Unpacked 2023 – Program: Deceptively Obvious

It's three weeks until the Warsaw conference –?the perfect time to introduce the particular panels that we have prepared for you! We begin with the 90-minute panel titled "Deceptively Obvious", presented by ???? Tobias Schelinski ( Taylor Wessing Germany ) alongside 5 other industry veterans.

A long time ago, Paul Smith used to make boots that had NEVER printed on the left shoe, and ASSUME on the right (these days it's the whole sentence that's printed on each shoe). The idea behind this presentation is that assumptions often lead to mistakes, and the "obviousness" of a particular clause may very well fade away under the spotlight of a conflict between the parties.

In Warsaw, we will look at 6 real-life clauses that lead to litigation. ???? Sergei Klimov spoke to ???? Tobias Schelinski about the context of this panel –

?? Tobias, contracts are written in a human language; and language allows multiple meanings for different terms. Are we bound to always have the risk of?misunderstanding of the terms, when a conflict makes the parties take a second look at what they've signed?

– There is such risk, sure, but it can be reduced by using proper definitions – as well as properly documenting the negotiation process (e.g. saving drafts with comments on the common understanding of a certain clause, or respective email correspondence). By the way, it's not a good idea to discuss important terms via WhatsApp or other messengers – the messages exchanged this way often have the tendency to “disappear” when you really need them.

?? Could you name an industry that has more of a problem with “we misunderstood the terms”? And an industry that has less of a problem with this? Maybe we carry more risk because we are a young industry?

– In my experience, the mechanical engineering industry has more problems with “we misunderstood the terms” than the games industry. Very often, such deals are negotiated and agreed only between the engineers, without lawyers being involved at all. The technical specifications in the relevant agreements are often excellent, but there are neither a “what happens if...” spirit in the agreement, nor any (proper) legal definitions. Nevertheless, it is also fair to say that such bad agreements are often not subject to any litigation. Instead, the disputes are settled before – with the help of lawyers.

– The traditional industries, like automotive, construction or logistics, certainly do not face the “we misunderstood the terms” issue as often as the games industry. Such industries have global standards and terms that exit for decades, and that are very often defined by – sometimes global – official industry boards and committees.

– On the opposite, the games industry does not have such "officially approved" standards yet. We use the same terms, but sometimes we mean something different, and we realise it at a too late of a stage. In addition, our industry is a small one, people know each other, and seem to treat each other well. This “family spirit” creates a certain level of trust in negotiations... yet also brings the risk of having agreements drafted not too diligently. Also, this spirit prevents some people from raising or discussing certain issues in proper detail, because they are afraid that this spirit could be harmed by asking the uncomfortable questions.

?? Does “NEVER ASSUME” make a good tattoo for a young lawyer?

– Well, at least it would look good on a Post-It note next to the computer. The “Never Assume” principle is relevant not only for young lawyers, but also for experienced counsels, and always needs to be kept in mind. My feeling is that very often this principle is ignored or forgotten, if lawyers simply do not have enough time to work on a matter in sufficient detail.

?? Have you ever been on a court case where it came down to language to the degree that you had to engage linguistic expertise?

– No, but once I had a court case where we had to refer to a definition in “Der Duden”, one of the most important dictionaries of the German language. There was a dispute between the parties on whether using the term “anstreben” (“to aim for”) with respect to developing software within a deadline created a legally binding and hard obligation to meet this deadline.??

?? In which area, in your experience, the “I thought it meant another thing!” kind of disputes come up more often – around revenue share, or about the terms of termination, or something else?

– We mainly see such disputes with respect to anything related to money, and from time to time also with respect to the scope of certain contributions. Once the litigation begins, in my experience not only these clauses may become relevant –but also various other clauses, including the provisions in the often ignored "Miscellaneous" sections.

Joining Tobias on stage are 5 other industry veterans, with the stories from their own practice:

???? Sean F. Kane ( Frankfurt Kurnit Klein & Selz ) –

???? Alexandre Rudoni ( A&O Shearman France ) –

???? Arata Nomoto ( City-Yuwa Partners ) –

???? Ryan Black ( DLA Piper ) –

And ???? Peter Lewin ( Wiggin ) –

The panel starts at 10:30 on May 10, 2023 and ends at 12:00 – at which point we will serve the lunch at DOCK19.