Jul 21

Legal English in Focus: Liquidated Damages Clauses

English Language Training, Language Training Courses, Legal English Training Courses No Comments »

Legal English is often full of impenetrable terms that make contracts unnecessarily difficult to understand. The role of a legal contract should be to make the terms and conditions of any agreement clear and transparent rather than confusing. This article forms part of our series on Legal English and will shed light on some of the major terms and clauses found in legal contracts.

One clause you may often come across is the Liquidated Damages Clause, but what exactly is it?

Business Writing Viorika Prikhodko i Legal English in Focus: Liquidated Damages Clauses

© istockphoto.com/Viorika Prikhodko

In a contract involving two parties, a Liquidated Damages Clause is put into place to serve the best interests of each party and to discourage both parties from breaking the rules of the contract. For example, if Party A fails to uphold their side of the agreement, they must pay a fixed and previously agreed upon sum of money to Party B, who has fully adhered to the agreement.

In this case, Party A is known as the ‘defaulting party’ while Party B is called the ‘non-defaulting party’. Both of these terms will occur frequently in a Liquidated Damages Clause. Importantly, this clause does not aim to punish the defaulting party (Party A) but indeed to compensate the non-defaulting party (Party B).

The courts have developed laws whereby they can control the contents of Liquidated Damages Clauses. The basic rule is: the Liquidated Damages Clause can be enforced if the amount of money to be paid has been estimated prior to the start of the contract, and that this estimate reflects as accurately as possible the loss that would be suffered by the non-defaulting party (the individual or group who sticks to the agreement).

It is important that this estimate is indeed genuine as it will remain fixed in the event that the contract is broken, even if the actual loss suffered is worth more. If the non-defaulting party does actually lose more than originally estimated, they will not be able to sue for their full loss because they are bound to the initial. However, if it is proved that the estimated sum of money was not a genuine reflection of the potential loss suffered, then the non-defaulting party will be able to fully sue for their loss. In this case, the clause would then become known as a ‘penalty clause’. To find out more about penalty clauses read an interesting article in The Student Law Journal entitled ‘Commercial Law’.

One of the principal advantages of this clause is that it helps to avoid uncertainty so it’s really important to master it. It makes each party aware of the consequences that might occur if they do not hold their end of the bargain. Mastering the Liquidated Damages Clause however requires an extended knowledge of Legal English. Undertaking a Legal English course will help you to gain a better understanding of the terminology and specific vocabulary used in contracts or legal documents. The skills and knowledge gained in Legal English will improve your confidence and ability to write contracts or legal documents effectively.

According to case law, there is a presumption that it is a penalty when the clause requires a single lump sum to be paid, on the occurrence of several events, some of which may lead to serious damage and other may result in minor damage. Therefore, when drafting a contract in Legal English, it’s essential to distinguish between serious and minor breaches of contract.

Moreover, a clause will held to be a penalty clause if the amount to be paid is “unconscionable and extravagant” compared with the loss that could be suffered as a result of the breach. Courts however will be reluctant to conclude that a clause is a penalty when it has been agreed by commercial parties who are able to protect their interests.

It’s important to emphasise nevertheless that the function of this clause is to fix the amount that must be paid by the defaulting party regardless of the actual loss suffered by the non-defaulting party. This way, if the loss suffered is greater than the amount set out in the clause, the non-defaulting party is not allowed to ignore the clause and sue for the entirety of the loss.

However, if the amount of damages payable under the clause does not constitute a genuine pre-estimate of loss, it will be considered to be a “penalty clause” and will not be enforceable. The aim of a penalty clause is to punish the defaulting party, which is not permitted under English law. Where a clause is found to be a penalty clause, and thus unenforceable, the non-defaulting party can seek to recover his entire loss even if it is more than that provided for in the contract.

The difference between a liquidated damages clause and a penalty clause is based on the intention of the parties when entering into the contract as well as the date on which the parties entered into the agreement rather than the date of the breach. However, what actually happened after the formation of the contract may be important evidence of what could reasonably be expected to be the amount of the loss.

© Communicaid Group Ltd. 2011

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Feb 04

English as the Lingua Franca for Business

Business English Training Courses, English Language Training 1 Comment »

First of all let us consider what a lingua franca is. In the words of the linguist Nicholas Ostler, a lingua franca is ‘a language that you learn because you need, because you want to.’ In contrast, Ostler defines a mother tongue as ‘… a language that you learn because you can’t help it’.

Globe Kasia i English as the Lingua Franca for Business

© istockphoto.com/ Kasia

How did English become today’s lingua franca for business? The spread of English can be traced back to the settlement of North America when the British took over areas of land from native populations and established English as the language that subsequent immigrants would speak. English was also taken to India and other countries around the globe as part of 19th Century imperialism. After the Second World War, English became increasingly popular as it was associated with the new world order. The cultural and economic clout of the countries where English was spoken encouraged and obliged many political elites and companies to adopt this language.

What is the current situation? The Financial Times published an article in 2007 entitled ‘Whose English?’ This article estimated that the number of native speakers of English was 400 million whereas one quarter of the world’s population can communicate in this language. About 80% of all interactions in English take place between non-native speakers. The globalisation of business operations and communication technology has helped bring about this situation.

Currently business English’s position as a lingua franca is upheld by the economic might of the United States and Britain. However, the influence of the two economic powers has recently been shaken by the banking crisis and the consequent economic downturn. This situation shows how things can change. Maybe in the future Chinese companies will be in a position to oblige ‘foreign’ companies to use Chinese to do business with them? It is also worth considering that the number of Americans who have Spanish as their mother tongue is increasing rapidly.

But before this situation occurs, international businessmen or entrepreneurs will still need to use English during their international meetings or business negotiations. Consequently, professionals working internationally can benefit immensely from business English training courses which will allow them to communicate effectively with their foreign counterparts.

© Communicaid Group Ltd. 2011

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Oct 29

The Influence of Sport on Business English

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Have you ever heard expressions such as “curveball”, “home run” or “big hitter”? If you are a baseball fan you will be  very familiar with them. But have you ever heard these in an everyday or business conversation? Let’s play ball!

Football Adam Kazmierski i The Influence of Sport on Business English

© istockphoto.com/ Adam Kazmierski

According to the French National Institute for Statistics and Economic Studies (INSEE), the importance of sport is growing in modern society. But sport is more than a mere practice; it is a sub-culture with its own code and vocabulary that now permeates through to everyday social and business culture.

A quick glance at the list below will show some typical sporting terms used in both American and British English. Be sure to ask for a review on these when undertaking a business English course.

Word Sport Meaning Usage
Batting 1000 Baseball Getting everything in a series of item right American English
Catbird seat Baseball An advantagous position American English
Cleanup hitter Baseball Someone who come in to solve a problem American English
Curveball Baseball A surprise American English
Home run Baseball A complete success American English
Play ball Baseball To start American English
Right off the bat Baseball Immediately American English
Full-court press Basketball An all-out effort to exert pressure American English
End run US football An evasive tactic American English
To Knock Out Boxing To put out of comission British English
Below the belt Boxing An unfair tactic British English
A contender Boxing A challenger British English
To score Various To succeed British English
A game plan Various A strategy British English
Locker talk Various Gossip, rumour British English

As you can see, sport terminology is now widely used in business situations. But while these expressions are easy to understand for native speakers, it is not necessarily the case for non-native English speakers who might struggle and be confused by hearing sport vocabulary in another context.

If you want to avoid misunderstanding with your foreign colleagues, it is advisable to follow a business English course. It will offer you the opportunity to go the distance and tackle language issues. If you don’t want to throw in the towel when dealing with foreign heavyweight clients or suppliers, it is crucial to master basic and more advanced business vocabulary.

© Communicaid Group Ltd. 2010

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Oct 28

The Benefits of Language Training for Military Personnel

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Military communication may sometimes seem abrupt and direct to civilians and outsiders but in a military setting you have to say the right thing at the right time, which can be why military personnel sometimes appear reserved or to-the-point. To be efficient, they have to stay calm and often they don’t really need to speak to communicate; they have their unspoken language and codes. For example, they have a particular dress code for each rank; without asking, they know who they are talking to and instinctively know how to act.

Military Salute Arthur Carlo Franco i The Benefits of Language Training for Military Personnel

© istockphoto.com/ Arthur Carlo Franco

Within the context of international co-operation that now exists across borders, soldiers need to be able to communicate not only with ‘the enemy’ but also with partners from different national forces. With the predominance of the US in international bodies such as NATO and the United Nations, English has become the language of choice for military personnel worldwide. But like any other type of language, military English has its own vocabulary, acronyms and idioms. It is therefore essential that soldiers involved in international projects or operations develop appropriate language skills.

Being able to speak another foreign language as well as English is also highly beneficial for military personnel. It can allow soldiers to socialise with local communities where they are deployed in peacekeeping operations. History has proven that the support of the local population is vital to ensure the success of a military campaign. Unfortunately, speaking English is not enough when soldiers are sent to countries where the locals don’t speak English. This was the case in Afghanistan where US soldiers couldn’t communicate with the population. They were not prepared to deal with Afghanistan’s language diversity and lacked translators to communicate effectively with local partners.

The US army has now acknowledged the importance of language. In an article published in the Indiana Daily Student News Lt. Col. John Newman declared: “We can’t force the American model on another country; we want to work within their culture. By understanding their language and culture, we’re able to do things that don’t offend them, can achieve goals by avoiding conflict.” Lt. Col. John Newman demonstrated that he understood that a country’s language and culture need to be respected. Military commanders are becoming increasingly aware of this and organising training in languages such as Pashto or Dari for forces based in Afghanistan.

Language training such as Military English or Pashto courses can provide immense benefit to soldiers working within international organisations or sent on peacekeeping assignments overseas. Speaking another language will help them to communicate effectively with their foreign counterparts or build relationships with the local populations and improve the success of their deployment.

© Communicaid Group Ltd. 2010

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Oct 25

Why do Certain European Countries Speak English Better than Others? A Closer Look at the Spanish

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Spain is a country renowned for its weather, beautiful beaches, friendly people and laid-back attitude. It is also one of the top destinations for Britons going on holiday thanks to its proximity to the UK and lower cost of living. But one of the difficulties for Britons, or in fact any other visitor – be it for holidays or for living and working in Spain – is the apparent difficulty Spaniards seem to have when speaking English.

Meeting Business Meeting 2 nyul i Why do Certain European Countries Speak English Better than Others? A Closer Look at the Spanish

© istockphoto.com/ Nyul

Compared to other Western European countries such as Portugal, the Netherlands, or Germany, Spain seems to lag behind them in terms of English language proficiency. This is particularly interesting as its neighbour, Portugal, with a shared common history, similar culture and language, seems to exhibit greater prowess when it comes to speaking the language of Shakespeare.

The problem lies, of course, not with the Spaniards themselves but with a number of reasons that impact their ability to learn and speak the English language with the ease of, say, the Dutch. To start with, Spanish is a language with only five vowel sounds, and the stress and intonation differ widely from those of English.

This appears to restrict native Spanish speakers’ ability to easily adopt English sounds. Also, Spaniards’ access to English language material is very limited. Spain is one of only a handful of ‘dubbing’ countries in Western Europe, the others being France, Italy and Germany. This means that almost all of their movies and TV shows are dubbed into Spanish as opposed to having subtitles with the original soundtrack. The dubbing industry is so developed in Spain that some dubbing actors have achieved personal fame, being assigned to dub the same Hollywood actors exclusively throughout their careers.

While there is nothing wrong with this tradition, the problem that this represents for Spaniards willing to learn English is significant. They often struggle as they only ever get to hear English if they go out of their way by visiting cinemas showing original version, acquiring pay TV, or taking Business English courses, but these are all very limited environments. On the other hand, the Dutch receive lots of foreign content, even on national TV. Dutch children watch German and American TV programmes and, without realising it, they entertain themselves while simultaneously familiarising themselves with foreign languages from a very early age.

It is well known that the best way to learn or improve a foreign language is by being immersed in the culture of the desired language, being able to practice it and hear it constantly and on a daily basis. The lessons learned in the classroom can thus be put into practice straight away, making learning the language a necessity, vital to interacting successfully with others, as well as relevant to daily situations. Tailored English courses such as Business English courses can help you to develop your language skills, regardless of your level or linguistic background and offer you the relevant tools to use English proficiently.

© Communicaid Group Ltd. 2010

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Aug 03

Latest Developments in English Language Training

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Traditionally English language training has been composed of weekly lessons – either in a group or on a one-to-one basis. This format suits busy professionals who are able to free themselves for this short time slot to attend their lesson, either after work or during the working day. The effectiveness of this type of course depends on ensuring a highly focused training plan combined with a trainer who is able to maintain the delegate’s motivation throughout the duration of the training.

With more and more constraints on professional people’s time, distance learning has become increasingly popular. Web training is an example of a distance training tool. A webcam enables the trainer and the delegate to see each other and the computer screen becomes both the whiteboard and a means of sharing documents.

eLearning software has been available for some years now and when used alone it is not always very stimulating. This is why ‘blended learning’ (a combination of face-to-face instruction with computer-mediated instruction) is becoming increasingly popular. Blended learning has a link of some kind between what the delegate does in the training room and the eLearning sessions.

Delegates can also log on to webinars. Webinars are seminars on the internet and provide the delegate with input at distance. An interactive follow-up is obviously a requirement for this type of training sessions to be efficient. Click here to view a sample webinar.

woman typing Dmitriy Shironosov i Latest Developments in English Language Training

© istockphoto.com/ Dmitriy Shironosov

It is true to say that digital technology can bring learning material to life. The current developments in digital technology, however, focus more on general English courses, but professional training material will inevitably be produced in this format in the future.

Interactive White Boards (or IWBs) have become commonplace in school language classrooms. In the future we will be seeing more and more IWBs in professional training rooms. They enable the trainer to display his/her computer screen clearly. Videos, internet pages, dictionary definitions, tables, charts and diagrams can all be displayed quickly and easily with IWBs allowing the trainer to respond to delegate’s questions and to adapt the training session to the delegate’s learning style.

Inversely, there have been recent moves to remind trainers that the heavy emphasis on technology and any other materials in the training room such as books is not necessarily the best way to train. The dogme movement, which was started by the EFL writer Scott Thornbury at the beginning of 2000, attempts to refocus training sessions on the delegates and their knowledge and experiences, etc.

As mentioned, intensive-style Business English courses are becoming increasingly popular, particularly immersions and intensive days or weeks in training organisations. This approach helps the delegates to focus on the task at hand and facilitates a quicker solution to a problem (a gap in knowledge or skills).

As well as being more intensive, language courses are becoming more individualised and specialised than they used to be. The ‘one language course fits all’ approach is no longer considered the best way to meet delegates’ training needs. This is reflected in the needs analyses and subsequent tailored programmes that training organisations offer before setting up a course.

Organisations and their employees should always request a detailed Diagnostic Consultancy in which the type of Business English course, content, format and length is only established after detailed discussions and only after consideration has been given to level, needs, objectives and time constraints.

© Communicaid Group Ltd. 2010

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Jun 15

Drafting Contracts in English

Business English Training Courses, English Language Training, Legal English Training Courses No Comments »

In this post we are going to look at why English is the predominant language for the drafting of contracts, the implications this has for companies and their lawyers and the possible solution of finding a legal English course which specialises in drafting contacts.

English is the international language of business for a variety of reasons. The US is the dominant world economy and military power and two of the world’s main financial centres are also English-speaking (London and New York). As Dr Volker Triebel stated in his essay ‘Pitfalls of English as a Contract Language‘ nearly half of the companies listed in the Fortune Global 500 are headquartered in an English-speaking country (Australia, Britain, Canada, Ireland or the USA).

Man carying foldersTommL i Drafting Contracts in English

© istockphoto.com/ TommL

Logically, negotiations between companies on the international stage predominantly take place in English and consequently the contracts that are drafted are also in this language. As Anglo-American firms merge with European companies, English is becoming increasingly important in Europe, even though the body of law is different on mainland Europe from that which exists in Britain, and the US, for example.

In Europe, civil law is used (based on written statutes) whereas in common-law jurisdictions, such as England, Wales, Northern Ireland and the US the laws primarily come from customs, usage and earlier court decisions. Bilingual contracts are now a thing of the past and so international company lawyers no longer have the option of not being skilled in the English language needed for drafting contracts.

The situation mentioned above means that company lawyers now have to draft contracts in English and interpret contacts in this language as well. They also have to know about the implications for drafting under Common versus Civil jurisdictions. Simply knowing the English language is not sufficient to have competence in such a complex and highly-skilled area.

The only credible solution is to send their lawyers on a Drafting contracts in English training course which caters for these special needs. Training centres do offer legal English courses, but Communicaid, the Culture and Communication Skills Consultancy, actually offers a ‘Drafting Contracts in English’ training course. It is now in its eighteenth year and the specialised trainers are themselves both qualified trainers and legal professionals. The main training centre for this skills consultancy is based in London, UK. This course is aimed at lawyers whose second language is English and ‘who need to draft, explain and interpret contract clauses written in English but under their domestic jurisdiction’.

© Communicaid Group Ltd. 2010

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Jun 15

Benefits of a Legal English Course

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When searching for a training course, it is imperative to ask yourself “what do I want to be able to do in the language?” The answer to this question could be “to travel”, “to pass an exam” or “to be able to do my job better in an international working environment”. Whatever the answer to this question, the truth is that a general all-encompassing course is no longer satisfactory for the majority of delegates. A training course needs to be adapted to the needs of the delegate. This is why a Legal English course is the only real sensible option for anybody hoping to progress professionally in the legal sector.

Meeting Neustockimages i Benefits of a Legal English Course

© istockphoto.com/ Neustockimages

Time is another important factor to take into consideration. Why spend valuable training time practising and acquiring areas of the English language that are not relevant to the legal area you work in? The amount of lexical items that a delegate can realistically acquire during a training session is limited and so it is essential that only language relevant to the delegate’s needs is presented.

A delegate’s time is valuable and money spent on a language training course should be well spent. So why waste valuable training budgets aiming for targets and shooting wide of the mark? Well-detailed Legal English courses (such as the ones delivered by Communicaid), should be tailored to the trainee’s needs and be concerned with how effective this training course is. These concerns are reflected in the A to Z approach used by Communicaid. Communicaid carries out Diagnostic Consultancy and Programme Design before the training takes place and Impact Management to assess the effectiveness of the legal English course.

The delegate learns much better when his/her affective filter is lowered (‘The Natural Approach’, Krashen). This filter blocks the flow of language the delegate assimilates. It is lower when the trainee is feeling at ease with content of the training course. When this content is exactly what the trainee requires to improve professionally, then motivation is higher and the affective filter lower. As the trainer is dual-qualified (i.e. he/she holds a legal qualification and a teaching qualification), he/she is aware of exactly what a trainee needs to know and how to deliver this content efficiently and in optimal training conditions.

The trainee on the legal English course is in direct contact with a professional who has worked in English as a legal professional. The exchange of anecdotes, ideas, opinions and experiences between the trainee and his/her trainer can be both highly-motivating and richly-rewarding both professionally and personally. The legal English course will thus inevitably broaden your mind as well as improving your language skills. New career moves might also become more obvious to the delegate, such as taking a specialist qualification like the TOLES (Test Of Legal English Skills).

© Communicaid Group Ltd. 2010

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