Reviewing and Analysing Contracts

Introduction

Reviewing contracts is an extremely important undertaking. The course from Law2020 will provide an understanding of how to review a contract methodically and efficiently. Delegates will analyze and apply a proven method for checking clauses, giving them the skills to mitigate risks, deal with ambiguities, and handle disputes.

Objectives

Reviewing contracts is an extremely important undertaking. The course from Law2020 will provide an understanding of how to review a contract methodically and efficiently. Delegates will analyze and apply a proven method for checking clauses, giving them the skills to mitigate risks, deal with ambiguities, and handle disputes.

Training Methodology

This is an interactive course. There will be open question and answer sessions, regular group exercises and activities, videos, case studies, and presentations on best practices. Participants will have the opportunity to share with the facilitator and other participants on what works well and not so well for them, as well as work on issues from their own organizations. The online course is conducted online using MS-Teams/ClickMeeting.

Who Should Attend?

Directors and other decision-makers involved in reviewing and understanding contract terms, contracts managers, project managers, in-house legal advisers, and all those within the organization who are required to work with and implement contracts.

Course Outline

Interpreting a contract

• How will a court or tribunal interpret a contract?
• What are the presumptions?
• What are the key differences between jurisdictions?
• Common law and civil law
• The importance of choice of law and jurisdiction

Reviewing a contract

• Checklists
• Identifying the key terms

Reviewing and checking the meaning of a clause

• Coode: proven technique for drafting and reviewing the effectiveness of a contractual provision
• How to draft a clause that is clear, concise and comprehensive
• How to review a clause using the same method

Is it enforceable?

• Case study: is the contract enforceable?
• Are the provisions under review enforceable?
• Why might a contract or contract provisions be unenforceable?

Does the clause create an obligation?

• Does the term under review create an obligation?
• Is it permissive?
• What are the consequences of a breach?

Best and reasonable endeavours

• What do these terms mean?
• Have they been breached?
• What are the consequences of a breach?

Compliance with specification

• Case study: has the project been built to specification?
• Review of contract terms and identification of scope and meaning of terms
• Drafting to avoid inconsistencies

Standard of care and skill or an absolute warranty?

• Case study: what is the prescribed standard of care and skill?
• Is a party giving warranties and, if so, what is the extent of the warranties?

Insurance – analyzing wording to assess scope of protection

• Case study: does the contract contain professional indemnity insurance?
• What should such a clause contain?
• Analysis, structure, negotiation and drafting of professional indemnity insurance provisions

Limitation of liability and exclusion clauses

• Case study: is the clause valid?
• What is the limit or the cap?
• What types of loss are covered?
• What is meant by direct, indirect and consequential loss?
• Does the clause apply to any breach?
• How will courts in different jurisdictions deal with limitation and exclusion provisions?
• Exclusion of liability or outside the scope of the duty owed?

Indemnities

• Case study: what does the indemnity cover?
• Interpretation of indemnities
• Drafting effective indemnities
• Complying correctly with requirements set out in indemnities

Force majeure clauses

• Meaning and validity in different jurisdictions
• Acts of God, delay, impossibility
• What happens when the force majeure event is lifted?

Handling disputes

• Case study: handling disputes
• Analysis of contractual terms
• Consideration and evaluation of law and options
• Assessment of strength of position
• Consideration of possible remedies
• Termination for breach
• Claiming a repudiatory breach

Remedies provisions in the contract and liquidated damages

• Remedies: law and practice
• Assessing the validity and effect of a liquidated damages clause
• How different jurisdictions view such clauses

Contractual provisions and sub-contractors

• Potential problems regarding sub-contractors
• Identifying methods to address problems
• Negotiating and drafting issues
• Collateral warranties
• Paid when paid provisions

Analyzing Supplier’s and Customer’s terms and conditions – review, negotiation and drafting

• Case study.You are a manufacturer of intelligent air conditioning systems. You buy software from large suppliers, incorporate the software into your products, and supply your products to large construction companies. You review the terms of purchase and supply. What concerns do you have? How can you deal with your concerns? What are your commercial and legal options?