Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50890
FEATURE personnel across borders, "one cannot escape the application of local laws to issues such as contract enforcement, transfer of money, tax, insolvency, creditors' rights, employment, real es- tate, regulated industries, privacy, data protection, and intellec- tual property," she notes. In fact, in the event a service provider becomes insolvent, Canada's insolvency and bankruptcy laws are not enforceable, although Abe says still, "We see it all the time; it's boilerplate in every contract. But under Canadian insolvency law, those ipso facto clauses can be overridden by a court in an insolvency or bankruptcy." As well, she says, service providers abroad sometimes underprice their fees in order to se- cure a contract, so it's important to include pro- visions to monitor performance indicators and obtain credit references. Most outsourcing contracts also contain early "They even may be immediate causes, as opposed to the usual standard of 'if there's a breach there's a cure' period. Some of these breaches are quite serious and can't be cured, and if it's going to affect your reputation of your company, you want out of that contract as quickly as possible," she says. "So transitioning out as part of the termination is something corporate counsel has to look at care- fully." Ling at Baker & McKenzie affirms termination clauses are getting more focus. "What I think is interesting is now that out- Theo Ling, Baker & McKenzie LLP termination clauses, although "what we're seeing now is an expansion of the events of termination," says Abe. "While it would typically be termination for breach of service, the termination events are broader, such as violations of securi- ty or privacy, personnel or type of processes they have, whether they're environmentally friendly," she explains. sourcing is sort of in the mainstream is with a lot of companies that have had some experience, a lot of those experiences aren't great, the expectations when they go in are not necessarily met," says Ling. "So what they're trying to do is renegotiate the outsourcing agreement after a period of time or to get out of it and get into a new one. There's a lot of focus and attention around that now." He points out that rescinding agreements and switching pro- viders presents another cache of issues that have been emerging. "Before, you were lucky to get privacy clauses in an agreement that would articulate the responsibilities of each party relating to personal information," he says. "Now people are trying to Your ultimate guide to understanding the legal and business issues arising in outsourcing transactions With a special emphasis on technology, Outsourcing Transactions: A Practical Guide is updated regularly and offers a pragmatic overview regarding outsourcing transactions, complete with precedents and sample agreements for everyday practical assistance. Analyzing the critical issues of the transaction from the perspective of both parties, this resource demonstartes how a truly successful outsourcing relationship can be maintained. From the early planning stages, through the efficient negotiation of the deal, to post-execution implementation and transition, the contributing authors from Fasken Martineau DuMoulin LLP draw on their outsourcing experience to identify the key legal and business issues you need to know about, such as: the RFP process pricing and payment benchmarking and its alternatives implementation, governance and administration exit strategies issues in Quebec, in cross-border transactions and in offshore outsourcing Outsourcing transactions involve many areas of law such as employment, pension, tax, and IT security issues. This looseleaf service includes chapters on each of these subjects, and many more, written by specialists in those areas. Outsourcing Transactions: A Practical Guide — creating win-win relationships to ensure long-term outsourcing success. www.canadalawbook.ca 20 A UGUST 2008 C ANADIAN Lawyer INHOUSE KYER_Outsourcing Transactions (CL 1-2h).indd 1 CL0608 6/18/08 3:20:13 PM