Article

Journal of Strategic
Contracting and Negotiation
Proactive contracting: 2016, Vol. 2(1-2) 150–165
ª The Author(s) 2016
Emerging changes in Reprints and permission:
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attitudes toward project DOI: 10.1177/2055563616669738

journals.sagepub.com/home/jsc

contracts and lawyers’

contribution

Jouko Nuottila and Osmo Kauppila

University of Oulu, Oulu, Finland

Soili Nystén-Haarala
University of Lapland, Rovaniemi, Finland and University of Technology, Luleå, Sweden

Abstract
Proactive contracting is a practice-oriented research stream, and scholars focused on proactive
contracting have suggested fundamental changes for corporate contracting. Researchers have
proposed that companies should improve their contracting capabilities and corporate lawyers
should serve business objectives instead of preparing for possible litigation. The research reported
in this paper focuses on two key areas of proactive contracting: the purpose of the project con-
tracts; and the role of lawyers contributing to project contracts. The research goal was to find out
whether business managers and corporate lawyers recognize a need for evolution in project
contracting as suggested by the proactive contracting literature. The research data were collected
using a survey of commercial contracting professionals, and the research results indicate that
managers and lawyers share the same view – that contracts are made for business objectives and
benefits. However, it was found that the perspectives of managers and lawyers differ with regard to
the role of lawyers in preventing and resolving disputes.

Keywords
Contract management, contracting capabilities, contracts, proactive contracting, project
contracting

Corresponding author:
Jouko Nuottila, University of Oulu, Pentti Kaiteran katu 1, Oulu, FIN–90014, Finland.
Email: jouko.nuottila@oulu.fi
Nuottila et al. 151

Introduction
For a profitable and sustainable project business, reaching the objectives set for the projects, both
monetary and non-monetary, is a priority. However, despite comprehensive research and the
development of project management techniques, a significant number of projects still fail to meet
their objectives (Barros et al., 2004; Charette, 2005; Cruz and Marques, 2013; Ruuska et al., 2011).
Scholars have therefore started to look at solutions beyond project management for the problems
that many projects encounter. For example, there are interesting issues in project governance
(Ruuska et al., 2011), contractual governance of inter-firm exchange (Lumineau and Oxley, 2012),
and a proactive approach to strategic contracting (Berger-Walliser et al., 2011; Boyer and New-
comer, 2015; Cummins, 2015; Haapio, 2006a, 2013). In this paper, we contribute to the discussion
on the proactive approach; specifically, proactive contracting.
Representatives of the emerging proactive law have suggested that one solution for the chal-
lenges projects face could be to adopt a more proactive approach to contracts (Barton, 2008;
Nystén-Haarala et al., 2010; Siedel and Haapio, 2010). Proactive contracting is a practice-oriented
research stream on contracting, contracting processes and the organizational capabilities of con-
tracting. The stream is multidisciplinary, aiming to provide academic research and practical
knowledge on how well-prepared strategic contracting can support ‘successful trading relation-
ships, their formation and management’ (Cummins, 2015). Scholars promoting proactive con-
tracting have suggested fundamental changes to the corporate approach to contracting (Siedel and
Haapio, 2010; Tayyeb, 2014). They also suggest that companies should improve their contracting
capabilities in order to produce better contracts, and that corporate lawyers should serve business
objectives instead of preparing for possible litigation (Haapio, 2013; Nystén-Haarala et al., 2010;
Siedel and Haapio, 2011). Scholars of law and strategy similarly see law as a tool not only for
controlling risk but also for creating value (DiMatteo, 2010). For example, Bagley (2008; 2010)
links ‘legal astuteness’ to competitive strategy, and Bird (2007; 2011) sees law as a resource in
transforming the operations of the entire organization to create additional value.
Scholars suggest that the proactive contracting approach could be applied in project contracting to
increase cooperation, enhance communication and reduce the number of disputes between the project
parties (Haapio, 2013; Pohjonen and Visuri, 2008). Scholars argue that this approach would also lead
to a collaborative climate between the project parties and facilitate the generation of increased co-
creational value in the project (Siedel and Haapio, 2010; Tayyeb, 2014). In addition, proactive con-
tracting redefines the role of lawyers in business and suggests that, traditionally, the role of lawyers has
been to make strict contracts and safeguard a company’s interests against other contracting parties;
thus, there is unused potential in using the contribution of lawyers in achieving business objectives
(Barton, 2015; Haapio, 2006b; Nystén-Haarala et al., 2010; Siedel and Haapio, 2010, 2011).
Two claims can be identified from the proactive contracting literature. First, it is suggested that
currently contracts are more focused on traditional legal objectives of controlling and safeguarding
than on fulfilling business objectives (Haapio, 2013; Siedel and Haapio, 2010; Tayyeb, 2014).
Second, the lawyers’ potential contribution towards achieving business objectives has been under-
utilized (Barton, 2008; Haapio, 2006a; Nystén-Haarala et al., 2010). Thus, this study focuses on:
(a) the purpose of the project contracts; and (b) the role of lawyers contributing to project contracts.
We were interested in finding out whether business managers and corporate lawyers recognize a
need for evolvement in project contracting as suggested by the proactive contracting literature.
Currently there is little empirical evidence on whether lawyers, who recognize the need, also
manage to support business to succeed.
152 Journal of Strategic Contracting and Negotiation 2(1-2)

The study was conducted as a survey of professionals working in commercial contracting. The
sample included global coverage, but most of the respondents were located in Europe and North
America. The sample also covered a wide range of industries and thus provided insight into the
development of project contracting in project business. The key research questions for this paper
were:

 What is the objective of project contracts as seen by business managers and corporate
lawyers?; and
 How is the role of lawyers who contribute to project contracts seen by business managers
and corporate lawyers?

An additional research interest was to find out if there were differences between managers’ and
lawyers’ perspectives on these issues.
This paper is organized as follows. The history of proactive contracting and similar approaches
aimed at increasing the value of lawyer’s involvement are covered briefly. The empirical part of
the study is based on a review of current research on proactive contracting, focused on the purpose
of contracts and lawyers’ roles in project contracting. Next, the methodology, research design and
survey setting are discussed in more detail. This is followed by presentation and discussion of the
research results; and, finally, the findings are presented, with suggestions for further research.

The emergence of proactive contracting

The term ‘proactive contracting’ was first introduced by Helena Haapio in a conference paper
‘Quality improvement through proactive contracting: Contracts are too important to be left to
lawyers’, as follows:

Proactive contracting, as used in the title of this session, refers to recognizing and making use of
contracts and contracting processes as planning tools to guide and support the success of your business.
It provides the support needed to identify opportunities in time to take advantage of them – and
potential problems in time to take preventive action. Proactive contracting provides tools and tech-
niques for the early detection of gaps, traps, and problems and the prevention of negative surprises.
(Haapio, 1998)

In the early 2000s, Finnish and other Nordic researchers and corporate lawyers started to
collaborate on proactive approaches. Some Nordic scholars have termed the results of this colla-
boration the ‘Nordic School of Proactive Law’ (Haapio, 2006b; Nordic, 2015). Collaboration
between business leaders, lawyers and academics was typical for the proactive approach and kept
it on a practice-oriented path (Nordic, 2007). The origins of proactive law can be found in pre-
ventive law, which Louis M Brown (1909–1996) first introduced in the USA in the 1950s (Brown,
1950; Dauer, 2008; Haapio, 2006b). There is an active school of preventive law in the United
States, the National Center for Preventive Law (NCPL), which operates within the California
Western School of Law in San Diego (NCPL, 2015). Brown’s preventive law was intended to
help people minimize the risk of legal trouble and sought to increase legal awareness among the
general public. Since then, preventive law has moved in particular towards elaborating problem
solving, especially in the works of Thomas D Barton and James Cooper (Barton and Cooper, 2000;
Barton, 2009; Cooper, 1998).
Nuottila et al. 153

While some legal scholars have focused on proactive contracting and better legal practice, other
scholars have taken proactive law further, in various directions. Berger-Walliser (2012) discussed
the development of the proactive law movement and concluded that there was a need for research
identifying best practices, and concrete methods and tools to turn proactive law into practice. One
step in this direction is a recent study by Berger-Walliser and Shrivastava on how proactive law
could be used to impel and regulate corporations to use principles of sustainable development in
the US (Berger-Walliser and Shrivastava, 2015).
Both proactive law and preventive law belong to a new research stream which regards the law as
an underused means in exploring opportunities in strategic planning and creating value. Proactive
law, mainly in the corporate environment, has types of objectives similar to those of preventive law
in the private, individual context. The focus of both approaches is an ex ante consideration of
contracts and planning of exchange relationships.

Various views in the literature on the purpose of contracts

There are several perspectives on contracts and on the purpose of contracts in the project con-
tracting literature. One of the most common views is based on transaction cost economics – TCE
(Williamson, 1979, 1985). Williamson (1975) studied commercial organizations in the market and
identified factors that can be harmful to a company’s position in a transaction. These factors
included bounded rationality of a company’s employees managing a transaction in a complex
environment with many uncertainties (Williamson, 1975), and opportunism, which may occur in
transactions especially when there is a limited selection of choices in the market (Williamson,
1975). Although Williamson’s research field was economics, and his research was more about a
micro-analysis of economic organizations than management, TCE was soon applied in manage-
ment. In project research, TCE is often a dominant perspective when project contracting and
project contracts are studied (e.g., Argyres and Mayer, 2007; Turner, 2004; Turner and Simister,
2001). The dominant TCE perspective on project contracting usually emphasizes the need to
control and monitor other project parties and safeguard one’s position against risks (uncertainty)
and opportunism by other parties (e.g., Turner, 2004).
Another widely discussed perspective on contracts in the project literature is relational con-
tracting, which is based on legal research which found that companies rarely litigate or enforce
contracts in court (e.g., Lumineau and Oxley, 2012; Macaulay, 1963; Macneil, 1978). Instead of
taking disputes to mediation or publicly to court, companies rely on their relational capabilities to
settle disputes and agree on the way forward. Companies seem to respect the history of the business
relationship (‘shadow of the past’) and do not want to ruin any emerging business opportunities by
gaining a bad reputation (‘shadow of the future’: see, for example, Lumineau and Oxley, 2012 and
Poppo et al., 2008). The relational contracting perspective on project contracting usually
emphasizes the cooperative norms developed over the course of an extended relationship, inter-
organizational collaboration dynamics and future business opportunities (Gil, 2009; Henisz et al.,
2012; Lumineau and Oxley, 2012; Matthews and Howell, 2005).
Some authors of proactive law apply the TCE perspective as a background theory for governing
contractual relations (Nystén-Haarala, 1998). The drawback of this perspective is that the focus is
placed on controlling contracting parties and networks (Haapio, 2013; Nystén-Haarala, 1998).
However, relational capabilities are rarely developed as a process and documented as an opera-
tional policy (Nystén-Haarala et al., 2010). Relational capabilities are based and personalized in
managers; relational contracting thus appears to be undocumented in contracts and occurs in the
154 Journal of Strategic Contracting and Negotiation 2(1-2)

personal relationships between the contracting parties (Haapio, 2013; Nystén-Haarala, 1998;
Poppo and Zenger, 2002). Although proactive contracting emphasizes the contract as being more
than a document, it also highlights the importance of capturing relational aspects in the contract
document itself (Nystén-Haarala et al., 2010). According to proactive contracting scholars, the
intention to cooperate and create value together in a project should be presented clearly in the
contract document, with concrete steps for taking action (Pohjonen and Visuri, 2008; Tayyeb,
2014). Proactive contracting therefore views the contract as a practical tool for cooperation
between the project parties, as Berger-Walliser et al. stated:

A proactive contract is crafted for the parties, especially for the people in charge of its implementation
in the field, not for a judge who is supposed to decide about the parties’ failures. Instead of providing
the most advantageous solution for one of the parties, in case of the failure of the other party to comply
with its contractual obligations, the proactive contracting process and documents seek to align and
express the interests of both sides of the contract in order to create value for both.(Berger-Walliser
et al., 2011)

Proactive contracting research promotes a new mindset in contracting, emphasizing user-

centered contract design and collaboration by managers and lawyers on making functional con-
tracts (Haapio, 2013). Researchers have sought to facilitate the contracting process and negotiation
habits in order to anticipate areas of possible conflict, and to discuss and include those issues in the
contract in a cooperative spirit and thus avoid conflicts and disputes during the project implemen-
tation phase (Siedel and Haapio, 2011; Tayyeb, 2014). Proactive contracting mainly reflects
concepts from relational contracting (instead of control-oriented views by TCE). This means that
the relational capabilities of the contracting parties are an important asset for managing commer-
cial transactions, rather than enforceable clauses in the contract designed to control the other
contracting parties (Siedel and Haapio, 2011; Tayyeb, 2014). The primary goals of carefully
planned contracts are:

 Facilitation of cooperation;
 Co-creation of value;
 Clear communications;
 Concrete agreement of responsibilities; and
 Efficient management of changes.

The lawyer’s role in project contracting

A classical view of contracts is that a contract is a detailed agreement of the responsibilities,
including safeguarding clauses for protecting a company’s position in the event of conflicts and
failures (Nystén-Haarala, 1998). This view emphasizes the need for legal knowledge and cap-
abilities in order to predict court decisions in legal disputes (Haapio, 2013). It places lawyers in the
central position in drafting and making contracts and does not consider contracting as a contextual
business phenomenon (Nystén-Haarala, 1998). This traditional view on contracting increases the
tendency of lawyers to prepare for ex post interpretation of contracts in court; in essence, to prepare
for the worst-case scenario of the commercial transaction in question. However, businesses have
often been, and often still are, run without the involvement of lawyers, in the past and the present
(Macaulay, 1963; Nystén-Haarala et al., 2010). Furthermore, lawyers can be seen as a hindrance
Nuottila et al. 155

for running businesses efficiently and making deals between business people and between com-
panies (Macaulay, 1963; Nystén-Haarala et al., 2010).
In their interview-based study of American corporate lawyers and managers, Nelson and
Nielsen (2000) found a variety of professional, legal roles. They identified three types of pro-
fessional roles, ranging from limiting advice to legal mandates to combining legal and business
advice and, finally, giving priority to business objectives exactly as proactive law recommends.
Nelson and Nielsen (2000) suggested that lawyers limited their traditional gatekeeping functions in
order to present themselves as enthusiastically committed to corporate objectives, because changes
in the business and managerial environment required such a position.
Proactive contracting promotes an agenda of revising business lawyers’ behaviour: in summary,
this consists of leaving some of the safeguarding and preparation for litigation and starting to
contribute to business objectives and facilitating the co-creation of value in projects (Pohjonen and
Visuri, 2008). This perspective emphasizes the importance of managers and lawyers working
together in order to identify the most important business issues and risk factors, taking care to
include these issues in contracts and collaborating on these areas with the other contracting parties
(Haapio, 2013; Siedel and Haapio, 2011; Tayyeb, 2014). Proactive contracting emphasizes that a
contract should be seen as a value-creating agreement between the project parties and not merely a
legal weapon to be used against other parties in court if disputes arise. This approach requires a
change in the role of business lawyers: their focus must shift from possible court cases to business
objectives and opportunities.
The shift in business lawyers’ perceptions and behaviour, which proactive law is promoting,
also relates to the work of Richard Susskind (2008). He criticized the costly business model of a
traditional law firm, and suggested that legal services were going to change radically in the near
future. The development of IT technology has made it easier for lawyers’ traditional safe-
guarding functions to be divided into smaller parts, to be fulfilled as remote, online work.
According to Susskind (2008), legal advice had become too expensive for companies and thus
new, leaner business models would take over. This suggests that if the law remains considered as
technical safeguarding by managers, proactive legal approaches may seem too expensive,
because of their immediate costs, in spite of their long-term benefits in lowering unanticipated
costs and adding value.

Research design and survey methodology

Based on the theoretical setting presented above, a survey was designed in order to gain an
understanding of how contracting professionals perceive the roles of contracts and lawyers in
project business. The survey was conducted in the first quarter of 2014 among the members of an
international association focused on managing commercial contracting. The members of the
association are mainly lawyers, executives and managers, and a variety of specialists such as
engineers, industry analysts, technical consultants and advisors. We wanted to use the members of
the association as a study population for three reasons.

(1) Because the association is dedicated to developing contracting capabilities in the industrial context
further, it can be assumed that new directions in contract management are recognized and adapted first
among the association members. This assumption is based on the fact that the members of the asso-
ciation are part of the community seeking to develop contracting practices and they have access to
knowledge to do so.
156 Journal of Strategic Contracting and Negotiation 2(1-2)

Figure 1. Geographic area of operations (in absolute values).

(2) Working with the association, we reached professionals working on contracting globally. This
would have been very challenging to achieve otherwise.
(3) Working with the association, we surveyed professionals who work on contracting and contract
management.

The limitations of the research and possible bias are discussed later in the paper.
The questionnaire was designed by a group of five researchers, and the survey functionality was
tested using a closed group of respondents. The questionnaire was presented on a dedicated
Internet page where respondents could answer the questions and submit their completed ques-
tionnaires. The invitation to participate in the survey was delivered to the members by the asso-
ciation. There were 355 respondents, a response rate of 1.6%. Because the research questions
focused on the perceptions of lawyers and managers, demographic information was used to
exclude other disciplines from the research data. After the collected data were processed, research
data from 170 respondents were used in the analysis: 31 lawyers and 139 managers. The demo-
graphic information of the sample is presented in Figures 1 and 2.

Analysis and discussion

Purpose of the project contracts
Three questions in the survey identified the respondents’ views of the purpose of project contracts.
The managers’ and lawyers’ perspectives are illustrated in Figure 3, which presents the propor-
tional summary of each group’s responses, including the p-values of the Mann-Whitney U test for
each statement.
There were no statistically significant differences between the respondent groups. Managers
and lawyers mostly shared the same view on the purpose of project contracts: 81% of managers and
Nuottila et al. 157

Figure 2. Industries represented in the sample (in absolute values).

Figure 3. Purpose of project contracts: perceptions of managers and lawyers.

84% of the lawyers agreed that contracts are made for business objectives and benefits. Regarding
the statement ‘Contracts are made to win in court if disputes arise’, 42% of lawyers agreed and
45% disagreed with the statement. In comparison, 48% of the managers agreed and 19% disagreed
with the statement.
158 Journal of Strategic Contracting and Negotiation 2(1-2)

Based on the results, there seems to be a clear agreement between managers and lawyers that
contracts are made to support and achieve business objectives – as the proactive contracting lit-
erature suggests (Berger-Walliser et al., 2011; Pohjonen and Visuri, 2008; Tayyeb, 2014). This
supports our initial assumptions about managers’ perspectives on the purpose of contracts, but does
not support the claims that lawyers do not recognize the business objectives of contracts. However,
the majority (61%) of the lawyers agreed that contracts are also made to achieve legal objectives,
and 42% agreed that contracts are made to win in court in case of a serious dispute. An inter-
pretation of these results is that while lawyers considered safeguarding to be an important function
of contracts, they also felt that contracts are mainly concerned with the business objectives. This
suggests that lawyers are more business-oriented than expected. However, we must be careful
when drawing such a conclusion, because the respondents were members of an association that
seeks to drive change toward efficient contracting. Because of the resulting possible bias, the
results may not be transferable to other groups of corporate lawyers and may indicate no more than
merely the beginning of a change in lawyers’ attitudes on contracting. It would be helpful to
conduct a similar study among the members of a more traditional lawyers’ association, to deter-
mine whether the perspectives deviate.
We also analyzed the results geographically and between industries. First, we compared the
results between Europe and North America. The respondents from North America tended to be
slightly more in favour of safeguarding than the respondents from Europe, but the difference was
minor; there were no statistically significant differences between these two groups of respondents.
We then separated the data from the information technology industry and compared the results to
the data from other industries. There were no statistically significant differences between the
industries.

The roles of lawyers and managers contributing to project contracts

In the survey, nine questions were related to the role of managers and lawyers contributing to
project contracts in drafting contracts, proactively preventing disputes in projects, and resolving
disputes. The distribution of responses between managers and lawyers, and the p-values of the
Mann–Whitney U-test for each statement are presented in Figures 4 and 5.
The answers reflect the opinions of managers and lawyers regarding the contracting process and
the role of various disciplines in the process. Related to the statements about contribution to
contracts and collaboration between business people and lawyers in drafting contracts, there were
clear differences in the perspectives of the managers and the lawyers. The responses about the
effectiveness of collaboration between business people and lawyers differed significantly (p ¼
0.001): 84% of the lawyers agreed that business people and lawyers collaborate effectively,
whereas 56% of the managers agreed. This indicates either that managers and lawyers experience
the current situation differently, or that they have different expectations of how the collaboration
should work. Similar findings have also been reported elsewhere. Nystén-Haarala et al. (2010)
found that lawyers are often invited to participate in the contracting process too late, and when they
finally do become involved the rest of the organization feels that the lawyers delay the process.
Another explanation could be that lawyers collaborate but managers expect them to contribute
even more than they currently do.
A larger proportion of lawyers than managers agreed with the statement, ‘In our business,
lawyers rather than business personnel design and draft contracts’ (52% and 27% respectively, p ¼
0.002) and with the statement, ‘Lawyers rather than business personnel should have the primary
Nuottila et al. 159

Figure 4. Roles of lawyers and business people who contribute to project contracts: perceptions of
managers and lawyers.

role in drafting contracts’ (52% and 22% respectively, p ¼ 0.007) in the business in which they
operate. There is a clear conflict between the two groups regarding the expectations of the lawyer’s
role. The lawyers saw their role as more essential in contract drafting than the managers. This
might indicate that managers do not think lawyers have the business-context competence needed to
160 Journal of Strategic Contracting and Negotiation 2(1-2)

Figure 5. Roles of lawyers and business people in resolving disputes: perceptions of managers and lawyers.

contribute to contracts that support business objectives. Lawyers, however, might see themselves
contributing to achieving business objectives by drafting provisions that facilitate business suc-
cess. Lawyers’ perceptions might also be related to the changed expectations for corporate law-
yers; there has been discussion about the need for changes in the business lawyer’s role and
contribution in the corporate context (e.g., Cummins, 2008; Haapio, 2006b; Henderson, 2011). In
the future, lawyers will be expected to have more business-context competences and capabilities in
order to drive collaboration rather than focusing solely on safeguarding one’s position in the
commercial exchange.
There seems to be general agreement on the role of business people in preventing disputes and
contributing to resolving disputes. The majority of respondents (managers and lawyers) agreed
with the statements that business people have an important role in avoiding and solving dis-
agreements with project parties. In contrast, there were statistically significant differences in the
responses regarding the role of lawyers in preventing disputes (p ¼ 0.001) and resolving disputes
(p ¼ 0.002). In both cases, a larger proportion of lawyers than managers saw their role as essential
in preventing and resolving disputes. This might imply that lawyers see dispute-related actions as
legal tasks and that managers see these actions as relational tasks. This classical difference between
the disciplines has been reported at least since Macaulay (1963) quoted a businessman as saying,
‘You can settle any dispute if you keep the lawyers and accountants out of it’. More recently,
Lumineau and Oxley (2012) discussed how companies settle disputes. They found that, in complex
disagreements, companies involve lawyers in negotiations but prefer business solutions to
litigation.

Limitations
This study has several limitations. First, instead of being random, the sample was based on the
membership of an international association focused on managing commercial contracting. This
choice has several drawbacks. Because membership of the association is voluntary and the
association drives innovation and development of contracting, the members might share profes-
sional characteristics that are different to those of non-members, and this might affect the trans-
ferability of some results in this research.
Nuottila et al. 161

Another possible limitation is the low response rate. To be able to understand whether the low
rate affects the generalizability of the results throughout the population, we compared our sample
demographics with the association’s member demographics. There were no remarkable differences
between the distributions. We therefore believe that the low response rate did not create a serious
misrepresentation in the research data or results.
The last acknowledged limitation of the study is that we did not examine any contracts
objectively; but the respondents evaluated their contracts to determine whether or not the contracts
focused more on business objectives or legal objectives. This evaluation is subject to a respon-
dent’s personal perception and thus prone to bias.

Conclusions
Previous research on proactive contracting has resulted in suggestions that companies should
improve their contracting capabilities and that corporate lawyers should serve business objec-
tives instead of preparing for possible litigation. This article contributes to this discussion by
examining how managers and lawyers view the role of lawyers and contracts in project business.
The literature review dealt with proactive contracting and other similar approaches emphasizing
contracts as a tool in creating value. The possible impact of proactive contracting on project
contracting and contracts has been discussed, as have the different views on the lawyer’s con-
tribution in fulfilling business objectives. A survey based on this theoretical setting was con-
ducted among industry professionals in contracting and the responses were analyzed in order to
compare the perceptions of managers and lawyers with the outcomes reported in the earlier
proactive contracting literature.
The results of the study suggest that managers and lawyers shared the same view – that contracts
are made to achieve business objectives and benefits. They also mainly agreed on the purpose of
contracts. However, managers and lawyers had different perspectives on the lawyer’s role in
contributing to the contracting process and contracts. The lawyers saw their role as more essential
in contracting than did the managers. The majority of the lawyers also felt that collaboration
between business people and lawyers works well in contracting, but managers were somewhat
reluctant to agree to this perspective. Most lawyers also felt they have an important role in res-
olution of disputes: the managers did not agree with this.
This study has identified core concepts of proactive contracting and confirmed that some of
these have received support in the empirical setting. There was also an indication that there are
differences between managers and lawyers in the expectations of the role of a business lawyer.
Managers expect lawyers to have a supportive role in contracting: lawyers, in contrast, would
prefer a leading role. These controversial expectations were suggested by the existing proactive
contracting literature and were confirmed by the empirical results of this study.
Additional research on the adoption of a proactive approach in managing contracts in project
business is needed. It would be beneficial to understand why managers and lawyers have the
perspectives they have; this would require qualitative research – for example, a focus group or case
studies. Furthermore, it will be helpful and important to conduct a similar study using a random
sample among professionals who work on contracting, to confirm the results of this study. In
addition, it would be interesting to gain insight on whether and how companies manage the change
towards proactive approaches to contracting and how the related capabilities are built in
organizations.
162 Journal of Strategic Contracting and Negotiation 2(1-2)

Acknowledgements
We would like to thank all of the people who completed the survey for this survey, and the
International Association for Contract and Commercial Management for supporting the survey
arrangements. We are grateful to CEO Tim Cummins (IACCM) and Professor Thomas D. Barton
(California Western School of Law) for their participation in survey design. We also would like to
express our gratitude to Doctor, Researcher and Contract Coach Helena Haapio (University of
Vaasa) and Professor Jaakko Kujala (University of Oulu) for important insights in proactive
contracting and project contracting during the several discussions we had while working on this
research paper. In addition, we are grateful for the feedback we received for the early draft of this
paper in the PhD workshop of the Scandinavian Academy of Industrial Engineering and Manage-
ment Conference 2014. Furthermore, we would like to express our thanks to the editors and
anonymous reviewers for their constructive feedback.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship,
and/or publication of this article.

Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/
or publication of this article: This research was initiated in the multidisciplinary research network
‘‘Flexibility in business contracting’’, which was funded by Finnish Cultural Foundation (2011–
2013). This research was conducted as part of the research project ‘‘Value co-creation in agile
project development’’, which was mainly funded by Tekes – the Finnish Funding Agency for
Innovation (2015–2017).

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Author biographies
Jouko Nuottila is a researcher in Industrial Engineering and Management at the University of
Oulu. His primary research interests lie in studying the forms of flexibility in project contracting
with a particular interest in agile development methods and agile project management. He holds an
MSc in Industrial Engineering and Management. He has industrial experience in technology
marketing and software product management at Nokia Corporation.

Osmo Kauppila is a postdoctoral researcher in Industrial Engineering and Management at the

University of Oulu. He is responsible for research and education of a wide range of topics in quality
management and operations research. He holds a DSc (Tech.) in Industrial Engineering and
Management. He has worked in both international and national projects regarding quality man-
agement in both public and private sectors. His research interests include quantitative methods in
management and project business, and excellence in higher education.

Soili Nystén-Haarala is professor of Commercial Law at the University of Lapland, Finland and
professor of Jurisprudence at Luleå University of Technology in Luleå, Sweden.