Drafting “legal” clauses in commercial contracts

About this course

In the morning, we focus on warranties, indemnities and limitation of liability. In the afternoon, we move on to boilerplate clauses, including entire agreement, force majeure and law and jurisdiction. For each topic, we explain the meaning of the term used, how the courts interpret it, and relevant practice points, and discuss examples of drafting.

The course is designed for lawyers and commercial managers who have at least two years’ experience of drafting and negotiating contracts, and who wish to increase their technical understanding of legal clauses.

Please note that this course considers the legal and commercial context of the clauses and discusses how to draft them. In other words, we focus on technical skills and not on commercial positions, though the latter will be seen in some of the examples that we use. It is not a course on contract law (it is assumed you will have an understanding of this subject if you are drafting contracts) and we don’t attempt the impossible task of telling you what contract risks your organisation or client should find commercially acceptable. These points may seem obvious, but occasional experience of different expectations from a few attenders suggests that these points need to be made explicitly.

Specific topics to be considered in the workshop will include:

• The meaning of terms such as warranty, representation, covenant, term and condition
• Examples of good and bad drafting practice
• Techniques for limiting or extending the effect of warranties, indemnities and other terms
• International issues, including the use of US legal expressions such as “hold harmless”
• The purpose of boilerplate clauses, whether they are needed, and associated practice points
• Drafting tips

Preparation for the course

Although not essential, attenders may find it helpful to read the following practitioner texts as preparation for the workshop:

• Drafting and Negotiating Commercial Contracts, Mark Anderson and Victor Warner (3rd edition, Bloomsbury Professional, 2012)
• A-Z Guide to Boilerplate and Commercial Clauses, Mark Anderson and Victor Warner (3rd edition, Bloomsbury Professional, 2012)

Comments from previous attenders of this course:

• Excellent speaker. Very well explained – easy to follow and understand.
• Very useful course. Of particular relevance to me were refs/comparisons to other jurisdictions, especially the USA. Unexpected and refreshing for an English law course.
• Plenty of opportunity to ask questions and discuss.
• I feel far more confident [after attending course] that I know what the key issues and pitfalls are.

Learning outcomes

At the end of the course, attenders should have a better and more detailed understanding of risk-management provisions and certain boilerplate provisions in contracts, including the meaning of legal terminology and its correct usage in such provisions, certain negotiating issues that arise, some typical provisions that are encountered, how to analyse and assess such provisions, and some of the main case law on interpreting such provisions. Attenders should have greater confidence in challenging badly-drafted provisions and recognizing when “conventional wisdom” is not supported by case law.

If you have any queries about this course please contact Lisa Penfold at the UCL Faculty of Laws by emailing lisa.penfold@ucl.ac.uk

The Course Schedule

09:00	Registration
Morning Programme: Warranties, liability and indemnities
09:30	Introduction   Why are these clauses needed? Why are they so difficult to understand Getting the client’s attention and instructions on complex “legal” clauses
09:45	Promises, promises   Representations, warranties, covenants, undertakings, terms Conditions precedent and subsequent; promissory conditions; disclaimers Unknown facts: who should bear the risk? Different levels of warranty: absolute, best of knowledge, actual knowledge Exclusion of matters known to warrantee: due diligence and use of disclosure letters Other ways of qualifying warranties: time limits, lower and upper value limits Consequences of breach: termination, specific remedies, liability, indemnities
11:00	Refreshments break
11:15	Promises, continued
11:30	Limiting, excluding and apportioning liability: liability and indemnity clauses   Excluding and limiting liability, including: direct and indirect losses Apportioning liability, including: indemnities and hold harmless distinguished Relationship between liability and indemnity clauses
12:00	Drafting exercises on warranties, liability and indemnities; followed by answers
12:45	Lunch
Afternoon programme: selected boilerplate clauses
13:45	Introduction   What is meant by “boilerplate” and where does the expression come from? Why are these clauses important? Which are the “core” clauses?
14:00	Discussion of law, practice and drafting issues affecting selected boilerplate provisions:   Assignment and novation Best and reasonable endeavours Entire agreement; force majeure Interpretation; law and jurisdiction Notices; termination; third party rights>
15:15	Tea
15:30	Discussion of selected boilerplate clauses, continued
16:15	Workshop on warranties
17:00	Course ends

About the presenter

Presenter's credentials

The course has been designed, and will be run, by Mark Anderson. He has run versions of this course since the 1990s. His credentials are:

Solicitor: He is a practising solicitor, who is recommended in Chambers Directory for both life science transactions and IP. He is recommended in the international guide, IAM Patent 1000, as a leading UK lawyer in the field of IP licensing. His blog on IP contracts, IP Draughts, was made a member of the Blawg100 by the American Bar Association in 2012. He is a Certified Licensing Professional (a qualification established by the Licensing Executives Society (US and Canada)) and a Registered Technology Transfer Professional. Trainer: He has run CPD courses on IP and contract subjects since the 1990s. He is a visiting lecturer at the UCL Faculty of Laws, and is the course director of a 5-day course, Intellectual Property Transactions: Law and Practice, which is run by UCL’s Institute of Brand and Innovation Law. This course has won two awards: (1) a Law Society Excellence Award (Highly Commended) in the Learning and Development category, and (2) a UCL Provost’s Teaching Award. Author: He is the author or co-author of 7 practitioner texts on IP and contract drafting subjects, published by OUP, LexisNexis, Bloomsbury and Law Society Publishing. These include:

• Technology Transfer (3rd edn, Bloomsbury, 2010). ‘All practitioners who deal with technology transfer arrangements in England and Wales should own a copy of this work.’ (Journal of E-commerce, Technology and Communications)
• Drafting and Negotiating Commercial Contracts (3nd edn, Bloomsbury, 2010). ‘It is one of the best, if not the best, texts on the principles of commercial drafting… The material is extremely well written and accessible.’ (Student Law Journal).
• Execution of Documents (2nd edn, Law Society, 2008). ‘This is, for a highly technical law book, a riveting read. Keep it on your shelves and you’ll be confident that you will have the answer to most issues about how to make a legal document work.’ (New Law Journal)
• A-Z Guide to Boilerplate and Commercial Clauses (3nd edn, Bloomsbury, 2010). ‘An extremely useful reference work, the book will be of great benefit to in-house counsel drafting commercial contracts’ (the In-House Lawyer). ‘[The book] is very useful and I hope that it will reach a wider audience.’ (His Honour Humphrey Lloyd QC, The International Construction Law Review).

Drafter: He and his colleagues have drafted hundreds of precedents for commercial contracts, including IP contracts, which have been published by OUP, LexisNexis and others.

Fees

Early Bird Tickets - available until 5 June 2018

Standard Ticket = £600 (£510 early bird)
Group Ticket (3 or more) = £510 (£433.50 early bird)
IBIL Sponsor / UCL Alumni = £510 (£433.50 early bird)

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