Black-letter skills still play an important role in-house
When it comes to negotiation and determining clauses in contracts, in-house lawyers are tasked with balancing black-letter law, communication skills and having a deep understanding of their organisation – and one GC says this balance remains vital in the current climate.
Heela Arsala is the general counsel of architecture firm Buchan. Speaking recently on The Corporate Counsel Show, she discussed negotiation and contractual clauses, the importance of supporting your business as best as possible when negotiating and determining contractual clauses and how to strike the right balance.
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Ms Arsala started with Buchan during the pandemic and has a “passion for architecture and working with architects”.
“I started during COVID and during one of the snap lockdowns and during a time when the construction industry was severely impacted by both local and national and international issues that had arisen as a result of that. So, working our way through a time where we had mandatory vaccinations and working through that, creating policies, rolling that out to how to manage the work-from-home situation,” she said.
“I worked very closely with PNC and external providers to make sure that we had those operations and those arms of it set up properly, but otherwise just setting up the basics, setting up a contracts management system, understanding who your clients are, understanding what umbrella contracts we have in place, negotiating contracts that are for our top, say, 10 clients to make sure that they’re already in place so we don’t have to go through it each time, as well as learning all the ins and outs of the business, who’s who during a time when you weren’t seeing people in person and face to face.”
Negotiation and contracts are not only critical issues for legal departments and in-house lawyers but also bleed into headline issues within the in-house landscape, such as environmental, social and governance (ESG) and cyber security.
“How do you create the right policies and procedures to suit your business? I think from my perspective, personally, any decision you make about ESG, cyber security, sustainability, AI ... I think it’s really important that it needs to be done authentically. You can’t always just jump on a bandwagon [and] go with the changing landscape. You need to make sure that you have the right thinking, the right strategy, [and] the right discussions internally to make sure that you align before you start to go out on these topics externally, because it needs to be authentic so that you can then actually live those values and live those beliefs.
“And I also find that aligning your team’s interests and viewpoints is really important because, internally, you have many stakeholders, and they may all hold different viewpoints on all those topics. Some are from different generations, some are emerging generations that are really passionate about these topics and easily take it on and speak to it and live to it and deliver on it,” Ms Arsala added.
“Some of the older generations can really struggle with it, and I’m generalising here, but from my experience, there needs to be discussion, there needs to be learning, and there needs to be training on it, and there needs to be lots of communication on these things. So, keeping up the reading, being authentic about it, having those discussion points constantly, is really important. And also knowing who needs what. For example, working with the business development team and what they want from contract negotiations or terms is very different to what finance wants.”
Being able to balance these discussion points is important in terms of building new clauses in contracts around sustainability and cyber security, according to Ms Arsala, who added that maintaining “black-letter” skills remains vital for in-house lawyers to be able to provide consistency.
“In a negotiation or in a contract review, you need to make sure that everybody understands their obligations. You need to make sure that the language is consistent. I personally try and avoid technical language when I’m drafting because I think, over time, you learn that the more consistent and the more standard the language, the less confusion, the less misunderstanding. And you can then train your teams to understand contracts to deliver, making sure that there’s version control, making sure that the negotiation process is consistent,” she added.
“So, if you’re doing a review, keep it in a departures table. Don’t track, don’t go into 15 emails, back and forth with different colouring with different comments; you can lose consistency, it can create mistakes. Also, if you’re entering a meeting, make sure you’re practised, make sure you know who you’re walking in with from your team. What are the team’s views? What do we want to achieve from that? And understand who you’re sitting with, who you’re negotiating with. Is it an existing client, somebody you know who requires a different type of discussion? Or is it a new client, a new area, a client that you really need and want because you’re going into a new growth piece?
“Again, that will play out differently because that depends on where the business wants to go, what their strategy is. There is that constant balancing act between business strategy, business wants, [and] business interests. Compare that to, as a lawyer, how can it then go into a contract to be drafted in a way that everyone can easily follow and understand and avoid confusion, but also stick to that black-letter law and make sure it’s all properly laid out, written and consistent.”
In terms of how she balances black-letter law and negotiation as well as business needs, Ms Arsala said understanding the business is key.
“Understand your business. Understand and learn and really get to know your internal stakeholders. Who are those people? What are their viewpoints? What’s the strategy for the business? Where are they going? Where are they heading? Where do they want to be? Because that’s really important in negotiations and drafting, because sometimes you want to take a strict view, because the business has no view there,” she added.
“But sometimes, if the business wants to go in a certain area, has a certain stance on things, then you might want to be a bit more flexible in the way you negotiate and in the way you draft. So, understanding both and bringing them together is so important.”
The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Heela Arsala, click below: