Drafting Commercial Contracts

Transcription

1 Drafting Commercial Contracts Sample Clauses, Drafting Workshops, Pointers to Drafting and Checklists This course can be presented in-house for you on a date of your choosing The Banking and Corporate Finance Training Specialist

2 Course Objectives Participants will: Be introduced to the drafting process including the figures & formula and the execution formalities Get an overview of how forming a contract including creating a binding and enforceable agreement Have explained Course to Overview them the limitation and exclusion of damages Be taught about how drafting warranties and indemnities Have an overview on the termination and force majeure Be taught about the boilerplate clauses Background of the trainer The trainer is an international lawyer and corporate educator on commerce and finance law and professional business skills and management. He was formerly a partner and Head of International Commercial Law at KPMG Legal globally and Masons (now Pinsent Masons). He has been listed in the independent Chambers Global: The World s Leading Lawyers as an expert in investment law and regulations, where he is described by peers and clients as a strong commercial thinker. He concentrates on UK and international investment, M&A, private equity, energy, corporate and commercial law in developed and emerging markets, and also facilitates training in international professional management and skills. He advises a range of international organisations. In addition to being a corporate educator he sits as a non-executive director in the private and public sector. Course Content Introduction and Structure Interpreting contract terms Common law and civil law differences - impact on drafting The authority of case-law Certainty and clarity Context of a contract Rules of interpretation Common terms and phrases Special and technical meanings Courts canons of construction Mapping the commercial deal for the contract examples Tailor made contract Standard forms The Drafting Process 6 W s list Key stages of the drafting process

3 Figures and formulae Arnold v Britton Execution formalities Key issues to check for execution - checklist Forming a Contract Creating a binding and enforceable agreement Offer Acceptance Consideration Intention to create legal relations Certainty Capacity Formalities Deeds The terms of the contract Express Terms Oral Statements Written Terms Parol Evidence Rule Implied Terms By law By custom and usage By Statute Sale of Goods Act, Unfair Contract Terms Act Limitation and Exclusion of Damages Indirect and consequential loss Loss of profit Excluding and limiting claims Caps on liability Positioning of clause The special test for exclusion clauses Checklist for Limitation and Exclusion clauses Drafting exercise Split into groups and draft limitation clauses Drafting Warranties and Indemnities - Sample and Checklist Warranty Guarantees Indemnities Trigger event Losses covered by indemnity Limitations Conduct of third party claims Representations Best endeavours Reasonable endeavours

4 Workshop Participants will divide into groups and clarify the distinctions between these contractual remedies and the significant impact on drafting. Termination, Force Majeure, Triggers Process Consequences Effect on other rights Breach of contract Force Majeure Drafting a termination clause checklist Drafting a Force Majeure clause checklist Boilerplate Clauses Why you should not cut and paste Agency/Partnership Assignment and sub-contracting Conflicts of language Costs Counterparts Entire agreement Insolvency and bankruptcy Communication notices Publicity Set off Severance clause Time of the essence Waiver Drafting exercise Split into groups and draft clauses Clinic Close Course Summary This intensive course will take the participant through the key steps in drafting successful commercial contracts to minimize legal and commercial risk in contracts. Most disputes are about the interpretation of a contract term. Disputes can be expensive, damage commercial relations and take up valuable management time, this course is designed to avoid potential disputes

5 You will be taken through the structure of a contract, then the drafting process by introducing you to a framework that will be easy to adopt from the course onwards; also, how to analyse the meaning and impact of yours and counter party s contract clauses. You will be taken through the steps of what is needed to have binding enforceable contract, and the way in which terms are categorized, such as express and implied terms, that is those terms that the law says are a part of the contract even though you did not insert them. Sharing draft clauses and pointers to drafting you will be taken through critical and significant clauses that form a part of all commercial contracts, including the limitation and exclusion of damages, the regularly misunderstood and wrongly drafted warranties and indemnities. Unless they are drafted carefully to certain rules they may not provide the remedies you think they do. The course will look at commonly used terminology such as Best Endeavours and Reasonable Endeavours the duty they create and how to bring a contract to an end the different options in your control and those beyond your control such as Force Majeure and Frustration. Participants will be taken through key boilerplate terms with sample clauses and pointers to drafting to ensure that contracts are effectively performed and that rights and obligations are clear and effective to pre empt disputes and minimize risk. Throughout the course the group will practice the drafting of clauses with feedback and coaching by the facilitator Who should attend In-house legal counsel Private practice lawyers Contract managers Legal advisors and consultants Commercial Directors Legal support Finance directors and financial controllers Managing directors Business development managers