In today’s highly competitive and cost-conscious environment, knowing how to draft commercial contracts including Business, Supply and Sales Contracts is an important part of business activity. It is vital that contracts be aligned with business expectations as if it is not drafted as needed, the contract will fail to perform. It is important to translate the business deal into contract concepts using proper contract drafting techniques and rules.
It requires legal and Non-professionals to be well versed with the drafting techniques of commercial contracts to foresee the risk and balance the risk allocation and have analytical thinking to handle contracts in the best interest of their organization.
This seminar is for any professional who wants to learn and understand the writing of these types of commercial contracts.
By the end of the Commercial Contract Drafting training, you will be able to:
- Better discuss the contract negotiating and understand Pre-Contractual documents
- Identify the boundaries between degree of binding and Non binding commitment in Pre Contractual documents
- Use Contract drafting techniques to write Pre Contractual wording
- Understand how Letter of Intent is drafted
- Set up the Agreement as a whole showing the movements in the different segments of the contract collectively and individually;
- Draft into contracts the different types of conditional clauses and exceptions, Crave-outs and Triggering Events to prevent the obligation from breach of non-performance;
- Identify the unfair conditions of contracts and how to draft it better using contract drafting rules
- Understand the legalese words used in obligations and the meaning they carry in the contracts including the preference for words used in negotiations; words used in reference to the whole contract and preference for interpretation which gives terms effect;
- Understand the tools used in risk allocation and assessment including Force Majeure; Exclusion clauses and Limitation clauses;
- Use Best practice rules for Warranties and Disclosures as allocation of risk in the contract;
- Draft out Indemnities with the relevant wording which improves the mechanism of the indemnity;
- Understand the effect of limiting or elimination consequential liability and how to write consequential liability which will benefit your organisation;
- Understand the relationship of Penalty clauses and the courts views on this;
- Draft out effective Boilerplates clauses and the elements that must be included.
Who Must Attend
- CEO / COO
- General Manager
- Legal Counsel / Legal Officer
- Privacy Officer or Manager
- Compliance Manager / Compliance Officer
- Information Technology personnel
MODULE 1: TRANSACTIONAL DOCUMENTS [PRE CONTRACTUAL]
- Degrees of Binding and Non Binding commitments in Letters of Intent
- Dos and Don’t’s of Drafting Techniques for Transactional documents
- Recap of Basic Concepts of Contract Drafting Nuances including Language of Performances /Obligations/Prohibitions/Discretion/ Declarations and Acknowledgment and Policies
MODULE 2: KEY ASPECTS OF DRAFTING THAT SHOULD BE COVERED IN ANY BUSINESS CONTRACT RECITALS/PARTIES
- Recitals -Purpose and restrictions for drafting recitals;
- Relationship between Effective Date and Commencement date of Agreement
- Execution of Agreements and what happens signing before finalising of Agreement -What Options are there?
MODULE 3: DRAFTING FOR CLARITY IN CONTRACTS
- Rules for Clarity
- Clarifying Ambiguities and Vagueness including understanding the concepts of “And,” “Or,” and “And/Or” Ambiguities /Formulas/Legal Archaisms /References to Time concepts
- The concept of “Deemed”
MODULE 4: RULES FOR DRAFTING COMMERCIAL OBLIGATIONS
- Understand rules governing drafting Operative provisions and sequencing of main obligations and framing schedules;
- Understanding types of clauses and Triggering Events using Condition Precedent/ Condition Subsequent/ Condition concurrent
- Drafting using Conditional Language including understanding the relationship between the Conditional Language, the Subordinator and the Matrix Clause
- Understand the Language of Exception and Subordination
- The relevance of Escape Clause
MODULE 5: ESSENTIAL ELEMENTS IN CONTRACTUAL OBLIGATIONS
- Establishing the terms of the contract and their meaning;
- Rules governing Express Terms including who has the benefit of doubt in a conflict;
- How to handle Express and implied terms in one clause;
- The ejusdem generis rule;
- What are the implications for the Contract Writer and Negotiator on the impact of the 5 principles of Contract Drafting?
MODULE 6: Drafting Obligations and Scope of Services
Rules to prepare Commercial Obligations
- Who should the parties be?
- Commencement, duration, extension of term;
- Getting the scope and requirements right
- Knowing the rules on how to manage changes in agreements;
- Measuring Performances in Obligations;
- Using Boiler plate words into Obligations and the effect of that on the overall contract
MODULE 7: PURCHASE ORDERS/ PRICE AND PAYMENT
- Contractual Nature of Purchase Orders
Types of Liability of Parties and Payment provisions;
- Drafting out Payment Clause and Performance Obligations
- The effect of S.56 of Contracts Act 1950 on time of essence clauses and compensation
Module 8: Risk exposure and assessment Tools – Drafting Guide with Samples
- Limitation of Liability and ideas of Crave-outs
- Drafting out Consequential and Indirect Loss clauses
- 2019 Case law Updates on methodology of assessing compensation for Liquidated Damages
- Providing for a Damages Cap and commonly used examples of Cap
- Constructing Exclusion Clauses;
- Different types of Exclusion and Limitation of Liability Clauses
- Contract Drafting guidelines on scope of risk in exclusion clauses including the treatment of direct loss, Consequential loss and indirect loss.
MODULE 9: Warranties
- Key Principles in Warranties;
- Difference between Warranty and Indemnities in relation to awards of damages claimed;
- Survival of Warranties – Best Practices for Disclosures
MODULE 10: Drafting guidelines for Indemnities
- Types of indemnities;
- Rules for scope of definition of indemnity losses;
- The procedure for compensation for Indemnities
- The role of mitigation of loss and calculation of limitation period in Indemnity clauses;
MODULE 11: Drafting Guidelines for Boiler Plates
- What to add in Force Majeure clauses.
- The period of performance and the effects beyond termination;
- The effect of contracting out of the force majeure clause;
- Matters to take into account when invoking the force majeure clause;
What is a Survival and Merger clause?;
- The workings of Survival and Merger clause;
- Review of the Survival and Merger clause on clauses of agreement Post termination;
Terminating lawfully and consequences of Termination [Sample provided]
Drafting ideas for Termination clause
- Provisions to be written into Termination clause including the survival of essential parts of Agreement;
There will be a workshop on the drafting of clauses and samples will be provided.
The seminar will involve discussions, presentations and individual question and answer sessions.
Professional Qualification MBA (Management), UKM
Professional Qualification LLB)Hons) London University of East London
Professional Certificate in Legal Practice
Mr. Krishna was previously the Legal Manager in 2012 for a renowned franchise company in Kuala Lumpur for approximately 7 years and an active legal and corporate advisor to the CEO and group of companies. He had drafted many commercial agreements for the company including international clients from UAE, China, Jordan, Philippines which required his expertise. When PDPA was implemented in 2012, Mr. Krishna was asked by the CEO to formulate a PDPA procedure and compliance form, and he was the compliance officer to monitor the data received and used by the company. All departments within the organization had to refer to him to get approval to use personal data gathered from business owners for purposes of direct marketing. He had to strike a balance between the company’s interest and consumers to avoid breach of the PDPA 2010. He had extensive experience in the field and highly respected in the franchise industry and governmental agencies. Mr. Krishna is a formidable Advocate & Solicitor in various areas of law that he has represented and has always complied with the requirements of the law.
22-23 Sept 2020
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