This course is aimed at lawyers and experienced contract managers negotiating international agreements and so assumes a good working knowledge of contract law. It will explain and demonstrate the reality of international commercial agreements – how to build them and how they work.
The course will provide attendees with ideas, principles and working tools that can be used to deliver commercial agreements that represent the deal they address and are:
- Clear and easy to understand and implement
- Intelligible in a non-English language
- Reasonably easy to translate into non-English languages
The real nature of commercial agreements
- What’s the contract actually for?
- Road map for the deal
- One-off activity or longer-term relationship?
- Pre-established “fail-safe” mechanisms
- Certainty of purpose and understanding
- Who “owns” the contract?
- Writing for the audience
- Can non-lawyers draft contracts?
What’s the deal?
- Relationships – parties and non-parties
- Contractual connections
- Tortious rights
- Collateral warranties
- Third party rights
- Achieving clarity of ideas before the drafting starts – who, what, where, when, why, how much, and what happens if it all goes wrong?
Getting the right format: NDAs, letters of intent, heads of agreement, memoranda of understanding, side letters, full agreements.
Contractual interpretation in England & Wales: General principles and current case review
Drafting as a technical skill
Use of English, including “legal English” and punctuation
- Forget what the teacher told you!
- Drafting needs to be learned
- The disconnection between what we think we write and what we actually write
- The fear factor – are openness and clarity the enemies?
- The need to read, actively
- Different people, different styles
Drafting multi-party agreements
- An exponentially difficult task
- Joint and several liability
Drafting in English for non-English speakers, and for translation
- Cultural issues in drafting and negotiation
- Choice of words and phrases
- Translation or explanation?
- Dual-language documents?
Establishing the process by which the negotiation will take place
- The pen and the power
- Red-line documents
- Face-to-face meetings
- Your place or theirs?
- Beyond win-win
Pre-negotiation due diligence - know your enemy!
Document lay-out as part of the negotiation process
- Are there any rules?
- Content structure
- The use of worked examples
- Use of “RACI” charts
The documents as an integrated system
- Changes and consequential amendments
- Cross-referencing nightmares