How do you ensure enforceable contract terms across different jurisdictions?

When you are entering in contract negotiations under different jurisdictions there are two major aspects 1) Law Of The Land which is of prime importance 2) Secondly, both parties should agree on the area of Jurididiction example - Any International Court Of Justice

There are two classes of legal terms: (i) those that are uniform across many jurisdictions and (ii) those that vary greatly across jurisdictions. In the first class you have the more "boilerplate" terms that deal with the interpretation of contracts, for example. In the second class are contract terms that deal with things that can get politicized. Employment terms and conditions, for example, will tend to fall into the second category, as people in different parts of the US have very different views on the relationship between employers and employees, what rights each should have and so forth. The best use of time is to start with a good, highly uniform "foundation", and spend your research time on the state-specific issues.

The choice of law actually involves two issues: governing law (which law will be applied in a dispute) and venue (where must a lawsuit be brought). It is important to address both issues. You may be willing to accept a neutral governing law such as New York, but for that concession, you might insist that venue lies (any action must brought) in the state or federal courts where you, or your client, has its principal office. A variation on this is to specify at least the venue, if not the law and venue, of the defendant in any action. This will encourage negotiation due to the extra expense and effort of bringing a suit in the defendant's location.

The jurisdictional selection in a contract is not just a mere formality; it’s akin to choosing the battleground for any potential future conflicts. A well-chosen jurisdiction can be a game-changer, leveling the playing field for both parties involved. It ensures that neither side has a ‘home court’ advantage and promotes fairness and predictability. Just as a business carefully evaluates its partners and strategies, equal thought should be dedicated to selecting the optimal jurisdiction, as it can heavily influence the outcome and enforceability of any dispute resolutions.

A choice of law provision in a contract, also known as a "governing law" clause, is a term that designates which jurisdiction's laws will be used to interpret the contract and resolve disputes that might arise under it. For example, the clause might state: "This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. It outlines which jurisdiction's laws will be applied to interpret the contract and govern the rights and duties of the parties. Remember to seek legal advice when drafting or signing a contract with a choice of law provision to fully understand its implications.

Although one can view a negotiation as purely quantitative, the above point is highly relevant. If you are dealing cross-culturally then I can recommend reading Erin Meyer’s “The Culture Map” for some good insight on various global attitudes and behaviours. It helps one understand different approaches.

Plain language in contracts enhances understanding and accessibility. It reduces ambiguity, making rights and obligations clear, minimizing disputes and litigation. Additionally, it aids in building trust and transparency between parties, contributing to stronger business relationships. This can save time, effort, and legal costs in the long run.

In an agreement, definitions create reality. If you are buying a product and the definitions section defines the product as "components a, b, and c" then you are not getting part "d" even if that is in the picture and in every model you have ever seen. Because, trust me, there will be a clause near the end of the agreement that also says, "this written agreement supersedes all previous oral discussions or representations." Don't gloss over it, the definitions section is the most important section of your agreement.

Using an attorney for contract negotiations provides expertise in ensuring the contract is legally sound and protects your interests. Attorneys understand legal terms, risks, potential loopholes, and the consequences of certain provisions. They can anticipate potential disputes and create strategies to mitigate risks. Furthermore, they can leverage their negotiation skills to secure better terms, which could have substantial impacts on your business or personal life.

In my experience, it is recommended to select neutral jurisdiction where both parties agree. This will give both parties trust in executing and managing contract, if any dispute arises.