English Contract Law
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Description
This 3 day course focuses on the legal and drafting issues that arise when you negotiate an international commercial contract under English law. We look at negotiations “subject to contract” and “without prejudice”, pre-contract agreements, the “boilerplate” clauses found in every international agreement, clauses to end the contract or limit liability, entire agreement and third party rights. In each case we explain the legal concepts underlying the drafting and discuss how these affect the practical work of writing, understanding and amending contract terms. On the last day of the course, delegates discuss practical drafting techniques and practise drafting and reviewing contract terms. Thi…Frequently asked questions
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Day 1 Sources of English Contract Law We review the origins of English contract law in cases and statutes. Topics covered include: Sources of English law What is the point of citing cases? Where can you find current English law? Advantages and drawbacks of English law for international contracts. Making the Contract Essential elements of an English contract Negotiations “subject to contract” Formal requirements Informal contracts Standard terms and the “battle of the forms” Contract Interpretation We review the latest law on contract interpretation, including: The modern approach Business sense Literal meaning Older rules and maxims of interpretation (eiusdem generis, contra proferentem, expressio unius) Implied Terms We review the modern approach to finding implied terms, including: Terms implied as obvious or necessary Making business sense of the agreement Interaction between express and implied terms Statutory implied terms Can you exclude implied terms? Day 2 Understanding Boilerplate We review common clauses in commercial agreements, identifying their purpose, commercial value, and possible negotiating points. Clauses considered include: Governing law, jurisdiction and arbitration Time of the essence Third party rights Force majeure Severance Further assurance Notice and service of process Pre-Contract Agreements Letter of comfort Memorandum of understanding Letter of intent Authority to proceed Side agreement 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. Excluding or restricting termination rights. Termination for insolvency-related events. Survival clauses. Limiting Liability Limitation of liability Risk assessment and drafting exclusions Indirect and consequential loss Gross negligence and deliberate fault Drafting issues around caps on liability Day 3 Drafting pre-contract documents Confidentiality agreements Memorandum of agreement Heads of terms Letters of intent/authority to proceed Drafting contracts – the preliminary stages and first draft What is the transaction – the global view What are your instructions? Top tips for avoiding ambiguity in contract drafting “Shall” and “will” Drafting time limits Use of precedents and structure of the document Practical exercises: Delegates will write a first draft of a short agreement. Drafting contracts: 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 exercises: Delegates will review a set of terms, identify changes needed and draft their suggested changes. Drafting pitfalls The group will discuss key areas where uninformed drafting could lead to unexpected results, including: Promises to negotiate in good faith Promises to use best endeavours Definitions Translating legal terms Changing the governing law Areas of agreement not reduced to writing
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