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Online | Anatomy of an English-law Contract

24 May 2021–17 June 2021, 1:00 pm–2:00 pm

Leonardo Da Vinci anatomical drawing of an arm

A series of one-hour, lunchtime talks delivered via Zoom

Event Information

Open to

All

Organiser

UCL Laws Events

Course dates

This course runs as a series of eight one-hour, lunchtime sessions (13:00 - 14:00) on the following dates:
Monday 24th & Thursday 27 May
Tuesday 1st June & Thursday 3rd June
Monday 7 and Thursday 10 June
Monday 14 and Thursday 17 June

Introduction

As lawyers and commercial managers, we are creatures of habit. When we draft commercial contracts, we use familiar templates and clauses. The wording of contracts evolves slowly, but many of the themes and contract structures would be familiar to practitioners from previous centuries.

This practical course considers some important areas of English law and legal practice that influence the drafting of commercial contracts. As modern contract drafters, we should know when a particular feature of a contract is legally significant (and omitting it, or wording it badly, may present a risk), or just a tradition or bad habit that can be ignored or avoided. In some cases, the wording may reflect the legal framework or drafting habits of another jurisdiction, particularly where US templates are used; this may create problems of interpretation if the contract is made under English law.

In a series of eight one-hour, lunchtime sessions (12:50 - 14:00), we will go methodically through the main parts of a conventional contract and examine the usefulness or otherwise of its features. The main focus of the talks will be on English law, but the discussion will include reference to practice in other jurisdictions, both common law and civil law.

To take a few examples:
•    Identifying the parties accurately, including the dangers of including Affiliates.
•    The consequences of badly-drafted recitals.
•    Best practice in drafting definitions.
•    Unnecessary interpretation clauses.
•    Implied terms; legal jargon, including time is of the essence, best endeavours
•    Warranties of authority and capacity – are they a waste of time?
•    Excluding liability for indirect loss – does this make commercial sense?
•    Indemnities – the different types – why do you need them?
•    Boilerplate clauses – which ones are critical?
•    Signature blocks – who, what, where?

Who is the course designed for?

The course is suitable for lawyers and contract managers who care about the technical content of their contracts, how that content might be interpreted by an English court, and achieving legal certainty. In other words, the course is at the interface between legal theory and practical drafting. You will probably have some experience of drafting and negotiating contracts.

NOTE: This course is not about negotiating issues, or what deal terms you should include in your contract.

The Schedule - what is covered when

Monday 24 May: Session 1 – Preliminaries: dating, parties, recitals
Choice of agreement format: traditional, form or letter?
Dating the agreement; avoiding criminal forgery; setting up an effective date
Identifying the correct parties and giving their full name – company search?
Adding Affiliates as parties
Do you need a parent company guarantee?
Executing your contract as a deed – wording issues
Addresses – here or in the notices clause?
Short-form names; practical tips
Best practice with recitals; avoiding substantive terms or representations; comparison with civil law

Thursday 27 May: Session 2 – Definitions and interpretation
Best practice in drafting definitions, including choice of term, location, order, appearance, consistent use of capitalised words
Different types of definition: means, includes, excludes; cascading and buried definitions
Redundant definitions; unused definitions
Interpretation clauses – why are they used?
Underlying law on interpretation clauses
Some useful and less useful interpretation clauses; location

Tuesday 1 June: Session 3 –Implied terms, use of legal jargon: practical issues
Some common implied terms, including quality, fitness for purpose, reasonable care and skill, full title guarantee, good faith; underlying law
Other implied terms, e.g. VAT is included, time obligations, rights to terminate, rights to interest
Use of legal jargon, e.g. best endeavours, time is of the essence, condition

Thursday 3 June: Session 4 – Warranties and disclaimers
Warranties v representations
“Standard” warranties of capacity, authority
Absolute and knowledge-based warranties
Some case law on warranties
Disclaimers of warranty

Monday 7 June: Session 5 – Liability and indemnities
Liquidated or unliquidated damages
Capping liability – case law, statutory constraints
Exclusion of indirect losses – practical issues
Carving out impermissible exclusions: traditional and modern approaches of the courts
Types of indemnity: indemnities against breach; indemnities against risks; third party or inter-party indemnities; mutual indemnities

Thursday 10 June: Sesssion 6 – Termination clauses
Implied rights to terminate
Termination for breach
Leaving it too late to terminate for breach
Termination for insolvency, including recent law
Right of termination cumulative not exclusive
Giving notice of termination – calculation of time periods
Spelling out the consequences of termination

Monday 14 June: Session 7 – Boilerplate clauses
Choice of law and jurisdiction
Entire agreement
Assignment and change of control
Third-party rights; avoiding third-party obligations

Thursday 17 June: Session 8 – Signing issues
Execution as a deed or simple agreement: reasons, methods, formalities, special cases
Is the signatory actually authorised to sign? Representation of authority? Consequences if unauthorised person signs
Verifying due execution: Board minutes, letters from Co Sec, website searches, etc; who is responsible for this?
Does the signatory have apparent authority to sign? Understanding agency law in this area
Using a modern signature block
Signatures before or after schedules?
Practical issues, including signing the wrong signature block

 

About the speaker

Mark Anderson is a solicitor and former barrister, who qualified in the 1980s. After spells as an in-house lawyer and with a leading IP law firm, he formed his own firm in 1994. Anderson Law LLP now employs 17 people and is recognised by Chambers Directory as a national leader in IP transactions and life sciences law.

Mark has written several textbooks for practitioners, some now in their 4th editions, including Drafting and Negotiating Commercial Contracts, and A-Z Guide to Boilerplate and Commercial Clauses. He is a visiting professor at the Institute of Brand and Innovation Law at UCL, and is the convenor of an annual, one-week course for IP practitioners, called IP Transactions: Law and Practice. That course has won both a UCL Provost’s Teaching Award, and a Law Society Excellence Award (Highly Commended). His firm has written published templates agreements for LexisNexis, Oxford University Press, and Enterprise Ireland (an Irish government agency).

He runs other CPD courses at UCL, including Drafting Legal Clauses in Commercial Contracts, and Advanced Contract Drafting Workshop.

Fees and Booking

Standard Ticket = £720 (Early bird £650 - ends 23 April)
IBIL Sponsors / UCL Alumni Ticket = £620
Full time Academics / NHS / NGOs = £600
Group ticket (3 or more from same firm) = £640

Book at:
https://ucl-anatomy-english-law-contract.eventbrite.co.uk

If you would prefer to receive an invoice and pay via bank transfer please email [email protected]

Cancellation and Refunds

General
All cancellations and refund requests must be made in writing 10 full working days (Monday to Friday) prior to the start of the event to [email protected] (or to the contact person for the event).

If the above notification period is not given, or in the event of non-attendance, then the following cancellation fee applies:
- £25 for a half-day workshop
- £50 for one day workshop

UCL Laws reserves the right to make changes to the programme, location and/or speakers without prior notice. Such alterations are occasionally necessary due to circumstances beyond our control.

During the event, please ensure that your attendance is noted each day to avoid being charged the cancellation fee - this will normally be by signing an attendance sheet at registration.

Refunds
Refunds will be made to the payment method used for the original payment, ie if you paid via card you will receive your refund to your card, less any cancellations fees (if applicable).

Illness
In the event of non-attendance due to illness, a doctor’s certificate must be provided, otherwise the full cancellation fee will be charged. Individuals who withdraw after the start of an course will still be liable for the cancellation fee as outlined above.

Cancellation and non-attendance for paid events
An individual who has registered for an event who doesn't provide the required 10 working days notice and who fails to attend will NOT receive a refund. This is due to administrative, speaker and catering costs incurred by the department (and your place could have been allocated to another individual).

Attendees are welcome to send a substitute without incurring a charge, provided UCL Laws is notified in writing ([email protected] or the event contact person) three full working days prior to the event.

Unforeseen circumstances
UCL Laws reserves the right to cancel or re-schedule an event due to unforeseen circumstances. In the unlikely event of cancellations, UCL Laws will refund the full amount of the registration fee (if applicable). However, personal expenses incurred by the attendee are non-refundable by UCL Laws.

Course delivery

This course will be delivered on Zoom. The course is interactive and you will have plenty of time to ask questions in the session either live or in the chat. We will open 10 minutes early (12:50) from Session 2 for a Q&A slot from the previous session.

Catch up recordings:
We understand that some attenders will not be able to attend all sessions of the course. We record all sessions and make them available for catch up on a dedicated site available only to students on the course.

Materials
Slides and other materials will be accessible on a course OneDrive.

Queries

If you have a query about this course please contact Lisa Penfold - [email protected]