Break these rules and you will be a frequent failure Gregg Barrett

EVERY year the International Association for Contract and Commercial Management (IACCM - www.iaccm.com) publishes 15 rules that most frequently lead to contract failures.

As we head towards the end of 2008, let’s make an effort not to see these practices appear in 2009.

1. Spend as little time as possible trying to understand the particular facts and commercial issues of your draft. After all, there must be one “right” precedent somewhere that’s already drafted for each commercial relationship. Time is better spent trying to find that right precedent than thinking through the issues.

2. Don’t allow any time to check your draft and definitely don’t ask for a peer review or a second pair of eyes. Who knows more than you what is needed in your draft?

3. Don’t worry about being accurate or precise. Being there or thereabouts is sufficient. Don’t waste time checking the law or facts, much less whether your draft has correct cross-references or that definitions are used consistently.

4. Spend more time worrying about how the draft looks rather than what’s in it. Remember, time spent on formatting is never wasted.

5. Always use as much Latin, legal jargon and as many unexplained acronyms as possible in your drafts. It will make you look very clever. Keep your sentences long and confusing. Also, where possible aim for vagueness: there’s no point in leaving it to chance.

6. Don’t ever ask for an expert view on specialist areas that might arise in your draft. In particular, never avail yourself of the advice and assistance on offer from your colleagues in the tax, regulatory, competition and employment groups.

7. Don’t give a damn for company policies. Whenever was anything worthwhile achieved by following the rules?

8. Concentrate on the “T&Cs at the front” and don’t worry about the “schedules or appendices at the back” because that’s somebody else’s responsibility. The point has been made before, but it’s worth making again, time spent trying to understand what you are buying, selling or trying to achieve in particular terms is time wasted, especially since the schedules and appendices will probably contain conflicts

9. Don’t bother with thinking about or trying to identify any existing contractual relation between your company and the party to a contract that you are tasked with drafting. Assume that any entity in your enterprise can contract for any product or service in any jurisdiction in the world without any significant regulatory or tax impact.

Never bother with local laws. Just follow the needs of the internal customer – their measurement or reward system will guide them in what is best.

10. Never propose or press that your company’s draft be used -- especially when dealing with your own products or services -- and always be prepared to use the other party’s standard draft, even if it’s completely irrelevant to what is being contracted.

After all, the less relevant it is, the more questions over its enforceability. Don’t forget to be customer-friendly, especially at the expense of your company’s interests because that’s when you can be sure that you’re really adding value and focusing on the “ease of doing business”.

11. Be the final authority on all issues in your draft. It’s your draft and you don’t need to escalate issues or give visibility of them to your line management or other self-important reviewers and approvers.

12. Boiler plates are not important, don’t waste time on them. For example, who cares if any previous agreements are superseded or not?

13. Spend as much time as possible on provisions that appear not to need as much time as others. They key is that they only appear not to. You know better. As an example, a day or two spent honing the recitals is never a bad idea.

14. Don’t keep a clear version control of your draft.

15. Finally, and perhaps most importantly, always remember that you don’t need to practise drafting to get good at it.