by Professor Gregory Marsden:
This paper examines the concept of BATNA and whether we may validly advise negotiators outside the common law world to cease negotiating if the expected outcome does not exceed their previously-determined BATNA. Such advice is commonplace in negotiation methods informed by the common law tradition. However, we submit that the same advice may lead negotiators astray under the civil law, which provides that a party may be held liable for breaking off a negotiation without just cause.
To resolve this issue, we propose that international negotiators focus on BATNA as just one component of the broader concept of Reserve Value, which must also take into account potential pre-contractual liability.