Measuring Legal Exposure Reply

Mind the gapThe function of a contract is to cover legal exposure.  It does not, by and large, govern the relations between parties.  Those are already established by the community and contracts merely document well established facts.  The way the parties will behave will already be a an established reflection of their education, training and previous business experience.  It is naïve to think, for instance, that a contract will be used by engineers to help manage the construction of a building.  On the contrary, the contract will present a myriad of hurdles, obstacles, impasse and problems as the workers try to get on and do their job – build.  It is a truism to say then that almost all litigation is a function of poor contract management rather than poor contract design.  Indeed, I have never met a client who had either fully read OR fully understood the contracts they were in.

A contract, rather, seeks to cover the inevitable areas of risk when two parties necessarily compromise to enter into an agreement. as my father used to say, ‘there are two parties to a contract – the screwor and the screwee.  One party is always disadvantaged.  The lesser party needs to cover their legal exposure and the greater party needs to ensure that not so much risk flows down that the lesser party is overloaded with risk, making the contract unworkable. Picture1Legal exposure is derived from financial risk.  Contracts will generally cover most financial exposure.  However, in Westminster-based systems much of the law of contract is still based in Equity.  Usually, there is still some degree of exposure that remains.  A party can only be forced to  indemnify so much; can only warrant so much and not beyond the reality of the arrangement.legal exposure

Most contracts, however, do not measure the legal exposure a party faces.  Most contracts stick with the standard blanket coverage formula, i.e. zero exposure.  This approach is unhelpful and in many cases counter-productive, because namely:

  • Phantom Exposure.  contract negotiations become unnecessarily bogged down over non-existent risk.  Arguing for 100% coverage when the risk is well covered already is just chasing phantom risk.
  • Lazy.  Quite frankly, the body of knowledge which exists in each sector, the sophistication of clients and the modern quantitative tools which exist to make contracting easier give no excuse for legal laziness.

Measuring legal exposure is both qualitative and quantitative.  Firstly, deriving financial risk is a mathematical function.  Secondly, as exposure is derived from the limitations of contractual coverage then legal exposure is a function of qualitative assessments.

My own method uses a threefold approach, namely:

  1. sensitivity analysis to measure financial risk, and then
  2. three separate qualitative measurements to define whether an element is a legal risk, then
  3. a legal assessment to determine if the remaining elements are covered (i.e. measure the exposure) and to what degree.

All of this is done as a collaborative process around a single bubble chart (shown below).  As is shown in the chart,

  • the bubble size (Z ‘axis’) relates directly to the mathematical analysis of financial sensitivity.
  • the X-axis is a qualitative scoring designed to assess the relative complexity of each item of volatility.
  • the Y-Axis is another qualitative scoring to determine just how close the item is to the project team, i.e. can they actually do something about it?  The less a team can influence a risk the more such risk needs to be pushed upwards so that the corporate functions of a business (Legal, Finance) can act upon it with centralised authority,
  • the colouring, lastly, deals with the notion of immediacy, i.e. prioritisation.

In this way, if a risk is both very complex and not able to be influenced by the project team (i.e. cannot be mitigated) then it, most likely, needs to be dealt with by the Legal function as there will be no way to otherwise influence it when the risk is realised.

Risk-Based Bubble Chart to engender cross-functional collaboration

Once legal risk is conceptually isolated in the upper-right quadrant of the bubble chart then lawyers may make a qualitative determination as to the amount of legal exposure.  For instance, a builder may warrant the quality of workmanship on a specific structure and cover it with insurance.  Legal may determine that there is virtually no statistical evidence that such risk is likely to be realised.  Therefore, the existing premiums easily cover the risk highlighted in the chart.

Alternately, the chart may have defined financial risk beyond, say, the indemnities provided by a firm’s subcontractors.  In such a case insurance or contractual renegotiation may be necessary.  It is important to know that in such circumstances it is precisely targeted cross-functional management energy that is being expended to determine, define and collaboratively deal with specific  financial risks.  Indeed, there is little more any business could hope for.

Top 5 Benefits of Effective Risk Management 1

risk management.little menBENEFITS OF AN INTEGRATED “ACTIVE GRC” FRAMEWORK

After the failure of risk management during the recent (and ongoing) financial crisis one could be forgiven for thinking that risk management – as we know it – is dead.  However, effective risk management is the only means which businesses have to:  (i) assess and compare investment decisions, (ii) seize subtle opportunities, and (iii) ensure regulatory compliance.  Risk management has greater utility beyond these obvious benefits.  Listed below are 5 of the top financial benefits of effective risk management:

1.  IMPROVED LIQUIDITY

When managers cannot identify or mitigate complex risks they create risk contingency slush funds and pad their accounts with excessive risk premiums. This is not an efficient allocation of capital and it can even price a business out of the market. Precise identification of risk premiums removes these slush funds and creates greater firm liquidity and the ability to allocate capital where it is needed.

2.  BETTER PROJECT PERFORMANCE

The best methods for risk identification and analysis of risk in projects are through the quantitative analysis of cost models and project schedules. However, these methods are only useful where such models are in enough detail. Good risk management leads to greater collaboration by cross-functional teams to optimise cost and schedule performance.

3.  BETTER OPPORTUNITY MANAGEMENT

With greater liquidity comes the ability to seize emerging opportunities. Not only can the company use this capital across portfolios to manage risks but it can also seize opportunities for M&A, talent acquisition, share buybacks, increased dividends, employee bonuses or increased project funding/investment.

4.  CONSENSUAL MANAGEMENT CULTURE

As managers work across the business to calibrate cost models with the project schedules; the contract and commercials with the technical architecture, the business is forced to adopt a more consensual, multi-disciplinary approach. Where GRC is implemented as part of a high-performance business initiative the culture is more likely to stick rather than one imposed from the top-down.

5.  IMPROVED REPORTING & DECISION MAKING

An active GRC process which is fully integrated with the business relies on the quantitative analysis of core artifacts (cost models, project schedules and technical architectures and contracts). A quantitative culture coupled with regular, detailed analytical outputs also greatly improves the standard of financial and operational reporting and therefore the possibility for improved investment decision making.