Category Archives: courses and training

Telling the court how to interpret a contract

For the last two days, IP Draughts has been attending a very interesting conference, organised by the UCL Faculty of Laws and titled The Contents of Commercial Contracts: Terms Affecting Freedoms.

The conference mostly consisted of academic lawyers at UCL and elsewhere giving 15-minute summaries of papers that they had written, on topics relevant to the overall theme of the conference. After each summary, another person, often a practitioner, gave a 5-minute response, and then the subject was opened to questions and comments from the audience. In this way, 18 diverse topics were discussed, ranging from implied terms of good faith under English law, to negative covenants in loan agreements.

Two discussions particularly engaged with IP Draughts and prompted him to ask questions. The first was a paper from Richard Calnan of Norton Rose Fulbright, on the subject Controlling Contract Interpretation. He circulated a one-page set of interpretation clauses of a kind that is rarely seen, some of which instructed the court to ignore some of the general principles of interpretation that they usually apply. For example, one of his clauses stated that where party was given a discretion, he could exercise that discretion in his own unfettered interests.

IP Draughts’ question to Richard was why he had selected some of the principles of interpretation but not others. Could there not be a 20-page set of terms that more thoroughly overrode or confirmed the general principles of interpretation that the English courts apply? Richard’s slightly unsatisfactory response was that this set of terms was a ‘teaser’.

The second talk that caused IP Draughts to raise his hand was given by Professor Sarah Green of the University of Bristol, on the subject Distance and Discretion: The Implications of Smart Contracting for Freedom of Contract. IP Draughts was keen to know the panellists views on whether the (future) rise in smart contracts was likely to affect how contracts generally were interpreted. Might the courts follow the lead of smart contracts, where terms were rigidly applied, rather than find ways around the strict adherence to contract terms, using long-established principles of interpretation?

IP Draughts gave the example of a contract that provided that, on termination of the contract, one party (the principal) could require the other (the distributor) to sell him certain equipment that had been used by the distributor in the course of performing the contract, but only if notice to buy was delivered to the seller within 28 days of termination. IP Draughts had been involved in a case with similar facts to these, where it was suggested that, in practice, the court would ignore the 28 day condition. Surely this was a situation where the time limit would be strictly enforced if it formed part of a smart contract?

The speakers for this session agreed with IP Draughts’ premise that there would be a general move towards a stricter enforcement of contract terms by the courts, even where the contract was not ‘smart’.

IP Draughts is grateful to the speakers for delivering such thought-provoking material, and to Professor Paul Davies and Dr Magda Raczynska at the UCL Centre for Commercial Law for organising the conference. It seems that the organisers hope to run similar conferences in future and that they would like suggestions on topics.

IP Draughts would like to put in a plea for a conference that focuses mainly on high-tech contracts and those where IP is important. Much as he enjoyed this conference, at times he found its focus on traditional ‘City’ subjects such as insurance, shipping and banking rather remote and, dare he say it, slightly old-fashioned.

 

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Learning legal stuff

IP Draughts is rebooting after a stimulating but exhausting week. He has been teaching, chairing, encouraging, filling in, deciding, answering questions and generally being present at the UCL one-week course on IP transactions. It is the 7th year that we have run the course. We had a good bunch of engaged students, an experienced team of expert speakers, and excellent support as usual from Lisa Penfold and her colleagues at UCL Laws. Plus a modern, well-designed venue in the revamped law faculty. It all added up to a very good outing of the course.

Thanks are due to several of IP Draughts’ colleagues, who helped with the course. Our associate Christopher Pollard did sterling work ahead of the course, encouraging the speakers to provide their updated materials and getting those papers organised for Lisa. Our newest employee, Christina, provided administrative support throughout the week. IP Draughts’ partners Paul and Stephen delivered a couple of the talks, during the Wednesday afternoon stream on university IP. And another of IP Draughts’ partners has kindly agreed to help with marking the exam.

IP Draughts will provide an update when the feedback is collated and assessed. He has still to write this year’s exam.

Books

It is easy to fall into the habit of thinking that people who know about our firm are familiar with everything that we do. We have written several books that are relevant to IP transactions, or to commercial transactions generally. Here is a quick recap.

Technology Transfer is the first book that IP Draughts wrote. The first edition was started when IP Draughts was still at Bristows, and he received some research support from juniors in the firm. Two of those juniors stand out for their dedication to the project. Take a bow, Helen Cline, now a legal director at Pinsent Mason, who researched case law on the interpretation of IP agreements, and Laura Reynolds, who is of Counsel at Bristows.

The £1,000 advance that he received for this book was spent on an early laptop computer, that had a half-sized screen – conventionally wide but only half as tall. He typed the book on that computer. In his eagerness to use its facilities he password protected the first chapter, only to forget the password and have to write most of that chapter again. Duh! The fourth edition of this book will be published later this year.

Drafting and Negotiating Commercial Contracts. This book was written with the objective of explaining some basic principles for commercial contract drafting, to help the junior lawyer or commercial manager. As well as setting out some simple ideas for clear drafting, it discusses the typical formats of contracts, words with a special meaning, how the courts interpret contracts, and similar practical subjects. It is now in its fourth edition.

A-Z Guide to Boilerplate and Commercial Clauses. This book started life as a short volume of the Encyclopedia of Forms and Precedents. It was reorganised and expanded as a book. When Butterworths sold off most of its books, this and the above two books moved eventually to Bloomsbury Professional. Now in its fourth edition, it has grown in length to become the longest of IP Draughts’ books now in publication, and probably the most popular (he hasn’t counted exact numbers of purchases). The book examines the detailed law and practice around a large number of boilerplate clauses, and provides examples of typical wording.

Drafting Confidentiality Agreements was conceived as a book that should have a broad appeal, not only to IP lawyers. IP Draughts thought the Law Society would be a suitable outlet for the book, as it has contacts with the (English and Welsh) solicitors’ profession. While the book has provided moderately popular and we keep being asked to write new editions (it is currently in its third), it has not taken off in the way that IP Draughts hoped. The book includes both a summary of the law and a detailed review of the clauses that are typically encountered in CDAs. We also include some template agreements for a variety of situations.

Execution of Documents. Around the time that Drafting Confidentiality Agreements was first published, we had regular conversations with publishing managers at the Law Society. During one of those conversations, IP Draughts foolishly commented on what he saw as the defects in a book that they published called, from memory Oaths and Affidavits. We could write a much better book than this, and broaden its appeal by covering a wider range of documents, he said. Of course, this prompted the publishing manager to invite him to do so. The book explains the legal requirements for executing various documents including deeds, and gives examples of wording. It is now in its third edition.

Drafting Agreements in the Biotechnology and Pharmaceutical Industries was commissioned by Oxford University Press in about 2006, and was first published in about 2008. The fee was large enough for IP Draughts to hire a full-time research assistant for a year to work on the book. Brendan Biggs, formerly an English don at Oxford, was then hoping to requalify as a solicitor. He did excellent work on this project. He is now a professional support lawyer at a leading firm in Bristol.

This book was structured as a looseleaf, and its main content was over 30 template agreements with commentary, including brief comments from lawyers in six other jurisdictions. It was popular within a niche market. Unfortunately the market was too niche. We wrote updates for it for about 10 years. After several years, OUP wanted to turn it into a small textbook, which didn’t make sense to IP Draughts, and eventually he recovered the rights tot he book. Since then it has sat on IP Draughts’ shelf as a project that he doesn’t quite know what to do with. It has provided us with excellent template agreements.

Technology Transactions. As well as the above books, IP Draughts and his colleagues have written several new volumes of the Encyclopedia of Forms and Precedents, published by LexisNexis, and chapters in other people’s books. The most recent chapter was in a book edited by Professor Jacques de Werra of the University of Geneva, Technology Transactions. It was recently reviewed on IPKat here. In his chapter, IP Draughts argues for the development of a UN standard for IP transactions, analogous to the UN Convention on Contracts for the International Sale of Goods.

In all of his books, volumes and chapters, IP Draughts has tried to combine simple, clear explanations of practical subjects with legal accuracy and thoroughness. As he tries to do when advising clients.

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He is very good at managing time

IP Draughts is making a collection of slightly off-beat feedback from his courses. Comments like “useful course”,  or “knowledgeable teacher” don’t make the cut.

Last month, someone commented (about a course) that IP Draughts was “very good at managing time”. Welcome as this comment is, it doesn’t really get to the heart of whether the course benefitted the student. But if keeping to time is important to you, come on IP Draughts’ courses!

Some years ago, IP Draughts ran his course Introduction to Contracts as an in-house course for the legal secretaries of a well-known media company, based in West London. They seemed to appreciate it, with comments such as “good to be treated as a human being for once and to use my brain”, and “Mark has a nice smile”. Discretion prevents IP Draughts from naming the company!

To counter the saccharine of these comments, on another occasion IP Draughts was asked to run one of his courses at a university summer school, which was attended by undergraduates in various subjects. One of the students commented that the teaching was very superficial, which he said was inevitable as the lecturer wasn’t capable of anything more. When IP Draughts thinks how much time he spent trying to ensure that the material had substance, while avoiding a leaden style of presentation… Fortunately most of the students had positive comments.

Next week, IP Draughts and about 30 colleagues from IP practices will be giving our annual, 5-day course on IP transactions at the UCL Faculty of Laws. We hope that we will get good (and relevant) feedback!

 

 

 

 

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Teaching the basics

IP Draughts has been out and about in the last few weeks, teaching practitioners. He has given in-house talks in Cambridge and London, and has further trips lined up for Oxfordshire and Southampton.

The students have been a mixture of university administrators, commercial managers and lawyers. They have  mostly seemed to appreciate the information that IP Draughts was able to impart. Over time, demand for his courses is showing a steady increase.

IP Draughts has reflected on what makes his courses successful. He puts it down to understanding the basics really well. Throughout his career, whenever he has come across a new subject, he has tried to get beneath the surface and understand not just what practitioners do, but what the underlying legal issue or principle is, and whether common practice is aligned with the legal principle. Spend an extra 30 minutes on each new subject to understand it better, and after 35 years of practice you build up a fair amount of knowledge. Surprisingly, many people get through life without that level of curiosity. Or they are in pressurised jobs where their employer doesn’t give them that extra 30 minutes.

This curiosity led him to write several books, and now leads him to teach those basics to others. He is sure that he is not unique among professionals in always wanting to learn more about his subject. Many experienced professionals have acquired a vast amount of knowledge on apparently small subjects.

Take, for example, the subject of execution of deeds, which this blog has mentioned before. In fact, we wrote a book called Execution of Documents, published by the Law Society, which is now in its third edition and covers the subject of deeds in some detail.

Students on IP Draughts’ courses have a varied knowledge of deeds, at least before they attend the course. Deeds raise many practical issues that are relevant to commercial agreements, such as:

  • what is a deed?
  • when must I use a deed?
  • when can I choose to use a deed? what are the legal advantages of doing so?
  • what alternatives are there to using a deed, e.g. by including nominal consideration?
  • what formalities are required for a deed, e.g. in the use of signature blocks?
  • when must a seal be used on a deed? where do organisations such as universities and NHS Trusts keep their seals? Who must witness their use?
  • is it possible to arrange electronic signature of deeds?
  • how does an overseas party execute a deed?
  • do other countries use deeds? what is their closest equivalent?

And so on. Usually, IP Draughts doesn’t cover all of these topics in a talk when the subject of deeds arises. But there are a few basic points that are worth making, e.g. that he has seen multiple examples of City law firms making a serious mistake when prepare deeds for execution by universities, because they fail to realise that universities must still use their seal, and that a signature block that is typically used for a Companies Act company is not appropriate.

IP Draughts also likes to get to the bottom of really complex legal issues, and he regularly writes peer-reviewed journal articles about them. Advanced-level research and writing attracts more professional or academic kudos. But he thinks that understanding and teaching the basics is what really matters.

 

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