[Revised Aug. 21 to reflect comments by Mark, Paul, and Pete]
I interrupt my August recess to consult you all on how I should define “Government Body”. Here’s what I’ve come up with :
“Government Body” means (1) the government of any country or of any political subdivision of any country, (2) any instrumentality of any such government, (3) any other person or organization authorized by law to perform any executive, legislative, judicial, regulatory, administrative, military, or police functions of any such government, and (4) any intergovernmental organization.
This concept is articulated countless different ways in contracts, and as usual I aimed to eliminate clutter.
I used government rather than governmental as the adjective for the same reason that I prefer using contract rather than contractual as an adjective. (See here.) And I opted for body rather than authority because it seemed simpler and clearer. Authority can refer to both the power to do something and an agency—two very different things.
Here are some other considerations:
- As Pete notes in his comment, there’s a distinction between “government unit” and “government body”. My thinking is that it’s sufficient for the definition to encompass the “government body” concept.
- Paul, I opted for “country” rather than “state”.
- I like the economy of having one definition that can work internationally. Paul, with luck my revised version wouldn’t come across as uppity.
- In the second clause I used “instrumentality” rather than “agency” because I didn’t want it to seem that I was referring only to those bodies that have the word “agency” in their name. And I certainly didn’t want to use a string of near-synonyms.
- The third clause is meant to capture quasi-governmental organizations. I used the phrase “authorized by law” rather than simply “authorized,” as the latter option could result in any consultant being deemed a Government Body.
- In the third clause, as in my drafting generally, I used organization rather than entity, because strictly speaking a partnership, for example, isn’t an entity.
- The fourth clause is meant to capture organizations such as the United Nations and the World Trade Organization. The phrase “intergovernmental organization” is sufficiently standard as to not cause me any real concern.
- Like many analogous definitions one sees, my original version included “arbitral tribunal,” but I deleted it, for two reasons. First, arbitral tribunals aren’t government bodies. And second, I didn’t see any cost to omitting it from the definition.
This definition isn’t precise—it’s nothing like the list Mark links to in his comment. But I don’t think that’s a problem, in that not a lot is riding on this definition. I’m sure you’ll let me know if you think I’m wrong.
8 thoughts on “Defining “Government Body””
Your question prompted me to check the definition of “public authority” in the UK Freedom of Information Act 2000. Public authorities must make information available to the public on request, and they include, for example, most universities. The term is defined by reference to a list in Schedule 1 to the Act, here:
You may want to consider whether the bodies on this list are the types of body that you wish to cover in your definition. Many (eg the National Health Service – a topical issue for some of your readers!) would seem at first sight to fall outside your definition. I suppose it depends what the definition is to be used for.
Looking at your definition, I am slightly surprised by item (4) and very surprised by item (5) which seems to have nothing to do with government. What items (1) to (5) seem to have in common is that they may order a party to do things. What about the European Court of Justice or the European Commission – I am not sure they fit within any of your categories, but they might order a party to comply eg with competition laws. What about Stock Exchanges ordering a listed company to take actions, eg disclose information?
In item (3) I sense the 3 US branches of government, possibly not relevant outside the US. Would “administrative” be another category alongside executive etc?
I believe that “state” is more accurate and precise than “nation.” Rather than setting out the differences here, I’ll just refer anyone interested to both Blacks and the Wikipedia entries of “nation” and “state.”
Also, in practice, I see “state” used to refer to sovereign states like Germany or Spain in agreements with international aspects, and used to refer to a state in the U.S. in purely domestic agreements (like the real estate documents I deal with in my practice). But I don’t recall ever seeing “nation” (but that may just be my memory).
So I would probably use two definitions to take this into account–one for agreements where non-U.S. law may apply and the other where it never would, practically (like the sale of an office building in Dallas). Why? I’m not sure. But my intuition tells me that in my practice, having a definition of “Government Authority” that is written broadly enough to cover laws of all countries might come across as pompous.
Also, “official” connotes a person holding an office–I think I like agent better, but is it too broad?
Your (3) seems technically repetitive of (2)–what would be picked up by (3) that is not also an “instrumentality?–but the definition as a whole seems lacking without (3). I’m not sure why.
I think “an” is better than “any” (“an” is simpler, and “any” doesn’t seem to add anything), and I think that the connector should be the non-exclusive “or” rather than “and”.
So my suggestion for the broad definition:
“Government Body” means (1) a state (sovereign or otherwise) or political subdivision of a state, (2) an agent or instrumentality of a state or political subdivision(including a court), (3) any other person or entity authorized by a state or political subdivision to perform executive, legislative, or judicial functions, (4) an intergovernmental organization, or(5) an arbitration panel.
Are you conflating “government unit” with the “governing body” of a government unit? It may not be significant for your instrument, but in my practice it usually is important to keep the two concepts distinct. Also, again depending on your purpose, it often is important to treat governing bodies that exercise legislative (policy making) functions (legislatures, city councils) separately from those that exercise executive functions (presidents, department secretaries). In my practice we rarely consider judicial officials or courts as “government units” (not that they could not be so considered where appropriate, such as when an office of judicial administration promulgates policies for courts, it is simply doesn’t serve a useful purpose for us to include them in the “government unit” definition).
11 USC [Bankruptcy Code]101(27) provides that “The term “governmental unit” means United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States . . ., a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.”
What about quasi-governmental organizations, like the Federal Reserve, stock market exchanges, standards bodies whose standards have been governmentally adopted, and governmentally created risk pools? I suppose they would only matter in the right context, but your definition is free of context.
Fancy interrupting the delights of your European holiday to update the blog!
My only comment, on what appears to be a very robust definition, is the need for (4) to be included. If required in a contract, I would class this in a separate category to “Government Body” as it may well have competing interests to the other consituent parts of the definition. At the very least, I wouldn’t include it in a “standard” definition as some thought on the implications of its inclusion should be given – might it be better as an option to include if required, relevant and appropriate?
By the way, have just bought MSCD and am deep in “shall” and “will” at the moment. I don’t always agree with you, but it’s certainly making me re-think a lot of what I have taken as previously having been sacrosanct or unchallengeable!
Jonathan: I agree that intergovernmental organizations won’t be relevant in most contexts, but I don’t see how including them in the definition could cause any mischief.
And I’ve heard the phrase “I don’t always agree with you” sufficiently often that my epitaph should perhaps be “People didn’t always agree with him”! I’m all for having competing ideas duke it out, mano a mano, in the marketplace of ideas, so I urge you and others to let me know what you don’t agree with.
The reason I wouldn’t be keen on including intergovernmental organisations as standard is that whilst they might have their own legal personality, can they all really be classed in the same category as the other constituent parts of the definition, i.e. do or can they pass their own laws, etc., or are they merely advisory or recommendatory bodies? Considering that intergovernmental organisations range from organisations as diverse as the General Assembly of the UN, NATO, the ICJ to the Commonwealth, the G8/9, Opec and the ICRC, each with their own individual characteristics, I wouldn’t want to class all of these in the same category as the other constituent parts of the definition.
PS – don’t worry, once I’ve finished the book, I’ll browse the blog and see if anyone else has posted any discussions about any disagreements I might have! It is certainly challenging, as in it challenges perceptions rather than being a challenging read!
Jonathan: I agree that intergovernmental organizations are different, to a degree, from the other elements of the definition. But I don’t think they’re sufficiently different that it would cause alarm to call them “government bodies.”
The bigger question facing anyone drafting a contract is, does any governmental organization have a nexus with that contract? If it does, international organizations should be included in the definition. If it doesn’t, then including that element is harmless. So I think it’s a non-issue.