Valenstein & Fatt Contracts, disputes and regulation, explained.

Valenstein & Fatt

Contracts, disputes and regulation, explained.

Latest Articles

Frozen in Place: Making the Contract Work on the Morning of a Designation
Commercial Contracts

Frozen in Place: Making the Contract Work on the Morning of a Designation

A UK sanctions designation can turn an ordinary commercial relationship into a strict-liability trap overnight. Most contracts respond with a single boilerplate clause that says almost nothing about what happens next. This article sets out how sanctions risk actually flows through termination, payment, warranty and notice provisions, and offers a practical drafting checklist for the first forty-eight hours.
The Quiet Expiry: How Contractual Calendars Decide Which Claims Survive
Commercial Contracts

The Quiet Expiry: How Contractual Calendars Decide Which Claims Survive

Time bars and limitation periods do more than regulate litigation: they determine whether a claim exists at all. This article examines how English commercial contracts allocate calendar risk, how courts approach strict notice requirements, and how standstill arrangements can preserve a dispute while commercial talks continue.
The Index Is Not the Contract: Price Adjustment Mechanisms That Hold When the Numbers Move
Commercial Contracts

The Index Is Not the Contract: Price Adjustment Mechanisms That Hold When the Numbers Move

Inflation-linked pricing clauses are often drafted as an afterthought, yet they decide who bears the risk when the chosen index is revised, suspended or disputed. This article sets out a drafting playbook for fallback indices, caps and collars, notice mechanics, audit rights and retrospective true-ups — with the dispute-resolution consequences in view.
The Long Goodbye: Drafting Post-Termination Services That Withstand the Break-Up
Commercial Contracts

The Long Goodbye: Drafting Post-Termination Services That Withstand the Break-Up

UK commercial contracts often set out termination triggers in detail but leave the wind-down to a brief survival clause. This article maps the post-termination obligations that generate the real disputes—transition assistance, data return and deletion, records retention, final invoicing and continued confidentiality—and offers practical drafting fixes for each.
When Parliament Rewrites the Deal: Allocating Regulatory Risk in Long-Term Contracts
Commercial Contracts

When Parliament Rewrites the Deal: Allocating Regulatory Risk in Long-Term Contracts

Long-term contracts are priced against an assumed regulatory backdrop, but FCA rulebook revisions, data reform and expanding ESG and consumer-duty expectations can move the ground beneath the deal. This article sets out how to draft change-of-law clauses that allocate cost and responsibility with precision, rather than leaving the parties to argue over a generic compliance obligation.
False Negatives, Real Exposure: Contracting for AI Compliance Risk
Technology & Regulation

False Negatives, Real Exposure: Contracting for AI Compliance Risk

AI tools now sit inside sanctions screening, anti-money laundering checks and regulatory reporting. The contractual danger is not the obvious false positive but the quiet false negative that leaves a customer onboarded, a payment released or a breach unreported. This article examines how buyers and suppliers should allocate that risk in 2026.
Open Books, Closed Advice: Keeping Privilege Intact in Regulatory Cooperation Undertakings
Commercial Contracts

Open Books, Closed Advice: Keeping Privilege Intact in Regulatory Cooperation Undertakings

Regulators expect candour, but a broadly drafted cooperation clause can turn assistance into an accidental waiver of legal privilege. This article sets out how to frame cooperation, notification and information-sharing duties so that a company can engage constructively without handing over protected advice, investigation notes or board risk assessments.
A Deposit Is Not a Delivery: Making Software Escrow Work When a Supplier Fails
Commercial Contracts

A Deposit Is Not a Delivery: Making Software Escrow Work When a Supplier Fails

Software escrow is frequently treated as a continuity solution in itself, yet a source-code deposit often proves unusable when a supplier fails. UK buyers should focus on release triggers, build verification, third-party rights and exit assistance rather than the comfort of a certificate.
A Change at the Top: Drafting Control Triggers That Withstand Scrutiny
Commercial Contracts

A Change at the Top: Drafting Control Triggers That Withstand Scrutiny

Change-of-control clauses are often left to the boilerplate, yet they can decide whether a contract survives an acquisition, investment or restructuring. This article examines how to define control, which events should trigger the clause and how to calibrate consequences without falling foul of the penalty rule. It also considers the current UK approach to construction and enforceability.
The Unpriced Exit: How Convenience Termination Rights Become Balance-Sheet Liabilities
Commercial Contracts

The Unpriced Exit: How Convenience Termination Rights Become Balance-Sheet Liabilities

Termination for convenience is frequently signed without a price, a formula or a transition plan. In 2026, that unpriced option is producing exit disputes that turn on drafting rather than commercial merit. This review sets out a clause-by-clause approach for suppliers and customers.
What the Boilerplate Cannot Bury: Pre-Contractual Promises and the Limits of Entire Agreement Clauses
Commercial Contracts

What the Boilerplate Cannot Bury: Pre-Contractual Promises and the Limits of Entire Agreement Clauses

Entire agreement and non-reliance clauses are often treated as a closing formality. In practice they are a risk-allocation device with defined limits: they can narrow the pre-contractual record, but they do not erase fraudulent misrepresentation, collateral warranties or estoppel. This article considers where the drafting fails and how commercial teams can preserve the right evidence.
The Price of Non-Performance: Structuring Service Credits and Liquidated Damages After the Penalty Rule
Commercial Contracts

The Price of Non-Performance: Structuring Service Credits and Liquidated Damages After the Penalty Rule

Service credits and liquidated damages are often treated as interchangeable labels for the same commercial bargain. They are not. This article examines how UK courts assess contractual remedies against the penalty rule and sets out drafting approaches for 2026 outsourcing, SaaS and supply agreements that link remedies to measurable loss without overreaching.
When Rescue Is Not a Liquidation: Drafting Termination Rights for Insolvency’s Grey Zone
Restructuring & Insolvency

When Rescue Is Not a Liquidation: Drafting Termination Rights for Insolvency’s Grey Zone

Standard insolvency-event clauses are built for court orders and liquidators. They often miss the restructuring, standstill and creditor-negotiation phase where counterparties most need an exit—and where poorly drafted triggers can be challenged.
Five Deduction Clauses That Turn a Clean Invoice Into a Cash-Flow Dispute
Commercial Contracts

Five Deduction Clauses That Turn a Clean Invoice Into a Cash-Flow Dispute

Set-off language is often treated as boilerplate until the first payment run. This review of five common deduction clauses explains how UK courts and adjudicators tend to approach them, and what suppliers should redraft before renewal.
The Contract Behind the Award: Public Sector Terms Suppliers Should Challenge in 2026
Technology & Regulation

The Contract Behind the Award: Public Sector Terms Suppliers Should Challenge in 2026

With the UK public procurement regime now fully embedded, suppliers face contract terms that can transfer disproportionate risk long after the award. This article identifies the flow-downs, audit rights, termination for convenience and payment provisions that warrant negotiation, pricing or, in some cases, a decision to walk away.
Notice to Remedy: Why Termination Disputes Are Won in the Drafting, Not the Boardroom
Commercial Contracts

Notice to Remedy: Why Termination Disputes Are Won in the Drafting, Not the Boardroom

Termination disputes often turn on the validity of a cure notice, a withheld payment or a remedy period rather than the underlying breach. This article examines the drafting traps in notice mechanics and cure clauses through a realistic UK supply scenario, and sets out a practical checklist for enforceable terms.
Regulatory Breach, Contractual Response: A Drafting Playbook for Compliance Warranties
Technology & Regulation

Regulatory Breach, Contractual Response: A Drafting Playbook for Compliance Warranties

Generic promises to comply with all applicable laws rarely give a business the remedy it needs when a supplier or customer breaches FCA, CMA or ICO requirements. This article sets out a drafting playbook for express compliance warranties, notification duties, cure periods and termination triggers, together with the liability carve-outs that keep those remedies usable.
The Lean Contract: Why Restraint in Drafting Often Protects More
Commercial Contracts

The Lean Contract: Why Restraint in Drafting Often Protects More

The instinct to pad commercial agreements with every conceivable protection can create ambiguity, conflict and disputes. This article argues for a disciplined lean-drafting approach for UK companies, with a practical checklist drawn from English contract interpretation principles and a cautionary note from the firm's own name.
Guarding the Perimeter: Contractual Controls for the Failure to Prevent Fraud Offence
Technology & Regulation

Guarding the Perimeter: Contractual Controls for the Failure to Prevent Fraud Offence

The failure to prevent fraud offence under the Economic Crime and Corporate Transparency Act 2023 exposes large UK organisations to criminal liability for fraud committed by associated persons. Contracts with agents, distributors and subsidiaries should be revisited to embed due diligence, warranties and compliance controls.
The Mediation-First Court: Redrafting Dispute Resolution Clauses for Commercial Certainty
Commercial Contracts

The Mediation-First Court: Redrafting Dispute Resolution Clauses for Commercial Certainty

UK courts are increasingly willing to require parties to attempt mediation before trial, and 2026 is likely to bring further formalisation of alternative dispute resolution. Commercial parties should revisit their dispute resolution clauses to avoid costs penalties and preserve the right to litigate where settlement fails.