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Drafting and Negotiating Contracts
This full 5 day Drafting and Negotiating Contracts course is designed to identify common drafting errors, improve their writing and drafting skills and learn advanced negotiation skills in English.
- Improve legal writing and contract drafting skills
- Learn how to avoid common drafting pitfalls
- Develop an effective communication style
- Understand the structure and terms that are common to contracts in English
- Learn advanced negotiation skills (for commercial matters and dispute resolution) in English
- Strengthen your knowledge of complex contractual terms including indemnities, warranties and exclusion clauses
- Refresh your knowledge of the law surrounding breach, termination and liquidated damages, enabling you to draft tighter provisions and ensure greater protection for your stakeholders
- Review the latest developments in e-contract law
Summary of Course Content
- Writing legal opinions, correspondence memoranda and email
- Drafting pre-contractual documentation
- Drafting general contractual terms and specific clauses
- Negotiation skills for lawyers
- Tactics, techniques and personalities
- Negotiating key clauses
- Warranties, representations and entire agreement clauses
- Liability risk protection including indemnities, exclusion and limitation of liability clauses
- Remedial clauses and damages
- Force majeure
Delegates will receive
- Style guide including sample emails, letters and contracts
- Glossary of legalese, Latin phrases and legal terminology
- Extensive course notes
You will participate in class discussions and drafting exercises to reinforce your lecture and workshop experience. You will leave with the updated knowledge, confidence and familiarity with contracts required to tackle the most important aspects of commercial contract law.
Note - A good level of spoken and written English is required to attend this course. Delegates should be of an intermediate standard in English at a minimum. Please refer to the Common European Framework of Reference for Languages - as a guide the level required is B2.
The sessions will run from 9am - Midday
Then 2pm - 5pm daily
All times are BST (British Summer Time)
Day One: Making the contractArun Singh
Day One Morning – Three Hours
- Structure of course
- Contract of group
Formation of Contract
- What is a contract?
- Making a binding and enforceable contract
- 6 components
- Limitation periods
Preliminary agreement forms
- Memorandum of understanding
- Letter of intent
- Heads of Agreement
- Term sheet
- Authority to proceed
- Scope of work
- Subject to contract
Day One Afternoon – 3 Hours
Confidentiality agreements –Workshop
- Types of information they protect
- Causes of breach
- What information cannot be disclosed
Warranties, Representations, Guarantees & Indemnities - Workshop
- Definitions and identification
- Pointers to distinguish and negotiation
- Entire agreement clauses
Day Two: In-depth clause review
Day Two Morning – 3 Hours
Exclusions, Limitations of Liability, Liquidated and Ascertained Damages and Penalties
- Liability for personal injury or death
- Liability for late delivery, performance or similar
- How to limit the maximum aggregate damages
- Examples of limitation of liability clauses
- Liquidated and ascertained damages
Exclusions, Limitations of Liability, Liquidated and Ascertained Damages and Penalties – Workshop
Force Majeure, Frustration and Economic Hardship
- The concepts of force majeure and economic hardship
- Doctrine of frustration
- Changing circumstances and unforeseen events
- Hardship clauses
- Defining the events
- Typical claims
- The termination period
Day Two Afternoon – 3 Hours
Direct, indirect damages and consequential loss
- Types of damages
- Damages for breach of contract
- Back-to-back contracts
- Physical damages
- Costs and expenses
- Loss of profit
- Consequential losses and expenses
Boilerplate – Sample Clauses and Pointers
- Assignment and sub-contracting
- Insolvency and bankruptcy
- Communication notices
- Set off
- Severance clause
- Governing law & jurisdiction
Day Three: Negotiation
Day Three Morning – 3 Hours
Introduction – Negotiation Essentials
What is Negotiation?
Framework for Negotiation
- Creating value
- Maximising value
- Claiming value
- Examples of value
Day 3 Afternoon – 3 Hours
- Reservation price
Diagnostic – Know Your Dominant Negotiating Style – And Recognise Others Style – Broadening and Adapting Your Style
Key Negotiation Behaviours
- Asking questions
- Body language
- Direct and indirect communication
- Negotiating face to face, by phone and by email
Power, Interests and Positions
Preparation – Developing a Scoring System
Bargaining and Haggling
Offers and Anchors
Days Four & Five: DraftingDaphne Perry
The preliminary stages and first draft
- What is the transaction – the global view
- What are your instructions?
- Use of precedents and structure of the document
Reading, interpreting and amending the received draft
- Ensuring negotiated points are included in the agreement
- Reading, interpreting and simplifying complex clauses
- Effective communication of the issues
- Upward reporting
- Drafting amendments
Practical exercise: Delegates will review a set of terms, identify changes needed and draft their suggested changes.
Interpretation and implied terms
- Records of negotiations
- Information in background (recitals)
- Strong and weak arguments
- What is automatically implied?
- What might be implied in the right contract?
Practical exercise: Delegates will discuss how the rules on contract interpretation should affect their approach to negotiating sample terms.
Good drafting habits: workshop
- Delegates will review contract terms, identifying how good drafting habits can save time and effort for the reviewer. We discuss:
- What features of drafting make a document quicker and easier to read
- The target users for delegates’ contracts
- The most powerful ways to improve the users’ experience
- Examples from decided cases, showing how these writing habits work in practice.
Practical exercise: Delegates will review their earlier drafts, focusing on these drafting habits.
The group will discuss key areas where uninformed drafting could lead to unexpected results, including:
- Promises to negotiate in good faith
- Best endeavours
- Indirect and consequential loss
- Time of the essence
- Translating legal terms
- Changing the governing law
- Areas of agreement not reduced to writing
We review termination rights arising by operation of law, and the effect of termination. Against this background, we discuss the need for and effect of contractual termination provisions. Topics covered include:
- Termination on reasonable notice
- Termination for breach
- Termination triggers
- Excluding or restricting termination rights
- Termination for insolvency
- Survival clauses
Variation and transfer
We review the law on changing and transferring contracts. Against this background, we identify the value and effect of provisions governing change and transfer.
- Correcting mistakes
- Variation: changing an agreement
- Variation clauses
- Assignment: transferring rights
- Novation: transferring duties
- Assignment clauses
- Change of control
These clauses are complex, varied and often poorly drafted. We review the law and the correct drafting to ensure that the indemnity has the required legal effect. We practise reviewing and negotiating indemnity clauses. Topics covered include:
- Indemnity against breach
- Drafting to prevent new claims arising after many years
- Does an indemnity give 100% recovery?
- “Indemnify, defend and hold harmless”
Our Tailored Learning Offering
Do you have five or more people interested in attending this course? Do you want to tailor it to meet your company’s exact requirements? If you’d like to do either of these, we can bring this course to your company’s office. You could even save up to 50% on the cost of sending delegates to a public course and dramatically increase your ROI.
If you want to run this course at a location convenient to you or if you want a completely customised learning solution, we can help.
We produce learning solutions that are completely unique to your business. We’ll guide you through the whole process, from the initial consultancy to evaluating the success of the full learning experience. Our learning specialists ensure you get the maximum return on your training investment.
We have a combined experience of over 60 years providing learning solutions to the world’s major organisations and are privileged to have contributed to their success. We view our clients as partners and focus on understanding the needs of each organisation we work with to tailor learning solutions to specific requirements.
We are proud of our record of customer satisfaction. Here is why you should choose us to help you achieve your goals and accelerate your career:
- Quality – our clients consistently rate our performance ‘excellent’ or ‘outstanding’. Our average overall score awarded to us by our clients is nine out of ten.
- Track record – 10/10 of the world’s largest banks have chosen us as there training provider and we have delivered training across the largest banks and have trained over 25,000 professionals.
- Knowledge – our 100+ strong team of industry specialist trainers are world leading financial leaders and commentators, ensuring our knowledge base is second to none.
- Reliability – if we promise it, we deliver it. We have delivered over 25,000 events both in person and online, using simultaneous translation to delegates from over 99 countries.
- Recognition – we are accredited by the British Accreditation Council and the CPD Certification Service. In an independent review by Feefo we scored 4.2/5 on service and 4.7/5 on Coursecheck
Daphne PerryAfter I graduated from Cambridge University, I practised as a barrister in the English courts, specialising in commercial disputes for 12 years. I much prefer teaching to fighting lawsuits!
BiographyDaphne Perry practised for 12 years as a barrister specialising in general commercial litigation until 1997, when Chambers & Partners ranked her in the top 11 juniors for commercial work in London. She then supported litigators at Denton Wilde Sapte for another 12 years with training, current awareness, know-how and precedents. Experienced in plain language legal draft ing and editing, she is quoted in the Law Society’s textbook “Clarity for Lawyers” and is a committee member of Clarity, the international association for plain language in the law. As Denton Wilde Sapte’s plain language co-ordinator, for 3 years she supported their plain language service, liaising with other lawyers across the fi rm and with non-lawyers in training, business development and IT.
Arun SinghAs a former partner and Head of International Commercial Law at KPMG Legal, I specialise in international investment, joint ventures, M&A, energy, outsoutcing and corporate governance.
BiographyArun Singh is an international lawyer and consultant to an international law firm. He was formerly a partner and Head of International Commercial Law at KPMG Legal globally. He is cited and ranked in Chambers Guide of the World’s Leading Lawyers. He specialises in international investment, joint ventures, licensing of technology, R&D, M&A, energy, outsourcing and corporate governance globally. He has worked with clients such as Standard Chartered, Bank of China, KPMG, Motorola and more.He is a Visiting Professor in International Business, Leadership and Negotiations at Salford University Business School, Senior Associate of Oxford University’s Institute of Legal Practice, a Visiting Lecturer to Cambridge University and a Visiting Fellow to Leeds University Business School where he focuses on leadership, cross-cultural dynamics in international business and international trade and investment.He is the non-executive director of an international investment fund listed on the London Stock Exchange and Chairs another international investment company where he approves and selects investments, their acquisitions, sales and their structures.He was appointed an OBE by HM the Queen in January 1999 for services to international trade, investment and intercultural management.Arun is an editor and contributor to a number of publications, in April 2010 his book on Business and Contract Law was published by Thorogood.