Drafting Legal Memorandum and Correspondence

Course details

The critical importance of effective and appropriate contract drafting catered to the specific needs of the particular business and situation cannot be emphasized enough. Robust contracts identify and minimize risk for the organisation and ensure that projects and procurement are carried out efficiently and without costly disputes.

All too frequently contract wording used is not properly understood which ultimately detrimentally affects the performance of the project and even possibly leads to contract failure.

Procurement and tendering have become increasingly sophisticated but all individuals need to be aware of the current and best practices adopted by some of the major international corporations in order to increase the effectiveness of their own procedures.

This course will assist all individuals in dealing with such contract wording and procedures in order to maximize the benefits to the organisation and reduce risks.

Course highlights include:

• Examine the legal effectiveness and formation of contracts
• Assessing the appropriate contract type and tender process
• Key contract clauses focusing on risk, remedies and insurance
• Securing performance of a party's obligations
• Appropriate dispute resolution and dispute avoidance

The Goals

• Provide an understanding of contract structures, and why contracts are drafted in a particular manner
• Explain the commercial impact of key contractual provisions
• Develop an understanding of the interaction between contractual provisions and the need for consistency.
• Identify where things can go wrong, and learn how to avoid problems, or mitigate their effects through well drafted contracts and good management.
• Understand how to avoid disputes but learn how to deal with them if they arise.

The Process

The course will involve the attendees in as much interaction as possible with discussion, case studies and exercises on particular topics. Topics will be designed as far as possible to be clearly relevant to the commercial issues faced by or likely to be faced by the delegates. There will also be opportunities to assess examples of different types of dispute resolution in practice, showing the difference between various approaches, and the use of external third party experts in dispute resolution. One to one sessions with the trainer will also be available to discuss any further issues faced by the delegates.

The Benefits

• Attending this seminar will help you to learn how to:
• Use appropriate contract structures for different projects,
• Use appropriate contract structures for different projects,
• Examine the commercial impact of particular terms and conditions
• Use contract provisions to reduce the risk of disputes or contract failure.
• Deal efficiently and effectively with disputes including analysis of the methodology used in international contracting

The Results

• Increase efficiency of contracting processes and contract security within the organisation.
• Develop transactional and litigation risk control within the organisation.
• Delivering greater value to the organisation by the use of more effective contracts and protection provisions.
• Minimising costly disputes caused by unclear or inappropriate contract clauses and improving the position of the organisation.
• Improved awareness of methods of dealing with disputes to ensure that commercial relationships are maintained and developed.

The Core Competencies

• Allocation of contractual risk
• Selection of appropriate form of contract/tender
• Contract management and administration skills
• Understanding contract wording
• Drafting
• Negotiating

The Programme Content

Day One

The Importance of Contracts

• The Importance of Contracts
• Controlling the contract process

            - Understanding the deal

            - Controlling the negotiation

            - Tips for effective negotiation

• Contract Formation
• Offer and Acceptance
• Battle of the forms
• Consideration and Intention
• Oral or written?
• Electronic contracts
• The value of due diligence and financial stability

Day Two

Tender Process & Different Contract Types

Auctions and Bids

Tender Process

            - Invitations to tender

            - Request for Proposal

            - Request for Quotation

            - Pre-qualification

            - Compliance

            - Letters of Award

• Heads of Terms and Letters of Comfort
• Which contract type to select?

            - Advantages and disadvantages of the main contract types

            - The problem with fixed fees?

            - Modern methodology

• Economic Price Adjustment clauses
• Bonds and Guarantees
• Compliance with law/change of law

Day Three

Main Contract Clauses

• Obligation to deliver/perform

            - Controlling subcontractors

            - Monitoring and Milestones

• Securing Payment
• Ensuring prompt payment
• Non payment remedies
• The use of Letters of Credit
• Parent Company Guarantees
• Time and place of delivery
• Transfer of title and risk - ICC Incoterms
• What are retention of title clauses?
• Why is "time of the essence" important?
• Delivery, Ownership and Risk in Procurement
• Insurance
• Indemnities - when we need them
• Liquidated Damages/Penalties and the dangers

Day Four

Other Key Considerations during the Commissioning Process

• Variations and changes
• Liability beyond contract
• The value of Intellectual property
• When do contracts end?
• Limiting liability
• Warranty
• Which law to apply to the contract?
• Final contract review and close out process

Day Five

Dealing with Disputes

• Compromise and settlement
• Dispute Resolution clauses
• Litigation
• Arbitration
• Modern methods of resolving disputes

            - Mediation

            - Concilliation

            - Early Neutral Evaluation

            - Expert Determination

• Final review and questions