Session 1: Contractual Risk Allocation Tools: Drafting Guarantees and Indemnities

Accepting liability, even of a limited nature, under a contract brings with it potentially onerous consequences and, as a result, precise and thorough drafting of such clauses is essential. This session provides a deep-dive into the drafting of guarantees and indemnities and associated guidance practitioners need to provide their clients, including:

• Guarantees and indemnities as risk allocation tools

• The characteristics of a guarantee and appropriate circumstances to provide one
• Essential features of a guarantee, including:
  • Default trigger and process
  • Guarantor’s obligations
• Legal requirements for enforceable guarantees
• Lessons from litigation
• When to include an indemnity in a contract – assessing potential loss or damage and risk allocation
• Key indemnity drafting considerations including:
  • Types of indemnities
  • Nature and extent of potential loss
  • Mitigation obligations
  • The availability of common law remedies
  • The impact of insurance

• Negotiating indemnities and relationship management
• Relevant cases and examples

Session 2: War of The Words: The Significant Changes Coming to Unfair Contract Terms Law

In November 2023, the new laws governing unfair contract terms come into effect. To avoid the significantly increased and additional penalties the new laws will bring, all businesses caught by the scheme must ensure that all of their contracts are free of unfair contract terms or else face the risk of the harsher penalties being introduced. This includes not only businesses covered under present law but also those smaller businesses who will be caught under the new law’s expanded scope. This session will provide a general overview of the new unfair contract terms law coming into effect and:

• Explain which contracts the new law will apply to and which businesses (companies and individuals) will be caught under the expanded scope of the new law
• Talk through what happens following a breach including an overview of the new and significantly increased penalties for breaches
• Outline the expanded powers of the courts and their role in enforcement
• Discuss the new definition of standard form contract under the new regime

Session 3: Tears Before Bedtime: Drafting Effective Early Termination Clauses

All contracts come to an end eventually, often by completion but also by early termination. This session will explore options for drafting effective early termination clauses in contracts, including:

• In what circumstances should an early termination clause be used in a contract?
• Considering alternatives to early termination to keep the contract on foot, such as ADR
• Anticipating the circumstances and consequences of early termination on:
  • The parties
  • Stakeholders
  • Third parties
• Termination for convenience – notice periods and other consequences
• Termination with cause – what will allow a party to terminate?
• Is rectification possible?
• Factoring in common law termination
• Case examples for assisting drafting