Contract Negotiation Best Practices and SCCs

Given the recent CJEU decision in Schrems II with respect to standard contractual clauses (SCCs), it struck me as a good time to revisit best practices in contract negotiation. The suggestions below are the result of 18+ years’ negotiating contracts in law, local government, and academia, including many with colleagues in Europe and beyond.

Whether these suggestions apply to your particular role in the privacy universe, especially in light of the Schrems II decision, I will leave that up to you. So, these practical suggestions and observations *may* be applicable in the privacy realm, but they are certainly applicable in the larger professional world. These are presented in no particular order of importance:

  1. Gather as much information from your negotiating partner as early in the negotiation as possible.
  2. Avoid using texts and certain software programs such as WhatsApp to negotiate, except in rare / emergency situations.
  3. Have an Offer – Concession Strategy: What is important to your organization or company? What are you willing to compromise on and what are non – negotiable issues?
  4. Do more listening than talking. TRULY LISTEN.
  5. Negotiate for the long term. Build a long term relationship, if that is what both parties want. You never know what the future will bring.
  6. The parties’ missions should mesh together. That builds long – term partnerships. No meshing of missions = less chance of success.
  7. Have empathy for your negotiating partner. Understand where they are coming from and then work toward to a mutually satisfying result. This is even more important given the pandemic.

Utilize these in your negotiations – including in privacy – related matters – and you are in good stead for the future. Remember, contract negotiation is art + science, so you need both the technical skills / aptitude AND the interpersonal skills to work in a civil manner with your colleague(s).

One last point. Contract professionals need to be flexible. This was quite true before the pandemic, and it is even more important given the pandemic and the uncertainty unleashed by Schrems II. We are in uncertain times for several reasons, but I suspect that privacy professionals will rise to the occasion when it comes to SCCs and contract negotiation.

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