Glancing through the April issue of CFO Magazine earlier this year, an article on emerging risks caught my eye. It predicted eight topics that would be high on the executive agenda, if not now then certainly within the next year. Always keen to know what is taxing the executive mind, I read on - and was fascinated to discover that five of the eight identified risks have direct relevance and interest to the contracts community. So this led me to wonder what those in contracts and legal are doing to address these issues. My enquiries have led to the conclusion 'not much' - so is this a case of missed opportunity, or just prudent use of time?
In my experience, there are two things about which contract professionals and lawyers regularly complain. One is over-work, especially the panics and 'back from the brink' recovery when people involve them at the last minute. The other is lack of appreciation for their contribution. So the CFO article and my discovery about our community's apparent indifference caused me to wonder whether we really care. Surely this is an opportunity to anticipate future problems and show leadership to our executives?
It seems to me that, by anticipating new risks, we could be better prepared for them (in other words, applying risk management principles to our own lives and career). Maybe this would result in having a strategy or policy in place before being hit by impending disaster. Perhaps we could develop an overall solution or education programme and implement it in advance, so that we avoid having to handle each occurrence as a one-off. That way, we might reduce our workload and impress our colleagues as a 'trusted advisor'. Well, it's not too late - so here are the issues that CFO Magazine identified. I am going to cover the first two of them in some depth.
1. Doing Business Internationally - “Business Practices conducted in China are tailored deal by deal. It's up to you to determine what's right or wrong.”
John MacLellan, Regional Finance Director of Microsoft Corp. in Asia, is concerned about the Foreign Corrupt Practices Act (FCPA) and the potential of unwittingly running foul of the US Government. And he is just one of many senior managers turning attention to this topic, especially when it comes to contracts, negotiations and relationship management.
FCPA is just one measure to eliminate bribery and corruption in world trade. For example, the Convention on Bribery has been adopted by 36 OECD countries. However, the US Government is the most avid in pursuing potential wrong-doers and asserts extra-territorial rights; in several cases it has extradited foreign business people to face US courts. One reason why FCPA makes top managers nervous is because of its uncertainty - it can be interpreted in many ways. For example, ‘marketing costs' are currently under scrutiny and, given the terms of the Act, can be viewed as a potential inducement or bribe. On the other hand, ‘gratuities' paid to government officials to perform essential clerical duties may be categorized as ‘facilitation payments' and therefore generally permissible. In such an environment “Negotiating is never easy”, according to one expert.
When you are involved in contracts or negotiations, do you know what to watch out for? And are you actively advising others in your company - such as your top business executives - so that they understand the playing field for international trade?
2. Contingent Liabilities: Rebalancing Of Negotiator Power? - Contractual liability and indemnity clauses have long been a source of contention. 2 Negotiators have wrestled with establishing a fair balance of risk and reward in determining both the causes and consequences of liability. For many years, in most industries, the debate centered around the monetary limit for damages or whether such damages were per event or cumulative.
Recently, the growth in buyer power (especially in large corporations and the public sector) has made it fashionable to craft ever more onerous liability provisions - unlimited damages and consequential loss are two of the more extreme, but increasingly common, provisions.
One impact has been an increase in confrontation and lead-times in negotiating agreements. Another has been a windfall for law firms, especially the third party advisors in major systems integration, outsourcing and ‘partnership' agreements. An aspect until now largely ignored has been the effect on insurance.
To what extent are non-standard liabilities reflected in insurance coverage? The answer seems to be rarely - and at last, the regulatory authorities seem to be awakening to this potential exposure in contingent liabilities.
Sarbanes-Oxley and other corporate governance codes universally call for a robust risk management regime. While in part this might account for the more aggressive stance by buyers in setting their desired liability and indemnity terms, it offers no excuse to sellers for accepting such liabilities. Now, according to CFO Magazine, the US Securities and Exchange Commission (SEC) and Federal Accounting Standards Board (FASB) have their sights firmly set on this issue of undeclared exposures. “Most public issuers recognize no liability and disclose no loss or range of loss” when they publish their balance sheet, according to the SEC. While FASB has no immediate plan to amend existing rules, they have declared a preference for “companies to recognize and quantify such liabilities at an earlier stage and provide more fulsome disclosure”.
In the meantime, the credit rating agencies have started to take an interest, with analysts now taking guesses on the amount of contingent liability facing a firm. How long before the insurers jump onto this issue? The corporate legal officers have significant control. As primary owners of the liability and indemnity provisions, they determine many of the principles in both their buy-side and sell-side contracts. The deliberate variation between what they deem ‘reasonable' when they are buying, versus when they are selling, is at the root of this debate and the many hours spent in negotiation. It is also worth noting that the dichotomy is greatest in common law jurisdictions - which may mean that issues of international competitiveness also result in pressure for change.
IACCM predicts that the buyer - seller confrontation over indemnities and liabilities has reached its peak. The forces of reason, competitiveness and business efficiency will combine to narrow the boundaries of negotiation, perhaps even to a point of industry standards governing many simpler transactions. For more complex projects and relationships, risk management techniques will start to make use of the sophisticated governance technologies now available, rather than depending on the blunt instruments of contingent liability clauses.
About the Author:
1- TRACE International is a non-profit foundation that runs workshops around the world to raise understanding of FCPA and other anti-bribery initiatives. 2- IACCM undertakes a yearly survey of the ‘Top Ten Most Frequently Negotiated Terms'. Liabilities and indemnities consistently top the rankings. IACCM is a not-for-profit association focused on improving contracts and negotiation performance. More information is available via the website
www.iaccm.com or
info@iaccm.com.
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943
Date Published :
Jul 8 2008