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The Contents of Commercial Contracts: Terms Affecting Freedoms

9:00 am, 09 May 2019 to 6:00 pm, 10 May 2019

CPD contract

A two-day conference organised by Professor Paul Davies and Dr Magda Raczynska on behalf of the UCL Centre for Commercial Law

Event Information

Open to

All

Organiser

UCL Laws Events

Location

UCL Faculty of Laws
Bentham House, Endsleigh Gardens
London
WC1H 0EG

About the conference

The contents of commercial contracts continue to attract much attention from all angles: from drafters keen to ensure that contracts are clear and enforceable; from litigators disputing the meaning, scope and validity of terms; and from academics interested in the purpose and nature of the exercises involved. The focus of this conference will be upon terms affecting parties’ freedom of action, which have proved problematic recently.

Freedom of contract is often seen as a great strength of English commercial law. But it is useful to take stock of recent developments and to consider the limits to parties’ freedom of contract. The uncertainties surrounding Brexit, and potential impact upon English law as the applicable law of choice, highlights the importance of this exercise.

Recent decisions to be discussed include

  • Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24,
  • Braganza v BP Shipping Ltd [2015] UKSC 17,
  • Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67,
  • Wood v Capita Insurance Services [2017] UKSC 24
  • Wells v Devani [2019] UKSC 4and
  • First Tower Trustees Ltd v CDS (Superstores International) Ltd [2018] EWCA Civ 1396.

Other topical developments include The Business Contract Terms (Assignment of Receivables) Regulations 2018.

A major objective of the conference is to bring together academics and legal practitioners (solicitors, barristers and judges) to discuss the extent to which the contents of commercial contracts limit or affect parties’ freedom to shape their legal relations. Academic papers will be distributed before the conference, and each paper will be commented upon by a practitioner.

The conference is organised by Professor Paul Davies and Dr Magda Raczynska on behalf of the UCL Centre for Commercial Law. It has received financial support from the UCL Faculty of Laws as part of the “Back to Bentham” project, celebrating the Law Faculty’s recent return to Bentham House, and Norton Rose Fulbright LLP.

List of speakers and topics:

  • Hugh Beale (Warwick/Oxford) – No-assignment Clauses
  • Andrew Burrows (Oxford) - Anti-oral Variation Clauses: Rock-Solid or Rocky?
  • Richard Calnan (UCL/Norton Rose) – Controlling Contractual Interpretation
  • Niamh Connolly (UCL) – Planning for failure: can contract design provide for the restitutionary consequences if the bargain is ineffective?
  • Paul S. Davies (UCL) – Excluding Good Faith and Restricting Discretion
  • Sarah Green (Bristol) – Distance and discretion:  the implications of smart contracting for freedom of contract
  • Uglješa Grušić (UCL) and Manuel Penades Fons (KCL) – Illegality in the English Law of Arbitration after Patel v Mirza
  • Louise Gullifer (Oxford) – The boundaries of a borrower’s freedom to act: negative covenants in loan agreements.
  • John Lowry (UCL) and Rod Edmunds (QMUL) – The Reform of Insurance Warranties: Looking Beyond the Past
  • Nick McBride (Cambridge) - 'All Watched Over by Machines of Loving Grace'? The Inevitable Conflict Between Contract Law and Free Speech in Cyberspace
  • Catharine MacMillan (KCL) – Non-disclosure Clauses
  • Lucinda Miller (UCL) – Freedom of Contract and the Regulation of Global Production by Transnational Private Actors
  • Alex Mills (UCL) – Choice of court and choice of law agreements: Freedom of freedom of contract
  •  Richard Moorhead (UCL) – Professional Ethical Limits on NDAs: Contracts as lies and abuse?
  • Jonathan Morgan (Cambridge) – Entire Agreement Clauses
  • Melis Özdel (UCL) – The Right to Ask for Delivery of Goods under Contracts of Carriage
  • Magda Raczynska (UCL) – Implied terms of good faith under English law: going with the flow?
  • Robert Stevens (Oxford) – The Limits on the Power to Bind Our Future Selves
  • Peter Turner (Cambridge) – Penalty Clauses

This conference forms part of a series of Back to Bentham events which celebrate UCL Faculty of Laws' return to Bentham House after a three year refurbishment programme.

The conference is sponsored by

logo of norton rose fulbright

Programme (subject to change)

Thursday 9th May 2019

09:00 Registration

9.30: SESSION 1
Chair: Sir Jack Beatson
Robert Stevens (Oxford) – The Limits on the Power to Bind Our Future Selves
Commentator: Sonia Tolaney QC (One Essex Court)

Andrew Burrows (Oxford) - Anti-oral Variation Clauses: Rock-Solid or Rocky?
Commentator: Andrew Sheftel (Norton Rose Fulbright)

10.45: Break

11.15: SESSION 2
Chair: Lord Mance

Richard Calnan (UCL/Norton Rose) – Controlling Contractual Interpretation
Commentator:
Sandy Phipps (One Essex Court)

Magda Raczynska (UCL) – Implied Terms of Good Faith under English law: Going with the Flow?
Commentator: Tara Pichardo-Angardi (Norton Rose Fulbright)

Paul S. Davies (UCL) – Excluding Good Faith and Restricting Discretion
Commentator: Georgia Quenby (Morgan Lewis)

13:00 LUNCH

14:00: SESSION 3
Chair: Sir Bernard Rix
Alex Mills (UCL) – Choice of Court and Choice of Law Agreements: Freedom of Freedom of Contract
Commentator: Marie Louise Kinsler QC (2 Temple Gardens)

Uglješa Grušić (UCL) and Manuel Penades Fons (KCL) – Illegality in the English Law of Arbitration after Patel v Mirza
Commentator: Siddharth Dhar (Essex Court Chambers)

15:15 BREAK

Break

15.45: SESSION 4
Chair: Lord Sales
Richard Moorhead (UCL) – Professional Ethical Limits on NDAs: Contracts as lies and abuse?

Commentator: Catrina Smith (Norton Rose Fulbright)

Catharine MacMillan (KCL) – Non-disclosure Clauses
Commentator:
Robin Brooks (Norton Rose Fulbright)

Nick McBride (Cambridge) - 'All Watched Over by Machines of Loving Grace'? The Inevitable Conflict Between Contract Law and Free Speech in Cyberspace
Commentator: Sarah Crowther QC (Outer Temple Chambers)

17:30 Reception

18:30 Conference Dinner

Friday 10th May 2019

08:30 Registration

09:00: SESSION 5
Chair: Dame Sara Cockerill

Peter Turner (Cambridge) – Penalty Clauses
Commentator: Joanna Smith QC (Wilberforce Chambers)

Niamh Connolly (UCL) – Planning for failure: can contract design provide for the restitutionary consequences if the bargain is ineffective?
Commentator: William Day (3 Verulam Buildings)

Lucinda Miller (UCL) – Freedom of Contract and the Regulation of Global Production by Transnational Private Actors
Commentator: Sudhanshu Swaroop QC (20 Essex Street)

10.45: BREAK

11:15 SESSION 6
Chair: Lady Arden
John Lowry (UCL) and Rod Edmunds (QMUL) – The Reform of Insurance Warranties: Looking Beyond the Past
Commentator: Peter MacDonald Eggers QC (7 King’s Bench Walk)

Melis Özdel (UCL) – The Right to Ask for Delivery of Goods under Contracts of Carriage
Commentator: Sushma Ananda (7 King's Bench Walk)

Sarah Green (Bristol) – Distance and discretion:  the implications of smart contracting for freedom of contract
Commentator: Adam Sanitt (Norton Rose Fulbright)

13:00 LUNCH

14:00 SESSION 7
Chair: Sir George Leggatt
Hugh Beale (Warwick/Oxford) – No-assignment Clauses
Commentator: Philip Wood QC (Allen & Overy)

Louise Gullifer (Oxford) – The boundaries of a borrower’s freedom to act: negative covenants in loan agreements.
Commentator: Graham Penn (Sidley Austin)

Jonathan Morgan (Cambridge) – Entire Agreement Clauses
Commentator:
Michael Godden (Norton Rose Fulbright)

15:45 CONFERENCE ENDS

 

Abstracts

1. The Limits on the Power to Bind Our Future Selves
Rob Stevens (Oxford)

Freedom of contract is a misnomer. Contracts restrict our future independence. The mystery that requires explanation is not why there may be limits upon our power to constrain ourselves, but why we should be able to do so at all. In order to understand the limits of our powers to bind our future selves, it is first necessary to understand how and why we should have this power at all, and what business it is of the law to compel us to stand by what we have agreed.

In this paper I shall seek to distinguish between

1) Agreements and promises, and why the latter may create duties of virtue, it is the former that may create legal rights.

2) Agreements and contracts, and why there is a gap between the agreements we enter into and the contracts the law will recognise.

3) The restrictions on our ability to create contractual rights at all, where the agreements entered into are a legal nullity, and the appropriate limits upon a legal system's powers to compel compliance with the primary or secondary obligations created by a contract, where the agreements entered into are merely unenforceable.

As elsewhere in the law, the appropriate range of considerations for restricting the enforceability of rights is wider than those for determining their existence.

2. Anti-oral Variation Clauses: Rock-Solid or Rocky?
Andrew Burrows (Oxford)

Since the turn of the century, there has been uncertainty in this jurisdiction as to the validity of ‘no oral modification’ clauses, otherwise known as anti-oral variation clauses.  That uncertainty was essentially removed by the decision of the Supreme Court last year in MWB Business Exchange Ltd v Rock [2018] UKSC 24, [2018] 2 WLR 1603. But two significantly different lines of reasoning were adopted by the Supreme Court:  that taken by Lord Sumption and that taken by Lord Briggs. Examining and assessing those two lines of reasoning is not only of great interest in its own right but also helps us to understand fully the issues involved. Moreover, as a practical matter, courts in other common law jurisdictions will need to decide whether to follow the Supreme Court or not. A third significantly different approach will also be considered: that favoured in obiter dicta of Lord Justice Beatson in Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd [2016] EWCA Civ 396, [2017] 1 All ER (Comm) 601. The argument of the paper is that, although the issues are difficult and not clear-cut, and there are powerful arguments in favour of each of the three different approaches, there is much to be said for preferring the reasoning of Lord Justice Beatson both as a matter of principle and policy.   

3. Controlling Contractual Interpretation
Richard Calnan (UCL/Norton Rose Fulbright)
The purpose of this paper is to explore whether it is possible and desirable for the parties to a contract to control how it should be interpreted.

English lawyers are not shy about writing at length about anything which might affect the parties’ contractual relationship. The logical next step is to provide how the words they have used should be interpreted.

Most contracts do contain interpretation clauses, but they tend to deal with such arcane matters as whether the singular includes the plural, the masculine the feminine. Very few deal with the key issues of interpretation:

  • How much background information should the interpreter be able to take into account when interpreting the contract?
  • To what extent, if at all, should context or common sense override the express words of the contract?

This paper will consider whether it is legally possible to control interpretation in this way, whether it is desirable to do so and what an interpretation clause might look like.

4. Implied Terms of Good Faith under English law: Going with the Flow?
Magda Raczynska (UCL)

The purpose of this paper is to consider the extent to which the recognition of the duty of good faith permits, and should permit, the courts to modify the exercise of parties’ powers and assertions of rights in a contract under English law.
 
In his 2013 judgment in Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111, Leggatt J said that English contract law contains a plethora of duties, which can be brought under the concept of good faith and not recognizing a general obligation of good faith “would appear to be swimming against the tide” (at [125]) given that many jurisdictions, civilian and common law alike, include such a duty. Lord Justice Leggatt, sitting as the first instance judge in Al Nehayan v Ioannis Kent [2018] EWHC 333,found an implied duty of good faith in a joint venture agreement, indicating that such an agreement is a particular (relational) agreement requiring parties’ cooperation. Interestingly, in a recent decision in Churchill Falls (Labrador) Corp v Hydro Québec, 2018 SCC 46, on an appeal from Québec, the Supreme Court of Canada refused to imply a duty to cooperate in a joint venture based on the general duty of good faith under Quebec civil law.
 
The juxtaposition of these recent developments prompts interesting questions about the way in which the doctrine of good faith and the associated doctrines, e.g. the doctrine of abuse of rights, apply in civilian jurisdictions. Would a duty to cooperate of the kind found in Al Nehayan be implied on the basis of the civilian doctrine of good faith found in e.g. Quebec, German or French law? The answer to this question will help evaluate the strength of Leggatt LJ’s comparative law argument of “swimming against the tide”, and will assist in identifying the possible scope of the “good faith duty” under English law, if it is to exist at all.

5. Excluding Good Faith and Restricting Discretion
Paul S. Davies (UCL)

The growth of long-term, “relational” contracts has led to an increased focus on (implied) duties of good faith and (implied) restrictions on how contractual discretions can be exercised. But can the parties exclude duties of good faith? And can they restrict all fetters on discretionary powers? This paper will analyse these important questions, and consider whether there are some duties are universal and non-excludable.

6. Choice of Court and Choice of Law Agreements: Freedom of Freedom of Contract
Alex Mills (UCL)

In private international law, party autonomy is now very widely accepted in respect of both choice of court and choice of law agreements. This development has been justified (for example, by Nygh and Symeonides) on the basis that it reflects the parties’ freedom of contract, and restrictions on party autonomy in private international law have consequently been viewed simply as restrictions on that freedom of contract. This paper argues that such analysis makes a category error. Contractual party autonomy varies between different legal orders. The scope of contractual party autonomy is determined by which law is applicable, which is itself in part a product of choice of law rules and in part determined by which court has jurisdiction. Party autonomy in the context of choice of law and choice of forum may be part of determining that applicable law, and may thus determine which rules of freedom of contract apply. Party autonomy in private international law is thus a freedom to choose between different freedoms – the diverse degrees of contractual autonomy available in different national systems of private law. Contractual party autonomy is limited by the public policy or mandatory rules of a national system of contract law; private international law party autonomy is limited by the public policy or mandatory rules of private international law. Private international law party autonomy serves a different function than contractual party autonomy, and the underlying objectives of private international law arguably suggest that the restrictions on private international law party autonomy should be narrower than the restrictions on contractual party autonomy.

7. Illegality in the English Law of Arbitration after Patel v Mirza
Uglješa Grušić (UCL) and Manuel Penades Fons (KCL)

Much has been said about the decision of the Supreme Court in Patel v Mirza [2016] UKSC 42 and its ramifications for the application of the illegality doctrine in different areas of English law. One perspective that has not been explored so far in academic literature is the implications of this case for the illegality doctrine in the English law of arbitration. The illegality doctrine is potentially relevant at different stages of the arbitration process, most importantly when determining the jurisdiction of the arbitral tribunal, when applying the rules of the applicable law to determine the merits of the case and when challenging or resisting the recognition and enforcement of an arbitral award on ground of violation of public policy. This topic is not only of considerable academic but also practical importance, as demonstrated by the recent case of RBRG Trading (UK) Limited v Sinocore International Co Ltd [2018] EWCA Civ 838, where the Court of Appeal dealt, inter alia, with the relevance of Patel v Mirza for the public policy defence to recognition and enforcement of foreign arbitral awards.

8. Professional Ethical Limits on NDAs: Contracts as Lies and Abuse?
Richard Moorhead (UCL)

This paper will consider the recent parliamentary investigation of Non-Disclosure agreements, examining how professional practice and casually weak models of professional ethics lead to informal contracting practices which can amount to abuses of power and legal resources. In particular, it will argue that attempted to include in contract unenforceable clauses may breach professional obligations and even the criminal law.

9. Non-Disclosure Clauses
Catharine MacMillan (KCL)

Non-disclosure agreements have legitimate uses. They can form an appropriate means of protecting confidential information within many contexts. In some instances their use is essential to preserving commercial value and interests. It is increasingly clear, however, that non-disclosure agreements are being employed in questionable circumstances for the suppression of information. This paper examines the existing legal limits, or regulations, upon non-disclosure agreements. It then considers whether these limits are appropriate in the circumstances to which many non-disclosure agreements have been employed. In particular, do the existing limits upon non-disclosure agreements work in the public interest of providing or suppressing information? The paper concludes with a consideration of how to balance the public interest in information with the private interest inherent in the protection of information which underlies use of non-disclosure agreements.

10. 'All Watched Over by Machines of Loving Grace'? The Inevitable Conflict Between Contract Law and Free Speech in Cyberspace
Nick McBride (Cambridge)

This paper sets out an influential worldview, 'liberal gnosticism', the key tenets of which claim: (1) (in the words of Judith Shklar) 'cruelty is the worst thing we do' and (2) transforming the cruelty-ridden world in which we currently live into one that is cruelty-free is both possible and our most morally urgent task. The paper argues that liberal gnosticism is widespread among those who host Internet-based platforms for the expression of opinions (as it is in the media, entertainment industry, and academia), and will inevitably result in the terms of service that govern the use of those platforms being relied upon to censor those who reject the tenets of liberal gnosticism (in particular, tenet (2)). The paper further investigates what recourse contract law and tort law might afford those who are subject to such censorship, and concludes that the answer is 'Very little' because private law places little to no value on freedom of speech. The reasons for this are set out in the paper and a case is made for private law doing far more than it does at the moment to protect speech that reflects or questions particular conceptions of human flourishing

11. Penalty Clauses
[to follow]

12. Planning for Failure: Can Contract Design Provide for the Restitutionary Consequences if the Bargain is Ineffective?
Niamh Connolly (UCL)

If one or both sides have offered performance under a contract and the contract cannot be enforced, the general law on restitution of unjust enrichment will determine whether parties will receive a repayment of the value of their performance. This paper examines the extent to which it is possible for contracting parties to construct their deal in a manner that affects how the legal rules on restitution of unjust enrichment will apply in the event of its failure. I will consider both whether the parties can directly provide for the consequences of contract failure and indirectly affect the process of restitution by constructing their deal in such a way that the common law rules will be applied to it to achieve a desired outcome. This discussion will be informed by a critical distinction between two types of case: those in which restitution arises where a valid contract is terminated or frustrated and those where the contract is invalid from the start.

We can begin by considering the possibility of inserting terms into the contract to provide for the eventuality that the bargain itself fails. As a preliminary point, the parties may insert express terms concerning choice of law. Thus, many cases involving void swaps contracts between foreign parties have been adjudicated under English law. Parties can also provide in advance for the restitutionary consequences that will occur if their contract is valid but subsequently terminated or frustrated. They can provide for impossibility of performance by including a force majeure clause. Likewise, they can provide for the restitutionary consequences of the termination of a valid contract by qualifying advance payments by one side as deposits or pre-payments.

However, it is frequently the invalidity of the contract that sets the stage for a claim in restitution. In these cases, the defect that renders the contract inoperative is likely to sweep aside all its contents, including any terms providing for this eventuality. For example, if one of the parties were under duress, or if the contract was void due to failure to respect statutory formalities or for illegality, it is highly unlikely that the courts could give effect to a clause providing for the restitutionary consequences of invalidity. Might it be possible for some defects in a contract – such as a fundamental mistake about the proposed transaction – to leave room for the courts to give effect to a clause providing directly for restitution in the event that the contract could not be performed as planned? Since the problems that cause a contract to be invalid are usually unforeseen, this would have to be a widely-framed clause.
Even if the parties cannot specify in advance what they would like to occur if a contract is invalid, so that the courts will be applying the usual common law and statutory rules, the contracting parties can still indirectly influence how the courts will apply the rules on restitution by how they construct and frame their bargain. The most important way that they can do so relates to their specification of the various elements of consideration.

Identification of the contractual consideration is crucial for the application of the doctrine of failure of consideration as a ground for restitution. The law requires the failure of consideration to be total for this to justify repayment. However, the exceptions and techniques that attenuate this strict requirement leave room for the parties to influence a judicial determination that there has been a total failure of consideration. This is particularly relevant for bargains that involve multiple elements of consideration. Firstly, contracting parties can indicate which elements constitute the heart of the bargain, the core benefit for which they are contracting, and which are merely ancillary. In addition, they can facilitate a more precise restitutionary response by itemising and correlating specific items of consideration on each side. By breaking down the overall bargain into discrete components, they can make it easier for a court to use the techniques of severance and apportionment, thereby avoiding the total failure rule. For similar reasons, parties should be conscious of whether they are constructing the bargain as an entire obligation, which would prevent restitution for partial, incomplete performance.

The valuation of consideration is also important. It is the court’s valuation of the consideration that has been performed that will determine the sums to be repaid in restitution. The courts generally identify the objective market value of the performance that has been given and may modulate this to reflect the value that the parties subjectively attribute to it. This raises the question of the extent to which the parties can use their contract to influence the judicial valuation of their proposed consideration. Even if the contract is unenforceable, it might constitute clear evidence of how much the parties or the market considered the performance offered to be worth.

The possibility of shaping the restitutionary outcome in the event of contract termination or invalidity brings us, lastly, to consider how commercial actors might wish to use this power. It seems likely that parties would wish their own monetary valuation of elements of a deal to influence the courts. Is it to be expected that they would also in general prefer to ensure a reasonably proportionate level of repayment in complex bargains that involve multiple elements of consideration? This may have a benefit in terms of predictability and the management of risk. However, the parties may not always want there to be full mutual restitution based on benefits actually received by each. A particular reason why parties may wish to provide for the retention of some payments from the other side, even if they are unable to deliver the expected benefit to them, is to obtain compensation for expenses that they have incurred in their efforts to perform.


13. Freedom of Contract and the Regulation of Global Production by Transnational Private Actors
Lucinda Miller (UCL)

Transnational commercial contracts, especially those within global value chains, are increasingly being designed in ways that extend beyond their traditional exchange-facilitating function to incorporate obligations of a social and environmental nature. These so-called ‘ethical obligations’ govern such matters as human rights, labour conditions, and environmental sustainability and in this way embrace within the contractual architecture standards that would not normally be dealt with by the contractual form. We have instead become accustomed to thinking about the regulation of such interests in public, rather than private law terms. Contractualisation, therefore, denotes a critical shift in responsibility, rendering private actors, viz., corporations, as crucial players in a broad range of decision-making that impacts upon people and communities in a variety of ways.
 
The deployment of contractual instruments to pursue these core public interests raises interesting conceptual and normative questions concerning the nature and appropriate scope of party autonomy.  For example, on the one hand, it is through the concept of party autonomy itself that private actors (primarily lead firms) are able to exercise governance authority and thereby circumvent (real and perceived) difficulties with state-based forms of regulation in the transnational sphere. Privately-embedded solutions to the global governance ‘gap’ are only possible in an environment in which individual autonomy flourishes. On the other hand, however, and focusing on the contractual relationships within the chain itself, if the regulatory potential of ethical obligations is to be maximised, compliance along the chain is crucial. One way that the lead firm will respond to the difficulties of coordinating the chain and ensuring compliance is to stipulate that suppliers must be certified by a third party certification scheme. Not only does the requirement to enter into these contractual relationships shift control of the monitoring of performance and remedial regimes to third parties, but it may also impact on the autonomy of suppliers in fundamental ways.  As this paper will explore, the novel ways in which contracts are being deployed and their potential for protecting public interests may force a reconceptualization about where the limits of contractual autonomy in this area of private law should lie.

14. The Reform of Insurance Warranties: Looking Beyond the Past
John Lowry (UCL) and Rod Edmunds (QMUL)

Following a lengthy gestation period, reform of the law on Insurance warranties finally reached the statute book in 2015. On the face of it, the Insurance Act represents a re-balancing of the law, away from its protectionist instincts which saw the underwriter as the vulnerable party. So, for instance, the statute supplants the long-settled rule that breach of warranty automatically discharges the underwriter’s liability as from the date of the breach and substitutes it with the notion of suspensory liability. While the genesis of the law before 2015 is largely embedded in a line of shipping cases, the judges extended its reach into the realms of non-marine policies. This chapter is concerned with such insurance contracts.  It begins by tracing the development of warranties that appear in the law reports at least as far back as 18th century cases.  It then turns to consider the judicial adaptation of this body of law in response to the particular, and very different, issues that were generated by the rapid growth of indemnity insurance, notably at the turn of 20th century. It will be seen that in the sphere beyond marine risks judges sought to ameliorate the draconian consequences of a breach of warranty in a variety of ways. However, such judicial resistance delivered only a partial recalibration of the law. As the chapter will demonstrate, it has taken 21st century legislative intervention to negate the ‘all or nothing’ finding that the contract is automatically brought to an end by a breach. This reform exercise was both protracted and marked by a number of false starts. Nevertheless, this is not to detract from the English and Scottish Law Commissions’ success in getting the reforms onto the statute book. Yet, perhaps because of this, the question arises as to how far the law breaks from its judicial past, and how far its impact on the parties has in fact been fundamentally recalibrated.

15. The Right to Ask for Delivery of Goods under Contracts of Carriage
Melis Özdel (UCL)

Delivery of goods by the carrier is an indispensable part of every contract of carriage. Where the goods are carried under a bill of lading or a charterparty the cargo interests have the right to ask for delivery of the goods and get substantial damages in case of misdelivery (i.e. where the goods were delivered to the “wrong” party or where the goods were delivered without a genuine bill of lading). However, the cargo interests’ rights are significantly affected by the carrier’s delivery clauses (which define what should be understood by “delivery”) and exclusion clauses. The paper will analyse the terms affecting the cargo interest’s right to receive delivery, focusing in particular on (i) the interpretation of the carrier’s exclusion clauses and delivery clauses under contracts of carriage and (ii) the quantification of damages in case of “misdelivery” where the contract contains a carrier’s delivery/exclusion clause.

16. Distance and Discretion:  the Implications of Smart Contracting for Freedom of Contract
Sarah Green (Bristol)

A smart contract is one that executes without human intervention.  Written in computer code, it can accept inputs and produce outputs, but only in the context of algorithmically determinable events, such as "When B receives £X from A, transfer title of Blackacre from B to A".  There is (currently at least) no way in which a machine can execute a transaction which depends in any way on the exercise of discretion, or which allows for any ambiguity of instruction.   The implications of this for the parties' freedom of contract are neither straightforward nor one-dimensional.  First, the fact that the terms of smart contracts can have only a single and precise meaning generates a considerable degree of certainty.  What smart contracts are certain of achieving, however, is what is contained within the coded instructions, and this is not necessarily the same as what the parties intended:  as long as the coding of smart contracts needs to be delegated to specialist coders, contracting parties themselves will be a step further removed from the performance of their agreements.  This detracts, therefore, from the amount of control they are able to exercise over the execution of their agreement.  Secondly, the inability of machine code to appreciate, or to accommodate, nuances of language generates its own restrictions:  ambiguity of expression is by no means always a bad thing, and the removal of any room for manoeuvre could be seen as a restriction of contractual freedom in its own right.  Whilst smart contracts undoubtedly have some potential logistical advantages over conventional contracts, therefore, their use is bound to alter the nature of contracting parties' behaviour, and, in many cases, to loosen the relationship between those parties and the performance of the bargains they have made.  Whilst this might not have too many adverse effects on the initial formation of agreements, it seems almost inevitable that it will complicate any subsequent attempts to alter the course of performance.

17. No-Assignment Clauses
Hugh Beale (Warwick/Oxford)
This paper will examine the effects of bans on assignment and will consider the case that was made for overriding BoAs in receivables contracts.
It will consider the responses to the problem in other jurisdictions and ask why the Business Contract Terms (Assignment of Receivables) Regulations 2018 are so complicated and contain so many 'carve-outs' compared to legislation elsewhere. It will speculate on the role of the City lawyers both in 'signing off' deals and in law reform.

18. The Boundaries of a Borrower’s Freedom to Act: Negative Covenants in Loan Agreements.
Louise Gullifer (Oxford)
There are various ways in which a borrower’s functional freedom to act is typically constrained in a loan agreement, for example, a rigorous list of events of default or provisions for mandatory repayment of the loan, but the most obvious way is by the inclusion of negative covenants, breach of which gives the lender the right to accelerate the loan and terminate the agreement. These covenants are carefully crafted so as to give the lender maximum flexibility in deciding when to exercise this self-help remedy, but also to enable the borrower to run its business without undue constraint. The existence of such covenants also enables the lender to exercise a degree of corporate governance, particularly since the borrower will normally request permission if it wishes to do something which results in a breach of covenant. This balanced eco-system is the result of many factors, one of which is the legal efficacy and enforceability of the negative covenants. This paper examines the legal enforceability of a number of common covenants and considers it importance in the context of the role played by lenders in corporate governance.

19. Entire Agreement Clauses
Jonathan Morgan (Cambridge)

It is common for standard-form contracts to contain within them various clauses which aim to exclude (or preclude) pre-contractual liabilities.  These include non-reliance clauses, entire agreement clauses and "basis clauses". These are included in order to protect parties from liabilities arising from (e.g.) misrepresentation, collateral contracts, and even implied contract terms. Such clauses have generated extensive litigation in recent years. Numerous doctrinal questions arise. These include the conceptual mechanism by which such clauses take effect (e.g. as a "contractual estoppel"), and the applicability of regulation such as the Unfair Contract Terms Act 1977 or s.3 of the Misrepresentation Act 1967.

More fundamentally, should such clauses be given effect? There is a distinction in some of the case-law between consumer and commercial contracts. Some judges would automatically enforce these clauses in the commercial context, simply because that is how the parties have agreed to arrange the basis of liability between them. Is that stance correct? It has received powerful criticism. Does it not elevate the make-believe world of the formal written contract over the reality of what the parties (or their representatives) might actually have said, done and believed during negotiations? This paper suggests that the sheer commercial utility and convenience of form-based contracting may justify an approach which privileges it over "reality"--even when the artificiality is carried to the lengths seen in the clauses under consideration.

 

About the Speakers
Hugh Beale QC (Hon) FBA is Emeritus Professor of Law at the University of Warwick, and a Senior Research Fellow of Harris Manchester College and Visiting Professor at the University of Oxford. He was a Law Commissioner from 2000-2007, with responsibility for the Commercial and Common Law Team. He is the General Editor of Chitty on Contracts (33rd ed, 2018) and has written widely on English, European and comparative contract law. He also writes on secured transactions (with M Bridge, L Gullifer and E Lomnicka, Law of Security and Title-based Financing (3rd ed, 2018), and is a member of the Secured Transactions Law Reform project. He, Louise Gullifer and Sarah Paterson carried out a survey of the effects of Bans on Assignment, which was relied on by the Government to support the recent legislative override of BoAs in contracts giving rise to trade receivables.


Andrew Burrows, MA, DCL, LLM (Harvard), QC (Hon), FBA, Barrister and Honorary Bencher of Middle Temple is Professor of the Law of England in the University of Oxford and a Fellow of All Souls College. He sits as a Deputy High Court Judge and is a Door Tenant of Fountain Court Chambers, London. He was President of the Society of Legal Scholars (2015-16) and a Law Commissioner for England and Wales (1994-1999). He has written many articles on contract, tort, and unjust enrichment. His books include Remedies for Torts and Breach of Contract, The Law of Restitution, Understanding the Law of Obligations, A Casebook on Contract, A Restatement of the English Law of Unjust Enrichment, and A Restatement of the English Law of Contract. He is a joint author of Anson’ s Law of Contract, the general editor of English Private Law and an editor of Chitty on Contracts and Clerk and Lindsell on Torts. He gave the 2017 Hamlyn Lectures on Thinking about Statutes: Interpretation, Interaction, Improvement.

Richard Calnan is a partner at Norton Rose Fulbright LLP in London and a Visiting Professor at University College London. He is the author of Taking Security (LexisNexis, fourth edition 2018), Proprietary Rights and Insolvency (Oxford University Press, second edition 2016) and Principles of Contractual Interpretation (Oxford University Press, second edition 2017).

Mrs Justice Cockerill was called to the Bar in 1990 (Lincoln’s Inn) and appointed Queen’s Counsel in 2011. She has practiced at the Commercial Bar from 1991 to 2017 as a member of Essex Court Chambers, gaining wide experience in international commercial law in a variety of courts and arbitration tribunals. Her specialisms at the Bar included the range of disputes which arise from shipping and international trading transactions, insurance and reinsurance claims, conflicts of law and compelled evidence in civil proceedings.  She is the author of “Compelled Evidence in Civil Proceedings” (2012 OUP). Mrs Justice Cockerill was appointed as a High Court Judge in November 2017 to the Queen’s Bench Division as nominated Judge of the Commercial Court

Paul S Davies is Professor of Commercial Law at UCL. He was previously a Fellow of Gonville and Caius College, Cambridge and St Catherine's College, Oxford. Paul has also worked at the Law Commission. Paul is interested in all areas of commercial law, and has written widely on private law more generally. He is the author of Accessory Liability (Hart Publishing, 2015; revised paperback edition, 2017), which won the main Inner Temple Book Prize in 2018, JC Smith’s The Law of Contract (2nd ed, OUP, 2018), and a co-author of Equity and Trusts: Text, Cases and Materials (2nd ed, OUP, 2016 (with Graham Virgo)). Paul is one of the editors of Snell’s Equity and has recently joined the editorial team of Chitty on Contracts. He is also a Barrister of Lincoln’s Inn and an Associate Member of Maitland Chambers.

William Day is a barrister at 3 Verulam Buildings with a practice in commercial litigation, focusing on commercial fraud, banking and finance disputes, and company law and insolvency matters. He has also been involved in cases raising jurisdiction and choice of law issues.
 
Alongside practice, William is a Bye-Fellow and Director of Studies in Law at Downing College, Cambridge where he teaches contract and commercial law. He has published a number of articles and notes on a range of private law subjects in journals including the Cambridge Law Journal, the Law Quarterly Review, and the Lloyd’s Maritime and Commercial Law Quarterly.

Rod Edmunds joined the Department of Law at Queen Mary University of London in 2003. He was previously Senior Lecturer at Sussex University, Director of Education at D J Freeman & Co, and Lecturer at the University of Nottingham. He has published in national and international journals on a range of commercial law matters, including issues that flow from the fiduciary status and duties of trustees and company directors. He has also contributed, through journal articles, to the academic scholarship on the ground-breaking legal regime designed to facilitate victim participation at the International Criminal Court.

Sarah Green is Professor of Private Law at the University of Bristol.  She likes to read, write and talk about Tort, Property, Contract and Criminal Law and is currently working on virtual currencies, blockchain issues surrounding intermediated securities, smart contracts, sale of goods law as applicable to digitised assets, and wage theft.  She also keeps her hand in with negligence issues, and causation in particular.  Sarah has written books on the Tort of Conversion and Causation in Negligence.  She has also written in various journals and edited volumes on a wide range of tort, contract and property issues, and has peddled her opinion at several national and international conferences.  She really enjoys doing these things.  Sarah joined Bristol Law School in 2017.  Prior to that, she worked at the University of Oxford, and, before that, the University of Birmingham.  In her previous professional life, she was a management consultant, working for Accenture in London and Dublin.  Sarah is also Articles Editor for the Oxford Journal of Legal Studies.

Ugljesa Grusic is an Associate Professor at the UCL Faculty of Laws, which he joined in September 2016. He obtained his LLB from the Faculty of Law of the University of Belgrade, his LLM from the University of Nottingham, and his doctorate from the London School of Economics and Political Science. His expertise includes private international law and international arbitration. He is one of the co-authors of the 15th edition of Cheshire, North & Fawcett's Private International Law, published by Oxford University Press in 2017, and the author of The European Private International Law of Employment, published by Cambridge University Press in 2015. He has also published in leading academic journals, including the Modern Law Review, International and Comparative Law Quarterly, Yearbook of European Law and the Journal of Private International Law. Ugljesa won the 2015 PILIG Prize of the American Society of International Law's Private International Law Interest Group for his CUP monograph and the inaugural 2012 ICLQ Young Scholar Prize for his article 'Jurisdiction in Employment Matters under Brussels I: A Reassessment'.

Louise Gullifer QC (hon) is Professor of Commercial Law at the University of Oxford and was elected to a Fellowship at Harris Manchester College in 2000.    She will take up the Rouse Ball Chair in English Law at the University of Cambridge in 2019.      She holds one of the temporary chairs of the Business and Law Research Centre, International Commercial Law, at Radboud University, Nijmegen.   She is the director of the Commercial Law Centre at Harris Manchester College and executive director of the Secured Transaction Law Reform Project, as well as the Oxford academic lead of the Cape Town Convention Academic Project, and one of the UK delegates to both UNCITRAL (working group VI) and Unidroit.      She has co-authored a number of books on commercial law and debt financing, including Goode and Gullifer on Legal Problems of Credit and Security, The Law of Security and Title Financing, The Law of Personal Property and Corporate Finance Law : Principles and Policy.

John Lowry joined UCL in 2004 and was made Professor of Commercial Law in 2005 (awarded Emeritus Professor in 2013). Between 2007-2011 he was Vice Dean of the Faculty and Head of the Department of Law. He has also taught law in the USA and practised in Toronto, Canada specialising in corporate litigation. John has published widely in domestic and international law journals on directors’ duties, shareholder remedies and insurance contract law and he has written books on company law, insurance law, and limitation of actions. He has been a contributing editor to Gore-Browne on Companies and OUP's Annotated Companies Legislation and is a member of the editorial boards of several leading law journals. In 2008 he was elected an Honorary Fellow of Monash University. He is currently Visiting Professor of Commercial Law at the University of Hong Kong and an Honorary Fellow of the Asian Institute of International Financial Law.

John has acted as consultant to the Law Commission (shareholder remedies; directors duties; and insurance contract law). In 2015 he was appointed a member of the Hong Kong Standing Committee on Company Law Reform. His work has been cited by appellate courts in England and Wales, Canada and Singapore.

Peter MacDonald Eggers QC (barrister, 7 King's Bench Walk) is a “very user-friendly and commercial barrister” who specialises in all aspects of commercial law, with a particular focus on insurance and reinsurance, shipping and transport, energy, commodities and international trade, financial services, professional negligence, and international investment projects. Peter also accepts appointments to act as an arbitrator. Peter has appeared in a number of recent leading cases, including recently Aspen Underwriting v Kairos Shipping (insurance settlement, jurisdiction); The Cultural Foundation v Beazley Furlonge Ltd (professional indemnity insurance), The Cape Bari (1976 Limitation Convention), Suez Fortune Investments Ltd v Talbot Underwriting Ltd (constructive total loss), Rathbone Brothers Plc v Novae Corporate Underwriting (professional indemnity insurance), The Princess of the Stars (liability insurance and typhoon), Sea Glory Maritime Co v Al Sagr National Insurance Co (hull insurance), Arash Shipping v Groupama (Iranian sanctions and fleet insurance) and Masefield v Amlin (piracy). In May 2017, Peter was appointed a Deputy Judge of the High Court.
 
Peter is a Visiting Professor at University College London and is a contributing editor of Chitty on Contracts, co-author of Carver on Charterparties, co-author of Good Faith and Insurance Contracts, and the author of Deceit: The Lie of the Law, and The Vitiation of Contractual Consent.

Nick McBride is a Fellow of Pembroke College, Cambridge, having previously been a Fellow at All Souls College, Oxford. He studied Law at Brasenose College, Oxford. He is the author of various books on private law, most recently The Humanity of Private Law, Part I: Explanation (Hart Publishing, 2018), as well as Key Ideas in Contract Law (Hart Publishing, 2017), and Tort Law (with Roderick Bagshaw), 6th ed (Pearson Education, 2017). He is also the author of Letters to a Law Student, 4th ed (Pearson Education, 2016), and (with Sandy Steel), Great Debates in Jurisprudence, 2nd ed (Macmillan, 2018).

Lucinda Miller is Associate Professor at UCL laws. She has published in the areas of comparative contract law, EU private law (primarily consumer law) and more recently on ethical consumerism as a mode of governance.  Her OUP monograph is entitled The Emergence of European Contract Law: Exploring Europeanization.

Alex Mills is Professor of Public and Private International Law in the Faculty of Laws, University College London. He has degrees in Philosophy and Law from the University of Sydney, and an LLM and PhD (awarded the Yorke Prize) from the University of Cambridge, where he also taught before joining UCL. His research encompasses a range of issues across public and private international law, including international investment law and commercial arbitration. His publications include books on ‘Party Autonomy in Private International Law’ (CUP, 2018), ‘The Confluence of Public and Private International Law’ (CUP, 2009), and (co-authored) ‘Cheshire North and Fawcett’s Private International Law’ (OUP, 2017).

Dr Melis Özdel (LLB, LLM, Ph.D, MCIArb) is the director of the UCL Centre for Commercial Law and specialism convenor for Maritime Law studies. At UCL, she convenes the International Trade Law and Carriage of Goods by Sea modules and co-convenes the International Arbitration Law module. She is also the chief examiner for the Carriage of Goods by Sea and International Trade Law modules on the University of London International Programme.

Melis has written extensively in the areas of international trade law, carriage of goods by sea, international commercial arbitration and conflict of laws and jurisdiction. She is the author of Bills of Lading Incorporating Charterparties (2014, Hart Publishing), co-author of EU Transport Law (2016, Hart-Nomos-Beck) and editor of Commercial Maritime Law (2019 Forthcoming, Hart Publishing). She is also a member of the Chartered Institute of Arbitrators and a supporting member of the London Maritime Arbitrators Association

Manuel Penades is a Lecturer in International commercial law at King’s College London, which he joined in September 2016. He obtained his LLB and BA Business from the University of Valencia, his LLM from the London School of Economics and Political Science and his PhD from the University of Valencia. His expertise includes private international law, cross-border insolvency law and international arbitration. He has published in leading academic journals, including the Modern Law Review, International and Comparative Law Quarterly and Common Market Law Review. He is the author of a monograph on implied choice of law in international contracts (Thomson Reuters, 2012) and a forthcoming book on the impact of insolvency in international arbitration. In 2019 he appeared before UNCITRAL – Working group 2 as Expert on the relationship between commercial arbitration and insolvency.  Manuel is a qualified abogado in Spain and a solicitor for England and Wales (non-practising). He regularly participates in international arbitration and litigation cases as expert or consultant, including recently ICC, LCIA and High Court for England and Wales

Graham Penn is Co-Head of Sidley Austin LLP’s Global Finance practice and a member of the firm’s Executive Committee.  He has taught on UCL’s graduate (LLM) programme for almost 30 years, initially in the capacity as visiting professor and since 2012 as Professor of International Finance Law.  He is recognised as a pre-eminent authority on structured finance and securitisation and has worked on many ground breaking transactions since the inception of the European securitisation market in the late 1980’s.  Graham was recently recognised as one of the top 10 European Legal Innovators by the Financial Times and was also included in the inaugural Chambers 100 a new ranking in which he was included as one of the top five capital markets lawyers in  the UK.  The Financial Times report credits him as “a pioneer in structured finance and securitisation” noting that “he has been involved in some of the most ground breaking transactions of the  past two decades”.

Graham has written extensively on the law and regulation of banking and international finance, including a number of leading textbooks and has been the editor of the Journal of International Banking Law and Regulation for over 30years.  He regularly  presents papers at both academic and industry conferences in the UK and abroad.

Sandy Phipps is a barrister at One Essex Court.  He studied in Australia and at the University of Oxford before being called to the Bar in 2008 (after a period practicing as a solicitor).  Sandy specialises in complex commercial disputes, often involving cross border elements.  He is recognised in the legal directories as a leading junior and, in 2017, was named by Legal Week as one of its Stars at the Bar.  Along his practice, Sandy maintains an active interest in academic law and has published in areas including banking law, contract, jurisdiction and civil procedure.  He is a member of the editorial board of the Journal of International Banking and Financial Law and is a contributing author to a leading banking law textbook.

Tara Pichardo-Angadi is Head of Knowledge (EMEA), Norton Rose. She has a degree from King’s College London and a Maîtrise from the University of Paris 1 - La Sorbonne as well as a post-graduate diploma in legal practice from the College of Law.

Tara trained with Norton Rose starting in January 1998 and, upon qualification, she joined the asset finance team in the Paris office. Tara became a Knowledge Lawyer for the Paris office in October 2004, where her role encompassed keeping the finance team updated on changes in law (both French and English), drafting and maintaining our French law precedents, answering queries on both French and English law and training, including ensuring compliance with Paris Bar regulations.

Tara became Head of Knowledge in the EMEA region in November 2012, including managing local stakeholders' knowledge requirements, developing knowledge plans, developing and sharing best practice and feeding EMEA requirements into the global knowledge strategy and managing local knowledge teams, budgets and projects. Tara regularly assists our clients as regards their training requirements and more generally in respect of their access to our know-how.

Magda Raczynska is a Lecturer in Law at UCL. She has written on personal property and obligations. She is a Deputy Executive Director of the Secured Transactions Law Reform Project, a member of the Consulting Editorial Board at LexisPSL Banking & Finance, a contributing author to McKnight, Paterson and Zakrzewski on The Law of International Finance (OUP 2017) and the author of The Law of Tracing in Commercial Transactions (OUP 2018).

Lord Sales studied law at Cambridge and Oxford Universities and was called to the Bar in 1985. He practised in the fields of Chancery and commercial law until being appointed First Treasury Junior Counsel (Common Law) (the so-called ‘Treasury Devil’) in 1997. He served in that position until being appointed as a High Court Judge in the Chancery Division in 2008, after becoming a QC in 2006. He was a judge of the Patents Court and of the Competition Appeals Tribunal and was Vice-President of the Investigatory Powers Tribunal. Between 2009-2014 he was the head of the Boundary Commission for England. In 2014 he was appointed to the Court of Appeal and in January 2019 to the UK Supreme Court.

Catrina Smith is an employment lawyer based in London at Norton Rose Fulbright LLP. She focuses on all aspects of employment law, including corporate transactions, discrimination issues, business and human rights and the full spectrum of contentious and non-contentious work. She also advises on corporate governance and remuneration issues and executive appointments and terminations. Much of her work has an international angle. She has particular experience in handling highly sensitive and confidential matters affecting employers. Catrina is a member of the Employment Lawyers Association. She has participated in a number of ELA sub-committees responding to government consultations and is a member of the ELA Legislative and Policy Committee. In that capacity, she contributed to the work the Law Society did in drawing up their Practice Note on NDAs.

 

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