Legal Risks in Real Estate and Construction Projects, India and Internationally

New Delhi November 28 2010

NEGOTIATION

WHAT DOES IT MEAN?

NEGOTIATIONWHERE DOES IT COME

FROM?

NEC NOT

OTIUM RELAX+ +

NEGOTIATION

DEFINITION

“it's a process where 2 or more parties seeking to discover a common ground and reach an agreement to settle a matter of mutual concern or resolve a conflict”

Contracts in C.P.

HOW MANY TYPES ?

SELLING CONTRACT

BUYINGCONTRACT

Letters of Intent

The letter of intent is the starting point of a negotiation and its definition covers all those written preliminary contractual documents that authorizes one or both parties to set before the agreement is finalized

Letters of Intent

Negotiation points.

Elements

Bona fide clause

Confidentiality clause

LOI vs MOU

WHICH IS THE DIFFERENCE?

a MOU is an agreement between two or more parties, which should be signed by all parties to be valid.

a LOI is the intent from one party to another and does not have to be signed by both parties.

Legal Law Systems

How many in Europe?

Common Law !

Civil law !

Loi Binding or not?

Is a letter of intent Binding?

In the Common Law System …

Yes

In the Civil Law System… NO!

Type of clause nr. 2“within 20 days after completion of the feasibility study, each party shall inform the other as to whether it wished to implement the project. In the event either party fails to so inform the other, or decides not to implement the project, this letter of understanding shall be thereupon deemed terminated and neither party shall have any obligation thereafter to the other (subject to surviving secrecy obligations)”

Type of clause nr. 1“Considering the urgency of this project, the contract will be signed as soon as possible after the initial discussions, and every effort will be made to make this possible within 30 days of beginning of the initial discussions”.

Time and closing

Type of clause nr. 2“If, however, shareholders of Z should determine not to proceed for any reason then we feel it is appropriate that shareholders should bear the costs of X incurred in connection with the negotiations and investigations. Otherwise that for a failure of a condition to be satisfied, then it would expect to bear costs incurred by shareholders”

Type of clause nr. 1“if, having accept the terms of this letter in principle, and if a formal agreement is not entered into because a condition fails to be satisfied, then each party should bear its own costs”.

in case of failure ....

Type of clause nr. 2“Licensee shall for a period of ten (3) years from and after the date of each disclosure hereunder, exercise all reasonable efforts to keep (Licensor)'s Know-how disclosed in such disclosure secret and confidential. In fulfilling this obligation, Licensee shall use at least the same standard of care in safeguarding (Licensor)'s Know-how from unauthorized disclosure as it uses in safeguarding its own confidential technical information and know how from unauthorized disclosure as it uses in safeguarding its own confidential technical information and know how”.

Type of clause nr. 1“Visitor will use all reasonable efforts to prevent disclosure of any and all of said Confidential Information furnished directly or indirectly by XX to YY”.

Confidentiality clause

THANK YOU FOR THE

ATTENTION