It Can Pay To Play A “Home” Fixture
If you are thinking of trading internationally, it is worth remembering you face the same problems with debtors that you do on home turf; with the added headache of defining whose laws govern the agreement. Before you enter into any contracts overseas you must establish who it is you are dealing with, be confident it is a legitimate request and be aware of the company status. It also helps to understand the legal process of the country and potential political issues which may arise to cause you further problems and complications.
Generally, you want to do business on your standard terms, which have been prepared for you by an expert who has a thorough knowledge of what it is you do and mirrors your exact processes. If the other company has its terms, then the rule of thumb is that the final one sent to the other before the contract is formed becomes the terms of the agreement. Of course, the terms have to be incorporated into the contract (but we will take it as read that they have been). Let’s assume that your terms apply to the contract, we can now examine how they can assist you in recovering your money:
This is the daddy of all clauses if you are trading overseas. It needs to be specified that the contract is governed by the English law and that the English courts have the exclusive jurisdiction to hear and determine any claims or disputes. In essence, this means that you get a home game if the matter is disputed and you will not have the inconvenience of trying to find an advisor in another country or trying to understand the finer points of their commercial legal system to bring a claim. This also avoids any additional complication with translations.
Your terms should include:
- Full recovery of your legal costs and expenses in the events that your invoices are not paid within the terms;
- Provisions that interest and compensation are added on to the outstanding balance; and
- if you are providing goods, a retention of title clause over any goods until paid in full means you can collect any of your items if they have not been paid for.
If you are doing a lot of international trading you may want to use incoterms – laid down by the International Chamber of Commerce to define where the risk and liability take place and passes from one party to the other. We always recommend you seek specialist advice on this.
You also can consider arbitration under the New York Convention or to give it its proper title The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 163 countries are currently signatories. This is an attractive option where enforcing a judgment in the jurisdiction of your debtor may be difficult and it may be cheaper to arbitrate than to issue legal proceedings.
A quality set of drafted terms do offer a whole scope of protection and we urge you to contact us should you wish to have your terms of business either overhauled or completely rewritten.
Martin Kingman – 19 October 2020
Insolvency measures to be extended
Many business owners are breathing a sigh of relief after the recent government announcement (24 September 2020) that measures put in place to protect businesses from insolvency will be extended to continue giving them much-needed breathing space during the ongoing Covid-19 pandemic and economic downturn.
The many changes introduced by the new Corporate Insolvency and Governance Act 2020, designed to protect businesses from insolvency, were due to expire on 30 September. These temporary measures include:
- The use of Statutory demands and winding-up petitions will continue to be restricted until the end of the year to protect companies from aggressive creditor enforcement action due to coronavirus related debts.
- Termination clauses are still prohibited, stopping suppliers from ceasing their supply or asking for additional payments while a company is going through a rescue process. However, small suppliers will remain exempted from the obligation to supply until the end of March 2021 so that they can protect their business if necessary.
- Modifications to the new moratorium procedure, which relax the entry requirements to it, will also be extended until the end of March next year. A company may enter into a moratorium if they have been subject to an insolvency procedure in the previous 12 months.
- Measures will also ease access for companies subject to a winding-up petition. The temporary moratorium rules will also be extended for the same period.
- Companies and other qualifying bodies, with obligations to hold AGMs, will continue to have the flexibility to hold these meetings virtually until the end of 2020. This means that shareholders can continue to examine company papers and vote on important issues remotely.
Commenting, Business Minister Lord Callanan said: “It is vital that we continue to deliver certainty to businesses through this challenging time, which is why we are now extending these important and necessary measures to protect companies from insolvency. Through this measure, we want to ensure businesses are able to not only come through this testing period, but also to plan, adapt and build back better.”
So, what does this all mean in brief?
- Statutory demands made between 1 March and 31 December 2020 are void.
- Winding-up petitions presented from 27 April to 31 December 2020 are suspended where a company’s inability to pay is the result of the Covid-19 pandemic.
- Restrictions on the court’s jurisdiction to make a winding-up order will apply until the end of 2020.
- Small business suppliers are exempt from the prohibition on enforcement of ipso facto clauses until the end of March 2021.
- Landlords are prevented from using commercial rent arrears recovery (CRAR) before the end of this year.
- Commercial leases cannot be forfeited for non-payment of rent or other sums due between 26 March and the end of December 2020.
Martin Kingman, CEO of Professional Legal Collections Ltd, observes that this will be a double-edged sword: “It will give some businesses certainty and protection but it could also damage others whose debtors are not paying up and using the protection not to keep their business afloat but as a mechanism to avoid and delay payment as long as possible. Despite these restrictions, we urge any struggling businesses to contact us for specialist advice and protection in these uncertain times.”
Information correct as of 25 September 2020