OVERVIEW
Incorporating ESG clauses into contracts is becoming increasingly important for companies to demonstrate their commitment to sustainability and responsible business conduct. ESG clauses help ensure that suppliers are aligned with sustainability goals and are committed to responsible business practices. However, it's crucial to understand the legal implications and ensure that these clauses are clear and well-defined.
Environmental, Social, and Governance (ESG) contract clauses are gaining popularity as businesses strive to make a positive impact. Many Contracts and Procurement Professionals are navigating new territory with these clauses. Commercial contracts require clarity and fair construction to manage and resolve disputes effectively.
This workshop aims to impart tips, traps, and techniques for drafting concise, clear, and legally binding commercial agreements, including the incorporation of ESG clauses to meet the challenges of today’s business environment.
Benefits of Attending:
- Understanding ESG Clauses
- Types of ESG Clauses
- Drafting of ESG Clauses: Five key considerations for any contractual ESG commitment
- Expanding knowledge of the risk of drafting contracts without a confidentiality clause
- Mastering practical drafting techniques to write concise and effective agreements
- Examining special contractual arrangements and letters of intent
- Learning to interpret variations and time of essence clauses
- Clarifying the distinction between ‘best endeavours’ and ‘reasonable endeavours’ – essential terminology in commercial contracts
- Getting up to date with the use and drafting of contractual warranties and indemnities
- Understanding the effect of exclusion and limitation clauses and how they can be used to manage exposure
Who Must Attend:
- Advocates
- Attorneys
- Heads of Legal Departments
- Legal Advisors
- In-House Legal Counsel
- Paralegals
- Company Secretaries
- Legal Assistants
- Business Development Directors
- Commercial Directors and Managers
- Contracts Managers
- Project Managers
- Procurement Specialists
- Anyone directly involved in contract administration
Facilitated By: Adv. Alexia Vosloo - De Witt, LLB, Audiometry (NQF 5)
Current Practicing Advocate of the High Court of South Africa since 2013, Adv. Alexia Vosloo - De Witt focuses on Commercial, Corporate, Contractual, & Human Rights matters, chairing enquiries, and administrative boards. Her expertise spans Labour Law, Criminal Law, Civil Law, Family and Divorce Law, Harassment and Protection Orders, Contract Law, and Commercial Law, as well as Air, Space, and Telecommunications Law.
Adv. Vosloo - De Witt acts as a training facilitator for several training companies. Courses she has presented include Employment Equity, Labour Law, chairing a Disciplinary Hearing, Nuts and Bolts of Labour Law (How to Present Your Case), Consumer Protection Act, and Sexual Harassment.
Her previous international clients include Projex CI Telecommunications Company Guinea, where she assisted with legal compliance in Labour Law and Telecommunications and Infrastructure. She has comprehensive training experience, involving the development and implementation of internationally benchmarked curricula, lecturing at the tertiary level, and corporate training as a facilitator.
Day 1
07:30-08:30 Registration, Tea & Coffee
08:30 Welcome & Workshop Commences
Reference Sources in Respect of Substantive Law
Ancillary Documentation and Contracts
Pre-Contract Documentation and Discussion:
- Letters of Intent, MOUs & SLAs
DISTINCTIONS BETWEEN NEGOTIATIONS AND CONTRACTS
- ‘Subject to contract’ and ‘Without prejudice’
- Confidentiality Agreements
- Law & Practice: Content of SLAs & Agreements to agree
- Variations
10:00 Mid-Morning Teas/Coffees & Refreshments
DRAFTING OF A LEGALLY BINDING AGREEMENT
- Introduction
- Legal Capacity
- Authorisation
- Clear and Unambiguous
- Legal Validity
- Constitutionality
IDENTIFICATION OF THE PARTIES
IDENTIFICATION OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES
IDENTIFICATION OF THE ESSENTIALS AND INCIDENTALS
DECIDING ON THE FORMAT
COMMERCIAL CONTRACT FORMAT AND STRUCTURE – Part 1
- Law and Custom
- Tone and Format
- Deed or Contract?
- Mapping the Deal: Development Contract
- The Tiered Draft: Structures of Typical Commercial Contracts
12:30 - 13:30 Lunch & Networking
COMMERCIAL CONTRACT FORMAT AND STRUCTURE – Part 2
- The Tiered Draft: Structures of Typical Commercial Contracts
- Examining Our Agreement
DIVIDING THE WORKLOAD, DRAFTING IN TEAMS
DRAFTING, STRUCTURE AND FORMATION OF CONTRACTS
- The Legal Framework of a Contract:
- Applicable Law, Contract Formation, Writing and Evidence
- Breach of Contract, Remedies, and Enforcement
- Terms: Implied, Express, and Standard
- Implied Terms: 3 Types, Plus 1
- Express Terms: Time is of the Essence, Endeavours
- Standard Terminology: Reasonable, Substantial, Material
DRAFTING TECHNIQUES
- Practical Tips, Undertakings, Representations
- SLA Exercise, Warranties
EXCLUSION AND LIMITATION CLAUSES
- Economic Rationale, Drafting a Liability Clause
- Taking It Out…: Interpretation, CPA
- Examples: General: Consequential Loss, Particular: Recent Cases
16:00 End of Day 1
Day 2
07:30-08:30 Registration, Tea & Coffee
ESG CLAUSES
- Types of ESG Clauses
- Environmental Decisions: Use of Specific Products or Packaging, Shipment Requirements, etc.
- Human Rights: Prohibition of Engaging in Child Labour, Obligation to Provide a Healthy and Safe Work Environment
- Anti-Corruption: Obligation to Avoid Engaging in or Working with Companies Linked to Corruption, Drugs or Arms Trafficking
DRAFTING OF ESG CLAUSES
- Five Key Considerations for Any Contractual ESG Commitment:
- Nature of the ESG Commitment
- “Essential” Nature of the ESG Commitment
- Enforcement of the ESG Commitment
- ESG Documentation & Audits
- Duplication of the ESG Commitment Throughout the Supply Chain
10:00 Mid-Morning Teas/Coffees & Refreshments
DRAFTING LEGAL CLAUSES
- Introduction to Boilerplate
- Transferring Contractual Rights and Obligations: Novation, Assignment, Other
- Third Party Rights, Privity, Practical Examples, The New Rules
- Drafting Issues and Traps
INTERPRETATION
- Definitions - Essential Glossary 'Root' of Frequently Occurring Items in the Document
- Description/Purpose/The Service/Territorial/Geographical Coverage
- Importance, Start v Finish, Headings and Titles
- Usual Interpretation Clauses
- Term - Period of Agreement
- Pricing/Remuneration/Remuneration Adjustment
- Notice and Communications
- Purpose of a Clause, Problematic Clauses, Relevant Case Law
WAIVER
- Purpose, Effect, Clause, How Does It Work?
- Variation, The Remedies Addendum
INVALIDITY AND SEVERANCE
- Purpose
- Invalid Clauses – and Consequences, Blue Pencil Test, Repair
- Clause, Bolt-Ons
JOINT AND SEVERAL LIABILITY:
- Purpose, Clause, Bolt-Ons
FORCE MAJEURE
- Purpose, Some History, A Partisan View of Risk
- What Is Force Majeure? Effect, Procedure, Clause, The Court!
PAYMENTS AND INTEREST
- Payment Clauses: Purpose, Goods Default, Clauses
- Interest Clauses: A Clause: Charging Interest for Late Payment
- Assignment and Novation
12:30 - 13:30 Lunch & Networking
THIRD PARTY RIGHTS
CONFIDENTIALITY CLAUSES
- A Definition: What Is Confidential? Clause Outline, Sample Clauses
- Term and Termination; Entire Agreement Clauses; Governing Law, Jurisdiction, and Dispute Resolution Clauses
JURISDICTION AND DISPUTE RESOLUTION CLAUSES
CONTRACT MANAGEMENT
CONTRACT LITIGATION
15:00 Questions & Certificate Handout & End of Workshop
Terms and Conditions: Please read carefully.
The following Ts & Cs apply:
- All payments to be made directly to Servigraph 30 cc t/a BizStrat, Payment is required in full, 5 days from date of invoice.
- No seats will be reserved, unless otherwise agreed to by Servigraph 30 cc t/a BizStrat.
- Servigraph 30 cc t/a BizStrat reserves the right to change speakers, program content, date and venue, due to circumstances beyond the control of Servigraph 30 cc t/a BizStrat.
- The signed registration form is a legally binding document.
- The conference / workshop fee includes conference / workshop material, Lunches, and refreshments.
- Servigraph 30 cc t/a BizStrat is not liable for travel and accommodation expenses unless otherwise stated in writing.
Cancellations
- All cancellations will be subject to approval by Servigraph 30 cc t/a BizStrat management.
- All cancellations made 14 working days prior to date of the mentioned event will be subject to a 50% cancellation fee.
- Cancellations made within 7 days or less of date of the mentioned event, will be subject to a 100% cancellation fee.
- There will be no refunds or credit vouchers unless agreed to by BizStrat Management in writing.
Substitutions
- Delegates, or any substitutions, must notify Servigraph 30 cc t/a BizStrat in writing.
- There is no charge for substitutions. Servigraph 30 cc t/a BizStrat will not be held liable for incorrect delegate details on certificates due to late substitutions being made on the day of the conference/ workshop.
Views expressed by speakers and facilitators are not necessarily those of Servigraph 30 cc t/a BizStrat.
