Are you aware of Harvard’s policies as they apply to contracts? Applicable federal law? Do you need assistance from Harvard’s General Counsel?
If the overseas research program involves a subaward/subcontract to a foreign organization, it is important that these agreements facilitate a full and complete understanding of sponsor obligations by the foreign organization and its key personnel, as well as the obligations imposed by US and foreign law. The use of a standard subaward/subcontract template, such as those developed by the Federal Demonstration Partnership (FDP), will typically not work effectively as a model for a foreign component or foreign site agreement.
Instead, agreements should include brief descriptions of each regulatory requirement in plain language accompanied by a website link to enable the research and administrative staff of the foreign organization or foreign site to obtain a fuller understanding of these requirements and to establish policies and processes to ensure and monitor compliance. Also, agreements to be executed with foreign persons must normally be prepared and/or reviewed by local counsel in the foreign country to ensure compliance with local laws, including labor laws. Coordinate with the Office of General Counsel (OGC) on the selection of local counsel and anticipate for these costs.
In addition, consider following contracting details:
Will there be a publication?
- Harvard rigorously adheres to its Policy on Publications: http://osp.finance.harvard.edu/publication-0 and the University Open Access policies https://osc.hul.harvard.edu/policies/
Will new intellectual property come out of the project?
- Contemplate any work product that might arise in the conduct of the project. Will the international collaborator require any rights to ownership, access, or distribution of intellectual property? See the Statement of Policy in Regard to Intellectual Property (IP Policy): http://otd.harvard.edu/faculty-inventors/resources/policies-and-procedures/statement-of-policy-in-regard-to-intellectual-property/
Will you use the Harvard Name to promote your project?
- Harvard use-of-name policies fully apply outside the United States. Foreign collaborators are often keenly interested in promoting their association with Harvard, and this promotion may take many forms, including the request to use the Harvard name in the titles of local entities or facilities, or attempts to use Harvard’s shields or other indicia to brand written work product, or even objects such as vehicles. Requests to use the “Harvard” name must be reviewed and approved by the Harvard Trademark Program well in advance of any use of name. Please consult: http://trademark.harvard.edu/policy-on-use-of-harvard-names-and-insignias for further details.
- In general, clauses for the protection of the university’s name and marks should be clear and unambiguous in agreements with foreign institutions. One approach is to require that any use of the university’s marks and name be subject to prior written approval by a designated person. Another approach is to specify the circumstances in which the university’s name and marks may be used by the other party to fulfill its obligations under the agreement, with other uses subject to prior written approval.
- Periodic review of the foreign institution’s website is recommended to ensure appropriate use of the U.S. institution’s name and marks. If the collaboration terminates early, the U.S. institution will want to ensure that its name/marks are removed from the materials, website, etc. The contract should make clear the period of time (e.g. the term of the agreement) during which the U.S. institution’s name and marks can be used by the foreign institution.
Are there contract provisions on “choice of law” and dispute resolution?
It is strongly preferred that contracts specify which legal jurisdiction applies. Options for choice of law, in order of preference, include governing the contract under:
- A particular State’s law, such as the law of the jurisdiction of the university (i.e., Massachusetts)
- New York or Delaware law, which are generally recognized as commercially developed and neutral
- Laws of a neutral international jurisdiction, such as the United Kingdom, assuming the other party is not located there
Also, when contracting with a foreign institution for academic activities, determine whether the program or activity is in a country that is a signatory to the NY Convention (prepared by the United Nations and adopted in 1958, the Convention requires courts of contracting “States” to recognize an agreement to arbitrate). If it is, consider binding arbitration for resolution of any disputes arising out of the contract as an alternative to a foreign country’s courts.
Is the foreign partnering institution owned by the foreign government?
If so, the foreign institution may be entitled to sovereign immunity from enforcement of or performance under the contract. Claims of immunity are generally difficult to overcome, but in some cases can be under the Foreign Sovereign Immunities Act (FSIA), where one of the exceptions apply, such as the “commercial activity” exception, where a sovereign acts as a private player in the market, or where there is express waiver of immunity. Application of one of these FSIA exceptions would provide the basis for obtaining jurisdiction over a foreign state (including their agents or instrumentalities) in U.S. courts.
Therefore, to provide contract breach protection, universities have a few options:
- Structure the payments so they are made in full before the actual work is performed; or, stagger them throughout the project. This way, the university’s expenses are covered if the foreign institution gives notice of its intent to terminate. Also, if the foreign institution misses a payment, the U.S. University is alerted to possible breach and may notify its partner or stop work
- Draft an express waiver of immunity into the contract or MOU. It must be clear and unambiguous and intended for enforcement in the United States
- An express arbitration provision may confer jurisdiction in U.S. courts under certain circumstances
Only a few people at Harvard have signing authority. Are you being asked to sign a contract on behalf of Harvard University?
Harvard designates only a limited set of people who have authority to sign agreements on behalf of Harvard, whether with foreign governments, provincial officials, municipal or otherwise political officials, subcontractors, vendors or landlords. Faculty may be involved in negotiating agreements, but only in concert with their school officials, the Office for Sponsored Programs, or the Office of the General Counsel. In general, all agreements with governmental units, offices, or parastatals (i.e., having some political authority and serving the state indirectly) must be negotiated with advice from the OGC.