INTRODUCTION

In every organization the basis of business activity is the creation, drafting, negotiation and management of contracts. Those involved in the contracting process are, rightly, required to act as contracts professionals, and can no longer afford to treat contracts as an adjunct to their main roles. The increasing complexity of contracts, particularly when used in an international context, has brought the need for such skills into sharp focus. With these matters in mind, this programme is designed to:

• Examine the basis of contracting, with particular reference to international contracts
• Explore the ways in which contracts are created, including competitive tendering
• Look at some of the issues in drafting contracts, including clarity of language
• Show how to prepare for and conduct negotiations, whether on the terms of the contract itself, or on claims arising after the contract has been created
• Review some major issues taking a contract through to close out

PROGRAMME OBJECTIVES

• Understand the issues behind contracts
• See how contracts can be used in an international context
• Explore ways of creating contracts, and the different strategies available for different types of project
• Review different types of contract
• Examine some of the issues that arise in drafting contracts
• Develop improved skills in negotiation relating to contracts
• Share examples of how to manage contracts to maximise the result for the organisation

TRAINING METHODOLOGY

The programme will combine conventional teaching with a high level of participation; including an interactive approach to involving participants in discussion of topics; exercises; and encouraging participants to bring their own experiences forward for discussion and debate. Wherever possible, real examples and short case studies will be included from different industries around the world to make the course as relevant as possible.

PROGRAMME SUMMARY

The programme covers the contracting process from the concept of contracts, through the creation of the contract by tendering or otherwise, and looks at the drafting of contracts, and the skills needed for negotiation in a contractual environment through contract management to close out and resolution of disputes. The intention is to develop general skills with application to a wide range of contractual situations, and to allow participants to have an awareness of practices in other areas and other industries which may add value to their own situations.

PROGRAMME OUTLINE

The Basis of Contracts

• The basis of contracts around the world
• How is a contract formed?
  • Exchange of promises
  • Formalities
    • Writing
    • Formal signing/sealing
    • Registration
    • Stamp Duty or other taxes
    • Mental capacity
    • Age
    • Witnesses
• Authority to contract
  • How is this proved?
  • Powers of Attorney
  • Special issues with foreign parties
• Issues with agents
• What happens if there is no agreed contract?

Creating a contract

• Tendering
  • Why do we use competitive tendering?
  • Dealing with challenges
• Other procurement methods
  • Single/sole sourcing
  • Framework Agreements
  • Negotiated contracts
  • Traditional
  • More innovative
  • Selecting the right one for your project
  • Using Standard Forms
    • Company
    • International
  • Letters of Intent
  • Letters of Award
  • Conditions Precedent
  • Conditions Subsequent
  • Bonds
  • Guarantees
  • Insurance arrangements
• Different contract types
• Awarding the contract
• Collateral documents
• De-briefing bidders
• Kick-off meetings

Drafting contracts

• Clarity of language
• Issues with translations
• Some critical clauses
  • Health, safety and the environment
  • Standard of work/product/service
  • Changes to the scope of work
  • Indemnities
  • Insurance
  • Time for delivery
    • Liquidated damages
    • Penalties
  • Force majeure
  • What it is ….. and what it is not
  • Limitation of liability
  • Warranty and guarantee periods
  • Termination
  • Entire Agreement
  • Notices
  • Which law applies?
• Exercises in drafting

Negotiation

• Negotiation phases
  • When awarding a contract
  • In relation to disputes under the contract
• Negotiation techniques
  • Preparation
  • What to do in the actual negotiation
  • Dealing with difficult parties
• Exercises in negotiation
  • Phase negotiation
  • Arbitration
  • Courts (litigation)
  • Mediation
  • Expert determination
  • Other alternative solutions
• Dispute resolution
• Issues where disputes are resolved in an international context

Contract Management

• Project and contract management distinguished
• Roles in Contract Management
• Document control
• Control of change
• Payment processes
  • Impact of delay
  • Issues in international contracts
• Managing a termination
• Close out - contractual issues
• Final course review and questions