REVIEWED BY ROSEMARY DOWNS
Rosemary Downs is a partner with Oxley & Coward.
For anyone familiar with Klinger and Burnett’s `Drafting and NegotiatingComputer Contracts’ (an excellent text for the new and not-so-new IT lawyer –providing copious guidance on, and plain English precedents for, most of theclauses you are likely to need in computer contracts) the publication of a newtext by Burnett is an occasion to be welcomed. This time Burnett has directedher attention firmly towards consumers of legal services rather than primarilythe lawyers themselves.
Practicality and a strong appreciation of the commercial and strategicelements of outsourcing shine through, meaning that this is a book that can berecommended to any businessmen who has a low tolerance of `legalese’ or aninbuilt suspicion of all things lawyerly.
Of course this approach means that a very wide range of topics are crammedbetween the covers – everything from ADR to Year 2000 and most points between– which calls for brevity of coverage. Several of the topics touched upon fallinto particularly fast-moving areas of law in which an author’s text is at riskof being outdated almost as soon as the ink is dry. However, the treatment ofissues such as the transfer of staff and the operation of the Transfer ofUndertakings Regulations and the Acquired Rights Directive does include asection on `future developments’ as well as a health warning to the effect thatthis is a complex and rapidly changing area (indeed as predicted it has alreadychanged).
A recurring theme throughout the book is the inability of the `blunt tool’represented by the legal contract to encompass all eventualities of theoutsourcing relationship and therefore the overriding need for co-operationbetween the parties if the outsourcing is to be a success. Whilst this conceptis, to an extent, true of all contracts, it is brought to the fore by thelong-term nature of most outsourcing contracts and the inherent uncertainty ofwhat is to happen on termination (renewal, a contract with a new provider, orbringing the service back in-house).
Particularly useful to lawyers and non-lawyers alike are some of the `warstories’, giving anecdotal accounts of how some outsourcing relationships haveworked in practice, as well as the statistics quoted, eg as to the typicalduration of contracts (shorter than those oft-reported contracts in which themajor problems seem to arise). More in the same vein would have been welcome.
Salutary points are made at the expense of lawyers, for instance a commentthat a force majeure clause may be included for no better reason than that it isstandard boilerplate whereas the customer may be relying on disaster recoveryservices from the supplier which come into play precisely at the point whenforce majeure would otherwise kick in. Conversely many topics well known tolawyers are explained for the lay person eg basic contract principles such asthe meaning of conditions and warranties and the limiting of liability. Somelawyers whose specialisms are fairly narrow may find the brief overviews ofissues such as the public procurement regulations handy.
Those who will find this book most useful are:
- lawyers new to the outsourcing field (including in-house lawyers) who will find invaluable the highly practical approach and concentration on recognition of and limiting or allocation of risk (skipping over some of the `law for beginners’ elements – as the author says `this is not an academic textbook’).
- managers of businesses contemplating outsourcing their IT function who will find an admirably concise and readable wide-ranging text on the issues involved and will be reassured by Burnett’s evident grasp of the business issues which makes it clear that this book was not written in an ivory tower.