Keynote address: the case for optimism - what are you optimistic about? IACCM Americas Conference 2019
Published: 12 Nov 2019
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Author: Victor Perton, Author, The Case for Optimism: The Optimists' Voices
How many business leaders do you know who aren't optimists? Indeed, IACCM surveys have suggested that our members often attribute failed projects to the over-optimism of top management. As a result, many see the role of contract and commercial managers as bringing balance, a dose of reality, facing up to the real risks. For the executive optimists, this may be viewed as pessimism or negativity - and lead to us having limited or late involvement. Optimism is a good trait. Research shows it is associated with better health, a longer life and greater success. How can we best temper our need to be commercially realistic with a healthy dose of optimism - the sort of attitude that gains attention and increases our value? In this fascinating and energizing session, Victor will inspire, amuse and be your guide to discovering how you can apply optimism within your business role and life in general, acknowledging the mantra 'All good leadership is optimistic'.
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• Air Liquide
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2019-09-19 05:18:40
I never saw such clauses

• Advokatfirmaet Negota AS
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2019-11-29 09:30:06
Dear Carrie, I have experience from pricing changes both during the negotiation process and during the contract lifecycle. Our clients have especially found this as an effective tool during negotiations to demonstrate risk/work-impact if the other party is requesting terms transferring an extensive part of the risk/work to them. By showing the cost-impact, the incentive for price increase becomes rather obvious which strengthens your negotiation position. Kind regards, Madeleine Willyams - Advokatfirmaet Negota AS, Norway.
Replies: 2

• Pretorius Consulting
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2019-09-18 18:15:04
I believe I found it. www.iaccm.com/resources/
Replies: 1

• Contract Manager Canada Inc.
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2017-02-04 02:36:22
If the project is delayed by the Employer... first make sure that there were no delay causes by the Contractor on the previous agreed milestones, for you to be fully eligible for a compensation. Now the tricky part to kick in, is the delay resulting to only warranty extension, which means that all construction, installation and pre-commissioning done? Just ensure that you've all signed-off documents that it's pre-commissioned. if so, your service team will provide an additional cost for extra-warranty coverage and you can lever it as a scope-creep. This is not an issue, if all of your works are completed and no more to come back to do additional works, then you need to add remob to commissioning cost plus the extended warranty cost and get a CO prior to agreement of extension. Don't forget to have your insurance company informed on this extension, as they were notified of previous warranty commitment, not the new one. Hope this serves.

• Seiersen Enterprises
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2016-12-03 22:23:43
It strikes me that the actual costs of extending the warrantee might be considered.
These may be nil if the delay in the project delays the in service date, and thus the risk of fault.
The onus might be put on the supplier to prove the materiality of additional warrantee costs whatever they might be.

• Capgemini India
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2016-12-05 04:44:19
As warranty effort is provisioned to fix bugs of contractor's defects, since the delay is caused by the Employer, the Contractor is entitiled to claim additional cost. Not only is this instance 'due to failure of the employer (customer)', which is not due to cause by the contractor, there could also be a delay in the service start date, which means the plans for service could be impacted. Therefore, I believe the additional cost is justified.

• Whirlpool
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2016-12-14 13:17:49
Our service department has actually been able to provide a number for us by unit of what an additional year of warranty costs us. Do you know how much the first year costs you? You could always just submit that as an estimate for year two.
Replies: 4

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2019-08-30 18:01:18
In the US, Texas or New York are largely considered "neutral territory" whereas in Europe, until very recently UK law was considered neutral. I think that may change with the recent political upheaval.

• Ministry of Defence
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2019-10-04 08:50:59
Or try international trade law?
www.jus.uio.no/lm/index.html

• Legal and Commercial Training Limited
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2019-11-05 09:40:02
In the case of one party proposing Indian law and the other proposing Singapore law, the parties may well choose the law of England and Wales as both Indian law and Singapore law are based upon English and Welsh common law. (Note that there is no such concept as "UK law" as one commentator has suggested below).
However, a party should consider a wide range of factors before proposing a particular governing law and should weigh up the legal and commercial advantages and disadvantages of all the options.
One factor may be the degree of certainty that a contract will be interpreted in a particular way. English law adheres to the doctrine of binding precedence. Some legal systems do not. This could lead to significant uncertainty as to how the law will be applied.
In English law, it may be perceived that the courts allow a greater degree of freedom of contract. Subject to certain exceptions, freedom of contract in English law means that commercial parties are completely free to make disastrous bargains. This illustrates the comparative reluctance of the English courts to interfere on policy or other grounds to rewrite the parties' contracts for them.
For example, in English law it is possible, provided very clear wording is used, to include an exclusion clause that excludes any and all liability whatsoever, even for a deliberate breach of contract. And there is still no recognition of a duty of good faith being applied generally to commercial agreements (but watch this space!). This may or may not be an advantage to you but it remains the case that the courts are likely to give effect to the wording of the contract without imposing their opinions as to what does or does not amount to good faith.
And you may wish to consider the approach of a particular legal system to particular clauses.
For example, in English law, a liquidated damages clause will be subject to the clarification set out recently by the Supreme Court with a subsequent judgment, applying that test, indicating that a freely-negotiated LD clause is likely to be upheld subject to the requirements set out by the Supreme Court. Under UAE law, such a provision would be subject to Article 390(2) of the Civil Code and either party may apply to the court to adjust the agreed amount of compensation so it is equal to the loss. If Indian law were to apply, we would have to consider the effect of section 74 of the Indian Contracts Act 1872.
English law will also recognise an asymmetric jurisdiction clause.
And it may be that the choice of law clause will be reflected in the choice of jurisdiction. So, English law and the English courts. If the choice of courts is to reflect the choice of law, it may well be the consideration should be given to the efficacy of the court system and the technical expertise and other qualities of the judges.
Lots to consider.
Replies: 3

• Gemserv
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2019-07-03 15:11:45
This is definitely something that should have greater consideration in my organisation, I have been quite vocal in pushing it. I have worked in teams where particular members have found the lack of bounds extremely stressful as they feel they are crowded out or put upon by the more vocal members, who are equally frustrated it takes so long to get things done. Clarity in defining the roles and responsibilities can often be an enabler.

• Airbus Defence and Space Limited
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2019-08-18 12:37:30
Agreed, this is a great article and really gets you thinking about the behaviours instilled within your own immediate team. If we cannot get the behaviours and roles clearly specified for our own team members first we are setting ourselves up to fail in the wider team and externally.

• Experian
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2019-02-03 22:03:09
Agree - this was quite an insightful article. I've always believed that it should work in reverse - that you should set the objective and then leave it up to individuals to work out how to get there, which is what the article says except for specifying that their roles need to be clear. I believed that if roles were less clearly defined then it gave people scope to expand their remit, however I can see why this can cause confusion.
Replies: 3

• IACCM
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2018-02-27 14:17:31
You are correct, but don't you think that is implied under the 'ultimate objective'? Perhaps you have only experienced part of the statement so far.
Replies: 1

• IACCM
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2018-02-28 08:14:20
Kum - I provided a response on your other question, which seems to cover the same topic. Please review my response on your other post, and if it does not provide sufficient information, please let me know at jbergman@iaccm.com
Jim Bergman
VP - IACCM
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Replies: 1