Cross-Cultural Partnership: TEMPLATE and HOWTO
[From The Cross Cultural Partnership website. Discussed by James Leach in his presentation.–ed]
DRAFT version 0.3, September 2007
The cross-cultural partnership template is designed to help potential collaborators to reach understanding and agreement on the terms of their collaboration.
In many contexts people look to the law to establish or enforce a ‘safe space’ in which collaborative relationships may flourish. Good intention is more fundamental than law or codes of conduct. Nonetheless, legal agreements and faith in the law can facilitate the establishment of relationships where trust is yet to be established.
Here we offer a template which draws upon the law: the result of long-term consideration of issues around collaboration in different situations and arenas. The template draws specifically and intentionally upon understandings abstracted from established social practices and from licenses developed for digital creations.
Copyleft (an example of a license for digital creations) has built its alternative upon the scaffolding of copyright law to achieve goals outside of that law’s usual bounds. For the exchange of knowledge and creative partnerships (including between indigenous peoples, corporations and institutions, different disciplinary actors, etc.) we draw upon frameworks from the area of the law pertaining to partnership.
As in business dealings, choosing the partnership form brings with it default terms of fairness between partners: duties of loyalty, of care, of disclosure, of good faith and fair dealing. We seek to import those ethics and their underlying law to relationships broader than business, giving legal force to terms of mutual respect and mutually beneficial interchange.
Although the Gnu GPL and Creative Commons licenses served as models, this template agreement is much more skeletal in form. That is because the core of the partnership relationship is parties jointly articulating their intentions and goals. The process of specifying terms in this agreement can be an important part of building the shared understanding that will assist the relationship to achieve mutually agreeable ends.
It is in this spirit we offer a template for a partnership agreement by which the parties can make explicit to one another their understanding of shared goals, the means to achieve them, and have confidence that in that articulation, they guarantee a level of accountability from their partners. Experience points to the significance of considering and accommodating the expectations, interests, and location of parties to a collaboration as an ongoing aspect of the relationship itself.
See the accompanying How-To document for suggestions on how to use the template that follows:
1. Partnership title. #
[Insert partnership title]
2. Identification of the partners. #
[Insert the names and roles of the parties], (“Partners”)
Each partner comes to this agreement with the following authority:
[Insert authority to enter the agreement. Consider all the other people who might be involved. Is their cooperation or consent necessary?]
[Consider at this stage whether and how you may want to add additional partners. For example, if you need special expertise, will you subcontract these tasks or bring in new partners and thereby modify this agreement and the subsequent sections on benefits, future use of material, management?]
3. Common aims. #
The Partners agree to the general aim of entering into a mutually respectful and beneficial relationship. The partners also agree to the specific aims of:
[Insert specific aims]
[Specific aims could include:
4. Prior work. #
We consider that work conducted before entering this Partnership has the following relevance to this agreement and status for each Partner:
[Insert (specific) prior work, relevance, and status (how will the ownership of, or access to that work be modified, if at all, by its inclusion in the work of the partnership).]
5. Specific duties. #
The Partnership imposes the following obligations on each partner:
[Insert specific duties you intend for one or another of the partners to assume, particularly where you expect the partners’ contributions to vary because of the different strengths and backgrounds they bring to the partnership. These may or may not extend beyond the term of the partnership.]
In addition, the following obligations shall survive dissolution of the partnership.
6. Outcomes and benefits. #
The Partners agree on the following ways to distribute the results of the Partnership:
[Options might include joint ownership, cross-licensing, or other terms specific to the types of creative outputs (copyright, patent, confidentiality, etc.). Consider how the concrete outputs may be licensed / shared / sold / given away.]
The Partners may draw differential benefits after or as part of the pursuit of their Common Aims.
[Insert differential benefits.]
[Differential benefits might recognize the different strengths and needs of each Partner.
7. Management. #
The Partners will coordinate their efforts for the Partnership according to the following expectations:
[Insert description of how Partners will manage the project jointly.This might mean that management will be undertaken in accordance with certain principles, and/or under certain authority, which the partners will agree to with full knowledge of the system adopted. See also arbitration, below].
[Management choices might include disclosure of interests relevant to the subject of the Partnership, either:
Periodic review and amendment.
Periodic reviews will occur at the following intervals [Fill in review schedule]. At these times, the parties will disclose their present interests, progress, profits, and unexpected developments pertaining directly to the partnership.
If the [mutual] goals have changed, a renegotiation / amendment will be entered into until all parties are satisfied that the partnership maintains its original equity.
If the parties no longer share mutual goals, parties should seek to wind up the partnership. Proceed to dissolution according to the terms of the latest agreement.
8. Breach #
Apart from the standard breaches of fiduciary duty, the following events shall constitute breaches of the Partnership.
[Insert explanation of possible breaches].
9. Remedies. #
In the event of a breach, the non-breaching Partner(s) shall be entitled to:
[Insert explanation of possible remedies].
10. Choice of law. #
Partners agree that this partnership will be governed by the law of:
[Insert nation or legal entity.]
and disputes will be arbitrated or adjudicated by:
[Insert court or organization.]
[Partners could turn to governmental or nongovernmental organizations to decide conflicts, such as:
11. Term and termination. #
This Partnership shall remain in effect until:
[Insert end condition.]
[End conditions could include:
All parties have customized each section of this document to meet their common and individual aims.
[Insert signatures and dates]
How to use this template:
The cross-cultural partnership template is designed to help potential collaborators to reach understanding and agreement on the terms of their collaboration.
Partnership, in the sense we mean here, is about the relationship among collaborators. This template and the process of completing it cannot substitute for the relationship. Rather, working through the template may help you to build a productive relationship among partners by articulating your goals and modes of work. Recognizing that partners will not share all goals, the document aims to help partners to negotiate both commonalities and differences.
People might use this document in many ways: as a source of suggestions, as the framework for early conversations, or as the foundation of a partnership. If you want to formalize a partnership, we suggest that you walk through the document section by section, filling out its skeleton. While we believe that the resulting document will be legally binding if the parties wish, our emphasis is on establishing conditions under which such considerations need not arise.
This template is intended to assist in a process of dialog. We do not think the document will work if one person brings it to the others with all the blanks filled in. Real work is required to shape how a relationship is maintained. The difficulty of reaching conclusions is all the more reason to engage in the negotiation process. The process of negotiating this document may include conversations, ceremonies, or other acts entirely outside of the written document, which the writing can complement.
The template is deliberately sparse – each line has been included because it represents a significant element of the cooperative relationship around which negotiation ought to occur. Even if some of these points seem obvious, working through them line by line together and taking time to consider the implications of each section will assist in making explicit the assumptions of each party. Early disclosure and ongoing transparency are key to establishing and maintaining a sustainable relationship, promoting acceptance of difference as well as commonalities. Please don’t ignore anything.
Annotations in the document provide suggestions and examples which are by no means comprehensive or exclusive but may assist parties in understanding what may be at stake. [We invite you to share additional suggestions with us.]
The sharing of value created in the course of the partnership should reflect the relative value of the contributions in the course of the partnership. Remember to consider all sources of value and all forms of benefit.
The goal of this document is not to maintain a collaboration when collaboration is no longer mutually beneficial. However, a goal of this document is that dissolution will be equitable. For that reason, you should consider the endpoints of the partnership, the conditions on which the partnership obligations terminate and its products are divided, even as you are embarking. It is our hope that the end of the formal partnership need not be the end of your productive relationship.
Partnership law, as it exists in [the United States, Canada, and the United Kingdom] enforces background terms of fairness between partners: duties of loyalty, of care, of disclosure, of good faith and fair dealing. We reiterate that we do not see the value of this document in what the law will do for you in the case of disagreement, but in the process by which you negotiate and sustain agreement. Having reiterated this, it is our understanding that by signing this document you will be entering into a partnership, in which the law will imply the fiduciary duties of loyalty, care, disclosure, good faith and fair dealing among the partners.
We envision that for a productive collaboration, the partners should treat one another with respect, disclose their intentions, and act in the best interests of the partnership. U.S. partnership law imposes these duties. If you prefer, you may specify a different source of decision. As described in the template examples, these may include a tribal longhouse council, a village moot in rural New Guinea, [international arbitration provider / world forum of indigenous peoples], American Arbitration Association.
As we understand it, this document is worded such that national jurisdictions would defer and enforce the decisions of such bodies. We suggest that you send copies of this agreement to whatever third party you have chosen to adjudicate it.
Once you are all happy that the template has assisted you in understanding each others’ expectations, restrictions, positions, and interests, and you are happy with the wording of the document itself, we suggest that you print it out and sign it. This will not be the end of the process, by any means. We reiterate that it is the work of achieving an ongoing relationship, not this piece of paper, that is important.
We suggest that you revisit this agreement regularly and allow that developments in the relationship itself are reflected in amendments to the document.
Give your partnership a name for reference. Then identify the participants, considering whether you need approval or authorization from people other than the individuals discussing the document, for example a group governing authority, community elders, employer, parent or guardian.
Consider at this stage whether and how you may want to add additional partners. For example, if you need special expertise, will you subcontract these tasks or bring in new partners and thereby modify this agreement and the subsequent sections on benefits, future use of material, management?
Who might use this document? When and where might you consider using this document?
There are many contexts in which we hope this template might be used. Those listed here are exemplary not exhaustive:
Researchers entering into relationships with subjects. The advantages of partnership is that it is not contractual in form and therefore is negotiated and re-negotiated as an aspect of an ongoing relationship. In this sense, this is the opposite of a form contract. It will appeal to ethics committees and institutional review boards as negotiation and transparency are the essence of an ethical relationship.
Other contexts might include collaborations between artists and scientists; among artists from different cultural backgrounds; between digital and non-digital artists.
The partners may have both joint and individual goals. Try to discuss those in detail so that no one is surprised later.
Annotation: Each of the partners may have previous work that relates to the subject of the partnership agreement. Will this work be included in the terms of the partnership, used somehow in collaborative efforts, kept separate, or a mixture of these? We suggest that if the latter, partners spell out specifically what is included, to avoid future misunderstanding.
Annotation: All partners will accept the general obligation to work towards the best interests of the partnership. When the different partners bring different skills to the partnership or are expected to
fill different roles, you may wish to spell out their differing intended contributions as specific obligations. In addition, you may wish for some obligations to continue (“survive”) after the collaborative partnership ends, such as confidentiality, payment of royalties, or attribution.
How will the partners share the benefits from the partnership? Are different outcomes equally valuable to all partners, or might they mean more to one? How does fair allocation of benefits relate to the partners’ anticipated contributions.
Consider how the concrete outputs may be licensed / shared / sold / given away. Options might include joint ownership, cross-licensing, or other terms specific to the types of creative outputs (copyright, patent, confidentiality, etc.). Differential benefits might recognize the different strengths and needs of each Partner.
Annotation: What does the partnership look like on a day-to-day basis? What kind of reporting and disclosures can help partners keep in touch with what the other(s) are doing? Consider how the partners’ goals may change over time, and how the partnership should respond to those changes. We recommend periodic reviews of this document to capture changes and help partners to stay on the same page in their understanding of the relationship. Consider also management in terms of who will oversee the agreement, how terms will be enforced, who, and how, will make decisions etc.
How do you know when the partnership is not working? Standard partnership law includes failures like self-dealing — when a partner takes for him or herself profit or an opportunity that should go to the
partnership — and lack of due care. Fill in any added specifics in the context of your partnership that would be a breach of partners’ duty.
The law can’t put a broken egg back together, but it can help to make the wronged party whole — and sometimes being warned of the penalties for breach can help to keep a party from breaching, preserving a valuable relationship from a temporary strain. Specify any particular consequences the partners think should result from breach of the agreement.
If the partners have disagreements, how do you want to resolve them? Here, you can choose both the source of law, such as community norms, ethical codes, or statutes; and the decision maker, such as a longhouse council, arbitration forum, or court.
How long do you intend the partnership to last? Is it for a period of time, until the completion of a specific project, until a particular event, until one of the partners wants to leave, or indefinite?
Consider that some of the obligations, listed above, can survive the termination of the partnership relationship.
When you have filled in the template, and agreed on the terms of a mutually beneficial relationship, print and sign the document in multiples so each partner gets one. You may also wish to send a copy to the person or organization that you have designated to resolve disputes.
This template is an object around which a kind of partnership is emerging: a partnership with all of you who are helping to develop it. Please report upon your experiences and help us to smooth the path for future partnership by emailing us at partnership (AT) connected-knowledge (DOT) net.