Day One Course Agenda

8:30AM: REGISTRATION | 9:00AM: START | 5:00PM CLOSE

TOPIC 1:

Contract Formation, Drafting and the Basics

What a contract actually is, and when you have already made one without meaning to.

• Common myths and false assumptions about contracts
• Understanding when a contract is in place – when is there a contract?
• The elements: offer, acceptance, consideration, intention, certainty, and capacity
• The basics of contract drafting —Legalese v plain English
• Identifying and understanding difficult clauses

Exercise: In small groups, work through a real contract formation scenario, identify where it went wrong, and decide how it should have been handled.

TOPIC 2:

Tendering and Procurement

Where probity and legal risk sit in the process — before you issue or respond 

• Common legal and probity risks in procurement, and how to identify them early
• Recent case law on tendering and what it means for your process
• The ‘process contract’ - what this is, when it is created, and why it matters
• Practical steps to minimise legal and probity risk in procurement 

TOPIC 3:

Problematic Clauses and Mitigating Risk

The clauses that cause the most damage, and how to handle them.

• Anticipating problems by recognising common but difficult contractual clauses
• Liquidated damages, termination for convenience, indemnities, consequential loss, force majeure and insurance
• Reducing contractual risk through effective negotiation and drafting
• Avoiding error by understanding the ‘ins and outs’ of common termination provisions
• Analysing when clauses are not valid or not enforceable 

TOPIC 4:

Breach and Dispute Resolution

What your options actually are when the other side stops performing

• Understand the remedies available when things go wrong
• The different methods of dispute resolution and when each applies
• Alternative Dispute Resolution (ADR) - avoiding court and costly litigation

Day Two Course Agenda

8:30AM: REGISTRATION | 9:00AM: START | 5:00PM CLOSE

TOPIC 1:

Advanced Formation, Interpretation and Risk Allocation

How contracts really operate once the paperwork is disputed or unclear.

• Formation through a commercial lens - when formation is disputed
• Battle of the forms and conflicting terms: whose terms prevail
• Incorporation of terms - standard terms, policies, emails and course of dealing
• Interpreting contracts in practice: ambiguity, context and commercial purpose
• Entire agreement clauses, misrepresentation, mistake and estoppel 

Exercise: Analyse a commercial scenario involving conflicting terms and determine whether a binding contract exists, and on what terms.

TOPIC 2:

Strategic Drafting and Negotiation 

Moving from reading contracts to shaping outcomes.

• Drafting for clarity, certain and enforceability - avoiding unintended consequences
• Strategic use of definitions, schedules and boilerplate
• Negotiation frameworks: positions versus interests
• Identifying deal-breakers versus negotiables
• Leveraging bargaining power, managing counterparties, and redlining efficiently

Exercise: Review and mark up a complex clause set, improving your risk position and the clarity of the drafting.

TOPIC 3:

Complex Clauses and Advanced Risk Management 

A deep dive into the clauses that are always heavily negotiated.

• Advance indemnities - scope, limitations, caps and exclusions
• Limitation of liability: drafting enforceable caps
• Consequential loss -  what it really means and how courts interpret it
• Liquidated damages versus penalties, and warranties versus representations
• Force majeure, change in law, insurance and risk transfer

Exercise: Identify and restructure the problematic clauses in a high-risk commercial contract. 

TOPIC 4:

Contract Management, Breach and Enforcement

What happens after signing - managing performance and protecting your position.

• Contract lifecycle management from execution to completion

• Early warning signs of breach or dispute
• Termination rights - strategic use and risks
• Notices, cure periods and procedural compliance
• Remedies, without prejudice communications and settlement strategy

Exercise: Work through a breach scenario and determine the best commercial and legal response.

TOPIC 5:

Advanced Procurement, Probity and Public Sector Contracting

Where the real exposure sits when you are buying, tendering or spending public money.

• Probity obligations in practice - conflicts, confidentiality and fair process
• Drafting and evaluating a request for tender that protects your position 
• The ‘process contract’ revisited - advanced implications and how to exclude it
• Handling unsuccessful tenderers, debriefs and challenges to a procurement decision
• Contract variations and scope creep - the most common source of procurement disputes
• Panel arrangements, standing offers and the risks buried in framework agreements

Exercise: Review a live procurement scenario, identify the probity and legal risk, and decide how you would run the process differently.

TOPIC 6:

Dispute Resolution Strategy

Designing the exit before you need it.

• Drafting effective dispute resolutions clauses
• Choosing between litigation, arbitration and ADR
• Preparing for a succeeding in mediation
• Managing legal costs and litigation risk
• Lessons from recent case law affecting commercial contracts