This was a Trademark dispute in which the court had to decide both the jurisdiction and the governing law in circumstances where the parties had not provided expressly for these – due to their inability to agree. Therefore, the parties conducted elaborate steps to execute the contract (allegedly) so that it could not be said that it was made in one jurisdiction before it was made in the other.

As the judge said: ‘If their intention in doing so was to create obscurity and difficulty for lawyers to debate in future years, they have succeeded handsomely.’

In the end the judge conducted a balancing exercise and narrowly decided that the appropriate jurisdiction and governing law were England. However, the reasoning is a joy to read.

http://www.hmcourts-service.gov.uk/judgmentsfiles/j2468/apple-v-apple.htm

My sense is that “constructive ambiguity” arises where parties find it difficult to agree on the wording of a clause/section. One or both parties allows imperfect wording to be included, hoping that any ambiguity: (a) gives them a plausible argument, and therefore a bargaining position, in negotiations if the issue becomes important, and/or (b) will be decided in their favour by the Court.

As legal advisers to a commercial client, we should focus on (b). The contra proferentem rule (which seems to have developed in subtly different ways in the US and the UK) points towards advising clients against relying on (b), and instead making the wording clear and unambiguous, even if this requires more negotiating effort.

But as a general matter, I could imagine a situation where the parties decide that skirting an issue is the best approach, given (1) the high transaction costs involved in negotiating that issue and (2) the fact that the issue is unlikely to arise.

Ken

Moreover, if it is an issue about which strategic drafting is worthwhile, then it’s very likely the other side can see your game, if not play right along with you. As I see it there are a few applicable scenarios that make strategic drafting an option rather than specifically adding it to the contract, none of which favor strategic drafting:
1. You asked, but were rejected
2. The parties cannot agree and remaining silent is an option
3. You think that asking directly will doom the agreement

In each case, there is a “bonus” to your side if you can sneak the idea into the contract in some other manner to fight about it later. In cases 1 and 2, the party is already on to you so they are likely planning the same game. In the case of 3, you have to somehow add (or omit) some clause without tackling the issue directly such that a judge/jury will understand that the parties intended there to be this unwritten (or not expressly stated) something. It could happen, but is that really a effective?

And leaving notes in a file is not likely to help your side at litigation since a judge/jury will see your strategic preservation of an argument as not good faith (if not fully bad faith).

I think that the Conan example is illustrative. The post hoc analysis reads into the absence of a time as strategic drafting. But that’s pure speculation. It’s almost as likely that no one considered that they’d move the time of the Tonight Show–it had been in relatively the same time slot since at least Johnny Carson. It seems to me that Conan’s position would be greatly strengthened if he could say, “uh no, you can’t move my time slot because you’d breach section 9.12(B)(i)(2). Now give me $300M.” And, if they had asked during negotiation, Conan would know, going into the contract, that there’s a good chance that they’d bounce him to a later time slot (again) if they chose and he should ask for some more $ or other guarantees.

I’m dubious.