Reviewing a contract with a counterparty in the United States

A contract from a US counterparty is longer, drafted in a different tradition, and written around concepts, indemnification, consequential damages, representations and warranties, choice of state law and jury waivers, that mean different things under English law or nothing at all. Which of those concepts have effect under English law, which do not, and which English protections do not apply to a contract with a US party are questions the contract does not answer on its face. I review the contract from the side of the business in England and Wales and return it marked up with a written explanation of the changes and the ones a US counterparty will accept, for a fixed fee of £895 in five working days.

Who this is for

Businesses in England and Wales contracting with a US customer, software vendor, distributor, investor, agency or partner, on the US party's paper or their own, and want to understand what the document does under English law and how to protect themselves in a dispute they may have to bring in the United States. Both parties are businesses; I advise on the law of England and Wales and identify the points that need advice from a lawyer in the relevant state.

What to look for in a contract with a US counterparty

US drafting read under English law

A US-drafted contract distinguishes representations from warranties, indemnifies against 'losses, damages and expenses including attorneys' fees', excludes 'consequential, incidental and special damages', and includes a jury trial waiver and a severability clause. Under English law the distinction between representations and warranties turns on section 2 of the Misrepresentation Act 1967, an indemnity is read according to its words rather than a US doctrine, 'consequential loss' has a narrower meaning than US drafters intend, and a jury waiver is meaningless. The review translates each concept into what it does under English law and drafts to the intended effect.

Governing law, forum and what the Unfair Contract Terms Act no longer does

A US counterparty will choose the law of Delaware, New York or California and the courts or arbitration there. If English law is agreed instead, the UK business should know that section 26 of the Unfair Contract Terms Act 1977 takes an international supply contract for goods outside the Act's reasonableness controls, and that section 27 governs the effect of a foreign choice of law. Regulation (EC) No 593/2008 as retained determines how an English court treats the choice. The review recommends the forum the UK business can use: arbitration under the Arbitration Act 1996 with a seat in London or a neutral seat produces an award enforceable in the United States under the New York Convention, while an English court judgment is enforced in the US under state law.

Liability: caps, indemnities and the losses that are excluded

US contracts pair a mutual limitation of liability with uncapped indemnities for third-party claims, intellectual property infringement and breach of confidentiality or data obligations, and exclude consequential damages in terms that under English law may not exclude the losses the parties expect. The review checks the cap against the value of the contract and the UK business's insurance, limits the indemnities the UK business gives to third-party claims it controls, checks that the exclusion of consequential loss does not leave the UK business without a remedy for the losses it is likely to suffer, and preserves liability for death, personal injury and fraud, which cannot be excluded under English law under section 2 of the Unfair Contract Terms Act 1977.

Data transfers to the United States

Personal data sent from the UK to a US counterparty needs a transfer mechanism under Article 46 of the UK GDPR and the Data Protection Act 2018: the UK extension to the EU-US Data Privacy Framework where the US party is certified, or the International Data Transfer Agreement or the Addendum to the EU standard contractual clauses with a transfer risk assessment. The review checks which applies, whether the US party is processor or controller, whether the processor terms required by Article 28 are present, and whether the US party's own state privacy laws impose obligations on the UK business as a service provider.

Sanctions, export controls, anti-corruption and the compliance clauses

US contracts require compliance with US sanctions administered by OFAC, US export controls and the Foreign Corrupt Practices Act, and ask the UK business to certify compliance with laws that do not apply to it. The review confines the UK business's obligations to the laws that bind it: UK sanctions, the Export Control Order 2008 for controlled goods and technology, and adequate procedures under section 7 of the Bribery Act 2010, and checks that a breach by the US party's own customers or affiliates is not a termination event for the UK business. It also checks the US party's audit and certification rights for proportionality.

Payment, currency, tax withholding and enforcement

The contract should fix the currency and the payment period, and the review checks the treatment of US sales tax and withholding tax on royalties or services, which is for the UK business's accountant, the exchange rate risk, and the security for payment where the counterparty is abroad. Where English law governs, interest on late payment runs under the Late Payment of Commercial Debts (Interest) Act 1998. The review also checks the practicalities of enforcement: an arbitration clause, an agent for service in England for the US party, and a choice of courts the UK business can use.

What it costs

Complex review, £895. Heavily negotiated or unusually complex documents. Five working days.

Standard review, £495. Marked-up document and a written explanation of the changes. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

The US company insists on New York law and courts. Should we refuse?

You may not be able to move them, and the review does not stop there. It concentrates on the liability, indemnity, data and compliance terms, which US counterparties negotiate, and recommends arbitration with a neutral seat as a forum whose award you can enforce in the United States.

Their indemnity clause is a page long. What does it do under English law?

What its words say, without the US doctrine behind them, so a wide indemnity for 'any and all losses' can be wider than a US court would read it. The review limits the indemnities you give to third-party claims you control and checks the cap and the exclusions against them.

Can we send customer data to a US vendor?

You can with a transfer mechanism: the UK extension to the Data Privacy Framework if the vendor is certified, or the International Data Transfer Agreement or the Addendum with a transfer risk assessment. The review checks which applies and whether the vendor's terms contain the processor obligations Article 28 requires.

Related guidance and services

• Contract review, £895, the service this page describes
• SaaS and technology contracts, £995
• Data protection agreements and privacy terms, £795
• Reviewing a reseller agreement from a US software vendor
• Reviewing a contract governed by the law of another country

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.