It is clear from the above that pre-contract negotiations can play an important role in international arbitration proceedings. However, it is not always easy to follow all pre-contracting projects until litigation occurs, and even if access to documents is obtained (for example, the publication of arbitration documents. B), it is not uncommon for documents to be provided in pieces or without a plan (for example, emails and appendices are not linked to each other. B several identical designs without any data or comparison). As a result, the task of assembling the past can be laborious and costly. Given their relevance in litigation, it is therefore desirable to maintain a complete record of negotiations, which will often be the case when a lawyer is involved. It is therefore important to read the contract, especially if there is a full agreement clause, to ensure that all pre-contracted statements are included. Please read the guide in the previous article entitled Contract Negotiation for information on the heads of the agreement and how they can be useful here. This is an interesting conclusion that applies to most other industries and certainly also to contractual agreements. It is therefore very important to do a good job in the pre-contract phase. Detailed due diligence and a thorough understanding of the agreement by both parties mean that the contractual and post-contract phases are faster and more fluid. First, other legal systems may take a different approach, which is a particularly acute concern given the cross-border nature of international arbitration.
For example, in the case of Singapore contract law, which in many respects is similar to English law, the door has been slightly closed by the courts on this issue (see Zurich Insurance (Singapore) Pte Ltd/B-Gold Interior Design – Construction Pte Ltd. However, the admissibility of pre-contract negotiations as an aid to the interpretation of the contract in Singapore does not appear to have been invoked so far in the notified cases. In any event, pre-contract negotiations are particularly relevant in the area of civil law, particularly with respect to the duty to negotiate in good faith. The author has recently been involved in a dispute with Japanese law, which takes a less literal/textual and more permissive approach to the interpretation of the treaty. Before starting a business relationship, many transactions begin with a letter of intent, contract managers, appointment sheets or conceptual agreements (“pre-contract document”). These documents are generally used to outline the general conditions or essential principles of a proposed agreement or project and can often be negotiated or drafted regardless of the legal effect and/or mutual legal assistance. But in the event of a dispute, to what extent are these documents legally binding on the parties? Pre-contract statements may unknowingly be part of a legally binding contract, so it is important to understand what can be part of the overall agreement. There are limited exceptions to this rule, such as the “private dictionary” scenario, in which the parties are supposed to have a special meaning for their words (i.e., words should not be understood in the clear and ordinary sense of the term). There are also other scenarios that do not fall within the scope of pure interpretation of the contract, in which pre-contract negotiations are relevant, for example. B when corrections or fraud/false statements are alleged. Beyond these narrow exceptions or non-contractual rights, however, pre-contract negotiations remain relevant to contractual disputes, particularly in the context of international arbitrations. There is a presumption that, if there is a written agreement, all the terms of the contract are included in the written agreement.
The purpose of the agreement clause as a whole is to prevent this presumption from being ousted and to prevent the parties from arguing that the contract contains only part of the terms and that there are other clauses contained in pre-contract statements.