Whereas
it is not always a piece of cake to choose
the right option for the interpretation or/and translation
of terms, clauses and definitions in legal practice,
it is my firm belief that the below analysis of
model agreement composition will be of great use
and importance in terms of reference and advice.
In the day-to-day practice legal practitioners are
normally mixed with the dilemma of the variety of
options, at first sight, suitable for translation.
Therefore the question of “Which is the standard
and who actually sets it?” is more than justified.
In my humble translator’s opinion, no matter which kind of English we use in
translation (i.e. B.E., A.E., or other Englishes
etc), there is a standard you bear overall responsibility
for, i.e. the one specifically defined by the client,
or professional environment you are involved in.
For instance, it is curious to know that the translation
of legal document may satisfy one particular client;
although, the same text might not be positively
assessed, or worse than that, even rejected by the
proficient person/company that has spent decades
in legal counseling. Such inconsistency usually
provokes much debate among translators/interpreters,
editors, legal secretaries, lawyers, and eventually
clients.
Below is the attempt to opt for an appropriate layout, required in that or another
section of legal document. However, this is not
a set of practical rules of “How to make your
agreement perfect?” Neither is it any ambition
of mine to pretend for the introduction of fit-for-all
reference. Instead the article focuses on 10 model
sections, including clauses with the variety of
appropriately selected options [italics],
which may be widely used in agreement composition.
At that, your final choice of the alternatives given
hereinafter shall, of course, depend on each particular
case.
1. Parties, Titles and Requisites
a)
This Agreement is executed this e.g. 12 day of January 2005 (or, alternatively, the
twelfth day of January, two thousand and five, if the context may require so) by and between Party 1 and Party 2; or
b)
This Agreement is made on e.g. January 12, 2005
by and between Party 1 and Party 2; or
c) This Agreement is entered into on e.g. January 12, 2005 by and between Party
1 and Party 2;
Obviously irreplaceable in translation practice Oxford Collocations Dictionary
for Students of English provides us with the
following extension in due respect: to conclude/enter into/execute/sign/reach/ arrive at/come to/negotiate/work towards
agreement) (p.17 “Agreement”).
Right afterwards usually follow legal requisites of the Parties specified, for
example, as: Party 1 a legal entity (incorporated/established/founded)
under the laws of [country] on [date] with Registration No.___ as [an
Open/Closed Joint Stock Company/Limited Liability
Company/Daughter Enterprise/Subsidiary/Full Liability
Company/Joint Venture/Partnership/Representative
Office etc] whose legal address is: [legal/postal address, including building/apartment
No., street, city/state, zip code, country],
duly represented by [name and title of representative],
acting on the basis of [legal document, i.e.
Charter/Statute/Articles of Association/Power of
Attorney etc]
on the one side/of the one part/as the party of the first part,” and Party 2, on the other side, hereinafter together/jointly referred to as the “Parties” and separately/individually
as the “Party”, have entered into this Agreement on the following terms: _____; or the
latter clause may be extended in the following way:
In consideration of the mutual promises and covenants
set forth/designated/stipulated/envisaged/defined/specified/contemplated/set
out/contained in this Agreement, the Parties agree/have
agreed as follows:
WHEREAS, Party
1 desires e.g. to retain the services of
Party 2 in accordance (with)/in compliance (with)/in line (with)/in obedience (to)/in conformity with the terms and conditions of this Agreement;
or
WHEREAS,
Party 1 wishes e.g. to sell and Party 2 wishes
to purchase e.g. corporate rights as a result of which Party 2 shall become
the owner of e.g. Daughter Enterprise;
NOW, THEREFORE,
in consideration of the promises and the mutual
covenants contained herein, the Parties hereby/further agree as follows:
2. Subject of the Agreement/Subject-Matter of the Agreement
a) Party 1 hereby e.g. grants to Party 2, and Party 2 hereby accepts _____ described
in Section ______ below subject to the conditions
specified in this Agreement; or
b) Party 1 e.g. shall provide/render to Party 2 the following
services/works/goods; or
c) Party 1 e.g. shall order and Party 2 shall undertake
to fulfill the works at quality level. Herewith/Herein/At
that/Thereat/Upon this/For this purpose/With that/Thereby/In
this regard/To this end/In due respect Party
1 undertakes to make its best efforts /use its best endeavors/do its utmost within the
boundaries of applicable legislation/ within the
law; or
d) Party 1 e.g. shall have the right to provide services to
Party 2, by e.g. subcontracting the performance
of such services to a third party, including to
Party’s 1 affiliated entities/subsidiaries/affiliations/daughter
enterprises/branches.
The provision of services shall start/begin/commence not later than [date];
The abovementioned provisions may be alternatively added by the reference to
quality of rendered services, specifically:
a) With a high standard of quality Party’s 2 services shall be performed in
a workmanlike and professional manner; or
b) Subject/Pursuant to the next sentence, Party 1 warrants that all services
provided under this Agreement will be carried out
with all due skill, care and diligence, in a good
and workmanlike manner, and in conformity with prior
practice;
Party 1 and Party 2 hereby agree that the fee for services shall be e.g. the Party’s 1
fair proportion which concerns each type of Service
and, if the value of the services changes for Party
2 (with the exception of//except for//exclusive of the management charge);
Party1 and Party 2 shall be individually and solely responsible for e.g.
the duly/timely/proper payment of any taxes
that either may be required/demanded to pay
in connection with this Agreement pursuant to/in
accordance with/in compliance with/in conformity
with/according to/in line with/in adherence with/adherent
to/pursuant to the applicable legislation of Ukraine/Ukrainian
legislation/the Law of Ukraine/ applicable law of
Ukraine.
3.
Term and Termination/Term of Agreement
This Agreement comes to an end if e.g. either Party
forfeits/ breaks/
dissolves/
terminates/
rescinds/
reneges/ ends/ repudiates/ cancels it by giving a e.g. thirty (30) days written notice which either Party is entitled
to do whenever _______;
The Parties may terminate this Agreement e.g.
prior to expiration of the term designated/specified/set
forth/envisaged in Section ___ of this Agreement
only by mutual agreement or in accordance with one
of the provisions of this Section ____;
In the event/In case of termination of this Agreement, pursuant to Articles ___ or ___, the Parties
shall e.g. fully make all settlements and
payments within two months following the termination
date. Upon the expiration of the specified term,
this Agreement shall cease to be valid e.g.
only upon the fulfillment by the Parties of their
obligations hereunder and full completion/performance/effectuation/making
of all settlements and payments.
Notwithstanding anything to the contrary contained/included/foreseen/comprised/constituted in
the Agreement each Party shall e.g. have the right and option to terminate the Agreement
any time after the passing of the e.g. 1st
month of the term by delivering to the e.g.
landlord 5 days prior written notice of such termination.
If Party 1 elects//chooses/opts to terminate
e.g. the lease pursuant to such option, then
Party 1 shall e.g. peaceably vacate the demised
premises and deliver possession thereof to Party
2 at the expiration of said 5 days, and, as of such
termination date, neither party shall have any further
liability or obligation to the other hereunder except
for then accrued liabilities under the Agreement
as of said termination date.
4.
Liabilities
To the maximum/full/fullest extent permitted by law, Party1 shall e.g. in no event/under (in) no circumstances/on
no account have any liability to Party2 for
loss of business, loss of profits, loss of reputation
or goodwill or for any other form of indirect or
consequential loss, whether arising from negligence,
breach of agreement, tort, breach of statutory duty or otherwise, irrespective of any notice by
Party 2 of the likelihood/probability of
any such indirect or consequential loss;
Party 1 shall e.g. provide and thereafter maintain insurance against
all risks in respect of/regarding/as regards/pursuant to its property and
any equipment used for the execution of this Agreement;
Party
1 has in force e.g. valid insurances in respect
of its property, assets and business against such
risks as are normally insured against by companies
carrying on similar businesses for the full reinstatement
or replacement value of such property and in respect
of its business for such amounts as would in the/given
circumstances be normal for such companies including,
without limitation, adequate insurance cover against
accident, damage, injury, third party risks, loss
of profits and product liability.
5.
Losses
Party 2 acknowledges/affirms/confirms that if Party 1 terminates the Agreement
in e.g. two-year period e.g., the losses sustained or
to be sustained by Party 1 will be substantially/significantly/considerably greater than USD ______.
6.
Settlement of Disputes/Dispute Resolution and Governing
Law
a) All disputes and controversies/discrepancies arising out from the performance
of this Agreement will be resolved, if possible,
through negotiations between the Parties; or
b)In the event that/Whenever/In case any disputes or differences arise
out of or in connection with this Agreement, the
Parties shall settle such disputes or differences
by means of negotiations between the
Parties in an amicable manner; or
c) All disputes between parties shall be
normally settled by means of good will and reciprocal
engagement;
This usually has the following extension, either:
a) All disputes arising out in connection with this Agreement
shall be finally resolved in accordance with applicable
law of Ukraine; or
b) Any dispute, controversy or claim
arising out of or in connection with this Agreement,
including any question regarding its existence,
validity or termination (a “Claim”), will be referred
to and finally resolved by arbitration under the
Rules of e.g. the London Court of International
Arbitration (“LCIA”), which rules are deemed to be incorporated
by reference into this clause ___.
The language of the arbitral proceedings will be e.g. English, and the
procedure (insofar as it is not governed by the
Rules of the LCIA) will be governed e.g.
by English law. Insofar as they are legally able
to do so, the Parties hereby agree to exclude the
jurisdiction of English courts.
7.
Modifications and Amendments
Amendments and addenda to this Agreement shall be performed by appropriate annexes/amendments/modifications/alterations//changes//supplements which shall form an indivisible//inseparable//integral part
of this Agreement and have equal force/is equally authentic/authoritative
with it, or by additional agreements respectively;
No provision of this Agreement may
be amended, modified or waived e.g. except by an instrument in
writing entered into by the Parties and specifically designated as an amendment, modification
or waiver.
8.
Force-Majeure
a) The Parties hereto shall not be liable for full or partial failure to perform
their obligations hereunder if e.g. such failure
results from any cause beyond the reasonable control
of the non-performing party (“Force Majeure”). Such
circumstances shall include, without limitation:
prohibitive actions by governmental authorities,
local authorities, fire, flood, earthquake, war,
strike; or
b) The Parties shall not be liable for delays or non-performance of their
obligations under this Agreement e.g. as a result
of circumstances arising from Force Majeure that
are attributable to any and all uncontrollable events
including but not limited to: natural disasters,
civil disturbances, government acts, regulations,
fraud, strikes, embargoes on transported goods,
war, insurrections, and annulments or termination
of licenses, permissions, or authority; or
c) No Party shall be liable for any delay in performing of any
of the obligations hereunder for e.g. any cause beyond its reasonable control, including
but not limited to strikes and accidents, war, invasion,
riot, rebellion, civil commotion, insurrection,
fire, wind, lighting, explosion, volcanic eruption,
earthquake, shipping accidents, freight embargoes,
provided however, that such event affects the proper
performance of obligations hereunder and did not
exist as of the Commencement Date (“Force Majeure”).
a) A Party that is not able to fulfill its obligations under this Agreement
shall notify the other Party within ___ business
days of the occurrence and termination of circumstances
preventing such first Party from the performance
of its obligations; or
b) The facts explaining the existence of the abovementioned circumstances shall
be proved by a competent body of e.g. Ukraine. If
a party fails to notify the other party of the occurrence
of such circumstances, such failing party shall
not be entitled to refer to Force Majeure as a reason
for the failure to fulfill its obligations. If the
foregoing circumstances continue to exist for e.g.
more than 3 months, each of the parties shall be
entitled to terminate this Agreement by giving a
written notice to the other party without imposing
any financial sanctions upon such terminating party;
or
c) If a Party is delayed in performance due to the Force Majeure
circumstances, it shall give the other Party, in
writing at the earliest possible time/as soon as possible/as soon as practicable, written notice of such
delay or failure, together with a statement of the
facts upon which it bases its claim of Force Majeure.
The existence of Force Majeure circumstances and
its nature should be confirmed by presentation by
the relevant Party of the written certificate of
the Chamber of Commerce and Industry of Ukraine.
The Party so delayed or failing to perform due to
an event of Force Majeure shall take all reasonable
steps to minimize the effect of the event of Force
Majeure; or
d) In case/Providing that/Whenever/If Force Majeure adversely affects
any material part of this Agreement for a period
in access of e.g.
thirty (30) days, any adversely
affected Party shall be entitled to terminate this
Agreement by providing notice of termination to
another Party. No Party shall be liable for default,
damages or otherwise on account of a termination
pursuant to this Article ___.
9. Miscellaneous
This Agreement enters into effect upon signing and remains in effect until
e.g. full performance of the obligations
by the Parties;
Any modifications or additions to this Agreement may be made by the Parties
e.g. in a manner consistent with the signature
requirements for this Agreement or any Addenda;
All Annexes and Addenda duly signed by the Parties form an indivisible/inseparable
and integral part of the Agreement;
If any term of this Agreement should contradict e.g. Ukrainian legislation,
then the Agreement shall not be applied in such
section.
All further changes/alterations/modifications or amendments to this Agreement
shall be reflected on attachments to this Agreement,
executed by both parties;
All documents related to the performance of this Agreement shall be sent to
the other party at its address specified in the
Agreement.
Counterparts and Languages:
a) This Agreement is executed in two copies, each for either Party. Each
copy of the Agreement is composed both in the English
and Ukrainian languages and is identical in meaning. The e.g. Ukrainian text shall prevail for the interpretation
of this Agreement; or
b) This Agreement has been signed in e.g. English and Ukrainian versions. In
the event of any dispute, the Ukrainian version
shall prevail. This Agreement has been made in two
equally valid counterparts of each language version.
Party 1 shall keep one counterpart of each and Party
2 shall keep the other counterpart; or
c) The present Agreement is made in Ukrainian and English languages in duplicate/triplicate.
In case of any differences priority is given to
English version of the Agreement. All Attachments
set forth in Article ___ shall be an inseparable
part of this Agreement; or
d) This Agreement shall be produced in both the English language and the Ukrainian
language. In the event of/Whenever there is a conflict
between the Ukrainian language version and the English
language version, the English language version shall
prevail; or
e) The Agreement is made in four copies in Ukrainian language,
which shall be kept by each of the Parties. All copies are equally authoritative; or
f) This
Agreement has been drawn up in the English and Ukrainian
languages and has been executed in 2 (two) copies,
each having equal legal force and authenticity.
In the event of a discrepancy between the Ukrainian
and English texts of this Agreement, preference
shall be given to the English text.
10.
References and Notices
References to any Law shall be construed/interpreted
as references to such Law as amended or re-enacted
or modified by any other Law (whether before or
after the date of this Agreement) and shall include
any provisions of which they are re-enactments (whether
with or without modification) and shall include subordinate legislation made under the
relevant/corresponding/appropriate/respective/according/due/proper statute;
Any notices to be given hereunder shall be in writing and signed by the Party
that gives such notice, or by its authorized representative,
and shall be mailed, return receipt required, or
delivered via courier or other means of hand delivery,
or sent by fax (the receipt of which shall be proved
by a transmission report) with obligatory further
delivery of the original copy at the addresses of
the Parties designated below;
All notices, requests, demands, claims,
and other communications hereunder shall be presented
in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed
duly delivered if it is sent by personal delivery
or by facsimile transmission to the following addresses
or facsimile details;
IN WITNESS
of which the Parties have signed and sealed this Agreement as a deed but have not delivered it
until dating it.
Addresses and Banking Requisites
