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Proactive Law and Proactive Contracting; ProActive ThinkTank Traditionally, the steps in providing legal care have resembled those of medical care: diagnosis, treatment, and referral – all steps that happen after a client or a patient has a problem. Care has been reactive. You get sick, you seek treatment. You encounter a dispute, you turn to a lawyer. In today's business environment, we need to move away from that model. Expensive disputes endanger relationships and consume time and resources which could be used for productive work. Emphasis must be put on preventing disputes. “An ounce of prevention…” is true even when it comes to legal care. Proactive law provides tools and techniques for the early detection and prevention of potential problems. If problems do arise, the approach offers mechanisms to resolve them quickly, before they develop into disputes. Still the focus is not just on preventing problems or “legal ill-health”. The goal is to promote “legal well-being”: embed legal knowledge and skills in corporate culture, strategy and everyday actions to actively promote success, ensure desired outcomes, and balance risk with reward. In the corporate arena, proactive law seeks to integrate legal literacy (including contractual literacy) with enterprise-wide quality and risk management. The first publication related to proactive law that we are aware of was ”Quality Improvement through Pro-Active Contracting: Contracts are too important to be left to lawyers!”, a conference paper prepared in 1997 by Helena Haapio, International Contract Counsel for Lexpert Ltd, for the Annual Quality Congress of the American Society for Quality (ASQ) held in Philadelphia in 1998. For an abstract, see qic.asq.org/perl/search.pl?item=10690. The paper was later expanded to an article entitled “Preventive Lawyering in International Sales: Using Contract Reviews to Integrate Preventive Law, Risk Management, and Quality” published in the Winter 1997/1998 issue of the Preventive Law Reporter. The Nordic School of Proactive Law (NSPL) was established in response to a need to further develop practically oriented methods and legal theories of Proactive law. It consists of both practitioners and researchers engaged in Proactive law in each Scandinavian country. The NSPL website at http://www.proactivelaw.org contains information about the background, people, and past and future events. The first international Conference dedicated to proactive law, “Future Law, Lawyering, and Language: Helping People and Business Succeed”, was organized in Helsinki, Finland, in May 2003. For abstracts and visualizations, see http://www.ulapland.fi/?deptid=13095. Conference papers were published in the Summer 2003 issue of the Preventive Law Reporter. The second international Proactive Law Conference, “Fusing Best Business Practices with Legal Information Management and Technology”, was organized in Stockholm, Sweden, in June 2005. For program materials, see http://www.juridicum.su.se/proactivelaw. Conference papers were published in Volume 49 of the Scandinavian Studies of Law Series, "A Proactive Approach", http://sisl.juridicum.su.se. The Volume includes, i.a., two Chapters by Helena Haapio: "Introduction to Proactive Law: A Business Lawyer's View" and "Business Success and Problem Prevention through Proactive Contracting". The
third in the series of international Proactive Law Conferences, “Commercial
Contracting for Strategic Advantage – Potentials and Prospects”
was held in Turku, Finland, in June 2007. For the Conference program,
see http://www.ccc-turku2007.org.
As an outgrowth of the Conference, various leaders in proactive/preventive
law, together with a number of practitioners who seek to expand the field
beyond legal concerns, met to form the ProActive ThinkTank
(www.proactivethinktank.com;
website under construction). The mission of the ThinkTank is to provide
‘a forum for business leaders, lawyers, academics and educators
to discuss, develop and promote the proactive management of relationships,
contracts and risks, and the prevention of legal uncertainties and disputes’.
The website will provide a venue for collecting and sharing such information
as best practice tools and techniques, case studies, articles, and reports
on ongoing research. If you wish to join the ProActive ThinkTank or obtain
additional Preventive Law In the context of practicing law, the idea of prevention was first introduced by Louis M. Brown, a law professor and legal practitioner known as the Father of Preventive Law. In an effort to help people minimize the risk of legal trouble and maximize legal benefits, he published the treatise Preventive Law in 1950, followed by numerous other books and articles on the topic. The approach has similarities with preventive medicine, a branch of medical science dealing with methods of preventing the occurrence of disease – here, the “disease” of legal trouble, disputes, and litigation.
The National Center for Preventive Law (NCPL) acts as a clearinghouse for information and as a network for those interested in the theory of preventive law or how it applies to particular areas of practice. The NCPL was founded by Louis M. Brown and is hosted by California Western School of Law, San Diego, CA. The NCPL website at http://www.preventivelawyer.org offers a general introduction to preventive law and a wealth of information related to the proactive prevention of legal problems.
An introduction to preventive law basics and applications is provided by Professor Richard S. Gruner, Whittier Law School, at http://www.cyberinstitute.com/preventivelaw/. The Syllabus at http://www.cyberinstitute.com/preventivelaw/lectures.htm is divided into three parts: I Preventive Law Basics, II Preventive Law Applied - Some Examples, and III Developing Future Preventive Law Applications.
International Trade and Cross-border Contracts The United Nations Convention on Contracts for the International Sale of Goods, the CISG, is the "international sale of goods act" or the "international commercial code" of countries that account for over three quarters of all world trade today. If you are involved in international sales or purchases of goods, you need a basic understanding of the effects of the CISG on the rights, obligations, liabilities and remedies of the parties. To find CISG Treaty texts in different languages, a map and list of contracting states, guides for managers and counsel, scholarly materials, or cases, the best place to start is the Pace University School of Law CISG database at www.cisg.law.pace.edu. This award-winning database is compiled from submissions by many contributors under the general editorship of Albert H. Kritzer. If you are looking for guidance on how to find leading texts, commentaries and practitioner's guides, or how to keep up-to-date with the area of international sales law, you will most certainly find what you are looking for in the Guide to Research and Literature at www.lawschool.cornell.edu/library/guides/cisg/sales.html. Lex Mercatoria (the International Trade Law Monitor) at www.jus.uio.no/lm/index.html provides a wealth of information and links related to international commercial laws and electronic commerce. The UNIDROIT Principles of International Commercial Contracts, first published in 1994, set forth general rules for international commercial contracts. Even though the UNIDROIT Principles are not law, they still have a significant role to play in the area of international trade. For the 2004 Edition (black letter rules) in English, see http://www.unidroit.org/english/principles/contracts/principles2004/blackletter2004.pdf; in other languages, http://www.unidroit.org/english/principles/contracts/main.htm. Full text, including comments and illustrations: Success in international trade requires a basic understanding of the underlying laws and default rules, including the CISG. The contracting team must be contractually literate. It may be just as important to notice things that are not in the contract, the “invisible” terms, as it is to understand the terms that have been specified. Helena Haapio, International Contract Counsel for Lexpert Ltd, discusses Contractual Literacy in her article "Invisible Terms in International Contracts and What to Do About Them" published in the July 2004 issue of Contract Management, available at www.ncmahq.org/publications/cm/docs/CM_July04_p32.pdf. Other Sites of Interest The International Chamber of Commerce, ICC, promotes international trade and makes rules that facilitate the conduct of business across borders. Incoterms 2000 are regularly incorporated into sales contracts worldwide to define the responsibilities, costs and risks of the buyer and the seller for the delivery of goods under sales contracts. For ICC Understanding Incoterms, see http://www.iccwbo.org/incoterms/id3042/index.html, and for ICC Incoterms 2000 Wall Chart, http://www.iccwbo.org/incoterms/wallchart/wallchart.pdf. The ICC Business Bookstore is located at http://www.iccbooks.com.
Juris International is a multilingual collection (English, Spanish, and French) of legal information on international trade. Juris International aims to facilitate and reduce the work involved in research for business lawyers, advisers and in-house counsel, and state organizations in developing and transition economies, by providing access to texts which have often been difficult to obtain. For contract models currently available, see http://www.jurisint.org/en/con/index.html.
The International Association for Contract and Commercial Management (IACCM; http://www.iaccm.com), is a global community of senior contract, sourcing, and commercial management executives and managers. The mission of the IACCM is to help its worldwide members develop innovation, best practices, and operational excellence within their organizations. IACCM members are equally divided between buy-side and sell-side focuses. They share a common interest in developing tools, systems, processes and skills that deliver operational excellence. The Finnish Chapter of the IACCM operates as the Contract Management Special Interest Group (SIG) of the Finnish Project Management Association, http://www.pry.fi. For information, please contact Helena Haapio at Lexpert Ltd, email: firstname.lastname [at] lexpert.com.
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