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Drafting and Negotiating Contracts
This full five 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.
This course runs from 9am to 5pm daily
Day One: Making the contract
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 Three 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: DraftingChristopher Lennon
- Understanding the difference between ‘common law’ and ‘civil law’ jurisdictions
- Examining the nature of the transaction – implications for drafting?
- The 3 ‘pillars’ of a commercial contract
- Commercial and Legal issues that might affect drafting
- The Role of the Drafter within commercial agreements
- Assuming the ‘boilerplate’ is ‘bulletproof’
Topic 2: Contract Drafting methodology:
- The power of visualisation
- The ‘KISS’ Rule - Recitals
- A logical structure – order things properly (logical sequence of clauses)
- Considering ‘Conditions Precedent’ and ‘Conditions Subsequent’ within the contractual structure
- The importance of the ADR clause
- Clarity/removal of ambiguity
- Simple language – minimise/remove ‘legalese’ as much as possible
- Avoid/remove verbiage
- 1 item – 1 clause
- 1 name/descriptor (term) – I party or thing
- Consistency in the use of a word throughout
- Short sentences
- Ensure clause does not run contrary to other clauses – search for discrepancies between different sections
- Hierarchy of clauses – a possible way to remove conflict
- Re-evaluation of completed draft – can it be enhanced/clarified/streamlined?
Exercise: Drafting a ‘Multi-tiered’ or ‘Escalation’ ADR clause and examining the Doctrine of Seperability
Topic 3: Contract Interpretation
- Intention of the parties and the ‘root of the matter’
- Understanding the Active and the Passive voice
- Identifying implied terms and other implied aspects
- Using a general disclaimer
- Special conditions overriding standard conditions
- Specific meanings given by the parties
Exercise: Examining the ‘Contra Proferentem Rule’
Exercise: Examining the ‘Ejusdem Generis Rule’
Topic 4: Drafting issues that may ignite disputes:
- Terms inconsistent with negotiated items/intentions
- Vagueness/uncertainty/absence in content (terms/conditions)
- Contradiction between terms/sections of contract
- Incorrect time frames and dates
- Indirect and consequential loss – dealing with 3rd party claims
- Frankenstein clauses
- Unilateral actions
- Badly drafted/missing termination clauses (triggers/breach/exclusion/restriction of termination rights)
- Assignment and Novation provisions
- Indemnity provisions
- Force Majeure provisions
- ‘11th’ Hour inclusions
- EOT’s – extension of time provisions
- Governing law
- Choice of dispute forum
Topic 5: Electronic documentation
- Crux of the problem
- Electronic signatures – validity?
- Enforcement issues – does the governing law of the contract support electronic documentation/contracts/signatures?
- Agreement to utilise electronic signatures/contracts
- Any specific reasons why a contract must be signed at a particular location (i.e., taxation reasons)
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
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.
BiographyChristopher Lennon is the Director of Stone Falcon Corporate and Legal Consulting Ltd – a company that works internationally based in Scotland, UK. Chris has 30 years’ experience within the oil, gas and power industry, specialising in contractual issues, commercial negotiation and dispute resolution.He is empanelled as both an Arbitrator and a Mediator at the Asian International Arbitration Centre (AIAC); has the Freedom of the City of London; is a Fellow of the Chartered Institute of Arbitrators; a Liveryman of the Worshipful Company of Arbitrators and a member of the Association of International Petroleum Negotiators. He holds an MBA and LLB from the University of Aberdeen, as well as the Chartered Institute of Arbitrators DipICArb. He has over 20 years teaching experience within the field of international contracts and commercial negotiation – teaching and consulting around the world to a diverse clientele. He is currently under contract to write his second business book - commercial negotiation with Routledge/Taylor and Francis – to be published next year.