This monograph is a multidisciplinary doctoral dissertation under the socio-legal umbrella. The topic dictating the chosen methods is Contract Management. The context is large and complex project type of business contracts between global corporations and other large international private sector businesses. Although the underlying perspective is from inside of an operating business organization and its professional in-house Contract Management department mainly on the sell-side, examples on the buy-side are also utilized. The industry field is primarily ICT, but sources from construction and military are also used. Via utilizing, inter alia, the goal-oriented teleological method, the values underpinning the study are looking at a contract and contracting through the so-called Contract Management lens and proactively seeking coherence, collaboration, and mutually beneficial contract outcomes between the parties on a long-term basis. The study defines Contract Management as an international systemic business contract approach to manage the contract lifecycle and to orchestrate a corporation's legal, commercial and contractual business contract activity in a coherent manner, on a high-end maturity level. Such an approach brings significant direct monetary value and strategic competitive advantage to companies that apply it. Contract Management aims to increase the contractual quality, efficiency and risk/reward balance of a company’s business contracts, and decrease the amount of wasted money, time, resources and quality. This leads to a better relationship between the parties, and fewer disputes and contractual conflicts. Contract Management provides the parties, inter alia, with a flexible framework to agree upon changes and settle claims and proactively prevent risks over the contract lifecycle. Contract Management achieves this via utilization of so-called war stories and lessons learned and developing them further to produce best practices, processes and policies, and via using tools, such as software systems, to facilitate the Contract Management modus operandi. This study acknowledges that there is no one-size-fits-all Contract Management applicable globally and approaches the broad topic of Contract Management via the following research questions: 1. What is Contract Management and why does it matter? 2. How does Contract Management lead to the expected benefits in the contracting practice? 3. Are the legal aspect and passing the legal test sufficient to constitute a large and complex project type of a business contract? 4. What are the other aspects of a contract? Are they needed to constitute a coherent ‘contract (as) integrity’ (ex analogia Ronald Dworkin’s iconic law as integrity)? 5. One underlying question of the research is asked by an American philosopher, pragmatist William James: “What concrete difference does it being true make in any one’s actual life…?” Translated into the legal and business language: if what this dissertation argues is true, what difference would enhanced adoption of Contract Management modus operandi make to the legal quality of contracts and to the businesses that apply it? What should companies start doing differently tomorrow? The study is structured as follows. The Prologue sets the scene by presenting the scandalous Enron case and its relation to Contract Management. Chapter 1 introduces the study. Chapter 2 explains various definitions of Contract Management. Chapter 3 presents an example of contracts in action via the scope creep problem and Contract Management solutions to it, and explains how the choices over the commercial model, delivery model and contract strategy affect the likelihood for scope creep to arise. It also explains how to mitigate the impact of scope creep. Chapter 4 explains why the legal aspect of a contract is not sufficient in itself, and Chapter 5 explains what the other contractual aspects are and how they affect the coherence of contract. Chapter 6 concludes the study by presenting a contract as a multi-aspect, multidisciplinary, coherent ‘contract as integrity’. Contract Management is the glue, or mortar, between the bricks, that binds all aspects of a contract and a company’s contracting activity together. This study proposes several solutions that can be implemented in the contract practice to mutually benefit both parties. In addition, the study has resulted in the creation of a visual metaphor, showing a contract as a multi-cup scale (inspired by the scales of justice). Further, the dissertation takes steps towards creating a theory of contractual balances. As Contract Management is a very broad theme, it also proposes topics for future research. The Epilogue ponders whether it will be possible to close the circle started by the Enron case. If yes, what would that imply? What did we learn from the Enron case, if indeed we learned anything?
|Tilldelningsdatum||19 jun 2021|
|Status||Publicerad - 19 jun 2021|
|MoE-publikationstyp||G4 Doktorsavhandling (monografi)|
- 513 Juridik