Earlier this week I saw the following notice on the website of The Australian (emphasis added):
GLOBAL firm Jones Day has poached Tony Wassaf from Allens Arthur Robinson and appointed him partner in the firm’s Sydney office.
The energy and resources specialist has more than 25 years experience in the sector and said he was keen to work for a firm that gave clients the best international expertise.
Sydney office partner in charge Chris Ahern said he was delighted Wassaf had joined the firm. “Tony has built an international reputation for his commercial focus, his ability to quickly identify issues and find solutions and his strength in contract drafting. He will help complement and enhance Jones Day’s world-wide standing in this vital economic area,” he said.
A big-firm partner being complimented on his contract drafting? I can’t recall ever having seen that in print. In the U.S., the general assumption seems to be that contract drafting is something you push as far down the food chain as possible. (See this March 2007 blog post for more about that.)
And on the same day as I saw that notice, someone who attended my Washington, D.C. seminar for West LegalEdcenter remarked how of all the lawyers around the world that he’s retained to work on his company’s contracts, the Australians were the sharpest.
So do Australians take their contract drafting especially seriously? Is the language of mainstream business contracts any less dysfunctional in Australia?
6 thoughts on “Australia: A Haven for Contract Drafters?”
Ken, in my experience but Australian contracts are generally the clearest, most comprehensible and plain English contracts I have seen, and I have worked on dealsin over 20 countries. Plain English drafting there is considered a necessary skill, to the point where the expression "American drafting" is used derisively. It's not by accident that our firm in London employs many Aussies.
PS I may have to admit bias as I am Australian trained, (although Canadian born and UK employed for a US firm). The only downside for you about Australia is that you'd be preaching your sermons mostly to the choir!
Scott's observations are entirely correct. I attended the Just Language Conference in Vancouver in 1992. The first session was a seminar by Bryan Garner on "Advanced Legal Writing". The audience was full of Aussies and Kiwis. As the conference progressed, it was clear that both countries were far ahead in plain language drafting. These days, I often refer to Australian government precedents for form and content.
I agree that Scott is entirely correct although as an Australian commercial lawyer I am biased.
The “best” American (US) drafting is a wonderful resource for commercial concepts and solutions but very much not so as to form or wording. Compared to what we see and expect here, it almost hurts to have to look at US-sourced documents.
We have come a long long way from the senior lawyers with whom I started, who prided themselves on writing a Will or mortgage in one long unbroken sentence replete with highly technical language and in 19th century style.
Even they had to read that type of wording though several times with assumed punctuation and inflection, to understand what they had written. And truth was that much of the old rote phraseology and repetition that had previously gone unquestioned, didn’t stand up well to close analysis and questioning once we all decided to test it.
I’d like to think that our local best can still think that way but have well-learnt how not to write that way.
Why should a contract not sound and look and fit together like a well written, well organised and accessible textbook? It is after all, the record and “text” for the deal.
How can parties even help to put their own deal together, working with the lawyers, if they can’t follow the words that are being proposed and aren’t comfortable with the form?
What help is it if the parties can’t broadly understand what the lawyers have put together for them?
When was the last time any of our clients, US or otherwise, even the best-spoken and most highly educated and careful thinkers, spoke in their own voice of “shall” as a word of obligation or used unbroken sentences longer than the magic 17 word limit? We don’t and our (Australian) statutes don’t.
Ken, I respect your view of ABC drafting in that respect, but have to differ. I haven’t used “shall” in more than fifteen years and I have never had a demur from a client or lawyer from any part of the world. Quite the reverse.
(Loud sounds of me now climbing off high horse. Apologies to all my US colleagues and clients. Also an acknowledgment that we still have pockets of resistance even in Australia).
Thank you for and congratulations on your blogs and your text (both editions), both of which I value and enjoy although not always in agreement.
David: It must be nice to live in a land of relatively efficient contract language! I'd be grateful if you'd email me a business contract that's representative of what Australian law firms produce; I'd like to take it for a test drive.
I've stated in gruesome detail why I favor disciplined use of "shall" for purposes of business contracts, and I haven't encountered any reason to shift from that position. But there's no perfect solution for stating obligations, so others can mull the same factors and opt for a different solution. Note that I'd steer clear of "shall" for statutes and consumer contracts.
You would have to close with that bane of my existence, "I don't always agree with you"! (See this: https://www.adamsdrafting.com/2008/11/03/dont-alwa… If people who disagree with me don't tell me why, how am I to improve my analysis? I invite you to prepare a list of what you find lacking in MSCD (I assume it goes beyond "shall"), and why. I have in mind that I'd post it on my blog and do my best to respond.
If you best me, I'll of course have to pack it in and take up turnip farming …
I've just relocated to Sydney, Australia from Vancouver. Watch for my slaw.ca column on November 2nd that describes how Australia is also years ahead of North America in terms of regulating the legal profession.
As far as I am concerned prices of contracts for Australia is much higher than prices for UK. Why such difference?