One of the traditional roles of chambers of commerce is to promote business, bringing together companies and individuals interested in establishing commercial relations, whether at the national level or, as in the case of Swedcham, internationally. With this objective in mind, its Business & Legal Committee recently brought to the debate a small sample of how some contracts of strategic importance to companies should not be seen only as contracts, but rather can and should be seen, first and foremost, as symbols of business relationships.
For a long time, the vision of the result was the main reason for the existence of the contract, that is, the relationship between the contracting parties was nebulous. The contract, its instrumentalization and management, historically, became more important than the business relationship that served as its basis.
However, because of a globalized and digital economy, where the complexity of the business environment is mixed with an accelerated speed, companies have started to find it difficult to keep their contracts and their heavy management at the same pace, especially in a traditional negotiation model and in a language incompatible with the new times and challenges.
A business vision emerges with strength and no less accelerated pace that reminds us that the contract, before being a business instrument, is the formal symbol of a relationship and, as such, will be subject to the changes that the new daily challenges will impose. This is the relational view of contracts, based on the homonymous theory launched by Ian Macneil and other scholars in the 60s and which returns to the scene very well adapted to the new social and economic model.
The contract, seen above all as an exchange, as a recurring part of human behavior, reminds us that a relationship – whether of a personal or business nature – must be flexible and adaptable, especially if it is of long duration and generates interdependence between the parties, which will require ongoing negotiations. When treated as a relationship, the contract should reflect trust, transparency, fairness, good faith and be flexible enough to keep interests and expectations aligned. For this to happen, contracts must be built in a balanced, convergent and collaborative manner, not to mention simplified legal language.
And when dealing with companies of different cultures and sizes, this care in building a business relationship must be more attentive, with a view to seeking a contracting model that is adapted to the evident differences. In other words, it is neither possible nor logical to standardize negotiations where negotiating parties are distinct in their respective characteristics and business cultures. The contract, especially of a relational nature, must be customized to survive as a real and effective symbol of a business relationship.
Hence, in the Nordic and international scenario, many methodologies applicable to the construction and reconstruction of the relationship and contracts arise, among them the Conscious Contracts® and Vested® methodologies. Both methodologies work on the relationship that supports the contracts, innovating and seeking sustainability for them, especially giving importance to the prevention of conflicts, which are a natural result of any relationship, even applying many of the same techniques found in ADRs, for example.
Swedcham brought to its members on April 6th a small sample of these works, through an event in which the topic was discussed by the authors of this article, together with North American professors Kate Vitasek and Jim Bergmann, both developers of the Vested® methodology and Collaborative Contracts for Strategic Business Relationships. The event had an excellent repercussion, also enabling the sharing of the video on YouTube;
The idea of writing and reporting on the topic was a natural result of the enthusiasm generated by the paradigm shift, which, by all accounts, is more compatible with the current global reality. We hope that our Nordic readers will also be imbued with the same enthusiasm to bring their businesses further ahead.
Ana Luiza Panyagua Etchalus is lawyer at Etchalus Advocacia.
Renato Pacheco e Silva Bacellar Neto is partner at Pacheco Neto Sanden Teisseire Law Firm.
