Generally, if something looks like a duck and quacks like a duck, then for purposes of contract drafting it’s best to refer to it as a duck. That sounds straightforward enough, but offhand I can think of few instances of caselaw where a court has said just that, although not in so many words. So I’m looking for some more … Read More
I’ve had occasion to consider the dispute between Cooper Tyre and Apollo Tyres, as the Wall Street Journal asked me about the efforts language at issue. That’s something that Steven Davidoff considered in this recent item in the New York Times Dealbook: Section 6.3 of the acquisition agreement requires that Apollo “in the most expeditious manner possible” use its “reasonable … Read More
We know that in general, BigLaw contract drafting leaves a lot to be desired. We also know that when it comes to changing how they draft contracts, law firms face greater obstacles than do companies. (See this article.) But change is possible: at least one Australian law firm that I know of, Mallesons Stephen Jaques (now King & Wood Mallesons), … Read More
On 8 April 2014 I’ll be presenting a public “Drafting Clearer Contracts” seminar hosted by SAP at its headquarters in Walldorf, Germany, 14 kilometers south of Heidelberg. And on 10 and 11 April I’ll be presenting another two seminars in Geneva, Switzerland, hosted by the local office of the international law firm Akin Gump. To find out more, and to … Read More
Hot on the heels of last month’s post about a case involving notwithstanding (here) comes another one, courtesy of Peter Mahler, in the form of this post on his New York Business Divorce blog. By my reckoning, two notwithstanding cases within a month of each other constitutes a bonanza. What makes the case Peter discusses particularly noteworthy is that it … Read More
I’m now in Singapore, gearing up for tomorrow’s seminar. For those who might find it of interest, here’s how my time in Seoul went. Wednesday, 13 November Having arrived the night before, I spent most of the day hanging out in the Renaissance Seoul hotel and its immediate environs (Gangnam). As usual, I wasn’t interested in being a tourist—unless an … Read More
Cousin Joshua Stein sent me a copy of an article in the May/June 2012 issue of Probate & Property. It’s by Mark A. Senn, and it’s entitled Writing Good, Legal Sense and More or Less. (Go here for a PDF copy.) As you can tell from the title, it’s a little offbeat, but it contains a couple of tidbits that … Read More
Today I glanced at this Littler newsletter, which discusses a case involving a dispute over forum selection. But what caught my eye wasn’t the dispute itself. It was the language at issue: This Agreement is subject to the provisions of the Labor Law No. (58) for the year 1970 Gregorian and its amendments and the law on Social Solidarity No. … Read More
Recently I tentatively agreed to give a public “Drafting Clearer Contracts” seminar in Indonesia next year. But I’m not sure that would make sense currently, given that a Jakarta court has just held that all contracts entered into with an Indonesian public or private entity after 9 July 2009 that are not in Bahasa Indonesia (the Indonesian language) will be … Read More
Jane K. Winn, professor at the University of Washington School of Law, recently asked me the following question: I’m trying to create an exercise for my first-year contracts class that would teach the students how to draft a good “Battle of the Forms” UCC § 2-207 term to block application of the counterparty’s boilerplate. The “Battle of the Forms” problem … Read More
