Thank you for your comment and yes there is signficant research and resounding evidence to confirm that visuals can support clarity and understanding in contracts - no matter which element of the contract. And yes we would deem it perfectly acceptable to have graphics in certain sections - not all. There are some elements of the contract that lend themselves to visualization more than others. There is a lot of material in our Resource Library on this topic and this particular piece of research should help you too:

www.iaccm.com/resources/;

Do let us know if you have any further questions

In the oil and gas industry we manage JVs with a joint operating agreement. I'm not sure if that's helpful at all.

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.

Or try international trade law?

www.jus.uio.no/lm/index.html

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.

Another couple of points to consider:
(1) How fast disputes can be resolved in that jurisdiction, whether through the courts or by arbitration.
(2) Intellectual property protections - ensure that any jurisdiction utilised provides sufficient protections.

In terms of the 8 different payment schemes I was specifically referring to what we call 'payment curves' (see attached graphic) as opposed to payment regimes such as cost+ (time and material), fixed price, cost + fixed fee, etc. In this light these are grouped into 5 main families with a couple of variations inside each. These are as follows:

- 'all or none' payment curves
- Linear payment curves
- Non-linear payment curves
- Alternative payment such as demerit point and visual payment curves
- Matrix payment curves

The intent of this discussion is to simply highlight that the choice of payment curve, similar to the choice of performance measure and level, can have a significant impact on the success (or otherwise) of the overall performance management framework. My blog (www.performancebasedcontracting.com) has 3 posts specifically on this topic including the graphics.

I hope this helps and answers your questions. However, please let me know if you have any further questions.

Hi Mark, Happy to discuss. Send me an email via marie.cullen@medibank.com.au and I can talk about the principles I use.

In my view I don't believe, as a community, we have fully bottomed out all the risks associated with these types of engagement.

M

Hi Mark
For a very good, concise review of the principles and issues of cloud agreements generally, covering most of your points above (my view anyway), you might also check out David W. Tollen's book "The Tech Contracts Handbook" online or via this website:

techcontracts.com/2018/06/01/dont-use-licenses-saas-contracts/

I did buy his book, and think highly of it. Notably good balance between concept and practical drafting approaches, not just for cloud matters either.


NB: Personal opinion only, not necessarily that of my employer.

kind regards
Andrew

Hi Greg,

Having co-led the introduction of Relational Contracting into the Australian Department of Defence, where it is known as Collaborative Contracting, since mid 2013 with the help of IACCM I wanted to add my thoughts on your question. For the record we were lucky enough to have Jim Bergman help us on our journey!

In terms of 'Does Relational Contracting require long term commitment over multiple contracts for the parties to realize the benefits?'. Simply put, no it does not. A single contract can absolutely benefit from a relational approach, especially where there is a high level of uncertainty about main elements of the contract such as scope, performance, schedule and of course price. A relational approach allows both parties to work together collaboratively to evolve the solution, noting it could be a novel solution that has not been used before. For example, in the Australian Department of Defence we have a number of contracts where we are either the largest user in the world or the first user, which necessitates a degree of flexibility in the commercial structure since the uncertainty and risk is high. Both parties have to work in good faith to deliver the enterprise outcome to Defence. The relational contracting approach provides a commercial architecture within the contract to allow both buyer and seller to have these discussions without reverting to tightly fought commercial structures.

That said, I do believe that in large organisations such as the Australian Department of Defence, there should be levels of a relational contracting approach. For example, at the contract level, even for multi-party contracts, we'll use a Collaborative Contracting approach. However, when we combine multiple contracts with a single seller, we can then combine these relationships as a part of a Supplier Relationship Management (SRM) approach to vendor management across a program or portfolio of contracts. Again, Jim assisted us with this, although we are still on the SRM journey.

In terms of 'How do we ensure that the benefits (price competitiveness, quality of service, innovation etc.) that can also accrue from competitive sourcing are not lost?'. The Australian Department of Defence has been using Performance Based Contracts (PBCs) since 2005 to ensure both short-term and long-term benefits are being realised. In 2012 we started using what we refer to as Generation 3 PBCs which includes enterprise performance and enterprise behaviours (relational) within the performance measurement framework linked to both commercial consequences, both positive and negative. In this case, we typically use incentives such as contact extensions, sometimes known as rolling wave or award term contracts, to ensure the seller is maintaining the long-term behaviours you described. You can get more information on these type of performance based contracts at my blog at www.performancebasedcontracting.com.

Finally, to assist with the successful implementation of Collaborative Contracting into our commercial functions we developed and released on 28 September 2018 a Collaborative Contracting Better Practice Guide a copy of which you can get from the following link www.defence.gov.au/casg/Multimedia/Collaborative_Contracting_Better_Practice_Guide-9-8860.pdf.

Anyway, I hope this helps. And of course, as part of the IACCM Australia New Zealand Advisory board and an IACCM Fellow I would be happy to answer any further questions.

Hi Alexander, can you explain what you are looking for with a little more detail? Which report are you looking for?

Hi Eileen, happy to share some evaluation work we did with one of the big 4 consultancy firms here in the UK. Essentially the evaluation was based on the idea of core CLM and its functionality, not being able to capture in real time through dashboards how a contract is performing, and how you could capture contract specific data from IoT sensors, mobile devices and tablets and to what extent this could then drive operational performance of those contracts during their lifetime. We are contract data specialists and have built a data driven contract intelligence platform but the work was based on experiences working with complex contracts in global supply chains and is a relatively good read

Hi Eileen, have you heard of Seal Software? Seal can find and centrilize all your contracts for you, bringing them all together in one repository. It can then analyse and extract necessary information and key terms from the document, identify standard and non standard clauses, and alert you to important information such as contract end dates. See www.seal-software.com for some more info or give us a call on 1 650 938 7325 if you want to learn more. Good luck in your search!

Eileen, Hi there. Did you manage to get your spreadsheet? If so I would be keen to see, or hear from you as to your experience. Matt

Eileen,

When you go to the conference you will be able to talk with a lot of the software providers. You will find that they specialize in various aspects of contracting. Sorry providers but, Eileen, remember you are talking to sales people.

Over the course of my career (I'm now semi-retired) I have selected, configured and implemented 5 software CM systems. Picking your system provider is no different than picking any other contractor/vendor for your company. The difficulty for a lot of CM people in this particular process is they have trouble taking on the usual client role. What is your scope of work/services you want. In my last system acquisition we spent 3 months developing our needs criteria. We wound up with over 250 system requirements and developed 9 application cases. We evaluated what we're wants and what we're musts. These musts (~15) formed the basis of our EOI/RFI which we sent out to ~22 system providers. The results of this gave us a bidders slate of 8 system providers. For our RFX we also had 22 process flows done.
One very important question for your company ...... do you want your processes to change to what the system will do or do you want the system to be configurable to your processes? Very key question.
If you want to know more let me know.

Jim