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Wentworth Lawyers Better Boards Conference 2013 “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating”

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Presentation on theme: "Wentworth Lawyers Better Boards Conference 2013 “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating”"— Presentation transcript:

1 Wentworth Lawyers Better Boards Conference 2013 “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating” Victor Hamit B.Ec (Acc) LLB FAICD CTA Director Wentworth Lawyers Level William Street, Melbourne Liability limited by a scheme approved under the Professional Standards Legislation

2 Wentworth Lawyers Memorandum of Understanding MOU

3 Wentworth Lawyers MOU Memorandum of Understanding Memorandum of Agreement Statement of Intent Statement of Agreement Heads of Agreement Statement of Principles Statement of Undertaking Letter of Intent

4 Wentworth Lawyers MOU – Critical Factors Intention to create legal obligations  Yes  No  In part Certainty  What is it that we are trying to achieve?

5 Wentworth Lawyers Certainty can assist Non Binding MOU “By working co-operatively within mutually beneficial working arrangements and within an accessible and integrated service framework …” Legal Status “Legal status: This MOU is not legally binding” MOU

6 Wentworth Lawyers Non Binding MOU – Perceived Advantages and Uses parties feel “bound” greater moral commitment reduces risk of misunderstanding expression of intent to third party “aide memoire” for formal contract parties not legally bound MOU

7 Wentworth Lawyers MOU Partly binding examples  Confidentiality  Dispute Resolution  Intellectual Property

8 Wentworth Lawyers MOU Why are we doing this? What do we want out of it? Risks Creating legal obligations when not intended Not creating legal obligations when intended Potential liability

9 Wentworth Lawyers MOU Do both parties have an agreed view of what these terms mean? “Partnering” “Sharing” “Collaborating”

10 Wentworth Lawyers MOU “Partner”  A sharer or partaker, an associate  One of two people sharing a relationship, as a married couple  One’s companion in a dance  A player on the same side with another in a game  (Plural) Nautical fore-an-aft vertical metal plating fitted underneath a ship’s deck to strengthen it where it is cut for a mast, capstan, pump, etc. Macquarie Dictionary – Revised Third Edition

11 Wentworth Lawyers MOU Partnership  The state or condition of being a partner; participation; association; joint interest  Cricket the period during which the two people batting stay at the wicket together, usually with reference to the runs scored by them Macquarie Dictionary – Revised Third Edition Partnership – legal definition  The relation that exists between persons carrying on a business in common with a view to profit Butterworths Concise Australia Law Dictionary Third Edition Partnership – MOU definition  “Partnership means two or more organisations working together based on a shared vision to achieve common goals”

12 Wentworth Lawyers MOU Common risks  Identify the parties  Binding, not binding or part binding (be clear)  Confidentiality and Privacy  Media statements  IP ownership  Risk assessment – potential for liability (who bears it)  Dispute resolution  Objectives/outcomes

13 Wentworth Lawyers MOU - Summary Clarify your purpose or objectives Legal obligations? Certainty Be clear Think risk assessment – potential for liability Inevitably lack of clarity leads to unhappiness

14 Wentworth Lawyers

15 Better Boards Conference 2013 “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating” Victor Hamit B.Ec (Acc) LLB FAICD CTA Director Wentworth Lawyers Level William Street, Melbourne Liability limited by a scheme approved under the Professional Standards Legislation Disclaimer: This presentation is of a general nature only. Legal advice should be obtained in relation to any specific circumstances.


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