Commercial Contracts

With the advent of Covid19, force majeure clauses in contracts are being rigorously scrutinised. The webinar will examine the following:

• How to assess whether Covid 19 will be considered a force majeure event
• Is it sufficient to prove that the performance of the obligation has been hindered or must you prove that performance of the obligation has been rendered impossible?
• What is the position if the relevant party’s obligation has been made more difficult or expensive to perform?
• Must you prove that Covid 19 is the sole reason for not being able to perform the obligation?
• Is notice of the triggering event required to be served?
• Must the party impacted mitigate the effects of the force majeure clause and avoid any unnecessary losses?
• What is the effect of force majeure on the contract?
• The position if there is no force majeure clause in the contract: can you rely on the doctrine of frustration?
• Threshold criteria: how high is the evidentiary bar?
• Does successful proof of frustration lead to the automatic termination of the contract?

• Navigating the negotiation of warranties and indemnities: a guide to their scope and operation and understanding the difference
• How does a claim under an indemnity differ from a claim for breach of warranty?
• Do the usual contractual rules of foreseeability of loss and the obligation to mitigate apply?
• Issues to consider before agreeing to an indemnity
• What areas do indemnities usually cover in commercial contracts?
• What does indemnify and “hold harmless” mean?
• What additional considerations should you bear in mind when negotiating the wording of an indemnity: mitigation, remoteness/foreseeability, the trigger, the extent of the losses, any pre-conditions, a cap on liability
• Where the indemnity could cover liability for claims from third parties, should you include a notice and claims control procedure?

• Liability caps: Does one cap fit all or should there be different caps for different types of loss?
• Should there be an overall cap or should the cap apply to each claim (or series of connected claims)?
• Carve outs and exclusions: traps for the unwary
• Interaction with indemnities: Does the limitation clause limit recovery under the indemnity?
• Other drafting methods to consider when scoping each party’s liability under the contract
• The implications of non- reliance wording; exclusion of implied terms
• Should you attempt to allocate the risk to the party who is best able to insure against it?

As UK and Irish laws diverge, commercial contracts will need to address legal issues that were previously aligned in each jurisdiction. This webinar will examine the following:

• Is Brexit likely to be considered a “frustration” event?
• Future proofing your contract for Brexit: Should you include bespoke Brexit clauses to mitigate and allocate Brexit risk?
• Who will bear the cost or duty of compliance with changes in the law?
• Data Protection: safeguards for cross- border transfers of personal data particularly in the light of Schrems
• New tariffs, custom and excise charges and VAT changes: should a supplier include a clause which seeks to share the burden of increased costs in providing goods and services?
• What happens if the exchange rate changes between the order date and the payment date? How should the parties allocate the risk of material currency fluctuations?
• The validity and enforceability of choice of jurisdiction clauses post Brexit: will EU member states be required to give effect to exclusive jurisdiction clauses in favour of the UK Courts under the Hague Convention in the event of a no-deal Brexit? The position of the Recast Brussels Regulation
• Who will be responsible for achieving compliance, if parallel regulatory regimes emerge under both UK and EU law?
• What happens if the Brexit related changes make the contract commercial unviable? Should the contract provide for the option to re-negotiate or Brexit-specific termination rights in such circumstances?
• Potential effects of Brexit on existing commercial law
• Measures to consider

• Common pitfalls when terminating a contract and their consequences
• Failure to comply with the applicable contractual termination procedure: Could this invalidate the notice of termination?
• What are the financial consequences for a party who terminates a contract without the right to do so? Is there a risk that the counterparty might treat this as a repudiatory breach, end the contract and seek damages?
• Failure to identify the most favourable ground of termination: Why is it important to identify any common law termination rights even where a contractual right has already been identified? Is there a damages differential?
• Assessing which termination right to exercise: If more than one termination right has arisen can you exercise them concurrently? If the consequences of exercising the rights are inconsistent, will it be necessary to choose one or can you cite them in the alternative?
• The importance of properly drafted termination notices clearly identifying all rights being exercised. Can a contract be validly terminated pursuant to a right not identified in the termination notice if that right was capable of exercise at the date of the breach?
• Are clauses such as confidentiality clauses or restrictive covenants likely to survive contractual termination? What is the position in relation to such clauses if there is a termination at common law?