Contract drafting
A sound contractual basis rather than translated templates – drafted for cross-border use.
Germany · USA
Legal advice on business relationships between Germany and the USA
Cross-border business relationships between Germany and the United States place particular legal demands on companies. We advise on the drafting and legal structuring of German-US business relationships.
Overview
Day-to-day business across the Atlantic.
A business relationship with a US partner does not end when the contract is signed. It continues in deliveries, call-offs, price adjustments, complaints and, eventually, termination – and at each of these stages it shows how carefully the foundation was laid.
We support German companies throughout the life of such relationships: in drafting new agreements, in reviewing drafts presented by the other side and in dealing with the questions that arise in ongoing business.
Topics
Doing business between Germany and the USA.
In practice, the following topics shape German-US business relationships most often.
Distribution
Commercial agents, distributors and direct sales: rights, obligations and termination.
Cooperation agreements
Joint development, distribution or production – with a clear allocation of the results.
Supply relationships
Terms of delivery, call-offs, delay and the question of which sales law applies.
Liability
Limitations of liability, indemnities and the treatment of consequential damages.
Choice of law
Which law is to govern – aligned with forum and enforcement.
Jurisdiction
State court or arbitration, and where a decision can be enforced.
Trademark protection
Protection of trademarks and other distinctive signs in the relevant market.
Confidentiality and IP
Non-disclosure, know-how and rights in software and content (IT law).
Contract culture
Different levels of detail, different allocation of risk.
German and US contracts differ less in tone than in function. A German contract builds on statute and regulates the deviations from it; a US contract regulates the matter in full because it does not rely on a statutory default framework. The result is greater length, an express allocation of risk and a different weight attached to individual clauses.
This is a matter of legal system, not of mentality. In practical terms, a short contract that is complete by German standards may leave gaps in a US context – and an extensive US draft is not unfair merely because it spells out a great deal. What matters is how the risks are allocated within it.
We therefore read drafts for their effect, not their length – and translate the commercial consequences into decisions you can take.
Avoiding disputes
Preventing disputes in the contract itself, wherever possible.
01
Choice of law
Which law applies – expressly agreed rather than left to conflict-of-laws rules.
02
Jurisdiction
State court or arbitration, with a view to cost, duration and procedural rules.
03
Dispute resolution
Escalation levels, time limits and duties to negotiate before proceedings begin.
04
Enforcement
Where a decision can ultimately be enforced – a question for the beginning, not the end.
Contract review
Reviewing existing US contracts.
Often a draft from the US side is already on the table – a master services agreement, a distribution agreement, an NDA. Such documents are rarely open to free negotiation, but they can almost always be adjusted at the points that matter.
We assess the draft in its cross-border context, identify the points of commercial weight and prepare the negotiation. Where the law of a particular US state is decisive, the review is carried out together with US attorneys licensed in that state.
The same applies to existing relationships: a contract that has been running for years is not sound merely because there has been no dispute so far.
Questions and answers
Frequently asked questions on business relationships with the USA
What should be considered in contracts with US companies?
Above all, that US contracts operate without a statutory default framework: whatever is meant to apply must be written down. The points to settle are choice of law and jurisdiction, liability and indemnification, representations and warranties in place of statutory warranty rights, confidentiality, rights in trademarks and software, and the question of enforcement.
Which law applies to transactions with American companies?
In business-to-business dealings, the parties are largely free to choose the governing law. Absent a choice of law, it follows from conflict-of-laws rules and is then not always the law the parties expected. For the sale of goods, the UN Convention on Contracts for the International Sale of Goods (CISG) may apply in addition, unless it is expressly excluded.
Can a German company agree on German law?
Yes. In B2B transactions this is generally possible and common in practice. Whether it can be achieved depends on the negotiating position and on whether mandatory provisions at the place of performance stand in the way. It is important that choice of law and jurisdiction fit together – German law before a US court is possible, but burdensome.
What does US jurisdiction mean for a German company?
Proceedings in the United States follow different rules: extensive discovery, a different allocation of costs and, depending on the case, a jury trial. This can give rise to considerable costs regardless of the outcome. A company that accepts US jurisdiction should do so deliberately – and consider whether arbitration is the better solution.
How can liability risks in US business be reduced?
By design rather than by hope: a clear description of the services, express limitations of liability, provisions on consequential damages, coordinated indemnities, insurance cover and a structure that keeps liability where it belongs. Added to this is the choice of law and forum, which determines the effort involved if a dispute arises.
Can existing contracts with US partners be reviewed?
Yes. We assess existing contracts and drafts in their cross-border context, identify the points of commercial weight and propose amendments. Where the law of a US state is decisive, the review is carried out together with US attorneys licensed in that state.
Your contacts
Advice for ongoing US business.
J.-Alexander Bürger
Rechtsanwalt · Attorney at Law (Florida)
Juris Doctor (Miami), admitted in Germany and as Attorney at Law in the US state of Florida. He advises on distribution, cooperation and corporate structures in transatlantic business.
Darja Hannekum, LL.M. (University of Miami)
Rechtsanwältin & German civil-law notary (Notarin)
Certified Specialist Lawyer for IT Law (Fachanwältin für IT-Recht)
Master of International Law (Miami). She advises on license and software agreements, trademark and competition law and IT & Social Media in ongoing business relationships.
More on Germany · USA
Further cross-border topics.
German-US contracts
Choice of law, jurisdiction, liability and IP in cross-border agreements.
US market entry
Legal structuring of the US activities of German companies.
Establishing a business in the USA
Structure, choice of state and documentation for a planned US company.
Germany · USA
Think across borders.
Act with legal clarity.
Tell us about your matter between Germany and the USA. We will consider how we can assist you and which other advisors should be involved where appropriate.