LEGAL ENGLISH

Andrés Téllez Núñez*

Sessions Summary

INTERNATIONAL NEGOTIATION TECHNIQUES

1. General Objectives

1.1 Learning the fundamentals of International Negotiation Techniques

1.2 Learning new vocabulary
1.3 Having an interactive audience

2. Notes

2.1 Investments

There are two types of investments: (a) Portfolio: An investor acquiring debt,
instruments, bonds, or equities through capital markets; (b) Foreign Direct
Investment: Transfer of tangible or intangible assets from one country into another for
the purpose of use in that country to generate wealth under the total or partial control
of the owner of the assets.

2.2 Vehicles of Foreign Direct Investment

(a) “Greenfield” or “de novo” investment: investing new capital

(b) Franchising by virtue of an agreement establishing standardized use of marks,
procedures and goals
(c) Mergers and Acquisitions in which a company in the host country is purchased
(d) Joint Ventures in which two or more entities embark on a joint commercial
operation
(e) Distributorships by means of which the investor institutes a network.

2.3 General features of International Negotiation Techniques

(a) Negotiation is a function of leverage (leverage is the allocation of power or control

between two sides)
(b) Negotiation can often rely as much on the personalities and behavior of the
negotiator as on the relative merits of the parties’ position
(c) In a commercial setting as in any other commercial setting, legal principles
frequently shape de outcome.

____________
(*) Abogado, PONTIFICIA UNIVERSIDAD JAVERIANA; LL.M., GEORGETOWN; Traductor e Intérprete Oficial,
UNIVERSIDAD NACIONAL DE COLOMBIA; Profesor de Derecho Internacional Público, Facultad de Ciencias
Jurídicas, PONTIFICIA UNIVERSIDAD JAVERIANA; Coordinador Académico, Departamento de Derecho
Económico, Facultad de Ciencias Jurídicas, PONTIFICIA UNIVERSIDAD JAVERIANA.
2.4 Characteristics of leverage

(a) Parties wish to do business together

(b) A range of possible outcome will be beneficial to both parties

2.5 Ury and Fisher approach towards International Negotiation Techniques

(a) Separate persons from the problem

(b) Focus on interests and not on positions
(c) Create options for mutual gain
(d) Insist on objective criteria
(e) Have an alternative in case the negotiation fails

2.6 Impact of cultural approaches on negotiations

(a) Negotiation goal: contract or relationship?

(b) The base of the negotiation: win/win or win/lose?*
(c) Personal style: formal or informal
(d) Communication: direct or indirect
(e) Sensitivity to time: How or low
(f) Emotionalism: high or low
(g) Form of agreement: general or specific
(h) Building an agreement: inductive or deductive?
(i) Team organization: one leader or consensus?
(j) Risk taking: high or low?

2.7 Types of negotiator

(a) Type “A”: contract; win-lose; informal; direct; high time sensitive; high
emotionalism; specific agreement; bottom-up approach; leader; high-risk taking

(b) Type “B”: relationship; win-win; formal; indirect; low time sensitive; low
emotionalism; general agreement; top-down approach; consensus; low-risk taking

2.8 Context and face saving

Context is related to how and what is said.

Face saving is related to how conflicts are solved. Whether through courts or not.

*How to negotiate with developing countries:

- Explain the nature of the transaction

- Try to find others real interests
- Know its history and culture
- Develop proposals that satisfy their interests
INTERNATIONAL COMMERCIAL ARBITRATION

1. General Objectives

1.1 Learning the fundamentals of International Commercial Arbitration

1.2 Learning new vocabulary
1.3 Having an interactive audience

2. Notes

2.1 Project Finance

2.1.1 Definition: is the arrangement whereby the claims of the debt holders are
against an asset or project rather than against the sponsor (host country) as a whole

2.1.2 Characteristics:

(a) a local government engages a private entity to develop, maintain and operate an
infrastructure facility in exchange for the right to charge a price either to the public or
the government, for the use of the facility or goods or services*

*Forms of financing:

There are two ways of financing: public (includes issuance of debt securities, own
budget and borrowing from multilateral agencies) and private (by means of
syndicated loans and registration-exempt securities).

(b) Reason why: demand for infrastructure development (roads, schools, power
plants, seaports need to be built: those projects are very expensive).

Usually these projects are non-recourse and off the balance sheet: that means that
they look wholly or substantially to the cash flows and earnings of the project as the
source of funds for repayment of the debt by the project and to the assets of the
projects as security for the project loan.

(c) Usually the investor may well have sufficient funds to build, pool these funds with
other investors or with a commercial loan.

2.1.3 Economic growth reasons:

(a) Increase commercial capabilities of the host country

(b) Projects attract overseas investors
(c) Improve economic conditions in the host country

2.1.4 Risks

The assumption is that a PF operation is non-recourse (which means that investors

secure their returns not against the assets of the host country but against the assets
of the project itself)
There are many type of risks involved: legal, political or financial.

2.1.5 Choice of law clause and choice of forum clause

The choice of law clause refers to the provision containing the substantive and
procedural law to govern the contract.

The choice of forum clause refers to the provision containing the place where the
dispute is going to be solved.

2.2 General features of International Commercial Arbitration in the context of ICC

(a) Law of the situs: local laws where arbitration is going to be conducted
(b) Rules chosen by the parties: choice of law and choice of forum
(c) Substantive law governing the commercial relationship
(d) Particular account has to be taken as to the law where the award is to be
enforced
(e) Dichotomy between common law and civil law

***

2.3 Initiation of arbitration: document containing summary of claims, names and

addresses of the parties and reference to the arbitration clause

2.4 Tribunal composition and appointment: an arbitrator is to be impartial and

independent even when appointed by the party. Normally there are 3 arbitrators, two
of them appointed by the parties.

2.5 Proceedings: usually a standard pattern is followed. By default or design the

tribunal may be called on to select the place of arbitration and language, place and
substantive law applicable.

2.6 Hearing: private meetings are held. Parties may be represented by counsel.

2.7 Award: written, dated and signed indicating the place where it was issued.

2.8 ICC terms of reference: full name, description, addresses of the parties, summary
of parties claims, definition of issues, arbitrators full names, place of arbitration and
particulars of procedural rules.

2.9 A reference to the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (read)