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Drafting Effectively - Guarantees

Acquire a set of core key principles that you can apply and adapt to different guarantee scenarios to draft and negotiate more effectively

Drafting Effectively – Guarantees Training Course

A half-day live webinar

The content of this course is a ‘must know’ for;
  • any lawyer who is new to drafting, reviewing and negotiating guarantees, because it provides the essential foundations and core principles that will allow you to approach the process effectively and with confidence.
This course is also a ‘nice to know’ or useful refresher for;
  • any lawyer who wants to revisit these skills or improve their ability to explain the mechanics of a guarantee and the impact of drafting in plain English.

  • Guarantee concepts are difficult to adapt to quickly, which can affect the ability to draft and negotiate them effectively. By examining the commercial structure of a guarantee, this course provides a solid foundation on which to improve drafting skills.
  • The course examines some of the key pitfalls in guarantee drafting in one session that would ordinarily take months or years of experience to acquire.
  • Our trainer has many years’ experience of training and mentoring junior lawyers and has a unique insight into the drafting problems that they encounter in practice when looking at guarantees.

  • Why are guarantees one of the most litigated form of documents?
  • How looking at guarantees as a form of insurance helps the approach to drafting and negotiating them
  • Why there is never a one size fits all guarantee
  • The questions that you must consider before drafting or reviewing any guarantee
  • Should you consider a guarantee term sheet?
  • How to get to grips with guarantee jargon – guarantee vs undertaking vs indemnity
  • Some of the major bear traps in guarantee drafting
  • The impact of other documents/transactions on guarantees
  • Distinguishing between legal and commercial risk in the context of guarantees

 

Case law and exercises may be used to highlight particular issues.

This course is not a clause by clause page turn of a guarantee, but by examining key drafting principles and examining how guarantees fit together commercially, it will help you to acquire a set of core key principles that you can apply and adapt to different guarantee scenarios to draft and negotiate more effectively.

Why are guarantees one of the most litigated form of documents?

  • Mainstream ‘market’ guarantees vs other guarantees
  • Why are bank standard forms used?
  • Why are guarantor standard forms used?
  • What are the pitfalls in using standard forms
  • What can go wrong when negotiating standard forms?
  • What difficulties arise in practice when confronted with an unfamiliar guarantee document?
  • What gives rise to drafting errors?
  • How does this shape how guarantees should be approached?
  • Some examples from case law - Triodos Bank NV v Dobbs

How looking at guarantees as a form of insurance helps the approach to draft and negotiate them

  • What is the role of a guarantee on a transaction
  • The insurance comparison
  • Why do people take out insurance?
  • Why do businesses take out insurance?
  • What’s hidden/missing in the insurance small print?
  • What’s hidden/missing in the guarantee small print?
  • Acquiring an eye for detail – the insurer’s and the insured’s mind-set
  • The six-billion-dollar question for all guarantees

Why there is never a one size fits all guarantee

  • What are the main types of guarantee?
  • How do they differ?
  • When is a ‘guarantee’ not a guarantee – why it’s what it says inside the tin that matters – understanding ‘guarantee jargon’
  • Why is understanding the different guarantee types important for drafting purposes?

The questions that you must consider before drafting or reviewing any guarantee

  • Examining the commercial rationale for guarantees and how that could affect your drafting
  • Considerations when examining the scope of a guarantee
  • Suitability of the guarantor – key issues
  • Testing the limits – how far does a guarantee stretch & what are its limits? The principles from Holme v Brunskill & issues of the purview
  • ‘Best before’ dates – do you know when a guarantee may be worthless?
  • Competing interests
  • How might other documents impact?
  • Taxing issues and the question of set-off
  • Down at the bureau de change – why currency matters
  • Guarantee amendments
  • When is a release a release? Wulff v Jay and other cases
  • Alternative methods of comfort – are they any use?

Should you consider a guarantee term sheet?

  • What’s the purpose of a term sheet – why could it help with guarantees?
  • Guarantees on non-finance transactions
  • What could a guarantee term sheet look like?
  • How a term sheet helps through the drafting and negotiation process
  • The arguments for not having a guarantee term sheet

Reviewing guarantees - drafting bear traps

  • Who is drafting?
  • What document are you starting with?
  • Recitals – why might they be important?
  • Definitions
  • The guarantee clause itself
  • Guarantor rights & defences (including First National Finance v Goodman)
  • Joint and several liabilities – Ellis v Emmanuel
  • Duration and Discharge
  • Liability caps - Re Rees Ex p. National Provincial Bank of England
  • Making a claim – examining the hoops to jump through
  • Preserving rights under the guarantee
  • Immediate recourse
  • Continuing obligation language
  • Double recovery
  • Enforcement - Governing law and jurisdiction - Ms X v. Banque Privée Edmond de Rothschild
  • Unfair Contract Terms Act 1977
  • Resurrection of guarantees

The impact of other documents/transactions on guarantees

  • Other guarantees
  • Security
  • Intercreditor and priority agreements
  • Facility agreements
  • Other agreements

Distinguishing between legal and commercial risk in the context of guarantees

  • What’s my remedy?
  • What legal factors affect the remedy?
  • What commercial factors affect the remedy?
  • The crystallisation of legal risk into economic loss

The trainer is a highly experienced lawyer, educator and writer. For almost 30 years and across several industries, he has written and delivered a wide range of bespoke training for individuals, businesses, professional associations and educational establishments.

He completed his formal training and qualified as a banking & finance solicitor in Leeds with the law firm, Cobbetts LLP in 2005, before moving to London in 2007 to continue his career at Denton Wilde Sapte LLP (now Dentons) and subsequently with Wragge & Co LLP (now Gowling WLG (UK) LLP).

The trainer has advised banks, alternative lenders, asset finance houses, borrowers, private equity houses, guarantors and pension trustees on a wide range of UK and cross border banking and finance transactions. These have included syndicated investment grade and global loans, leveraged finance acquisitions, real estate investment & development finance, asset and receivables finance, bridging finance, securitisations, social housing finance, higher education finance and general corporate borrowing. He has also advised on restructurings and complex intercreditor arrangements and drafted and reviewed reports/certificates on title on a wide range of real estate transactions.

He moved to an in-house counsel role at Barclays Bank PLC in 2010, working in their Trade & Working Capital team, advising on a wide range of UK and international receivables finance, inventory finance, securitisation and other asset finance matters (including invoice discounting, factoring, recourse and non-recourse financing, selective receivables finance, supply finance and full asset based lending agreements). He has also worked on secondment with the HSBC (UK) Invoice and Equipment Finance legal and business teams, advising on UK and cross border asset based lending transactions, including hire purchase, lease finance and asset purchase finance.

In 2015, he returned to Gowling WLG (UK) LLP, to become a professional support lawyer in their banking & finance team, where he is responsible for education & training, briefing notes, precedents, legal technologies and providing advice across the firm and its international offices on complex areas of law. He has also written and delivered training for several professional associations including the Loan Market Association and the American Intellectual Property Law Association.

Having worked both in private practice and in-house with leadership, sales, relationship, risk, compliance, legal, transaction management, operations and product teams, he understands both the obstacles that need to be overcome on transactions and how to get deals over the line successfully. Consequently, his training focuses on providing students with the foundations, commercial awareness and approaches to thinking which are necessary to achieve this.

The trainer has sat on the legal & technical committee for ABFA (now UK Finance) and the advisory board for the LexisPSL banking & finance module. He is also a member of the City Finance PSL network. He has contributed to a number of major law reform projects and consultations including the University of Oxford led Secured Transactions Law Reform project, the City of London Law Society’s Secured Transaction Code project, the UK Jurisdiction Taskforce consultation on crypto-assets, distributed ledger technology and smart contracts and the England & Wales Law Commission’s call for evidence on smart contracts. As a mentor, he has also worked on the law firm panel at Barclays Eagle Labs Legal Tech Hub, London and has provided help and support to a wide range of new start-up legal-tech businesses from the UK and overseas.

Guarantees are one of the most litigated forms of documents and with increased pressure on lawyers to provide greater value for money to their clients, understanding how to draft guarantees effectively is a key part of every banking & finance lawyer’s tool kit. It is also important for any lawyer involved in the review, negotiation and drafting of changes to guarantees, whether working for lenders or other commercial parties.

This unique course is aimed at junior lawyers who want to gain a better understanding of the mechanics of guarantees so that they can draft and negotiate them effectively and with greater confidence. It is also aimed at any lawyers who wish to be able to explain the impact of guarantee drafting in plain English, a vital skill in the 21st century. Additionally, this course is suitable for anyone who requires a refresher on the principles of guarantee drafting.

  • I liked the interactivity of the questions being asked and answered
  • I'd expected something more to do with technical black letter law and was pleasantly surprised when the content turned out to be far more hands on/practical. The trainer's delivery was excellent
Number of places:

£695.00

Per participant
Discounts available for multiple place booking find out more
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