Contractual Writing Skills

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Contractual Writing Skills

Introduction: 

The course provides insight on Contract Drafting, Drafting Techniques, Contract Language, Contract Risks and Types of Insurance (risk mitigation). It is designed for professionals who wish to take their drafting and risk management skills to the next level.

The workshop will provide ‘hands-on’ experience in drafting of commercial contracts and discuss challenges in dealing with identifying, contractual risks, risk mitigation and insurance.

Course Objectives:      

The workshop will enable participants to:

  • Explore drafting fundamentals in commercial contracts
  • Understand and effectively deal with allocation of risks using Representation and Warranty Clause in a contract
  • Explore Model Arbitration Clauses used in International Contracts
  • Review miscellaneous clauses in contracts that are often neglected
  • Overcome ambiguity in contracts and combating major source of confusion and disputes
  • Learn how to assess, identify and mitigate contractual risks
  • Explore risk transferring clauses in a contract and avoid negligence
  • Understand the impact of Endgame Provisions its effects and ways to deal with termination clauses
  • Learn and understand Types of Insurance and how Insurance is used as a tool to mitigate risk
  • Dispute Resolution Process
  • Learn & Understand Negotiation methods and process.

Course Content:

Day One:

Session 1: Building Blocks Concept

  • Learn the fundamentals of Contract Drafting
  • Understand how to Convert Term Sheet into Contract
  • Understand how to allocate risks when doing due diligence and correctly allocate risks using the Representation and Warranty Clause

Session 2: Drafting the front of the contract, introductory and lead in clause

  • Magnifying clearer draft, concise contract and make appropriate use of definitions in a contract as your best practice
  • Simplicity at its best by using the active voice and delete the unnecessary wordings
  • Drafting a structured Contract

Session 3: Rules of Interpretation of Contract

  • How are contracts interpreted
  • Dealing with ambiguity in contracts
  • Importance of priority of documents

Session 4: Understanding Important Concepts in Contract

  • Breach of contract
  • Material breach of contract
  • Remedies for breach of contract

Session 5: Dealing with Endgame Provisions

  • Understanding termination clause: Termination prior to the end of the term may be of breach of contracts
  • Mutual termination: Allocating the termination clause without jeopardising your existing relationship
  • Termination for cause or termination of convenience

Session 6: Contract Types

What Types of Contracts are best Suited to Transfer Risk

  • Fixed Price, Turnkey, Lumpsum
  • Cost Reimbursable
  • Time & Materia
  • Unit Price

Day Two:

Session 7: Drafting techniques using proper contract language most commonly used in contracts:

  • Reasonableness
  • Consent not to be unreasonably withheld
  • Best/Reasonable Efforts
  • To the best of its knowledge
  • Substantially in the form of
  • To the extent permitted by law
  • Notwithstanding to the contrary
  • Including without limitation
  • From time to time
  • As the case may be
  • Incorporated by reference
  • For the avoidance of doubt
  • Without Limiting the Generality of the Foregoing

Session 8: Understanding and drafting boilerplate Clause which deal with Allocation of Risk/Risk Transfer

  • Liquidated damages / penalty
  • Damages/consequential damages
  • Force majeure
  • Limitation of liability clause
  • IPR: Ownership rights in contract
  • Subrogation / waiver of subrogation
  • Indemnity
  • Assignment
  • Transaction cost
  • Third party liability
  • Consequential loss
  • Negligence / gross negligence

Day Three:

Session 9: Tools used in Contracts to Minimize Contractual Risks

  • Performance Bank Guarantee (PBG)
  • Advance Bank Guarantee (ABG)
  • Tender Guarantee/Bond
  • Parent Company Guarantee
  • Retention Money
  • Letter of Credit

Session 10: Guidelines for drafting

  • Scope of Work (SOW)
  • Service Level Agreement (SLA)
  • Master Services Agreement (MSA)

Session 11: Measuring Performance of your Contractor

  • Guidelines for drafting Performance Standards in a Contract

Session 12: Insurance

  • CAR Policy
  • Professional Indemnity Insurance
  • Third Party Liability Insurance
  • Commercial General Liability (CGL)
  • Inland Marine Insurance
  • D & O
  • Cost Of Insurance
  • Principles of Insurance Law
  • Contractual Risk – insured/ non-insured

Session 13: Alternative Dispute Resolution:

  • Best strategies in drafting an enforceable Arbitration clause
  • Modal Arbitration clauses
  • Ad hoc or institutional Arbitration
  • Domestic and International Arbitration