The biennial IADC Contracts & Risk Management Conference explores pertinent issues affecting contracts and risk management within the drilling industry. Speakers report on market issues, contract provisions, new contract requirements and indemnification issues, to name a few.
IADC has applied for MCLE hours with the Texas State Bar Association & the Oklahoma Bar Association, and was approved for 9.5 (general) participatory CLE hours by the Louisiana Supreme Court. **NOTE: You must show active participation in random polling questions throughout the event to qualify for CLE’s.
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Online Zoom Webinar
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Tuesday, 6 October
8:00 am Welcome & Introduction
- Mike Dubose, Vice President – International Development, IADC
8:05 am Ethics
Cannabis Conundrum: Navigating the Cannabis Landscape for HR and Compliance Professionals: Giselle Guerra, Associate, Eversheds Sutherland
Navigating the fluid legal landscape posed by the cannabis industry can be daunting. Join us for a program that will provide an overview of the current legal framework and a discussion about how nuances in this area of the law can affect workplace and employment issues, including drug testing policies, impact on existing licenses and related concerns. While there exist many open questions in the cannabis space, compliance and HR professionals armed with an understanding of cannabis law will be optimally positioned to address the myriad issues affecting their organization.
Contractual Implications of the Global Regulatory Minefield: David Leckie, Partner, Clyde & Co LLP
The record-breaking USD $ 4 billion Airbus global settlement for bribery in January 2020 is the most recent example of huge penalties being imposed by regulators across the globe. Coupled with increasingly high penalties and enforcement action for breaches of sanctions, export compliance, HSE and a host of other regulatory issues, there has never been a time when such compliance issues have been more challenging for contract and commercial managers, negotiators and in-house counsel. Allegations of fraud and other regulatory breaches are increasingly being used as a basis for terminating contacts and/or challenging the enforceability the caps and indemnities. This presentation will provide a summary of recent global developments and explore the wide ranging and complex contractual and ethical issues which arise. It will also provide pointers to best practice in contract drafting to mitigate the risk of such challenges throughout the contractual chain.
Internal Investigations and Ethics in Emergencies: Richard Schwartz, Shareholder, Kenneth Bullock, Munsch Hardt Kopf & Harr, P.C.
As the oil and gas industry enters a new decade, new technologies, equipment and safety precautions continue to advance operational capabilities. Although all responsible industry participants strive for operational perfection, prudent operators and contractors must still be prepared to respond to unforeseen and unexpected events. This presentation will address the applicable regulations and standards governing critical incident response, identify that types of information can be kept confidential under the law and provide helpful suggestions and best practices for ethically handling post-incident investigations.
9:35-9:45 am Break
9:45 am Pointers on Contract Drafting
Mock Negotiation of a Drilling Contract: Lisa Goforth, Managing Attorney, Contracts, Ellen Cordell, Managing Attorney, Litigation, Helmerich & Payne, Inc.
A presentation focused on frequently negotiated key provisions of a drilling contract and the different negotiating positions that can be taken by both the drilling contractor and operator.
Ethical Contracting – Mitigating the Legal Risks: Jeremy Farr, Partner, Elizabeth Crouse, Partner & Co-Lead, Power, K & L Gates LLP
As investors and boards become increasingly and publicly committed to demonstrating their ESG (environmental, social, governance) credentials, so ethical contracting obligations are flowed down through the supply chain. This presentation will consider how this is being done and the risks of breach associated with the lack of any generally accepted definition of ESG obligations or good practice with a focus on compliance and termination provisions. This is an essential topic in the current ESG compliance world and must be addressed with the same diligence as ABC obligations. However, it is a far more nebulous concept than anti-bribery and corruption and therefore creates new difficulties which need to be understood by drilling and other contractors.
Are You Building a Well? The Creep of EPC Type Terms and What You Might Do About It: Clare Kempkens, Partner, Charles Lockwood, K & L Gates LLP
A look at recent trends amongst some operators to propose EPC type terms and the increased risk that it brings at a time when few can afford to take any. Clauses under review will include variation clauses, fitness for purpose warranties, references to defects and defective performance and payment clauses that require work to have been performed “in accordance with the Contract”.
11:15 am Update on the State of Insurance Market: Jim Pierce, Chairman, Global Energy and Power, Marsh JLT Specialty
Jim will provide an update on the current state of the insurance market as it pertains to upstream activities.
11:45-11:55 am Break
11:55 am Planning for Disputes & Disaster: Arbitration & Choice of Law Provisions: Robert Redfearn Jr., Attorney, Simon, Peragine, Smith & Redfearn
Disputes arising out of drilling and related contracts are all too common. What options exists to control the law governing those disputes and the means by which they are resolved? This presentation will help answer those questions by providing an update on the law regarding choice of law and arbitration provisions in commercial contracts and offering practical guidance of why and whether such provisions should be included and traps to look for and avoid when including these provisions in drilling contracts and other commercial contracts.
12:25 pm Consideration of a Production Payment as Creative Solution to Stretch Capital Budgets: Phil Eisenberg, Partner, Rick Kuebel, Partner, LockeLord LLP
The general theme of the presentation involves consideration of a production payment as a creative solution to stretch capital budgets. The speakers will discuss the legal elements of a production payment and ORRI, distinguish this vehicle from other mineral interests and security devices, and discuss the differences of dollar denominated versus volume denominated production payments. The presentation will include financial risks and structuring challenges of using a PP based on case studies with an emphasis on bankruptcy risks including re-characterization and priority disputes. Finally, the presenters shall address potential restrictions or limits on operator authority to enter a PP and provide key terms (virtual term sheet) for negotiation and formation of a PP as well as drafting and recordation.
12:55 pm Look Before You Leap: Are Your Fancy Indemnity Clauses Enforceable Outside the US?: Alexandre Chequer, Partner, Norman Nadorff, Special Counsel, Mayer Brown LLP
The presentation will first describe of the typical liability/indemnity structure in drilling contracts, including knock-for-knock (“Typical Structure”), followed by a summary of the classic civil law approach to “responsibility” and “fault,” with emphasis on Brazil. We will then discuss limits of liability typically seen in oil industry contracts governed by a civil law jurisdiction and explain why certain drilling contracts unavoidably become subject to the laws of a civil law jurisdiction. Finally, we will address the enforceability of the Typical Structure in Brazil, including recent administrative and judicial proceedings, and provide tips for drafting liability provisions subject to Brazilian law.
1:25 pm Update on Risk Allocation and Indemnity in the Oilfield: Chris Evans, Partner, Adams and Reese LLP
An overview of recent case law dealing with indemnity and insurance issues important to anyone working with drilling contracts. The presentation will highlight recent cases dealing with risk allocation issues, such as the scope of cross-indemnity agreements and the application of waiver of subrogation provisions common in indemnity arrangements. The case law review will include practical applications for drafting and enforcement of indemnity obligations.
1:55 pm Adjourn
Wednesday, 7 October
8:00 am Welcome & Introduction; IADC Contracts Committee Activities Update
- Tyler Smith, Chair, IADC Contracts Committee; Legal Counsel, Nabors
8:15 am Government Regulations, Pandemics and Cyber Risks at the Intersection of Contractual Risk Allocation and Insurance Coverage: Glenn Legge, Partner, HFW
Contractual and insured exposures have evolved far beyond operational risks. In the last year, the upstream energy sector, and its insurers, were impacted by unprecedented market and financial vulnerabilities. Cyber risks continue to threaten operations in the energy market. Traditional force majeure, consequential damage, limitation of liability and “material adverse change” clauses do not adequately address these exposures. Can contractual risk allocation be revised to address these evolving risks in a responsive manner? Will the recent evolution of insurance endorsements effectively address the continuing cyber and business interruption risks? Through a legal lens, these relevant issues impacting the upstream energy sector are analyzed with respect to current risk and regulatory trends, and options for improved exposure and risk minimization are explained.
9:15 am A Playbook on How to Avoid (but Ultimately Respond to and Manage) High-Exposure Catastrophic Injury and Death Incidents in Oilfield Services, Using the Jones Act as a Guidepost: Jack Massey, Partner, Jim Silliman, Kelsey Machado, Eversheds Sutherland
The important takeaway is that oilfield services operational and legal managers need to evaluate and find confidence in (1) the company’s proactive approach to periodically evaluating and improving operational safety procedures and practices, (2) the company’s incident response efforts, and (3) the process-oriented, thorough, and controlled litigation process. These will not only help ensure best practices (both in policy and application) but will also pay financial dividends through a reduction in costly accidents.
9:45-9:55 am Break
9:55 am Carve-outs to Indemnity Schemes – Are you Better-off with them or without them these Days?: Charles Lockwood, Partner, Jeremy Farr, K & L Gates LLP
This presentation looks at the interplay between “regardless of cause” wordings in indemnity schemes and the carve-outs that often come with them. We will revisit the likely English law approach to more basic indemnity wordings and ask whether the risk profile of today’s more complex wordings is better or worse for contractors than their plainer predecessors.
10:25 am Could it be the Case?: Mark Walsh, Partner, Clyde & Co LLP
This talk will look at English case law and the extent to which an arguably more literalist approach to contractual interpretation in recent years has impacted exclusion and indemnity provisions. In particular it will look at consequential loss exclusion and indemnity provisions, and a number of cases where a particularly black letter and expansive approach has been taken to the question of ‘loss of profits’ – even where the party seeking to rely upon the indemnity has repudiated the contract. It asks the question “how far will this degree of literalism run in the drilling world?” and posits some suggested approaches to drafting.
10:55 am Data Ownership Panel
Data is an important asset. Who owns it, who can access & use it, where is it stored? Panelists will discuss the legal considerations of data ownership and address concerns that can arise when contracts are established between multiple parties.
- Reid Bumgarner, Partner, Port & Bumgarner LLP
- Robin Macmillan, Senior Vice President, NOV
- Additional panelists to be named
11:55 am Adjournment
- Tyler Smith, Chair, IADC Contracts Committee; Legal Counsel, Nabors
Conference Program Committee
- Chris Menefee
- David Faure, Transocean
- David Odom Harris, Patterson-UTI
- Marvin Moos, Horne Rota Moos LLP
- Mike McLeod
- Ron Potter, Transocean
- Scott Gordon
- Tyler Smith, Nabors
- Mike Dubose, IADC
There are four levels of sponsoring: Diamond sponsors, Platinum Sponsors, Gold Sponsors, and Silver Sponsors. Event sponsorships are also available and will be categorized by monetary contribution with the appropriate level of sponsorship. Please find the benefits of the sponsor packages below. The conference sponsor will receive high profile recognition before, during and after the conference. Note: no refunds for cancellations of sponsorships will be issued.