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About the course
Explore the legal issues surrounding contracts and negotiation
This full 5 day Contract and Negotiation Masterclass course is designed to identify common drafting errors, improve their writing and drafting skills and learn advanced negotiation skills in English.
- Improve legal writing and contract drafting skills
- Learn how to avoid common drafting pitfalls
- Develop an effective communication style
- Understand the structure and terms that are common to contracts in English
- Learn advanced negotiation skills (for commercial matters and dispute resolution) in English
- Strengthen your knowledge of complex contractual terms including indemnities, warranties and exclusion clauses
- Refresh your knowledge of the law surrounding breach, termination and liquidated damages, enabling you to draft tighter provisions and ensure greater protection for your stakeholders
- Review the latest developments in e-contract law
Summary of Course Content
- Writing legal opinions, correspondence memoranda and email
- Drafting pre-contractual documentation
- Drafting general contractual terms and specific clauses
- Negotiation skills for lawyers
- Tactics, techniques and personalities
- Negotiating key clauses
- Warranties, representations and entire agreement clauses
- Liability risk protection including indemnities, exclusion and limitation of liability clauses
- Remedial clauses and damages
- Force majeure
Delegates will receive
- Style guide including sample emails, letters and contracts
- Glossary of legalese, Latin phrases and legal terminology
- Extensive course notes
You will participate in class discussions and drafting exercises to reinforce your lecture and workshop experience. You will leave with the updated knowledge, confidence and familiarity with contracts required to tackle the most important aspects of commercial contract law.
Day 1: Making the contract
- Structure of course
- Contract of group
Formation of Contract
- What is a contract?
- Making a binding and enforceable contract
- 6 components
- Limitation periods
Preliminary agreement forms
- Memorandum of understanding
- Letter of intent
- Heads of Agreement
- Term sheet
- Authority to proceed
- Scope of work
- Subject to contract
Confidentiality agreements – drafting workshop
- Types of information they protect
- Causes of breach
- What information cannot be disclosed
Warranties, Representations, Guarantees & Indemnities - Workshop
- Definitions and identification
- Pointers to distinguish and negotiation
- Entire agreement clauses
Day 2: In-depth clause review
Exclusions, Limitations of Liability, Liquidated and Ascertained Damages and Penalties
- Liability for personal injury or death
- Liability for late delivery, performance or similar
- How to limit the maximum aggregate damages
- Examples of limitation of liability clauses
- Liquidated and ascertained damages
- Exclusions, Limitations of Liability, Liquidated and Ascertained Damages and Penalties – Workshop
Force Majeure, Frustration and Economic Hardship
- The concepts of force majeure and economic hardship
- Doctrine of frustration
- Changing circumstances and unforeseen events
- Hardship clauses
- Defining the events
- Typical claims
- The termination period
Direct, indirect damages and consequential loss
- Types of damages
- Damages for breach of contract
- Back-to-back contracts
- Physical damages
- Costs and expenses
- Loss of profit
- Consequential losses and expenses
Boilerplate – Sample Clauses and Pointers
- Assignment and sub-contracting
- Insolvency and bankruptcy
- Communication notices
- Set off
- Severance clause
- Governing law & jurisdiction
Day 3: Negotiation
Introduction – Negotiation Essentials
What is Negotiation?
Framework for Negotiation
- Creating value
- Maximising value
- Claiming value
- Examples of value
- Reservation price
Diagnostic – Know Your Dominant Negotiating Style – And Recognise Others Style – Broadening and Adapting Your Style
Key Negotiation Behaviours
- Asking questions
- Body language
- Direct and indirect communication
- Negotiating face to face, by phone and by email
Power, Interests and Positions
Preparation – Developing a Scoring System
Bargaining and Haggling
Offers and Anchors
Day 4: Drafting
The preliminary stages and first draft
- What is the transaction – the global view
- What are your instructions?
- Use of precedents and structure of the document
Reading, interpreting and amending the received draft
- Ensuring negotiated points are included in the agreement
- Reading, interpreting and simplifying complex clauses
- Effective communication of the issues
- Upward reporting
- Drafting amendments
Practical exercise: Delegates will review a set of terms, identify changes needed and draft their suggested changes.
Interpretation and implied terms
- Records of negotiations
- Information in background (recitals)
- Strong and weak arguments
- What is automatically implied?
- What might be implied in the right contract?
Practical exercise: Delegates will discuss how the rules on contract interpretation should affect their approach to negotiating sample terms.
Good drafting habits: workshop Delegates will review contract terms, identifying how good drafting habits can save time and effort for the reviewer. We discuss:
- What features of drafting make a document quicker and easier to read
- The target users for delegates’ contracts
- The most powerful ways to improve the users’ experience
- Examples from decided cases, showing how these writing habits work in practice.
Practical exercise: Delegates will review their earlier drafts, focusing on these drafting habits.
Drafting pitfalls The group will discuss key areas where uninformed drafting could lead to unexpected results, including:
- Promises to negotiate in good faith
- Best endeavours
- Indirect and consequential loss
- Time of the essence
- Translating legal terms
- Changing the governing law
- Areas of agreement not reduced to writing Day 5: In-depth clause review Daphne Perry
Termination clauses We review termination rights arising by operation of law, and the effect of termination. Against this background, we discuss the need for and effect of contractual termination provisions. Topics covered include:
- Termination on reasonable notice
- Termination for breach
- Termination triggers
- Excluding or restricting termination rights
- Termination for insolvency
- Survival clauses
Variation and transfer We review the law on changing and transferring contracts. Against this background, we identify the value and effect of provisions governing change and transfer.
- Correcting mistakes
- Variation: changing an agreement
- Variation clauses
- Assignment: transferring rights
- Novation: transferring duties
- Assignment clauses
- Change of control
Indemnities These clauses are complex, varied and often poorly drafted. We review the law and the correct drafting to ensure that the indemnity has the required legal effect. We practise reviewing and negotiating indemnity clauses. Topics covered include:
- Indemnity against breach
- Drafting to prevent new claims arising after many years
- Does an indemnity give 100% recovery?
- “Indemnify, defend and hold harmless”
Closing quiz Delegates compete to apply points learned during the course and win a small prize through their new knowledge.
Arun Singh is an international lawyer and consultant to an international law firm. He was formerly a partner and Head of International Commercial Law at KPMG Legal globally. He is cited and ranked in Chambers Guide of the World’s Leading Lawyers. He specialises in international investment, joint ...
Daphne Perry practised for 12 years as a barrister specialising in general commercial litigation until 1997, when Chambers & Partners ranked her in the top 11 juniors for commercial work in London. She then supported litigators at Denton Wilde Sapte for another 12 years with training, current...
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