What does the speaker say about the purpose of a merger clause?

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Contract negotiating

Lawyers are commonly requested to conduct contract negotiations on behalf of clients, particularly in matters in which strong negotiating skills are required. You will hear Arthur Johansson, a junior lawyer who attended the in-company seminar on negotiating techniques, negotiating the terms of an agreement for a client with the other party's lawyer, Ms Orvatz.

36.Listen to the negotiation. What kind of agreement are they talking about? Which clauses do they mention?

37.Listen again and decide whether these statements are true or false.

1.The clause they are discussing would not allow the franchisee to operate any kind of restaurant within the prescribed area for a stipulated period of time.

2.The lawyer representing the franchisor argues that the purpose of the clause is to guard her client's legitimate business interests.

3.The franchisee's lawyer believes that his client is in a strong position in the negotiation.

4.The franchisee's lawyer offers to strike the arbitration clause in exchange for a reduction in the number of years set forth in the non-competition clause.

38. What do you think of the way Arthur Johansson negotiated the agreement? Did he use any of the techniques presented at the negotiation seminar?

Negotiating expressions

In addition to learning about techniques employed by experienced negotiators, improving your negotiating ability in English can be achieved by becoming familiar with and using common phrases.

In one of the initial phases of a negotiation, the bidding phase, the two sides put forth proposals or suggestions. The phrases in Exercise 39 serve to introduce a proposal or suggestion, or to respond to such a proposal in a face-to-face negotiating session. (Note that these phrases would also be suitable for use in informal written communication, such as an e-mail, between parties with an established and friendly working relationship).

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Vocabulary 9

on behalf of – от имени кого-либо

franchise agreement – договор франшизы (о реализации торговым предприятием изделий промышленного предприятия)

arbitration clause – арбитражная оговорка, условие о передаче в арбитраж споров, возникающих из договора

stipulated - оговоренный

to guard legitimate interests – защищать законные интересы to strike – заключать сделку; вычеркивать

set forth - оговоренные bidding phase – торги

to argue – доказывать, обсуждать franchisor – промышленное предприятие franchisee – торговое предприятие

Using exercises 36 – 38 translate the following phrases into English

1.При отсутствии опыта ведения переговоров, бизнесмены могут привлечь юристов сделать это от их имени.

2.Обсуждаемое условие не позволяет торговому предприятию использовать какой-либо ресторан в предписанной зоне в течение оговоренного периода времени.

3.Юрист, выступающий от имени торгового предприятия, может предложить вычеркунуть из договора пункт, связанный с арбитражной оговоркой в обмен на сокращение количества лет, оговоренных в антиконкурентном (non-competition) пункте.

4.Как правило, уже в начале фазы торгов обе стороны выдвигают свои предложения.

5.Человеку, ведущему переговоры, необходимо владеть набором клише, фраз, которые позволяют достичь взаимопонимания в условиях сложившихся дружественных деловых отношений.

39.Listen to the negotiation again and tick the expressions you hear the lawyers use.

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40. Decide whether the phrases in Exercise 39 are used to

a) make a proposal, b) respond favourably, or c) reject a proposal. Which phrase is the most forceful for rejecting a proposal?

Remedies A Danish remedy

Remedies for breach of contract and their enforcement differ from jurisdiction to jurisdiction. You will hear a law student talking about a type of remedy in Denmark as part of a university seminar on contract remedies in Europe.

41. Listen to the first part of the student's talk. Decide whether these

statements are true or false.

1.Specific performance means that the breaching party is ordered to fulfil the original obligations of the contract.

2.Specific performance can be applied in all breach of contract cases.

3.There are four types of cases where specific performance can be applied.

42. Listen to the rest of the talk and complete the notes about the five situations where specific performance can be applied, using no more than three words in each space.

1.Goods already..........................

2.Goods procured from ..........................

Remedies

In the following dialogue, an attorney, Mrs Hayes, is consulted by a client, Mr Anderson, who has been having difficulties in connection with a contractual agreement. In order to establish the facts of the case, the attorney asks a number of questions. She also informs the client about the various remedies which may be available to him.

43. Listen to the first part of the lawyer-client interview. Why couldn't the client deliver the website to the customer on time?

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44.Listen to the second part of the interview. What is the lawyer going to do next?

45.Listen to both parts again and tick the questions asked by the lawyer.

1.Did they not deliver on time or did they deliver something that didn't work?

2.What are some of the features of the website you designed?

3.Did you draft the contract yourselves or did you engage an attorney?

4.Were you able to deliver your website on time?

5.Did you get in touch with anyone besides your cousin, say, another programmer here in town?

6.How much do programmers get paid per hour in New York?

7.Did they know what your deadline was?

8.Do you expect to lose the customer as a result of this?

46.Choose the correct answer to each of these questions.

1.What was wrong with the software program delivered to the client? a It was completed too late to meet the deadline.

b It didn't work on all of the ferry company's PCs.

c It wasn't designed in accordance with the specifications of the client.

2.According to the lawyer, what should her client have done to mitigate his

damages?

a He should have offered his customer less than a 10% discount. b He should have looked for a cheaper local programmer.

c He should have had an attorney draw up the contract.

3.Provided the contract doesn't waive the right to consequential damages, under which circumstances might the client be entitled to receive such damages?

a If the reputation of the client in his town suffers

b If the quality of the software turns out to be unsuitable for the purposes of the customer

c If the loss of the customer and the necessity to grant a discount could have been foreseen

4.Why can't the client expect to be awarded punitive damages? a Weight gain does not qualify as emotional injury.

b Punitive damages are not awarded in a breach of contract case of this type.

c The possibility of personal injury was not foreseen in the contract.

47.Work in small groups and discuss the case. What do you think would be the likely outcome?

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Vocabulary 10

transfer – уступка, передача to procure – приобретать

we can’t go along with it – мы не можем пойти на это that’s out of the question – об этом не может быть и речи our proposal is – наше предложение такое

that’s certainly a step in the right direction – это, разумеется, шаг в правильном направлении

we could live with that – мы можем с этим смириться

we are not entirely happy with – нам это не очень подходит to respond – отвечать

forceful - сильный to reject - отклонить

remedies – средства правовой и судебной защиты breach of contract – расторжение контракта enforcement- правоприменение

available – имеющийся в наличии provided – при условии

to mitigate - уменьшать punitive – штрафной

Using ex.45 -46 translate the questions into English

1.Они опоздали с доставкой или доставили то, что не работает?

2.Вы самостоятельно составили текст контракта или задействовали юриста?

3.Сколько программисты Нью-Йорка получают в час?

4.Они были осведомлены о Ваших сроках?

5.Вы думаете, что можете потерять клиента из-за этого разбирательства?

6.Что должен был сделать Ваш клиент, чтобы уменьшить потери?

7.Почему Вашему клиенту не следует опасаться штрафных санкций?

Preparing a lawsuit and developing an argument

When a lawyer is engaged to represent a client in court in a contract-related lawsuit, a good deal of time will be spent on the following:

-gathering information about the case;

-collecting evidence;

-researching relevant legislation and legal precedent;

-developing a strong line of argument.

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The following dialogue deals with a lawyer's preparation of a contractrelated lawsuit. In the first part of the dialogue, you will hear Ron, the lawyer preparing the case, talking with Sam, a senior partner in Ron's law firm, about the facts of the case.

48. Listen to the first part of the dialogue and tick the facts of the case Ron mentions.

1.The Jones Corporation (the lessor) wanted to sell a restaurant to Keats (the lessee).

2.Keats requires consent from the Jones Corporation to assign the lease to a third party.

3.Prior written consent to assignment is not necessary.

4.The Jones Corporation is not permitted to withhold consent unreasonably.

5.Keats could not provide the information about the buyer that Jones requested.

6.The prospective buyer withdrew his offer for the restaurant.

7.The buyer is suing Keats for breach of contract.

49. Discuss the case with a partner. What kind of argument would you make in this case? What would you have to prove in court?

50. Listen to the second part of the dialogue, in which Ron mentions the arguments he plans to use in court. What are the three points of evidence Ron will use?

A closing argument

Ron has made the changes in his closing argument which Sam suggested. You are going to listen to Ron as he presents his closing argument in court.

51.Listen and discuss Ron’s closing argument with a partner. Do you think it’s convincing?

Vocabulary 11

lessor - арендодатель lessee - арендатор, съемщик lease – наем недвижимости

to withhold – удерживать во владении to withdraw – отозвать

consent – согласие

to assign to a third party – поручить третьему лицу

convincing –убедительно

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IY. Employment Law. An employment tribunal claim

Lawyers are often consulted in employment rights disputes, providing consultation and representation for clients who want to make or defend claims to an employment tribunal. Employment tribunals are judicial bodies established in the UK to resolve disputes between employers and employees over matters involving employment rights, such as unfair dismissal, redundancy payments and discrimination. Do you have employment tribunals in your jurisdiction?

Generally speaking, the handling of a claim in the UK proceeds as follows: firstly, a claimant submits a claim, usually in person, to an employment tribunal. If there are any outstanding issues concerning such things as witness testimony, necessary documents, etc., the chair of the tribunal then holds a casemanagement discussion to clarify them. Sometimes this is followed by a prehearing assessment or review (which the claimant may attend if desired), at which time the tribunal decides whether the claim has merit. Lastly, there is a final hearing where a decision is made as to whether the claim succeeds or fails, and if it succeeds, the amount of damages to be awarded.

The following telephone conversation is between a lawyer [Jane] and a client [Gwen), who is an employer defending a claim filed with the employment tribunal. They discuss the preparations for a pre-hearing assessment. They mention a document called an entry of appearance. This is a written notice of appearance providing the respondent's full name and contact details, as well as a statement of opposition to the claim, including the grounds upon which it is opposed.

Vocabulary 12

employment law – трудовое право claim - иск

unfair dismissal –несправедливое увольнение

redundancy payments –выплаты уволенным по сокращению штатов merit - достоинство

entry of appearance – письменное заявление (регистрация) ответчика во время слушания дела

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52. Listen and tick the actions that Gwen will take following the

phone conversation,

1.attend a managers' meeting

2.contact the employment tribunal personally

3.inform the management about the status of the case

4.send an email with the requested document

5.discuss the case with the dismissed employee

6.write an exact account of the circumstances leading to the dismissal

53.Choose the correct answer to each of these questions.

1.What does Jane want Gwen to do with the draft entry of appearance? a submit it to the employment tribunal for the pre-hearing assessment b review it, make any necessary changes and send it back to her

c decide on the basis of it whether they want to proceed with the case

2.According to Jane, when would a lawyer make an application for a pre-hearing assessment?

a when the defendant believes the claimant's case is weak

b when the defendant wants to present all of the evidence at the full hearing c when the defendant wishes to inform the court who will be representing him/her

3.Why does Jane think it will be better for her client if the case does not go to final hearing?

a because it would save the parties involved time, effort and money b because she thinks her client could lose the case

c because she thinks the good faith between employer and employee would be lost

4.What does the client state is her firm's top priority in the case?

a finding out exactly what the dismissed employee did with the confidential information

b resolving the dispute successfully and getting back to work c avoiding the expense of having the case go to a full hearing

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