Allocating Risk Through Contract

Allocating Risk Through Contract
Author: Coates, IV (John C.)
Publisher:
Total Pages: 70
Release: 2015
Genre:
ISBN:

In a hand-coded sample of M&A contracts from 2007-08, risk allocation provisions exhibit wide variation. Earn-outs are the least common means to allocate risk, indemnities are most common, followed by price adjustment clauses. Techniques for mitigating enforcement costs - escrows, holdbacks, and seller financing - are common. Target SEC registration and ownership dispersion correlate negatively with the use and extent of risk sharing. Target-owners retain risk more frequently, but not universally or exclusively, in industries in which current liabilities vary more, and when buyers and targets are in different industries. Bidder and target law firm agents match on bid value and prior deal experience, but law firm mismatches are common, and both law firm experience and experienced-based mismatches correlate with the use, variance, and design of risk allocation provisions. While asymmetric information and incentives are important, so are transaction and agency costs, implying roles for lawyers to serve as transaction-cost engineers and for policy-makers to set binding default rules of property, tort and contract law. Specific policy implications include: contract statutes of limitations should be shorter; default law should require minimum amounts in controversy and caps on post-closing contract liability; and lawyers should disclose to clients their M&A experience and typical outcomes of specific risk-allocation provisions.

A Short Guide to Contract Risk

A Short Guide to Contract Risk
Author: Helena Haapio
Publisher: Routledge
Total Pages: 149
Release: 2017-03-02
Genre: Law
ISBN: 1351961845

Savvy managers no longer look at contracting processes and documents reactively but use them proactively to reach their business goals and minimize their risks. To succeed, these managers need a framework and A Short Guide to Contract Risk provides this. The foundation of identifying and managing contract risk is what the authors call Contract Literacy: a set of skills relevant for all who deal with contracts in their everyday business environment, ranging from general managers and CEOs to sales, procurement and project professionals and risk managers. Contracts play a major role in business success. Contracts govern companies' deals and relationships with their suppliers and customers. They impact future rights, cash flows, costs, earnings, and risks. A company's contract portfolio may be subject to greater losses than anyone realizes. Still the greatest risk in business is not taking any risks. Equipped with the concepts described in this book, business and risk managers can start to see contracts differently and to use them to find and achieve the right balance for business success and problem prevention. What makes this short guide from the authors of the acclaimed Proactive Law for Managers especially valuable, if not unique, is its down-to-earth managerial/legal approach. Using lean contracting, visualization and the tools introduced in this book, managers and lawyers can achieve legally sound contracts that function as managerial tools for well thought-out, realistic risk allocation in business deals and relationships.

Allocation of Risk Through Construction Contract Provisions and Practice

Allocation of Risk Through Construction Contract Provisions and Practice
Author: Troy M. McClelland
Publisher:
Total Pages: 268
Release: 1996
Genre: Construction contracts
ISBN:

General conditions used by forty-four owners when contracting for construction services were obtained and studied for risk allocation techniques. Additionally, interviews were conducted with twenty-five construction professionals to study how risk is allocated during actual project completion. The study provides a broad view of risk allocation techniques used in specific clauses and of risk allocation in actual practice. The study does not profile the prevalence of risk allocation between contractor and owner, rather, the sole purpose of the study is to identify common contract provisions where risk allocation varies and actual practices that place varying amounts of risk on contractors.

Contractual Risk Allocation

Contractual Risk Allocation
Author: David Downie
Publisher: Blue Peg Publisher
Total Pages: 36
Release: 2012-11-23
Genre: Commercial law
ISBN: 9781922159427

Every commercial transaction involves risk. Negotiating the terms of a contract that gives effect to a transaction provides an opportunity to transfer that risk to someone else through the use of common drafting mechanisms including warranties, indemnities, exclusion clauses and insurance clauses. This book provides a practical guide to approaching these clauses so as to ensure your interests are best protected. The importance of each clause is highlighted along with helpful tips drawn from the long experience of the authors in drafting, negotiating and interpreting commercial contracts in their everyday practice.

Reducing Construction Costs

Reducing Construction Costs
Author: National Research Council
Publisher: National Academies Press
Total Pages: 68
Release: 2007-10-09
Genre: Technology & Engineering
ISBN: 030917998X

The National Academy of Construction (NAC) has determined that disputes, and their accompanying inefficiencies and costs, constitute a significant problem for the industry. In 2002, the NAC assessed the industry's progress in attacking this problem and determined that although the tools, techniques, and processes for preventing and efficiently resolving disputes are already in place, they are not being widely used. In 2003, the NAC helped to persuade the Center for Construction Industry Studies (CCIS) at the University of Texas and the Alfred P. Sloan Foundation to finance and conduct empirical research to develop accurate information about the relative transaction costs of various forms of dispute resolution. In 2004 the NAC teamed with the Federal Facilities Council (FFC) of the National Research Council to sponsor the "Government/Industry Forum on Reducing Construction Costs: Uses of Best Dispute Resolution Practices by Project Owners." The forum was held on September 23, 2004, at the National Academy of Sciences in Washington, D.C. Speakers and panelists at the forum addressed several topics. Reducing Construction Costs addresses topics such as the root causes of disputes and the impact of disputes on project costs and the economics of the construction industry. A second topic addressed was dispute resolution tools and techniques for preventing, managing, and resolving construction- related disputes. This report documents examples of successful uses of dispute resolution tools and techniques on some high-profile projects, and also provides ways to encourage greater use of dispute resolution tools throughout the industry. This report addresses steps that owners of construction projects (who have the greatest ability to influence how their projects are conducted) should take in order to make their projects more successful.

Major Barriers to Risk Allocation in Construction Contracts

Major Barriers to Risk Allocation in Construction Contracts
Author: Prof Dr. Mostafa H. Kotb
Publisher:
Total Pages: 12
Release: 2020
Genre:
ISBN:

Contracts are a vital tool in the projects for many justifications and it gains this level of importance as it represents the most powerful tool that enforces any decision. We will not exaggerate if we said that the contact is the gate of all project management processes. They define the various aspects, obligations, and relations between each party that are necessary to reach a common planed goal.Therefore, the contract shall be well-drafted to allocate risk properly and clearly which is the main purpose of the contract. Fair allocation of risk supports reaching a better level of project control which will result in optimum project cost and finish with contractual duration, quality, and the other constraints.There are several studies and surveys were conducted on risk allocation to reach the criteria of allocation and the influence of the allocation, however; risk allocation faces many barriers that came from the project parties themselves and their infrastructure. These barriers shall be defined well in order to overcome it and finally allocate the risk properly. The contractual parties shall do this identification and collaborate as long as the process of risk allocation is active.This paper aims to determine the major barrier of risk allocation and provide an assessment to rank these barriers based on a conducted questionnaire.