Cross-Border Investment Committee

Preliminary Agreements And Precontractual Liability

Session Synopsis:

The rapid growth of cross-border transactions and of disputes in connection with investment protection – among others – is highlighting the issues connected to cases in which a transaction is aborted at the very early stage or, for any reason, a contract is not formed. International law and treaties have addressed mainly sales contract and the trade of goods. What happens in the event of an aborted acquisition or other investment transaction, when there is no executed contract and therefore the parties have not yet agreed on the law applicable to their relationship? The panelists will address the general precontractual liability from different angles, from quasi-contracts, to implications for antitrust, from the conflict among different domestic laws to good faith’s interpretation, from investment protection to ‘involuntary obligations’ and the nature of precontractual claims, from legitimate expectations to inducement cases, in different jurisdictions, and with the different approaches of civil law versus common law systems.

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