ESG Clause & Contract Drafting

Clause & Contract Drafting Image

19 - 20 September 2024

INDABA HOTEL, FOURWAYS, Sandton.
Virtual: MS Teams & ZOOM

For more information please contact our Offices:

Tel: +27 87 802 9998 / +27 87 802 9076

Email: admin@bizstrat.co.za

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.

Image of Gary Brown
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

  • Rights
  • Obligations

IDENTIFICATION OF THE ESSENTIALS AND INCIDENTALS

  • Essentials
  • 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.

Company Information

Delegate Information



Signature


Venue Attendance


Payment Information

  • Bank Transfer: Servigraph 30 cc t/a BizStrat.
  • Bank: First National Bank
  • Branch Name: Randburg Commercial Suite
  • Account No: 62322454422
  • Branch Code: 250655
  • Swift Code: FIRNZAJJ

Note: Credit card payments accepted. Contact our Offices for the Processing of Credit Cards.