Negotiating contracts is complicated enough without any additional obstacles. However, certain situations are almost inevitable, especially when doing business internationally. CMS has put together a guide on the battle of the forms that covers 23 jurisdictions to help our clients make important decisions when negotiating B2B contracts.
In commercial contracts, each party usually references its “own” standard terms and conditions (Ts&Cs). Usually, the Ts&Cs on each side contradict each other in important areas such as warranty rights or limitation of liability. The question of which party's Ts&Cs apply, or whether either apply at all, is commonly described as the “battle of the forms”. There are mainly two ways in which the respective jurisdictions deal with this: (i) the “Last-Shot Rule”, meaning that the Ts&Cs of the party which refers to them last apply (e.g. the supplier by confirming the customer's order), or (ii) the “Knock-Out Rule”, meaning that neither parties' Ts&Cs apply but instead the contract is subject to the applicable statutory law. However, some countries have chosen a thoroughly different approach as is outlined in our overview.
Each country chapter in this guide illustrates the local legislative preference in the use of Ts&Cs. We hope it will ease the process of drafting and negotiating contracts for our clients.
If you have any questions, please contact the authors of individual chapters or our group heads Dirk Loycke and Renaud Dupont.