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A short guide to contract risk


WHY THIS BOOK AND THIS TOPIC?WHO "OWNS" CONTRACT RISKS?A FRESH PERSPECTIVE: A PROACTIVE APPROACHHOW THIS BOOK IS ORGANIZEDContracts and Risk—the Big PictureWHY DO COMPANIES MAKE CONTRACTS?WHAT EXACTLY DO WE MEAN BY "CONTRACT" AND "CONTRACTING?"WHAT EXACTLY DO WE MEAN BY "RISK?"CONTRACT RISK: UNCERTAINTY THREATENING THE ACHIEVEMENT OF OBJECTIVESCONTRACT OPPORTUNITIES: FAVORABLE OUTCOMES, BENEFITS AND PREDICTABILITYTHE PROMOTIVE, PREVENTIVE AND BALANCING POWER OF CONTRACTSCONTRACT LITERACY: THE FOUNDATION FOR IDENTIFYING AND MANAGING CONTRACT RISKSUMMARYSources of Contract RiskLANGUAGE RISKS, CONTRACT WORDING, AND BEYONDPERCEPTIONS, GROWING COMPLEXITY, AND COMMUNICATION FAILURESGAPS IN THE CONTRACTING PROCESS— LACK OF CONTRACT MANAGEMENTCONTRACTUAL RISK ALLOCATION LEADING TO THE ILLUSION OF CONTROL WHERE NONE EXISTSCURRENT CONTRACT PRACTICES—FOCUS ON WRONG ISSUES AND TERMSSUMMARYRisks in Negotiating a Business ContractLEGAL RISKS IN CONTRACT FORMATIONTHE SOURCE OF CONTRACT LAWTHE KEY LEGAL ELEMENTS IN CONTRACT FORMATIONRISKS RELATING TO NEGOTIATION STRATEGY AND CONTRACT IMPLEMENTATIONMISSING VALUE-CREATING OPPORTUNITIES DURING THE NEGOTIATION PROCESSDISTINCTION BETWEEN DEAL-MAKING AND DEAL- IMPLEMENTATION MINDSETSRISKS RESULTING FROM ATTEMPTING TO CREATE A LEGALLY PERFECT CONTRACTA DECISION-MAKING TOOL FOR ADDRESSING RISK DURING THE CONTRACTING PROCESSSUMMARYRisky Terms and Issues in ContractsWHICH CONTRACT TERMS DEAL WITH RISK?MOST FREQUENT SOURCES OF CLAIMS AND DISPUTESACTIVE CLAUSES VS. PASSIVE CLAUSES— PERFORMANCE CONCERNS VS. LEGAL CONCERNSHIGH-RISK ISSUES IN CONTRACTSSCOPE AND PERFORMANCE: WHAT THE CONTRACT IS ABOUT AND WHAT IS IN AND OUT OF SCOPEWHO IS RESPONSIBLE FOR OUTCOMES? RESULTS OR RESOURCES?GAPS IN CONTRACTS—ROOM FOR MISUNDERSTANDINGS AND UNINTENDED LIABILITIES?UNSPECIFIED REQUIREMENTS—WHO NEEDS TO WORRY?IS A CONTRACT OR CLAUSE LEGALLY BINDING AND ENFORCEABLE?CLAUSES THAT MAY BE RISKY—OR OFFER PROTECTION AGAINST RISKSUNLIMITED LIABILITY (THROUGH VISIBLE OR INVISIBLE TERMS)CLAUSES EXCLUDING OR LIMITING LIABILITYCLAUSES DEALING WITH CONSEQUENTIAL LOSSLIQUIDATED DAMAGES AND OTHER AGREED REMEDIES CLAUSESINDEMNITIES OR HOLD HARMLESS CLAUSESFURTHER EXAMPLES OF RISKY CLAUSESSUMMARYContract Risk Recognition and Response: Processes and ToolsIMPLEMENTING CONTRACT RISK MANAGEMENT: NEITHER EXPENSIVE NOR COMPLICATEDUSING QUALITY PRINCIPLES TO IMPLEMENT CONTRACT RISK MANAGEMENT: A CASE STUDYTOWARDS SYSTEMATIC CONTRACT RISK MANAGEMENTTHE CONTRACT RISK MANAGEMENT PROCESS: RECOGNITION—REVIEW—RESPONSETHE BASIC PRINCIPLES OF RISK MANAGEMENTTHE CONTRACT RISK AND OPPORTUNITY MANAGEMENT PLANWHY DO YOU NEED A PLAN?APPLYING THE FOUR STEPS OF THE PLANSTEP ONE: BECOME CONTRACTUALLY LITERATESTEP TWO: RECOGNIZE CONTRACT RISKS AND OPPORTuNITIESSTEP THREE: REVIEW CONTRACT RISKS AND OPPORTUNITIESSTEP FOUR: RESPOND TO CONTRACT RISKS AND OPPORTUNITIESCONTRACT MANAGEMENT: OWNERSHIP, ACCOUNTABILITY, AND BEYONDMANAGING RISKS JOINTLY: FROM RISK ALLOCATION TO TRUE RISK MANAGEMENTEARLY WARNING SYSTEM AND JOINT RISK MANAGEMENT BUILT INTO THE CONTRACTTHE CHALLENGE: ENGAGING PEOPLE AND COMMUNICATING CONTRACTSA WAY TO MEET THE CHALLENGE: VISUALIZATIONTHE CONTRACT ELEPHANT: DIFFERENT VIEWERS HAVE DIFFERENT LENSES AND BLIND SPOTSTHE HAND TOOL: A SIMPLE TOOL FOR BETTER CONTRACT REVIEW AND RISK CONTROLTHE BOW-TIE DIAGRAM: A WAY TO VISUALIZE RISKS AND WAYS To CoNTRoL ThemTHE TIMELINES THAT COULD HAVE PREVENTED A MULTIMILLION DOLLAR DISPUTEA NEW MINDSET ENABLES BETTER DECISIONS AND RESULTSCONTRACT RISK RECOGNITION AND RESPONSE (б)THE LEAN AND VISUAL (IKEA) APPROACH TO CONTRACT RISK MANAGEMENTSUMMARY
 
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