Contracting

Governing law will determine enforceability of the contract provisions. Some jurisdictions have mandatory statutory provisions added to the contracts. Some don’t have legal concepts (like "termination at will”) that are analogous with those in the U.S. It is important to use local counsel who can provide guidance on business climate and contracting norms, and can also help with due diligence process on the local partner that you are considering.

If an agreement is written in two languages, specify that the English version will take the precedence. Some campuses will sign a non-English version for convenience only, but that should not be a controlling document. If a sponsor insists that a non-English version be signed, in addition to the English version, it is important to have it translated by a qualified translator and reviewed by local counsel. You should always consider the translation costs.

All payments due to UC should be payable in U.S. dollars. If this is not possible, specify a mechanism for calculating the exchange value and be cognizant of the risk to the project if rates fluctuate dramatically.

• Using courts or arbitration in dispute resolution will depend on how agreeable the partner is to jurisdiction by U.S. courts. With 156 state parties to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a.k.a. the New York Arbitration Convention or the New York Convention), international arbitration has an enforceability advantage over court litigation; an international arbitration award is enforceable in most countries in the world. Other advantages of international arbitration include the ability to select a neutral forum to resolve disputes, and that arbitration awards are final and not ordinarily subject to appeal.
• Location of Arbitration and identity of arbitrator are subject to agreement by the parties.

Unlike U.S. laws that tend to protect data only in certain industry sectors (FERPA for education and HIPAA for healthcare), foreign data privacy laws may apply broadly to all personal data generated or collected abroad. EU Data Privacy Law has strict data collection, processing, and use rules, and related template agreements. The European Commission has so far issued two sets of standard contractual clauses for transfers from data controllers to data controllers established outside the EU and one set for the transfer to processors established outside the EU. These model EU agreements for the transfer of personal data to third countries can be found here.

It is important to understand all applicable data access requirements, address them directly in the contract, and analyze the cost of compliance.

While intellectual property laws across countries and regions share many similarities, important differences exist across jurisdictions. (For example: U.S. permits, in certain cases, patents on software, while EU is reluctant to do so; “grace-periods” for inventors to file patent applications vary across regions; research exemptions to patent infringement exist in some countries but not others.) Government sponsors may impose specific IP obligations (including restrictions on assignment of ownership) on grantees. For example, the research funding that UC receives from U.S. government agencies is subject to the Bayh-Dole Act with respect to resultant IP.

Beyond laws and sponsor conditions, institutions have their own policies regarding obligations or lack thereof, of employees to assign IP to their employing institution.

Working with international institutions requires greater understanding of local restrictions and expectations when negotiating IP terms. You should assess contracts on a case-by-case basis.

Certain countries participate in boycotts against Israel. U.S. antiboycott laws and regulations are designed to prohibit or penalize cooperation with international economic boycotts in which the U.S. does not participate. If you come across such language, your Contracts and Grants Officer should place the transaction on hold, insist on deletion of any boycott language, and promptly forward a copy of the language to the respective campus’ export control office for further evaluation.

California Education Code 92000 prohibits others from using the name “University of California”, campus names or abbreviations without express permission from an authorized representative at UC. Conversely, prior written permission for the use of the name of the other party is required.

Some journals require disclosure of funding source as a condition of publication. Acknowledge in publications that the project was supported by (Award #), (Sponsor Name).

Consult “Best Practice Guidelines on Publication Ethics” for the major ethical principles of academic publishing.

Although UC is tax-exempt in the U.S., it does not automatically receive this exemption from foreign countries. Confirm whether the contract will cause UC to be taxed in the foreign jurisdiction or if taxes will be withheld from payment to or from UC. Also consider whether UC employees working in a host country may be subject to local tax on a proportionate share of their income