Published Articles
I have been privileged over the years to have a number of articles published in various legal journals. I consider that giving expression to your thoughts on professional legal topics not only helps you understand then better, but shares your hard earned knowledge with others. This ultimately enables us as a profession to function better and improves the quality of services we provide to our in house or private clients. I set out below a selected summary of some of the articles and where they have been published. I have also been privileged to be an editor of the Communications Law Journal for a number of years and have had the pleasure of reviewing for publication a number of interesting and informative articles.
Negotiating IT Service Contracts - In-House v Private Practice Legal Models
I have been privileged to work over my career as a partner in private practice with leading
City firms in London and as a senior in-house lawyer in global companies. For a significant portion
of this time I have been advising on and negotiating contracts for the provision of
information technology (IT) services and the resolution of post contract delivery issues. This
has given me a unique perspective on the advantages and disadvantages of these
respective roles. The law is the same, the technology is the same, the delivery challenges
are still there, but the lens through which we see the professional service we provide is
different. So to some extent are the perspectives of the external and in-house
“clients” we deliver these services to. This article builds on that experience to explain the
differences and to explore how we can learn from them.
International In-House Counsel Journal
Vanquishing the IT Contract Delivery Demons
Delivery difficulties regularly occur in IT outsourcing contracts. These can manifest themselves during the initial project phase when the services are transitioned and transformed, and in steady state delivery of the services when, for example, contract changes need to be properly managed. Lawyers can make a positive and constructive contribution to the prevention and resolution of these problems. The article articulates the challenge and proposes viable ways in which legal advisers whether in-house or in private practice can bring their skillsets and experience to bear in assisting in the effective creation and delivery of these complex service contracts.
SCL Magazine
Generative AI and IT Outsourcing
IT outsourcing will evolve considerably faster as a result of the impact of generative AI. The provisions of IT outsourcing contracts will need to adjust to this new means of delivery which will bring fresh challenges for outsourcing lawyers and other professionals. Our services will still be very much in demand, but we should be able to enhance these and add value by utilising AI’s capabilities.
International In-House Counsel Journal
Legal Liability for the Actions of Chatbots
If a chatbot appears at least to assume an identity of its own as an autonomous adviser, should it despite all the challenges be recognised as having some albeit limited legal personality, or at least made subject to more legal regulation in its own right? Are we moving into a brave new world where chatbots and other creatures of artificial intelligence should be treated as more than simply software programs?
Communications Law Journal
Due Diligence - How Outsourcing Can Learn from Private Equity
Both outsourcing and private equity promote the idea that efficiency can be enhanced by fundamental change. Outsourcing in the context of the provision of services by an external supplier in place of an in-house department (or another external supplier). Private equity by means of new ownership and management of a business. As IT lawyers we often provide support to our corporate colleagues on private equity transactions. This usually involves participation in the due diligence process (including the agreement of related warranties) which is critical since a purchaser will base its investment decision on the information it receives from the target and the promises given regarding the existing business and the assets used to perform that business. Outsourcing too depends on due diligence since a new supplier cannot take over what it does not know or understand. It also depends on information being provided by the customer which cannot, economically, be verified by the new supplier, but must be confirmed by the customer. Yet, by comparison with private equity, an outsourcing due diligence and the supporting warranty discussions are rarely effective as a means of intelligent disclosure. Outsourcing transactions can learn from the private equity world.
SCL Magazine
Service Descriptions and Service Levels in the Digital World
As lawyers negotiating a contract we have a duty to our clients to protect their legal, commercial and business interests and we do this with great skill for topics like warranties, IPR and limits of liability. However in an IT contract the fundamental building block from which all other provisions are arguably derived (including the charges) is the description of the services and the committed service levels. These vital topics usually set out in a schedule to the contract are often not addressed with sufficient care and the attention to detail that lawyers give to the terms and conditions. They should be carefully and thoroughly negotiated and agreed in the context of the services being provided and the associated risks involved.
International In-House Counsel Journal
Agile Contracting for IT Services – myth or reality?
Agile is concerned with a development mind set but underpinning it is a debate about the effectiveness of complex IT project contracting and whether these difficult agreements should be prescriptive or encourage cooperation. Agile processes are a recognised iterative methodology used effectively for software development and project delivery. This article discusses how to contract in a constructive and sensible way for the use of these Agile development models.
Communications Law Journal
IT Contracts in the Public Sector
I have acted for the public sector and for IT suppliers for two decades and have seen some fascinating developments over that time, some of which I chronicle in this article. However, a central conundrum remains:
· the public sector requires and needs new technology without being taken advantage of by sophisticated IT suppliers
· the IT sector wants to participate in the £14 billion public sector annual spend and seeks close relationships and partnerships with the public sector, but is concerned that it receives a fair and reasonable return for its investment on equitable contract terms
· despite many well intentioned initiatives by industry and by the public sector to improve the contracting process, lots of projects still end in tears.
SCL Magazine
Limits of Liability Provisions for IT Service Contracts
What I have learnt over years of practice as an IT lawyer is the importance of looking at the provisions that limit and exclude liability not only with extreme care and drafting precision, but also in a reasonable and proportionate manner taking into account risk allocation in the context of the service concerned and the overall business objectives that the parties wish to achieve. A cast iron liability provision imposing excessive liability on the supplier will not necessarily promote successful delivery and instead may even encourage poor performance and inevitable disputes. Suppliers equally need to recognise that customer are placing a large degree of trust in them in handing over responsibility for the provision of key services and that in return they will be expected to accept a proportionate measure of risk.
International In-House Counsel Journal
Lawyers Don’t Review All the Schedules in Technology Contracts – Fact or Fiction?
Ultimately, robots may negotiate contracts for us and sort out all the technical detail with very little human intervention. It seems to me though that we are a very long way off AI being able to do this for complex technology service contracts, though it may increasingly help to take some of the drudgery away from us. However, until that “nirvana” or “disastrous professional abdication”, depending on your point of view, occurs I advocate that lawyers and commercial advisers take a holistic approach to the drafting and agreement of large IT outsourcing contracts. The devil, as it were, will be in the details of the schedules, not the front-end terms and conditions. It therefore behoves us as professionals to take responsibility for the creation and negotiation of a whole, coherent contract and not just the legal elements with which we are very familiar.
Communications Law Journal
Extending Outsourcing Contracts
This article discusses the regulation of, and the legal, contractual and to some extent business challenges presented by extended or even evergreen IT outsourcing contracts and recommends some best practice. It examines the considerations to be taken into account when considering the continuation of such arrangements and proposes that extending these complex agreements should be as a result of a balanced strategic decision made by the customer and the supplier in consultation. Such extensions can provide mutual benefit for both parties provided that they are carried out effectively and the contract and the services provided are kept up to date.
Communications Law Journal
Multi-Cultural IT Outsourcing Contracts
As a lawyer with considerable experience of IT outsourcing both on the customer and the supplier side I can vouch for the complexity of replacing a service provided by an in-house team with a contractual arrangement. This is true enough when applied to an outsourcing where the supplier and the customer are resident and operate in the same country. However, as communication shrinks our planet, global outsourcing arrangements can deliver the most effective solution for customers whose business has a worldwide footprint which encompasses international delivery of services. And such deals involve even more complex and challenging contract structures for lawyers and other professional advisers.
International In-House Counsel Journal
The Successful Management of Delay in IT Outsourcing Contracts
I advocate that these delay processes if they must be applied are kept as simple and manageable as possible. If they have to be operated this should be done in a professional and dispassionate way as appears to be much more likely in the “maturer” construction industry. However I suggest that in the IT industry too much contractual emphasis is placed upon these formal processes in a well-meaning but ultimately misguided effort to protect the customer or supplier. This is why they are not properly understood or used by either side. The application first of effective governance processes before having to reach for the contractual sword may be far more effective in practice in promoting the successful delivery of IT projects. Abandoning relief event regimes entirely and having the sort of end of project wash up I have suggested above merits serious consideration.
SCL Magazine
Game of Towers IT Outsourcing
This article discusses the use of the tower model in outsourcing where a number of key suppliers provide designated services to a customer which divides its requirements for outsourced information technology services into a series of "towers" each of which will be provided by a different service provider, typically coordinated by a systems integrator. The article sets out the historical positioning of the model and proposes an alternative for consideration.
Communications Law Journal
I have been privileged to work over my career as a partner in private practice with leading
City firms in London and as a senior in-house lawyer in global companies. For a significant portion
of this time I have been advising on and negotiating contracts for the provision of
information technology (IT) services and the resolution of post contract delivery issues. This
has given me a unique perspective on the advantages and disadvantages of these
respective roles. The law is the same, the technology is the same, the delivery challenges
are still there, but the lens through which we see the professional service we provide is
different. So to some extent are the perspectives of the external and in-house
“clients” we deliver these services to. This article builds on that experience to explain the
differences and to explore how we can learn from them.
International In-House Counsel Journal
Vanquishing the IT Contract Delivery Demons
Delivery difficulties regularly occur in IT outsourcing contracts. These can manifest themselves during the initial project phase when the services are transitioned and transformed, and in steady state delivery of the services when, for example, contract changes need to be properly managed. Lawyers can make a positive and constructive contribution to the prevention and resolution of these problems. The article articulates the challenge and proposes viable ways in which legal advisers whether in-house or in private practice can bring their skillsets and experience to bear in assisting in the effective creation and delivery of these complex service contracts.
SCL Magazine
Generative AI and IT Outsourcing
IT outsourcing will evolve considerably faster as a result of the impact of generative AI. The provisions of IT outsourcing contracts will need to adjust to this new means of delivery which will bring fresh challenges for outsourcing lawyers and other professionals. Our services will still be very much in demand, but we should be able to enhance these and add value by utilising AI’s capabilities.
International In-House Counsel Journal
Legal Liability for the Actions of Chatbots
If a chatbot appears at least to assume an identity of its own as an autonomous adviser, should it despite all the challenges be recognised as having some albeit limited legal personality, or at least made subject to more legal regulation in its own right? Are we moving into a brave new world where chatbots and other creatures of artificial intelligence should be treated as more than simply software programs?
Communications Law Journal
Due Diligence - How Outsourcing Can Learn from Private Equity
Both outsourcing and private equity promote the idea that efficiency can be enhanced by fundamental change. Outsourcing in the context of the provision of services by an external supplier in place of an in-house department (or another external supplier). Private equity by means of new ownership and management of a business. As IT lawyers we often provide support to our corporate colleagues on private equity transactions. This usually involves participation in the due diligence process (including the agreement of related warranties) which is critical since a purchaser will base its investment decision on the information it receives from the target and the promises given regarding the existing business and the assets used to perform that business. Outsourcing too depends on due diligence since a new supplier cannot take over what it does not know or understand. It also depends on information being provided by the customer which cannot, economically, be verified by the new supplier, but must be confirmed by the customer. Yet, by comparison with private equity, an outsourcing due diligence and the supporting warranty discussions are rarely effective as a means of intelligent disclosure. Outsourcing transactions can learn from the private equity world.
SCL Magazine
Service Descriptions and Service Levels in the Digital World
As lawyers negotiating a contract we have a duty to our clients to protect their legal, commercial and business interests and we do this with great skill for topics like warranties, IPR and limits of liability. However in an IT contract the fundamental building block from which all other provisions are arguably derived (including the charges) is the description of the services and the committed service levels. These vital topics usually set out in a schedule to the contract are often not addressed with sufficient care and the attention to detail that lawyers give to the terms and conditions. They should be carefully and thoroughly negotiated and agreed in the context of the services being provided and the associated risks involved.
International In-House Counsel Journal
Agile Contracting for IT Services – myth or reality?
Agile is concerned with a development mind set but underpinning it is a debate about the effectiveness of complex IT project contracting and whether these difficult agreements should be prescriptive or encourage cooperation. Agile processes are a recognised iterative methodology used effectively for software development and project delivery. This article discusses how to contract in a constructive and sensible way for the use of these Agile development models.
Communications Law Journal
IT Contracts in the Public Sector
I have acted for the public sector and for IT suppliers for two decades and have seen some fascinating developments over that time, some of which I chronicle in this article. However, a central conundrum remains:
· the public sector requires and needs new technology without being taken advantage of by sophisticated IT suppliers
· the IT sector wants to participate in the £14 billion public sector annual spend and seeks close relationships and partnerships with the public sector, but is concerned that it receives a fair and reasonable return for its investment on equitable contract terms
· despite many well intentioned initiatives by industry and by the public sector to improve the contracting process, lots of projects still end in tears.
SCL Magazine
Limits of Liability Provisions for IT Service Contracts
What I have learnt over years of practice as an IT lawyer is the importance of looking at the provisions that limit and exclude liability not only with extreme care and drafting precision, but also in a reasonable and proportionate manner taking into account risk allocation in the context of the service concerned and the overall business objectives that the parties wish to achieve. A cast iron liability provision imposing excessive liability on the supplier will not necessarily promote successful delivery and instead may even encourage poor performance and inevitable disputes. Suppliers equally need to recognise that customer are placing a large degree of trust in them in handing over responsibility for the provision of key services and that in return they will be expected to accept a proportionate measure of risk.
International In-House Counsel Journal
Lawyers Don’t Review All the Schedules in Technology Contracts – Fact or Fiction?
Ultimately, robots may negotiate contracts for us and sort out all the technical detail with very little human intervention. It seems to me though that we are a very long way off AI being able to do this for complex technology service contracts, though it may increasingly help to take some of the drudgery away from us. However, until that “nirvana” or “disastrous professional abdication”, depending on your point of view, occurs I advocate that lawyers and commercial advisers take a holistic approach to the drafting and agreement of large IT outsourcing contracts. The devil, as it were, will be in the details of the schedules, not the front-end terms and conditions. It therefore behoves us as professionals to take responsibility for the creation and negotiation of a whole, coherent contract and not just the legal elements with which we are very familiar.
Communications Law Journal
Extending Outsourcing Contracts
This article discusses the regulation of, and the legal, contractual and to some extent business challenges presented by extended or even evergreen IT outsourcing contracts and recommends some best practice. It examines the considerations to be taken into account when considering the continuation of such arrangements and proposes that extending these complex agreements should be as a result of a balanced strategic decision made by the customer and the supplier in consultation. Such extensions can provide mutual benefit for both parties provided that they are carried out effectively and the contract and the services provided are kept up to date.
Communications Law Journal
Multi-Cultural IT Outsourcing Contracts
As a lawyer with considerable experience of IT outsourcing both on the customer and the supplier side I can vouch for the complexity of replacing a service provided by an in-house team with a contractual arrangement. This is true enough when applied to an outsourcing where the supplier and the customer are resident and operate in the same country. However, as communication shrinks our planet, global outsourcing arrangements can deliver the most effective solution for customers whose business has a worldwide footprint which encompasses international delivery of services. And such deals involve even more complex and challenging contract structures for lawyers and other professional advisers.
International In-House Counsel Journal
The Successful Management of Delay in IT Outsourcing Contracts
I advocate that these delay processes if they must be applied are kept as simple and manageable as possible. If they have to be operated this should be done in a professional and dispassionate way as appears to be much more likely in the “maturer” construction industry. However I suggest that in the IT industry too much contractual emphasis is placed upon these formal processes in a well-meaning but ultimately misguided effort to protect the customer or supplier. This is why they are not properly understood or used by either side. The application first of effective governance processes before having to reach for the contractual sword may be far more effective in practice in promoting the successful delivery of IT projects. Abandoning relief event regimes entirely and having the sort of end of project wash up I have suggested above merits serious consideration.
SCL Magazine
Game of Towers IT Outsourcing
This article discusses the use of the tower model in outsourcing where a number of key suppliers provide designated services to a customer which divides its requirements for outsourced information technology services into a series of "towers" each of which will be provided by a different service provider, typically coordinated by a systems integrator. The article sets out the historical positioning of the model and proposes an alternative for consideration.
Communications Law Journal
