Contract Drafting for Non-Lawyers

Introduction: 

The course would have a significant impact to draft effective contracts:

The workshop will help you learn to write the most effective way of drafting contracts keeping in mind the business risk when drafting contracts.

The workshop is designed to managers gain an in-depth understating of contracts covering the whole cycle of contract from contract drafting to managing contracts and dealing with contractual risks.

Course Objectives:      

By end of this course, delegates will be able to learn:

• The phases in Contract – planning, implementation, and execution
• How to write scope of work
• Draft Boilerplate clauses
• How to Mitigate Risk in Commercial Contract
• Best practices in dealing with change order/Variation
• Drafting Dispute Resolution Clause

Course Content:

Day One:

Session 1: Phases in Contract

• Pre- Award
• Award
• Post Award

Session 2: SOW (Scope of Work)

• Catch all words not to be used in writing SOW
• Guidelines for Writing SOW

Session 3: Drafting Boiler plate clauses:

• Liquidated Damages
• Consequential Damages
• Force Majure
• Entire Agreement
• Assignment
• Negligence
• Gross Negligence/Willful Misconduct
• Third Party Liability
• Variation
• Governing Law

Session 4: Contract Language

• 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 5: Drafting Documents Like:

• Memorandum of Understanding
• Letter of Intent
• Non Disclosure Agreement (NDA)
• Master Service Agreement
• Service Level Agreement

Session 6: Drafting  Clauses like

• Breach of Contract
• Material Breach of Contract
• Time is of the Essence and
• Time at Large
• Miscellaneous clauses

Day Two:

Session 7: 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 8: Rules of Interpretation of Contract

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

Session 9: Drafting Termination Clause

• Termination by Mutual consent
• Termination by Default
• Termination by Convenience

Session 10: Drafting Performance Standards

• Guidelines for writing PWS

Session 11: Developing Tools to Mitigation Contractual Risks

• Performance Bank Guarantee
• Advance Bank Guarantee
• Retention Bank Guarantee
• Tender Guarantee
• Parent Company Guarantee

Session 12: Drafting Dispute Resolution Clause

• DAB/DRB
• Arbitration
• Mediation
• Litigation

Program Outline:

Day-1

Module 1: Phases in Contract: Contract Planning – Contract Award and Contract Administration -Kick off Meeting and Execution (Contract Administration) – why lawyers should be involved in all the three phases.

Module 2: Project Risk Register/ Procurement Risk Register:  Lawyers fail to see these two documents when drafting contracts – thus missing out on the essence of drafting contracts from risk perspective.

Module 3: Scope of Work (SOW): why lawyers should be involved in drafting Scope of Work. (SOW) is the heart of a contract – when SOW is not written properly – your contract could invariably land up in Arbitration or litigation

Module 4: Indemnity Clause: In house lawyers are seldom involved in price negotiation (Price is often the prerogative of Finance Department -for instance, drafting indemnity clause without knowing if the indemnity cost has been loaded to the contract price- could be catastrophic.

Module 5: Types of Contracts:  Fixed Price, lumpsum, turnkey – Cost plus, T & M, Unit item rate, which contract to choose based on risk and project requirement.

Module 6: Variation Clause: Best practices in writing variation clause. Why most variation clauses land up in dispute.

Module 7: Understand Commercial Terms in a Contract like: Letter of Tender, Letter of Acceptance, Letter of Award and Letter of Intent

Module 8: Mitigating Contractual Risk: Performance Guarantee/ ABG, Retention Guarantee, Tender /Bid Guarantee and Parent Company Guarantee

Module 9: CBA (Cost Benefit Analysis) and NPV (Net Present Value):  why in- house lawyers should use these two methods as tools before initiating legal process and at the time of out of court settlement.

Module 10: Understanding Insurance in Commercial Contracts:  Most in-house lawyers don’t read or have little access to their insurance contracts – reading insurance contract is the best way to learn Project Risk and see how risk is identified, assessed, mitigated by Insurance companies. In most cases lawyers don’t have access to Risk Management Plan.

CAR (Contractors All Risk Insurance), Contractors General Liability Insurance), Fidelity Insurance, D & O, Owners Risk Insurance, Business Continuity, Pollution, Transit Insurance – Professional Indemnity Insurance – Finally understanding the concept of deductibles and subrogation in Insurance Contracts

Day-2

Module 11: Building blocks Concepts: You will learn the fundamentals of drafting contract – how to convert a term sheet into contract.

Module 12: Drafting Risk allocation clauses in Contract: Liquidated Damages, Limitation of Liability, FME, Consequential loss, Negligence- Gross Negligence, Governing law – Assignment- Subrogation, Cumulative remedies and transaction cost.

Module 14: Legal Project Management: Legal Project Management is an emerging area for lawyers, lawyer who would want to effectively manage their legal department using project management tools. The course will also focus on “How to effectively communicating legal matters with Senior Management or Board of Directors”.

Module 15: Handling Complex Challenges and Risks in Contracts: Memorandum of understanding (MOU),Letter of Intent (LOI), • Confidentiality Agreement and Non-Disclosure Agreement (NDA)-Drafting MOU, LOI and NDA using international best practices.