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Contract drafting: are current skills adequate?
In a blog , acknowledged drafting guru Ken Adams floats the idea of a certifiable standard for contract drafting - and suggests that IACCM might provide the certification.
Ken highlights a continuing weakness in drafting skills and style. I think he is right to suggest that today’s complex business environment demands far greater clarity in the way contracts are constructed and expressed.
In an age when specialisms and credentials continue to develop, the idea of certification is certainly not unreasonable. Given the importance of contracts and their need for clarity of intent, Ken’s suggestion seems timely. The recent IACCM study on ‘The Future of Contracting’ has highlighted useability of contracts as one of the pressing issues. By this, it means a need for greater ease of understanding by the many stakeholders involved in both the creation and performance of the contract.
Based on this, my inclination is in fact to go somewhat further than Ken’s suggestion. I think he is right to suggest a formal test for excellence in drafting, but perhaps we should also be teaching skills in design and communication techniques that would support effective execution of the agreed terms and obligations. From different quarters, I have received requests for IACCM to offer a ‘quality kitemark’ for contracts that satisfy various criteria – such as clarity, design and encouraging collaboration.
Traditional drafting of contracts through the use of words is not always adequate to ensure proper communication, especially when concepts are complex. That complexity may not be due to the terms themselves, but can arise from unfamiliarity with language, legal systems or business culture. Good contracts are not about tricking people or catching them out when they fail; they are about reducing the probability of failure. And to achieve this, they must be structured and expressed in ways that minimize the chances of misunderstanding by all those involved in their execution and performance.
Ken’s idea is that individuals could gain a Certificate of Proficiency for drafting and that this might then spread to organizations becoming certified if they implement good practices across their portfolio of contract templates. I support that idea – but the key question is whether practitioners feel the same.
Do you think this is a good idea? Is it an initiative you would welcome?
