Drafting International Contracts in a Pandemic

Euromoney Learning Solutions

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Euromoney Learning Solutions

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Who should attend

  • In-house legal counsel
  • Lawyers in business
  • Private practice lawyers
  • Contract managers
  • Commercial Directors and Managers
  • Legal advisors and consultants
  • Legal support
  • Finance directors and financial controllers
  • Managing directors
  • Business development managers
  • Project financiers

About the course

Minimise risk and maximise benefits with this essential guide to drafting and negotiating contracts.

Drafting International Contracts in a Pandemic – Termination, Excluding Damages and Limiting Liability in Contract and Law

Overview

  • This course is specially designed for lawyers and executives who are advising upon and drafting international commercial agreements in the current pandemic and the unprecedented economic environment it has created across the globe and not seen in 300 years
  • It covers legal and practical routes, concepts to enable lawyers and those involved in international contracts governed by English Law to advise on the contractual and/or non contractual ways to continue or discontinue contracts, make claims, suspend, assess damages or terminate
  • The course covers options for claims within the contract, and for new contracts setting out liabilities in advance and deals with a wide range of transactions
  • It will assist with asking more informed and insightful questions of their advisers to minimise legal and regulatory risk

The approach is interactive – and will involve mini case studies, drafting workshops and a clinic for participants to raise questions about transactions they are involved in

You Will Learn:

  • The basis for claims
  • Setting out liabilities in advance
  • Direct, Indirect Damages and Consequential Loss and 8 Top Tips for Remedies
  • How damages for breach of contract are assessed - 10 Steps
  • Liquidated Damages and Penalties including the difference across law systems
  • Understand Force Majeure, Frustration, Economic Hardship and Material Adverse Change clauses and the impact of The Pandemic including a unique 5 Stage of Analysis and the difference between the approach in Common and Civil Law
  • Terminating a contract and 12 pointers for terminating
  • Excluding liability and restrictions placed upon them
  • Limiting or widening heads of liability
  • Ensuring that you have a binding contract and steps to be aware of when entering into a pre contract document
  • Master the distinctions between warranties, representations, guarantees and indemnities – to minimise or protect risk
  • Setting out liabilities in advance
  • Selecting choice of law and which route to resolve disputes with comparative advantages and disadvantages and 12 top tips for Dispute Resolution Clauses.

Agenda

Day One

Introduction – Potential Claims

  • Identifying Potential Claims
  • Commercial Issues
  • Contractual Liabilities
  • Financial Liabilities
  • Law of Torts
  • Drafting
  • Key differences in civil and common law
  • Formation of contracts

The 10 Key Steps Tool for Drafting and Analysing An International Contract

Pre-Contract Agreements – Do You Have A Binding Contract and Endeavours Obligations with Flow Diagrams

  • NDAs, MoUs, Letters of Intent
  • Formalities required?
  • Formal Agreement to be Executed
  • Commencing work without an agreement
  • Incomplete or vague terms
  • Pre-contractual liability
  • Good faith
  • Best Endeavours, All Reasonable Endeavours and Reasonable Endeavours Navigating which to select and why.

Warranties, Representations, Guarantees and Indemnities – Minimising Risk With Contractual Remedies

  • Differences and distinctions
  • Which to use and when
  • 3 Types of Misrepresentation
  • Remedies for breach
  • Relationship with entire agreement
  • Indemnities – examples
  • The court approach and contra proferentem
  • Types of guarantees – performance and on demand

Setting Out Liabilities in Advance

Liquidated Damages and Penalties defined – Comparative Analysis and Decision Tree

  • Recoverability of liquidated damages and penalties
  • Rules of interpretation and evidence requirement
  • Types of contract to which the rules do or do not apply
  • Types of clause to which the rules do or do not apply
  • New law and cases by Supreme Court rule on liquidated and ascertained damages and penalties
  • 4 Rules for recognising a penalty

Exclusions and Limitations of Liability – Flow Diagram As To Effectiveness

  • Liability for personal injury or death
  • Liability for late delivery, performance or similar
  • How to limit the maximum aggregate damages
  • Exclusions, limitations and maximum liability
  • Courts interpretation of Exclusion Clauses

Day Two

Force Majeure, Frustration, Economic Hardship and Material Adverse Change (MAC) Impact of The Pandemic - Including 5 Stages of Analysis

  • 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
  • Re-execution/renegotiating
  • The legal effect
  • MAC – drafting, burden of proof, invoking

Comparative Workshop Session

Practical workshop where, using a case study as a basis, clauses will be examined that are interpreted differently in different jurisdictions, including:

  • Force majeure
  • Exclusion clauses
  • Approaches to interpretation
  • Limitation of liability
  • Liquidated damages and penalties
  • Drafting techniques

Remedies –

Direct, Indirect Damages and Consequential Loss & 8 Top Tips for Remedies

10 Steps - How damages for breach of contract are assessed

  • Types of damages
  • Direct, indirect damages and consequential loss – differences and distinctions
  • Damages for breach of contract
  • Measure of Damages
  • Expectation v Reliance Loss
  • Limited Expectations
  • Value v Cost of Cure
  • Overriding Compensatory Principle
  • Collateral Benefit
  • Mitigation
  • Remoteness of Damage
  • Contributory Negligence
  • Loss of a Chance
  • Equitable Remedies - Specific Performance and Injunction

Q&A Interactive Session: Identifying types of damages

Termination – Can You End The Contract? Plus 12 Tips for Terminating a Contract

  • Options
  • Termination at Common Law
  • Breach of a Condition
  • Breach of an Intermediate Term
  • Anticipatory Breach or Renunciation
  • Affirmation of a Repudiatory Breach
  • Contractual Termination rights
  • Contractual Machinery
  • Contractual v Common Law Rights of Termination

Choice of Law, Jurisdiction, Dispute Resolution Choices – Sample Clauses and pointers

  • Typical Choice of Law Clause
  • Factors in Selection
  • Choice of Jurisdiction – Considerations
    • Exclusive
    • Non – Exclusive
    • Unilateral or One - Way
  • Courts
  • Arbitration
  • Courts v Arbitration – Selection Criteria
  • Arbitration - Applicable Laws
  • Drafting Arbitration Clauses
  • Avoiding Pathological Arbitration Clauses
  • Type of International Arbitration?
  • Enforcement: The New York Convention

Dispute Resolution Choices

  • Alternative dispute resolution
  • Litigation
  • Conciliation
  • Mediation
  • Expert Determination
  • Recognition and Enforcement of Foreign Judgments
  • Implications of Brexit
  • Applicable law in the absence of choice

Top 12 Tips For Dispute Resolution Clauses

Experts

Arun Singh

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 ...

Videos and materials

Drafting International Contracts in a Pandemic at Euromoney Learning Solutions

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Disclaimer

Coursalytics is an independent platform to find, compare, and book executive courses. Coursalytics is not endorsed by, sponsored by, or otherwise affiliated with any business school or university.

Full disclaimer.

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