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3-day Drafting Commercial Contracts Training Course (June 27-29, 2022)

  • ID: 5459909
  • Training
  • June 2022
  • Region: Global
  • 3 Days
  • Falconbury Ltd
  • Training Dates: June 27-29, 2022

Negotiate and draft clear and concise commercial agreements that meet the challenges of today’s commercial environment.


Business is founded on the crystallisation of the terms of a deal and clarity and fair construction are the key to a successful commercial agreement. Without a clear agreement, commercial and legal disputes are likely and unclear agreements are one of the largest causes of costly commercial litigation.


With this in mind, Mark Weston and Falconbury have developed this modular and comprehensive multi-part programme that focuses on delivering practical and applied training of the key drafting skills needed to create transparent and direct contracts that deliver on a legal and commercial level. Each section of the course builds on the section before.


Part One: Drafting, Structure, Interpretation and Formation of Contracts focuses on developing a robust structure and formation to your contracts and expanding your drafting skills to deliver concise and watertight agreements. It will also explain the fundamentals of how contracts are interpreted.


Part Two: Precise and Careful Drafting looks in more detail at the more complex clauses and how they can be drafted and applied to leverage commercial value and manage legal risk.


By attending this programme you will:

  • Examine assignment and novation to ensure you are suitably protected in the case of transfer or sale of rights
  • Consider the purpose and effect of typical boilerplate clauses and how you can leverage value for your organisation through clearer drafting
  • Get-to-grips with payments and interest terms to understand how penalties can be applied
  • Expand your knowledge of the risk of drafting a contract without a confidentiality clause
  • Understand the risks that can be created through poor drafting in practical exercises under the guidance of the expert
  • Discuss any disputes or issues you are facing with colleagues from other organisations to gain new ideas and perspectives
  • Understand the pitfalls and pluses to applying an effective standard structure and format to every contract
  • Master practical drafting techniques to write concise and effective agreements
  • Examine special contractual arrangements and letters of intent
  • Learn how to interpret variations and time of essence clauses
  • Clarify the distinction between ‘best endeavours’ and ‘reasonable endeavours’ - essential terminology in commercial contracts
  • Get up-to-date with the use and drafting of contractual warranties and indemnities
  • Understand the effect of exclusion and limitation clauses, and how they can be used to manage your exposure

Practical interactive learning style

This workshop style programme has been designed to offer a practical solution to your drafting challenges. Throughout the programme, the expert presenter will use a balanced mix of theory, group exercises, discussion, sample clauses and case studies to provide you with a comprehensive portfolio of practical tips and techniques to draft contracts which meet your commercial objectives as well as ensuring that there are no ‘surprises’ further on.


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Contract interpretation

  • Systems of law
  • Civil law vs common law approaches to drafting
  • Precedent (and some Latin)
  • Interpretation and construction
  • Clarity and ambiguity: Arnold v Britton, Wood v Capita Insurance
  • Ambiguity: Investors Compensation Scheme v West Bromwich
  • Classical contract interpretation (six canons)
  • Modern contract interpretation (ten principles)
  • The effect of Brexit on contract drafting and interpretation
  • Admissible background
  • Private dictionary principles

How do you form a contract? (Part 1)

  • Ingredients to form a contract
    • Classical
    • Offer
    • Acceptance
    • Consideration
    • Battle of the forms
    • Other elements in formation

  • Sui generis formation

How do you form a contract? (Part 2)

  • Distinctions between negotiations and contracts
    • Have you accidentally formed a contract while negotiating?
      • The six steps of Pagnan Freres
      • ‘Subject to contract’
      • ‘Without prejudice’

    • RTS Flexible Systems Ltd v Molkerei Alois Müller

Commercial contract format and structure

  • Splitting form from content
  • Form
    • Law and custom
    • Tone and format
    • Deed or under hand?
    • Drafting techniques
      • Mapping: free drafting (when you have no precedent)
      • Mapping: tied drafting (when you have a starting point)


  • Structures of typical commercial contracts

Ancillary documentation and contracts

  • Drafting for certainty
  • Pre-contract documentation and discussions
    • Tendering
    • Prevention is better than cure
    • Negotiations
    • TLAs
    • NDAs

  • Content of TLAs
  • Agreements to agree
  • Variations

Terms: implied, express and standard (Part 1)

  • Implied terms
    • Three types
    • The 2015 revision
    • Plus 1

Terms: implied, express and standard (Part 2)

  • Express terms
    • Time is of the essence
    • Best endeavours clauses
    • Reasonable endeavours
    • Nuances and efforts
    • The obligation spectrum

  • Meaning of standard terminology
    • Reasonable
    • Substantial
    • Material

Drafting techniques: the easy but not well-known stuff (Part 1)

  • Practical tips

Drafting techniques: the easy but not well-known stuff (Part 2)

  • Differences between ‘shall do’, ‘will do’, ‘endeavour to do’
  • Understanding WCI and why you cannot draft contracts without them
  • Differences between warranties, undertakings and representations
  • Differences between warranties and indemnities

Exclusion and limitation clauses

  • Myths about liability clauses
  • Internationally accepted practice
  • Economic rationale for this area of law
  • The liability protection spectrum
  • Jurisdictional differences
  • Factors affecting liability… or not
  • Negotiating liability clauses: risks and responsibilities
  • The ACE principle
  • Acceptance of risk
  • Capping of risk
  • Exclusion of risk
  • Arguments used by each side when negotiating
  • Drafting a liability clause: tips, tricks and techniques
  • The change in law and practice since 2016
  • Indirect and consequential loss: the changing position since 2017
  • UCTA and CRA

Introduction to boilerplate

  • A functional methodology

Transferring contractual rights and obligations

  • Transferring rights
    • Assignment
    • Novation
    • Other transfers
    • An exercise: in the real world

  • Third-party rights
    • Privity
    • Some history
    • Practical examples
    • The new rules
    • Drafting issues and traps

Welded boilerplate

  • Interpretation
    • Importance
    • Start vs finish
    • Headings and titles
    • Usual interpretation clauses

  • Notice and communications
    • Purpose of a clause
    • Problematic clauses
    • Relevant case law

  • Waiver
    • Purpose
    • Effect
    • Clause
    • How does it work?
    • Variation
    • The remedies addendum
    • The 2018 revision

  • Invalidity and severance
    • Purpose
    • Invalid clauses - and consequences
    • Blue pencil test
    • Repair
    • Clause
    • Bolt-ons

  • Joint and several liability
    • Joint/several/joint and several - differences
    • Purpose
    • Clause
    • Bolt-ons

  • Force majeure
    • Purpose
    • Some history
    • A partisan view of risk
    • What is force majeure?
    • Effect
    • Procedure
    • Clause
    • The court

Payments and interest

  • Payment clauses
    • Purpose
    • Goods default
    • Clauses

  • Interest clauses
    • A clause: charging interest for late payment
    • Penalties and rates of interest
    • Force majeure and payments
    • The importance of waiving rights - or not

Confidentiality clauses

  • Doing without a confidentiality agreement
  • A confidentiality clause: the practice
  • A definition: what is confidential?
  • Clause outline
  • Sample clauses

Term and termination; entire agreement clauses; governing law, jurisdiction and dispute resolution clauses

  • Term and termination
    • Purpose
    • Term
    • Termination
    • Reasons for termination
    • Consequences of termination
    • Survival

  • Entire agreement clauses
    • Purpose
    • Problem
    • A new purpose
    • The law
    • Drafting a clause
    • Documentary inclusion/exclusion

  • Governing law, jurisdiction and dispute resolution clauses
    • Governing law
    • Jurisdiction
    • Dispute resolution clauses

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  •  Mark Weston Mark Weston ,
    Hill Dickinson LLP


    Mark Weston is a partner at Hill Dickinson LLP where he is Head of Commercial Law (London), Information Technology Law and, Intellectual Property Law. Mark joined the firm in 2016 from Matthew Arnold & Baldwin LLP where for 12 years he was a partner and Head of the Commercial, Intellectual Property and Information Technology Group, before which he spent several years at Baker McKenzie. Mark’s practice covers both non-contentious and contentious matters in all areas of commercial law, intellectual property law, information technology law, Internet, digital and privacy/data law. He specialises in commercial and tech issues. He has extensive experience in-house, having been seconded in the past to Hewlett Packard and new technology companies. His practice covers all sorts of commercial areas (including distribution, agency, franchising, sales and marketing strategies, advice and documentation) as well as extensive IT niches including advising clients regarding hardware and software issues (including SaaS, cloud, development, licensing, maintenance and distribution), solutions for and methods of transacting on the Internet, electronic commerce including B2B, B2C and B2G, S-commerce and M-commerce, social media, strategies to minimise or maximise liability and carry out compliance audits, outsourcing, facilities management, procurement, company IT policies and data protection (privacy) issues. He also has experience in IT litigation (and different alternative dispute resolution techniques). Mark writes various books on his specialist topics and is an editor and contributor to several publications and articles and lectures at numerous commercial, IP and IT-related conferences and training programmes. Mark appears regularly on BBC1 (usually providing advice on-screen to BBC Watchdog) and also on Sky News as a legal commentator.
     

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This programme has been specifically designed for those who want to enhance their practical drafting skills and who have a knowledge of the law, including:

  • In-house lawyers
  • Private practice lawyers
  • Commercial and contracts directors and managers
  • Procurement personnel
  • Compliance officers
  • Company secretaries
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