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Drafting Effectively - Guarantees

Learn how to acquire a set of core key principles that you can apply and adapt to different scenarios for drafting and negotiating guarantees more effectively

Person writing on a piece of paper with a pen

A half-day course presented in a virtual class from 9:30am to 1:00pm UK time

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 preparing and negotiating 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 of 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

Please be advised this training course does not constitute legal advice & should not be relied upon as such. Nor can the trainer give legal advice to participants during the sessions

Our trainer is a highly experienced and sought-after lawyer, advisor, educator, mentor and writer. For almost 30 years and across several different industries, he has written and delivered a wide range of bespoke training courses for individuals, businesses, professional associations and educational establishments.

Over a 20-year legal career, he has advised banks & financial institutions, asset and receivables financiers, alternative lenders, large and SME corporates, private equity houses, property developers, pension trustees, regulators, government departments, directors and private individuals on a wide range of banking and finance related matters.

These have included UK and international cross-border syndicated, club and bilateral finance transactions with individual values exceeding £5 billion. His experience spans across many specialisms including global loans, investment grade lending, leveraged finance, real estate investment & development finance, asset and receivables finance, bridge finance, private wealth finance, project finance, securitisations, bond issues, social housing finance, trade finance, higher education finance, intragroup lending, director and shareholder loans, guarantee & security packages and netting and cash pooling arrangements in addition to general advisory work. He has also advised on refinancings and restructurings involving complex multi-layered intercreditor arrangements and directors’ duties related issues.

As an English law qualified solicitor, our trainer has worked in private practice at Denton Wilde Sapte (now Dentons), Gowling WLG, Wragge & Co and Cobbetts and he is currently a partner at gunnercooke.

As in-house counsel, he worked for several years at Barclays Bank PLC in their Sales Finance and Trade & Working Capital Finance teams, 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 receivables and asset based lending transactions, including hire purchase, lease finance and asset purchase finance.

During his time at Gowling WLG our trainer worked as PSL Legal Director and provided education, training and advice on complex areas of law across the firm. He was also responsible for risk monitoring and developing and maintaining knowhow, precedents and practice & briefing notes, in addition to assessing, piloting and implementing various legal technology tools.

He has written and delivered banking and finance related and legal training for lawyers and non-lawyers alike of all levels of experience and for several professional associations including the Loan Market 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 the obstacles that need to be overcome on transactions and how to get deals over the line successfully. Consequently, his training focuses on providing participants with the essential foundations, commercial awareness and thought processes necessary to manage and run transactions effectively and with minimum risk.

Our trainer writes regularly on banking and finance and legal technology related topics and he sits on the editorial board for Butterworths’ Journal of International Banking and Financial Law. He was also a member of the PSL advisory board for Lexis PSL’s banking and finance module from 2017 to 2023 and has also sat on the ABFA (now UK Finance) legal and technical committee.

He has participated in numerous 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 calls for evidence on smart contracts and digital assets. He has also provided input into several UK Government legislative consultations.

As a mentor, he has helped the development of many lawyers and young professionals and he has also been a member of the law firm panel at Barclays Eagle Labs Legal Tech Hub, London providing help, support and pro-bono advice to a wide range of new start-up legal-tech businesses from the UK and overseas.

  • Why are guarantees so often the subject of litigation?
  • How does looking at guarantees as a form of insurance help the approach to drafting and negotiating them?
  • Why is there never a one-size-fits-all guarantee?
  • Should you consider a guarantee term sheet?
  • Questions you must consider before drafting or reviewing any guarantee.
  • How to get to grips with guarantee jargon – guarantee vs. undertaking vs. indemnity.
  • Some of the significant 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.

Our drafting effectively guarantees training course is not a clause-by-clause page turn of a guarantee, but by examining fundamental 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.

  • Guarantee concepts are difficult to adapt to quickly, affecting 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.
  • Drafting effectively guarantees training examines some key pitfalls in guaranteeing drafting in one session that would ordinarily take months or years of experience.
  • Our trainer has many years of experience training and mentoring junior lawyers and has a unique insight into the drafting problems they encounter in practice when looking at guarantees.

The content of our drafting effectively guarantees training 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.

Our course is also a ‘nice to know’ or a 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.

Guarantees are one of the most litigated forms of documents. With increased pressure on lawyers to provide more excellent value for money to their clients, understanding how to draft guarantees effectively is a crucial part of every banking & finance lawyer’s toolkit. It is also essential for any lawyer involved in reviewing, negotiating, and drafting changes to guarantees, whether working for lenders or other commercial parties.

Our unique drafting effectively guarantees training course is aimed at any lawyer who wants to understand the mechanics of guarantees better, improve drafting skills and negotiate guarantees 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, our guarantees drafting training 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

Discounts available:
Virtual Class

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