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Clauses
Definitions
Standard Clause – Confidentiality Clause (Commercial Transaction)
This standard clause includes (1) a standard bilingual confidentiality clause which can be used in more complex commercial contracts, and (2) a more simplified bilingual confidentiality clause which can be used in less complex commercial contracts. Both versions include all of the core elements typically included in a confidentiality clause, while the standard version includes some additional procedural protections for the disclosing party.
These clauses are suitable to be dropped into the main body of a contract or attached as an annex, but these are less comprehensive than a full non-disclosure agreement and so should not be used as a replacement for a full NDA.
These are for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Notice
This standard clause is a bilingual notice clause which can be used in cross-border corporate and commercial transaction agreements. We set out below both a more comprehensive standard form and a shorter simplified form. References to delivery of notices by facsimile may be deleted or listed as “N/A” as appropriate. Timelines for deemed notice should be confirmed to reflect the circumstances of each particular transaction.
This is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Settlement of Disputes: CIETAC Arbitration
This is a sample standard CIETAC arbitration clause.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Settlement of Disputes: HKIAC Arbitration
This is a sample standard HKIAC arbitration clause.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Settlement of Disputes: ICC Arbitration
This is a sample standard ICC arbitration clause.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Settlement of Disputes: SIAC Arbitration
This is a sample standard SAIC arbitration clause.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Consequential loss exclusion (Share Purchase Agreement)
In a Share Purchase Agreement (SPA), generally speaking, the Buyer has only one obligation – to pay the purchase price. All of the other obligations under the SPA are borne by the Seller. The Seller’s principal liability is in respect of the warranties and indemnities, which should be subject to thresholds and caps. In addition, it would be customary for the parties to include a mutual consequential loss exclusion as shown below.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – Binding on Successors and Assigns
This is a standard boilerplate clause which may be found in most cross-border corporate and commercial agreements. This clause is designed to protect each party in the event the other party is acquired, dissolved or restructured such that another legal entity assumes the rights and liabilities of such party.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – No Third-Party Rights
This is a standard boilerplate clause which may be found in most cross-border corporate and commercial agreements. Under the laws of some jurisdictions, in certain circumstances third parties may claim to be beneficiaries of the performance obligations of one or both parties under the agreement and thus may bring legal action to enforce such claims. This clause is designed to foreclose such potential claims.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
Standard Clause – No Verbal Amendments
This is a standard boilerplate clause which may be found in most cross-border corporate and commercial agreements. This requirement that amendments to the agreement be in writing and signed by the parties helps avoid related potential disputes.
This sample clause is for reference only and users will need to revise and supplement as necessary or appropriate for the specific circumstances of each particular transaction. All such terms will also be subject to further negotiation with the other party. With respect to outbound transactions, you will need to consult local counsel in the target jurisdiction to confirm local law and market practice in respect of such terms.
