This workshop aims to equip delegates with an in-depth understanding of the legal risks, challenges and opportunities associated with contract formation, managing contractual breach and contract termination.
Introduction
This intensive workshop explores the legal issues and managerial choices associated with commercial contracting. The workshop will address risk, legal framework, options and choices for each of contract formation, contract terms, contract breach and contract termination.
This course is designed for:
The workshop will benefit managers who wish to build upon an existing appreciation of contract law principles and consider broader risk and managerial issues associated with commercial contracting.
Course structure
A practical two-day workshop consisting of nine sessions involving exercises, case studies, presentations and trainer-facilitated discussions. Each of the sessions will be led by an experienced facilitator and will feature the key principles and practical methods which may be used in the contracting process, together with practical case study sessions to maximise the transfer from the workshop to the workplace.
Benefits of attending
Attendance will improve the ability of attendees to consider the risk controls in their contracting system and the organisational issues raised.
As well as this participants will gain three key benefits from attending:
- More appreciation of the risk profile of their organisation and the issues raised in risk allocation
- More sensitivity to the organisational enablers of risk mitigation with the client and/or the supplier
- Less likelihood that risk management is undertaken in a way that results in the wrong party managing the risk
Key learning outcomes
- Evaluate what balance is needed between commercial mechanisms to manage risk and contractual mechanisms
- Design and negotiate appropriate liability, indemnity and warranty clauses for their organisation
- Design negotiation strategies for both cooperative and competitive negotiations which make it more likely that the resultant contract will meet the client’s needs
- Critically assess when to invoke informal and formal remedies for poor performance, including liquidated damages and termination clauses
- Describe the key provisions of the Competition and Consumer Act 2010 and relate the provisions to the behaviour of procurement practitioners in their organisation
Course Content
The primary functions of contract
- Traditional approach to contracting
- Being more proactive to contracting
- Balancing the commercial and legal parts of a contract
Introduction to the legal process
- Where to find relevant laws
- How to successfully sue in court
- How to successfully defend a legal claim
- Using costs to strengthen your case
- How the courts resolve contractual disputes
Creating a legally enforceable contract
- The legal and commercial definitions of a contract
- Contract disasters and what we can learn from them
- Creating with the ‘exchange of promises’ doctrine
- Preventing your contract becoming void for uncertainty
- Winning the “battle of the forms”
- Are your MOUs, MOAs or Letters of Intent binding?
- Issues that make your contract invalid or unenforceable
Key contract operationalises
- Excluding liability
- Preventing subcontracting, assignment and change of control
- Ways to terminate your contract
- Choosing your remedies: unliquidated damages versus LDs versus indemnities
- Using a deed to increase contractual certainty
- Outlining the rules of contract interpretation
- Practical drafting tips and traps
Some key laws that can affect the contract
- Determining if a counterparty is authorised to sign
- Avoiding misleading and deceptive statements
- Choosing an effective dispute resolution methods
- Listing what to look for in a Certificate of Currency
- Determining who owns the copyright
- When to register a security interest under the PPSA
- Complying with the process tender contract rules
Key parts of a contract
- The nine different parts of a contract
- The need for recitals
- Key issues with the commercial terms and legal terms
- Better practice with dating, witnessing and exchange of contracts
Problematic contract terms
- What purchasers and vendors seek from an IP clause
- Dealing with vendor attempts to delete indemnities
- Insisting on a waiver of right of subrogation
- Tips and traps in obtaining optimal insurance cover
- Agreeing to capped liabilities and consequential losses
Common problems faced by non-lawyers
- Dealing optimally with internal and external lawyers
- Focusing on the boilerplate terms
- Methods of how to deal with contracting risks
- Determining what needs to be put in the contract
Capturing lessons learned
- What did you learn?
- Identification of contracting risks your organisation faces
- Determining how to mitigate the risks?
