GRA 6286 Contracts, Negotiations and Management of Contracts

GRA 6286 Contracts, Negotiations and Management of Contracts

Course code: 
GRA 6286
Department: 
Law and Governance
Credits: 
12
Course coordinator: 
Anders Mikelsen
Leif Helland
Product category: 
Master
Portfolio: 
MSc in Law and Business
Semester: 
2020 Spring
Active status: 
Active
Teaching language: 
Norwegian
Course type: 
One semester
Introduction

Contracts are entered into to pursue a business objective, for instance to establish a business relation, to enter new markets, to gain competence or experiences, or profit on short or long term.

Larger companies usually have a contract management department (or similar), which is responsible for each negotiation, management of single contract, and the whole portfolio of contracts. The responsibility for negotiations and the follow-up of single contracts, are usually given to a team, consisting of lawyers, economists and often also engineers.

It is important that all members of the team have insight in both the commercial and the legal aspects of drafts and signed contracts. They all should be able to assess the contract (or drafts) as a whole, and they should have a basic understanding of both legal and commercial concepts, to have a precise communication and functioning co-operation. In legal contracting there is a recognized need for economists with an advanced knowledge of contract law.

The course is interdisciplinary and focuses on the legal and economic insight that are of importance when contracts between businesses (B2B) are negotiated, concluded and followed-up. Which knowledge, skills and general competence do the candidates need, to contribute to functioning contracts in accordance with the business objective?

Learning outcomes - Knowledge

After attending the course, the candidate shall have knowledge of:

  • contract law (obligasjonsrett).
  • the standard contract for construction work, NS 8405.
  • various types of contracts, such as purchases and sales of businesses, joint ventures, distribution networks etc.
  • theories regarding negotiating strategies and skills.
  • how to identify and quantify values and trade-offs in negotiations.
  • how to organize negotiations in ways conducive to identifying and quantifying the above.
  • various solutions to the bargaining problem, and the strengths and weaknesses of these solutions.
  • techniques to secure contract performance.
  • behavioral insights with respect to the robustness of standard economic models of bargaining and contracting.  
  • the ongoing process regarding the use of algorithms and artificial intelligence to streamline contract negotiations and improve the quality of the contract's content.
Learning outcomes - Skills

After attending the course, the candidates shall be able to:

  • interpret contracts (tolke), imply and apply terms (utfylle).
  • present a contractual reasoning according to legal method both in writing and orally.
  • have a precise dialog with lawyers regarding contractual issues.
  • negotiate contracts taking theories regarding negotiation strategy and skills into account.
  • assess how contracts should be drafted to pursue business objectives based on economic theory regarding short and long term relationships.
  • organize a negotiation in order to identify and quantify underlying values and tradeoffs in the situation.
  • choose mechanisms that provide parties with the incentives to fulfill their contractual obligations honestly.
  • identify contracts corresponding to various game theoretic solutions to the bargaining problem. 
General Competence

After attending the course, the candidates shall have the following general competence:

  • have insight into the strength and weakness of standard economic models of bargaining and contracting.
  • have insight into how contract law and standard contracts have an impact on markets and societies. 
  • be able to reflect about the borders of freedom of contract.
Course content

The course will be divided into three parts. An economic part, a legal part, and a part that integrates the economic and legal parts. 

The economic part starts with the realization that a crucial part of contract negotiations concerns the identification of the underlying values and tradeoffs in the situation. The students are exposed to a framework allowing them to make such an identification. This framework has a firm grounding in microeconomics, but also draws on principles of organizing negotiations as well as insights from behavioral economics. 

Having identified the values at stake in the situation the negotiating parties can eliminate inefficient contracts. Negotiating parties have a common interest in achieving this.

The question now becomes which of (potentially) many efficient sets of contract terms the parties should / will chose as the final agreement. In addressing this question it is drawn on insights from game theory and behavioral economics.  Various normative and positive solutions to the bargaining problem are discussed.

Contract fulfillment and contract breach are discussed at length, and techniques aimed at securing self-fulfilling contracts as part of the negotiation are identified. This part of the course draws on economic contract theory.

The students learn to quantify underlying values and tradeoffs, and to implement various solutions to the bargaining problem through a toolbox of spreadsheets.

Along the way various game theoretic concepts are tried out by the students through participation in a set of economics experiments, partly in the BI research lab and partly through an internet platform (VeconLab). The aim is to make students aware of the circumstances under which deviations from the equilibria concepts of standard economic models of bargaining and contracting can be expected.

The legal part of the course, focuses on contract law and contract praxis. An advanced understanding of general contract law (obligasjonsrett), including interpretation of contracts (or drafts), how terms are implied by law or fact, and insight into contract models, clauses and concepts, is necessary to understand and assess the (typical) legal terms, and therefore also the contract as a whole. Some contracts are often particularly important from a strategic point of view, such as purchase and sale of businesses, contracts related to (national and international) co-operation between companies (Joint Ventures etc.), and contracts related to the distribution network (for instance franchising) and the supply chain. The student will obtain insight into such contracts, inter alia by working with cases. The course will also include specific issues related to shareholder’s agreements and contracts between related companies (including companies in international company structures).     

In practice, contracts are drafted in many different ways. However, standard contracts are increasingly more widely used. Examples are: construction contracts, fabrication contracts, shipping contracts and it-contracts etc. The widely used standard contract form for construction work, NS 8405, will be used to illustrate some of the commonly used contract models, clauses and concepts. In addition, insight into the standard contract for construction work is in itself valuable, due to the size and importance of this industry.  

The final part of the course, is focusing on the interaction between the economic and legal aspects of negotiating contracts and management of single contract. It is not possible to completely integrated the economic and legal aspects (or it will at least demand a lot of research). The course will focus on the interaction between the different aspects, and this will be done through discussion of cases. A possible case might be (simplified):

It is late during the negotiations and the company estimates that it is 80 % probability that they will be able to change one more clause, 50 % probability that they will be able to change two clauses, and 20 % probability that they will be able to change three clauses. Which clause should they give priority as first, second and third? To decide, it is necessary to assess the legal effects of the three clauses, the economic risk etc. 

Further, the candidates will be updated on the ongoing process regarding the use of algorithms and artificial intelligence to streamline contract negotiations and improve the quality of the contract's content. The candidates will also gain insight into the differences between typical national and international contracts.

The objective of this course fits well with both Specialization 1 and 2, cf. the study overview (studieplanen). Share transactions and financing of business are all based on negotiations and contracts (Specialization 1). Specialization 2 is about leadership and labor law, which will provide a basis for the candidate to take leadership responsibility for the negotiation, or contract management, team (prosjektleder), or the contract management department.   

The course contains the following topics:

  • contract law, including (in short terms):
    • The content of contractual obligations
    • Performance of contractual obligations
    • Breach of contract and remedies
    • Revision of contract
    • Mora creditoris (kreditormora)
    • Monetary claims (pengekrav)
  • NS 8405 - The standard contract for construction work
  • Theories regarding negotiation skills and strategy
  • Identification of underlying values and trade-offs in negotiations.
  • Organizing negotiations in order to achieve such identification.
  • Quantification of underlying values and trade-offs in negotiations.
  • Identification of various normative and positive solution concepts to the bargaining problem.
  • Quantification of various normative and positive solution concepts to the bargaining problem.
  • Techniques suitable for securing honest fulfillment of contractual obligations.
  • Behavioral insights regarding standard economic models of bargaining and contracting.
Teaching and learning activities

A variety of learning methods will be used, from regular lectures to webinars, and discussions of cases and questions on digital platform. Small test/kahoots will also be used, mostly to increase the students interest in the topic. Students will also participate in a set of economics experiments.   

There will be arranged for one written assignment where the students will be able to hand in a task in order to get constructive feedback. Thereafter we will go through it in class. The student will also practice how to perform her assignment orally, since discussing law orally is a very important part of being a legal practitioner.

Software tools
No specified computer-based tools are required.
Additional information

Please note that while attendance is not compulsory in all courses, it is the student’s own responsibility to obtain any information provided in class.

Qualifications

All courses in the Masters programme will assume that students have fulfilled the admission requirements for the programme. In addition, courses in second, third and/or fourth semester can have specific prerequisites and will assume that students have followed normal study progression. For double degree and exchange students, please note that equivalent courses are accepted.

Exam categoryWeightInvigilationDurationSupport materialsGroupingComment exam
Exam category:
Submission
Form of assessment:
Written submission
Exam code:
GRA 62861
Grading scale:
ECTS
Grading rules:
Internal and external examiner
Resit:
Examination when next scheduled course
100Yes3 Hour(s)
  • BI-approved exam calculator
  • Simple calculator
  • Bilingual dictionary
  • Compilation of laws
  • Laws and regulations, including offprints of laws and law drafts
  • NS 8405 Norwegian building and civil engineering contract
Individual
Exams:
Exam category:Submission
Form of assessment:Written submission
Weight:100
Invigilation:Yes
Grouping (size):Individual
Support materials:
  • BI-approved exam calculator
  • Simple calculator
  • Bilingual dictionary
  • Compilation of laws
  • Laws and regulations, including offprints of laws and law drafts
  • NS 8405 Norwegian building and civil engineering contract
Duration:3 Hour(s)
Comment:
Exam code: GRA 62861
Grading scale:ECTS
Resit:Examination when next scheduled course
Type of Assessment: 
Ordinary examination
Total weight: 
100
Student workload
ActivityDurationComment
Prepare for teaching
30 Hour(s)
Preparation for three negotiation cases. Preparation for three contract cases.
Student's own work with learning resources
180 Hour(s)
Teaching on Campus
72 Hour(s)
Group work / Assignments
30 Hour(s)
Negotiating the prepared cases. Preparation for cases in groups.
Other in classroom
5 Hour(s)
Participating in teaching experiments.
Examination
3 Hour(s)
Sum workload: 
320

A course of 1 ECTS credit corresponds to a workload of 26-30 hours. Therefore a course of 12 ECTS credit corresponds to a workload of at least 320 hours.