Contract Law and the Unexpected

About the conference

Commercial parties face uncertainty on a regular basis. Their contracts provide for risks and events that might occur during their contractual relationship, including those that cannot be (fully) controlled by the parties, and whose nature is not easy to foresee or be captured by the contractual parties’ expectations.

One possible way of addressing the uncertainty generated by such risks and events is through reliance on established contractual doctrines, such as variation or frustration. However, under English law, these doctrines are traditionally limited. Another, and typically preferable, method is for contract drafters to include clauses that modify, suspend, or terminate the obligations or liabilities of one (or both) of the parties, or clauses that at least open up the options for renegotiation. Examples include material adverse change (or effect) clauses, hardship clauses, performance clauses, termination or suspension clauses, remedies clauses, and variation clauses.

Such clauses raise a range of issues concerning their interpretation, effect and enforceability; the consequences that follow when the clauses do not work as planned; the consequences of allocating contractual discretion to a party to determine the existence of the relevant risk or event; and the extent to which the existence of specific clauses changes the options available to the parties beyond what general contract law principles offer. Some of these problems were recently highlighted by the implications of the COVID-19 pandemic, the health crisis, the economic downturn, and Brexit, causing widespread disruption to businesses, workers, and supply chains.

This conference will focus on addressing these issues by bringing together academics and practitioners, and will interest contract drafters, legal advisors, litigation lawyers, barristers, judges, and academics. Papers, written by an academic, will be commented upon by a practitioner, and will be distributed before the conference. Panels will be chaired by judges.

The participants include

• Sushma Ananda (7 King's Bench Walk)
• Sir William Blair (3 Verulam Buildings)
• Jo Braithwaite (LSE)
• Richard Calnan (UCL)
• John Cartwright (Oxford)
• Charles Clark (Linklaters)
• Niamh Connolly (UCL)
• Jordan English (Oxford)
• Mr Justice Foxton
• Kate Gibbons (Clifford Chance)
• Miriam Goldby (QMUL)
• Sarah Green (Bristol)
• Philippa Hopkins KC (Essex Court)
• Mrs Justice Jefford
• Charles Kerrigan (CMS UK)
• James Leabeater KC (4 Pump Court)
• Peter MacDonald-Eggers KC (7 King's Bench Walk)
• Paul MacMahon (LSE)
• Ewan McKendrick (Oxford)
• Catherine Mitchell (Birmingham)
• Charles Mitchell (UCL)
• Georgia Quenby (Fladgate)
• Magda Raczynska (UCL)
• Solène Rowan (KCL)
• Lord Sales
• Adam Sanitt (Norton Rose Fulbright)
• Adam Temple (3 Verulam Buildings)
• Andrew Twigger KC (Maitland Chambers)
• Mrs Justice Joanna Smith

This conference is supported by

The programme

08:45   Registration

09:30.  Welcome
Professor Paul Davies, UCL Laws
Associate Professor Magda Raczynska, UCL Laws

SESSION 1:
Chaired by Mrs Justice Joanna Smith

1. John Cartwright – Contract Law and the Unexpected: A Comparative Perspective
Commentator: Charles Clark (Linklaters)

2. Paul MacMahon – Constructing Frustration
Commentator: Sushma Ananda (7 King’s Bench Walk)

3. Catherine Mitchell – Interpreting the Contract in the Light of Unexpected Events
Commentator: Andrew Twigger KC (Maitland Chambers)

11:00.  Break

11:30.   SESSION 2:
Chaired by Mr Justice Foxton

1. Niamh Connolly – Contractual Silence, Risk Allocation and the Interplay between Contract and Unjust Enrichment
Commentator: Adam Sanitt (Norton Rose Fulbright)

2. Sarah Green – Smart Contracts and the Unexpected
Commentator: Charles Kerrigan (CMS UK)

3. Jo Braithwaite – Managing the Unexpected in Global Markets: LIBOR Transition, the Capacity of Contracts and the Role of Third Parties
Commentator: Kate Gibbons (Clifford Chance)

13:00.   Lunch Break

14:00    SESSION 3:
Chaired by Mrs Justice Jefford

1. Ewan McKendrick – Hardship Clauses
Commentator: Philippa Hopkins KC (Essex Court)

2. Jordan English – ‘Hell Or Highwater’ Clauses
Commentator: Peter MacDonald-Eggers KC (7 King’s Bench Walk)

3. Richard Calnan – Material Adverse Change Clauses
Commentator: Georgia Quenby (Fladgate)

15:30    Break

16:00    SESSION 4:
Chaired by Lord Sales

1. Charles Mitchell and Magda Raczynska – Variation clauses and variation agreements
Commentator: Sir William Blair (3 Verulam Buildings)

2. Miriam Goldby – Suspension or Termination of Obligations in Charterparty Contracts: Should we rely on contractual interpretation to achieve certainty?
Commentator: James Leabeater KC (4 Pump Court)

3. Solène Rowan – Specific Performance Clauses
Commentator: Adam Temple (3 Verulam Buildings)

17:30    Reception

18:00    Conference closes

18:30   Dinner (Optional)

Abstracts

John Cartwright (Oxford)
Contract Law and the Unexpected: A Comparative Perspective
Commercial parties in all jurisdictions face similar practical problems in relation to the allocation of risk of events which they cannot foresee (either fully, or at all) at the time of contracting. However, different jurisdictions provide significantly different legal solutions to these practical problems, solutions which typically reflect broader differences in policy within the jurisdictions’ law of contract generally but which also, in turn, give rise to differences in the drafting of contract clauses designed to address potential uncertainties.

This paper will outline some of the differences between legal systems in relation to the management of unexpected events, focusing on a comparison between English law and the law of some European civil law jurisdictions, but the principal purpose of the discussion is to see what lessons English lawyers might be able to learn from such a comparison.

Paul MacMahon (LSE)
Constructing Frustration  
Two things are well known about the doctrine of frustration in English contract law. First, the doctrine is exceptionally narrow when compared with many other legal systems’ responses to changed circumstances. Second, there’s an interminable and inconclusive debate about the doctrine’s “theoretical basis”. This chapter starts with a clear answer to the second question, agreeing with those who contend that frustration is (or should be) a matter of contractual construction. The goal of the paper is to carry the analysis further by examining more precisely what construction entails. In particular, it aims to draw on economic analysis, ideally in a way that might be palatable to those somewhat sceptical of “external” perspectives on contract law.

Catherine Mitchell (Birmingham)
Interpreting the contract in the light of unexpected events
This contribution explores how the problem of unexpected events in contract can be resolved through the process of contract interpretation. While contract interpretation is necessary to decide if risks have been allocated to a party by the contract’s express or implied terms, there is admittedly some artifice around the deployment of contract interpretation in situations where losses are caused by unexpected events for which the contract makes no provision (or alternatively where the original terms appear to supply a solution, but for one reason or other courts are reluctant to apply it in the changed circumstances). Decisions in BCCI v Ali (2001), Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc (2013) and FCA v Arch Insurance (2021) are cases where courts (re?)interpreted a contract in the light of an unexpected event. In these sorts of cases, the inherent flexibility of interpretation provides a via media between asserting the original terms as written, notwithstanding the new circumstances (the ‘bad bargain’ outcome) and the application of more intrusive or blunt legal methods such as implied terms or frustration. In light of the move to a more language-focused approach to interpretation in Arnold v Britton (2015) and the distinction between contract interpretation and implied terms drawn in Marks and Spencer v BNP Paribas (2015), the paper considers whether interpretation can still be a way of resolving problems around unexpected events.

Niamh Connolly (UCL)
Contractual silence, risk allocation and the interplay between contract and unjust enrichment
This paper discusses the effect of silences in contracts that may exist because the parties have not contemplated certain contingencies. The specific question is the one at the centre of the divergence of judicial opinion in the Supreme Court in Barton v Morris [2023] UKSC 3. Should we understand a conditional promise to pay as meaning that the contract excludes any payment for performance that does not meet the condition, even arising outside of the contractual right created by the parties’ agreement? The majority in Barton interpreted the express conditional promise as logically entailing the tacit exclusion of liability to pay for any lesser performance. This interpretation of the bargain activated the rule of unjust enrichment law that restitution is only possible where it is not ‘at odds’ with the bargain, including both its express provisions and its tacit exclusions. Lord Leggatt and Lord Burrows dissented, reasoning that the silence concerning the possibility of lesser performance did not displace the default implication in law of a term requiring reasonable remuneration for requested services. This raises questions both about how we should interpret the silence in the parties’ agreement and how far that silent part of the bargain should impact the availability of unjust enrichment.

First, the majority’s interpretation of the express promise as exclusionary should not be taken as a general rule. The context of each case and, specifically, whether the parties foresaw the contingencies for which they have not expressly provided should inform our interpretation of their silence. Second, there seems to be a conceptual difference between silences that exist within the scope of the bargain and the expanse of space beyond the contract’s scope. This suggests that we should draw a line between performance-like acts that fall within the tacit scope of the bargain, which are affected by the contract’s implicit exclusion of liability, and those that fall beyond the contract. Next, the paper will examine the steps by which the majority’s interpretation of the silent part of the bargain seems ineluctably to exclude unjust enrichment law. One possibility is that we might view the silence differently, depending on whether we are working within contract law to enforce the parties’ objective bargain or asking whether it is legitimate for unjust enrichment law to operate. Within contract law, the silence is never a gap, in the sense that we will always conclude that the contract allocates risk one way or the other. However, the silence may nonetheless be a gap in the bargain in a sense that is meaningful when we seek to determine whether allowing unjust enrichment would subvert the bargain. If so, it may be appropriate to refine the language that we use to articulate our justifying grounds test in unjust enrichment law, in order specifically to deal with cases where it is the silent, unarticulated part of the bargain that might govern a benefit that has been conferred.

Sarah Green (Bristol)
Smart Contracts and the Unexpected
There is little consensus on where the definition of a smart (legal) contract begins and ends.  Few, however, would disagree with the paradigm case being that of an agreement that executes without human input or, in other words, a contract formed as a result of deterministic algorithms.  In such situations, whilst contracting parties provide the coded instructions for execution, it is computers that follow those instructions in order to perform the parties' obligations.  What could possibly go wrong?

As Quoine Pte Ltd v B2C2 Ltd [2020] SGCA illustrates, mistakes can be made.  Those mistakes can relate to the way in which the coded instructions perform and of course to the way in which they were intended to perform.  This raises several significant legal questions, some of which were addressed in Quoine and some of which were not.  In that case, the software did precisely what it is was intended to do in making trades at a default price where market price data was not available on the system.  The problem was that the default price was 250 times the market price.  The only mistake that had been made, according to the Singapore Court of Appeal, was not as to the terms of the contract but as to the circumstances in which the system operated (there being a presumption that the system would always operate with access to market data). Consequently, there was no actionable mistake sufficient to void the disputed trades.  This reasoning, which has not as yet been tested in English courts, was based in no small part on the deterministic nature of the relevant algorithms.  Algorithms need not, however, always be deterministic and those now in increasing use are "smart" in that their performance depends less on how an individual has programmed them and more on what they have "learned" through their own data analysis.  Where such learned, rather than programmed, computational behaviour occurs, how should the courts treat contractual outcomes that at least one party did not expect?

Jo Braithwaite (LSE)
Managing the unexpected in global markets: LIBOR transition, the capacity of contracts and the role of third parties
Events since the outbreak of the global financial crisis have underlined the fact that even the most sophisticated and widely-used contracts can only address the risks presented by supervening events up to a point, and that this point may be reached for various reasons. A contract may, for instance, fail to address what should happen; examples from this period include collateral agreements which failed to address the relevant interest rate becoming negative. Alternatively, disputes may arise over contractual provisions which seek to deal with what should happen, for example, the six-year dispute over the reasonable endeavours component of a force majeure clause in RTI Ltd v MUR Shipping BV [2024] UKSC 18. Moreover, this period has also seen legislative changes impact certain contracts in ways that risk their becoming impossible to perform. The global project of benchmark transition, away from the use of ‘LIBOR’, 1 to so-called ‘risk-free rates’, is a valuable case study because it sheds light on these scenarios in relation to diverse contracts, spanning multiple jurisdictions.

With particular reference to the global project of benchmark transition, this paper examines what happens, and what should happen, at the point when the impact of supervening events exceeds the capacity of a contract to address internally, with specific focus on the role of third parties. Various case studies relating to benchmark transition will be used to explore and compare the role of legislators, courts, trade associations and financial market infrastructure. On this basis, the paper will address three main issues: first, the techniques used by third parties in this multi-jurisdictional and cross-border context (for example, US federal ‘safe harbors’ barring certain types of litigation which might otherwise arise from benchmark transition, and the statutory prohibition on related grounds being used to excuse contractual performance); secondly, the principles on which third parties act when managing the impact of supervening events on commercial and financial contracts (e.g., the dominant role of certainty in English commercial cases); and thirdly, the principles which we should expect to inform third party actions in this context. In the course of discussing this final issue, the idea of the ‘fit’ between the nature of the risks which a society faces and its approach to disrupted contracts, as suggested by Professor Palmer’s study of the law of Louisiana, will be explored.3

Ewan McKendrick (Oxford)
Hardship Clauses
The aim of the paper is to examine the role that hardship as a legal doctrine and hardship clauses play in dealing with the impact of unexpected events on the performance obligations of contracting parties.  The doctrine of hardship will be the shorter part of the paper and will focus on developments in other jurisdictions (France, Belgium and the Netherlands) and international instruments.  Little will be said about English law because this not a direction which English law has taken.  The larger section of the paper will be about the drafting of hardship clauses, dealing with issues such as (i) how to define hardship, (ii) the obligations of the parties on the occurrence of an event of hardship and (iii) the remedial consequences of a failure to comply with the terms of the hardship clause.  As part of that discussion consideration will be given to the question whether these clauses are too uncertain to be enforceable (or how to draft the clause in such a way as to reduce the likelihood of the clause being found to be unenforceable) and, if space permits, the relationship between a hardship clause and a force majeure clause.

Jordan English (Oxford)
‘Hell Or Highwater’ Clauses
Contracting parties who face uncertainty about the future, in particular their ability to perform their contractual obligations and to obtain the agreed exchange in return, often seek to mitigate their risk by inserting clauses, such as force majeure or material adverse change clauses, that provide for a degree of flexibility. But parties may also seek to provide for the uncertainty in another way: by affording limited or no flexibility. A ‘hell or highwater’ clause is a clause in which a party promises to perform ‘come hell or highwater’: their obligation is said to ‘be absolute and unconditional irrespective of any contingency whatever’. The question then is whether the common law doctrine of frustration has any role to play to relieve parties from the effects of these clauses. This in turn raises the question of what the doctrine of frustration is for. The issue arose in relation to finance leases of aircrafts during the Covid-19 pandemic: Salam Air SAOC v Latam Airlines Group SA [2020] EWHC 2414 (Comm); Wilmington Trust SP Services (Dublin) Ltd v Spicejet Ltd [2021] EWHC 1117 (Comm) and presents a particular difficulty for small to medium businesses who may have no choice but to agree to such clauses.
This paper argues that the doctrine of frustration should have no role to play in such cases because the doctrine of frustration is simply a question of construction: did the party who seeks to be released from their obligation promise to perform conditionally or unconditionally? Absent statutory authorisation, the courts have no power to rewrite or improve the parties’ agreement. But this does not mean that ‘contract law’ has no role to play—in particular, such clauses highlight the importance of statutory protections against unfair terms, particularly for small to medium businesses.

Richard Calnan (UCL)
Material Adverse Change Clauses
The purpose of a material adverse change (MAC) clause is to provide some protection against what Donald Rumsfeld described as "known unknowns ". The purpose of this paper is to discuss when they are used, how they are drafted and what they mean.

The value of a MAC clause is that it can be drafted and negotiated to suit the particular circumstances of the transaction concerned. General MAC clauses do exist. But the more specific the clause is drafted, the more useful it will be. The risks of wrongful repudiation are too great to enable a general MAC clause to be used except in the most extreme cases.

A MAC clause therefore sits more easily within the detailed terms of a commercial contract than any overriding legal doctrine intended to deal with the consequences of change - in the same way that a force majeure clause is so much more useful than the doctrine of frustration. It is also more useful than allowing the courts to override what the parties have agreed in the interests of "commercial common sense ".

This also has its disadvantages. The meaning of the clause depends on the precise words used in the context of the transaction documents as a whole and in the light of the relevant background. Precedents are of limited value. But that is the nature of contractual interpretation.

Charles Mitchell (UCL) and Magda Raczynska (UCL)
Variation Clauses and Variation Agreements
When faced with the unexpected, contracting parties may wish to alter the contractual relationship they are in. One option is to end the existing contract and conclude a new one. The other is to vary the existing contract by changing one or more of its terms. Parties sometimes have good reasons for preferring to keep an existing contract alive, and in practice, contracts often include a power to vary, whether by agreement or unilaterally.
Variation gives rise to a question whether it is a matter of parties’ intention that changes to the contractual relationship amount to a variation or to a new contract or, rather, whether it is  for the court to characterise the effect of the parties’ changes as variation or a new contract in much the same way as the court characterises occupation as a tenancy or a licence or a security right as a fixed or a floating charge. In a recent decision, Cobalt Data Centre 2 LLP v HMRC [2024] UKSC 40, the Supreme Court said obiter that, generally, whether the parties vary – as opposed to replace – a contract, depends on the parties’ intention. However, intention would not be given effect to if to do so would bring the law into ‘disrepute and [damage] its legitimacy in the eyes of the public’ (at [147]).

The purpose of the paper is to explore the conceptual and policy limits to the powers which parties have to vary the terms of a contract (as opposed to entering a new one). The paper will consider exercising such powers both through the unilateral exercise of a variation clause in the contract and through a separate bilateral agreement to vary the terms of the original contract.

Miriam Goldby (QMUL)
Suspension or Termination of Obligations in Charterparty Contracts: Should we rely on contractual interpretation to achieve certainty?
The major terms of longer-term charterparty contracts (Contracts of Affreightment and Time Charters) are typically intensively negotiated while many subsidiary terms tend to be treated as “boilerplate”. It is this “boilerplate”, however, that tends to determine the circumstances in which contractual obligations may be suspended or terminated. A large proportion of these contracts select English law as their governing law and the English approach to contractual interpretation is, therefore, key to determining the meaning of these terms. Based on David Campbell’s work in this field, this paper analyses the nature of these longer-term charterparty contracts, considering whether they should be viewed as relational contracts. In light of this analysis, it articulates what may be understood as the purpose of these terms. It then evaluates the English courts’ interpretation of these clauses in certain landmark decisions reported in the last ten years. It argues that an excessive focus on certainty can lead to interpretations which are not in line with the purpose of the relevant contractual terms, and that the way to increase certainty and predictability is by the use of explicit terms defining when obligations may be suspended or terminated.

Solène Rowan (KCL)
Specific Performance Clauses
Contracting parties commonly address commercial uncertainty by prescribing in their agreements the remedies that will follow from breach. Although there is a default regime for breach of contract, fashioning remedies to their particular circumstances empowers the parties to determine the level of protection needed to deal with the risks in play.

My paper focuses on specific performance clauses, whose significance has been brought into focus by the COVID-19 pandemic and also front-page headlines in high profile takeover deals such as Elon Musk's acquisition of Twitter. These clauses provide that specific performance – which is not available as of right under the default regime in England – should be available at the election of the injured party on the occurrence of a breach. They allow specific performance to be claimed where it would otherwise be unavailable or where it is uncertain that it would be awarded.

Despite their commonality and usefulness in practice, specific performance clauses have received little attention in the case law in England. On the few occasions that they have been obliquely considered, there has been judicial reluctance to allow contracting parties to fetter or oust the equitable discretion of the court as to whether to grant specific performance. The thesis of this paper is that this reluctance should be reconsidered in view of the important recent decisions in Cavendish Square Holding BV v Talal El Makdessi [2015] and Braganza v BP Shipping Ltd [2015]. Recognition of their validity would be consistent with the greater liberality shown in Cavendish Square towards damages clauses that go beyond the default regime. Their potential misuse could be avoided by the application of the outer limits on unilateral contractual discretionary powers that were enunciated in Braganza. Consideration will be given to the law of other jurisdictions.

About the speakers, chairs and discussants

Sushma Ananda (7 King’s Bench Walk)
Sushma is a barrister at 7 King’s Bench Walk. She has a broad commercial practice with a particular emphasis on insurance and reinsurance, professional negligence, shipping and international trade, and international arbitration. She has been instructed in a wide variety of commercial disputes both as sole counsel and as a junior. Sushma has appeared in the Supreme Court, Court of Appeal, Commercial Court, county courts and in many international arbitrations (including LMAA, LCIA, ICC, ARIAS, SIAC and Bermuda Form arbitrations). Sushma’s highlighted cases include the 2020 COVID-19 business interruption test case (at first instance and in the Supreme Court) brought by the FCA against eight insurers, including Ecclesiastical Insurance Office plc and MS Amlin Underwriting Ltd (Sushma’s clients); the recent Stonegate Pub Company v MS Amlin and others (2022/2023) litigation which decided a number of the most important COVID-19 business interruption issues left undecided by the test case; Ferster v Ferster [2016] EWCA Civ 717, a case concerned with the unambiguous impropriety exception to without prejudice privilege; and Involnert Management v Aprilgrange Limited [2015] 2 Lloyd’s Rep 289, a multi-million euro professional negligence claim in the Commercial Court concerned with the insurance of a super yacht. Sushma was called to the Singapore Bar in February 2015. She is ranked in Chambers & Partners in Insurance & Reinsurance and the Legal 500 in Insurance & Reinsurance, International Arbitration, Shipping and Commodities. In October 2010 Sushma was cited by Legal Week as one of the “Stars at the Bar”, and she was awarded “Insurance Junior of the Year” at the UK Bar Awards 2023.

Sir William (Bill) Blair (3 Verulam Buildings)
Bill Blair is considered a leading international expert in commercial and financial law and dispute resolution.  He is a former Judge in Charge of the London Commercial Court and Financial List Judge for England and Wales. Now an Arbitrator at 3 Verulam Buildings (London), he has had appointments as Chair, sole arbitrator and party-appointed arbitrator in commercial and investment arbitration: he is on the list of arbitrators suitable for appointment as Chair in arbitrations under trade agreements to which the European Union is a party. Other appointments include: member of the International Commercial Expert Committee of the Supreme People’s Court of the PRC; Council member of the Beijing Arbitration Commission and the Shenzhen Court of International Arbitration; First President of the Board of Appeal, European Supervisory Authorities; Professor of Financial Law and Ethics, Queen Mary University of London; Chair of the Enforcement Decision Making Committee of the Bank of England; Judge of the Qatar International Court and Dispute Resolution Centre; Steering Group Member of the Standing International Forum of Commercial Courts; P.R.I.M.E. Finance Expert.

Jo Braithwaite (LSE)
Jo Braithwaite is a professor of international commercial finance law at LSE Law School. Her research relates to the use of private law in the international markets, with a particular focus on the derivatives markets, the use of standard form contracts and the resilience of financial market infrastructure. Recent projects have included a book published by Cambridge University Press on the role of the courts in the global financial markets (‘The Financial Courts’, joint winner of the triennial Main Book Prize awarded by the Honourable Society of the Inner Temple) and articles on bank fraud; central counterparties; and post-Brexit financial regulation. Jo joined LSE Law School in 2008. She has a PhD from the University of London, a LLM degree from the University of Pennsylvania where she was a Thouron scholar, and a BA(Hons) from the University of Oxford. Before undertaking her PhD, she qualified as a solicitor and practised in a City law firm. Jo teaches various financial, banking and commercial law subjects at LSE Law School, and is a PhD supervisor.

Richard Calnan (UCL)
Richard Calnan is a partner in Norton Rose Fulbright LLP in London and a Visiting Professor at University College London. His practice has involved a broad range of corporate and financial transactions, restructurings and insolvencies. He has written a number of articles and chapters in books on commercial law.  He is the author of Calnan on Taking Security (LexisNexis, 5th ed 2024), Proprietary Rights and Insolvency (Oxford University Press, 2nd ed 2016), Principles of Contractual Interpretation (Oxford University Press, 2nd ed 2017) and Principles of Statutory Interpretation (Oxford University Press, 2023).

John Cartwright (Oxford)
John Cartwright is Emeritus Professor of the Law of Contract, University of Oxford, Emeritus Student (Fellow) of Christ Church, Oxford, and Research Fellow (formerly Director) of the Institute of European and Comparative Law, Oxford. He was also Professor of Anglo-American Private Law at the University of Leiden, the Netherlands, from 2007 to 2017; and from 2002 to 2024 he taught at Paris-Panthéon-Assas University, France (first as visiting professor, and from 2019 as contractual professor of private law (common law)). His research focuses on English and comparative private law, especially contract and property law.

Charles Clark (Linklaters)
Charles Clark read law at Trinity College Cambridge and joined Linklaters in 1980 where he qualified as a solicitor and has spent his entire career.  He specialised in international securities issues and other financial transactions and, having spent several years working in Paris, developed an expertise and interest in the differences between common and civi law systems. Now largely retired, he remains a Partner Consultant with the firm, working on various cross-professional committees and working groups.  Outside of the office he is a keen violinist and trustee of various arts charities.

Niamh Connolly (UCL)
Niamh Connolly is an Associate Professor in UCL Laws. She previously worked at Trinity College, University of Dublin. Niamh lectures and conducts research on unjust enrichment and contract law. Her research interests concern in particular vitiating factors in unjust enrichment and contract, the consequences of contractual invalidity, and the intersection of public and private law in unjust enrichment and contractual contexts. Niamh also has a longstanding interest in civilian law and comparative perspectives. She has undertaken research visits at Oxford, Cambridge, McGill and the Max Plank Institute in Hamburg. She has also been a visiting lecturer at Université Toulouse 1 Capitole and Université Paris V Descartes.

Paul S Davies (UCL)
Paul S Davies is Professor of Commercial Law at UCL and a Barrister at Essex Court Chambers. 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. 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 (3rd ed, OUP, 2021), and a co-author of Equity and Trusts: Text, Cases and Materials (3rd ed, OUP, 2019 (with Graham Virgo)). Paul is also an editor of both Chitty on Contracts and Snell's Equity. In 2020 Paul was awarded a Philip Leverhulme Prize in Law.

Jordan English (Oxford)
Jordan is an Associate Professor in Law at the University of Oxford and a Fellow and Tutor in Law at Magdalen College. His research focuses on private law, with a particular emphasis on contract law and property law. He is the author of a forthcoming monograph on contract law, Discharge of Contractual Obligations (Oxford University Press, 2025), and the co-author of the The Law of Tracing (Federation Press, 2021). Jordan’s work on private law has been cited widely, including by the England and Wales High Court (Commercial Court), the High Court of Australia, the New South Wales Court of Appeal, and the Full Court of the Federal Court of Australia. Before joining Magdalen in 2024, he had been a Supernumerary Teaching Fellow in Law at St John’s College, Oxford (2021–2024). 

Mr Justice Foxton
Sir David Foxton became one of the judges of the Commercial Court in 2020. He is authorised to sit in cases in the Financial List and the Competition Appeal Tribunal. He also sits in the Administrative Court and other King’s Bench work, including crime. Mr Justice Foxton studied law at Oxford University and King’s College, London. He was called to the Bar by Gray’s Inn in 1989. He practised as a barrister at Essex Court Chambers from 1989 to 2020, acting in a broad range of commercial disputes, and also accepted appointments as an arbitrator. He was appointed a Recorder in 2009, and a Deputy High Court Judge in the Commercial Court and the Chancery Division in 2017. In 2020, he was appointed as a High Court Judge assigned to the Queen’s Bench Division (now King’s Bench Division) and nominated to sit as a Judge of the Commercial Court. In July 2024 he completed a two-year appointment as Judge in Charge of the Commercial Court. Mr Justice Foxton is one of the editors of Scrutton on Charterparties and Bills of Lading.

Kate Gibbons (Clifford Chance)
Kate Gibbons is Clifford Chance’s Global Knowledge partner as well as being a Finance and Capital Markets partner from which she leads the Practice’s Knowledge function. In these capacities she chairs the Firm's Knowledge Committee, Thought Leadership Board and its London and Global Legal Opinion Committees and is a member of the Global ESG Board. She is a member and director of the Financial Markets Law Committee, considers issues of security reform and legal opinions for the City of London Law Society, is a distinguished practitioner of Harris Manchester College Oxford and has recently stepped down from a six-year term on the Chatham House Council.

Miriam Goldby (QMUL)
Miriam Goldby is Professor of Shipping, Insurance and Commercial Law at the Centre for Commercial Law Studies, Queen Mary University of London. She was previously the Centre’s Director of Research (2020-2024), director of its Insurance, Shipping and Aviation Law Institute (2019-2022) and founder and director of its International Shipping Law LLM programme (2013-2022). She is the author of Electronic Documents in Maritime Trade: Law and Practice (OUP), the second edition of which was published in 2019, and has published extensively in the fields of shipping, insurance and financial law. She participated in the work of UNCITRAL WG IV - Electronic Commerce, which led to the adoption of the Model Law on Electronic Transferable Records in 2017. She undertook a part-time secondment to the Law Commission of England and Wales to work on the Electronic Trade Documents project between November 2020 and March 2022. She has received research funding from the British Academy, the Economic and Social Research Council (ESRC) and Lloyd’s of London and has contributed to research undertaken by the Bank of England on InsurTech and by the Law Commission on Anti-Money Laundering. She is a member of the Comité Maritime International (CMI) Standing Committee on Carriage of Goods, and is representing the CMI at the deliberations of UNCITRAL Working Group VI, currently working on a new Draft Instrument on Negotiable Cargo Documents. She is Vice-Chair of the International Chamber of Commerce UK (ICC UK) Commercial Law and Practice Committee and member of its Trade Finance Committee. She is also a member of the British Maritime Law Association (BMLA) Executive Committee and of the British Insurance Law Association (BILA) Committee. She has held Visiting Positions at George Washington University (2011-2012), National University of Singapore (2019 and 2023) and Magdalen College, Oxford (2024).

Sarah Green (Bristol)
Professor Sarah Green was Law Commissioner for Common and Commercial Law at the Law Commission of England and Wales from 2020 to 2024. During that time, her law reform work included the Electronic Trade Documents Act 2023, Advice to Government on Smart Contracts, updating the Arbitration Act 1996, scoping reforms to the law on Intermediated Securities, and drafting guidance and a bill to ensure that English law is well-suited to accommodate Digital Assets. In 2023, she won both the International Chamber of Commerce’s Award for the Individual Who Has Made the Greatest Contribution to the Digitalisation of Trade and the Outstanding Achievement Award at the British Legal Technology Awards. In 2022, she was placed on the Women in Fintech Power List and on Bloomberg’s “Who to Watch” Crypto List.

Sarah is now Head of Digital Assets and Trade Finance at D2 Legal Technology, Professor of Private Law at the University of Bristol and a member of T3i Partner Network. Sarah also sits on the UK Jurisdiction Taskforce, LawTechUK, The Digital Commonwealth, LegalUK, PRIME Foundation and the Trade Digitalisation Taskforce, as well as being an advisor to the APPG on Blockchain Technologies. She was previously Professor of the Law of Obligations at the University of Oxford and a software consultant at Accenture. She has written books and articles on subjects such as blockchain, smart contracts, digital assets and intermediated securities, and her work has been cited extensively in Parliament, across several jurisdictions in appellate courts, and in US Congress.

Philippa Hopkins KC (Essex Court)
Philippa Hopkins KC is a barrister practising at Essex Court Chambers.  Her areas of expertise include shipping, commodities, insurance and energy, and she has a particular interest in the conflict of laws.  Her practice is divided between litigation and arbitration. She also sits as an arbitrator, mainly in LCIA, ICC and LMAA arbitrations.  She is an editor of Arnould’s Law of Marine Insurance, and a contributing editor to the White Book, responsible for Part 58 (Commercial Court) and Part 62 (arbitration). Philippa is Chancellor of the Diocese of Chelmsford.

Mrs Justice Jefford
Dame Nerys Jefford was educated at Olchfa Comprehensive School in Swansea before studying law at Lady Margaret Hall, Oxford, and at the University of Virginia, where she was a Fulbright Scholar. She was called to the Bar in 1986 and practised at Keating Chambers in London, specialising in construction and engineering law. A large part of her practice was in international arbitration, particularly in the Far East and Middle East. She was appointed as a Recorder in 2007 and as Queen’s Counsel (now King’s Counsel) in 2008. She was appointed a High Court Judge in 2016. In 2019 she was appointed as Administrative Court Liaison Judge for the North Eastern Circuit. In 2020 she was appointed a Presiding Judge of the Wales Circuit and she is the current Deputy Chair of the Boundary Commission for Wales. 

Charles Kerrigan (CMS UK)
Charles Kerrigan is a lawyer specialising in AI and crypto since 2010.  He is a partner in CMS (an international law firm), and a Board Member at RAK DAO (a free-zone for virtual asset companies), AI & Partners (an AI regtech), and the Investment Association Engine.  He is the author of Artificial Intelligence Law and Regulation (2022 and 2nd edition due Fall 2025) and Crypto and Digital Assets Law and Regulation (2023). In AI Charles works on development, investment and implementation.  He has written training and strategy on AI for global banks and fintechs.  He has created programs for compliant adoption of AI to support financial firms whose strategy is to move to AI-first. In crypto, Charles acts for global CEXs and DEXs, for foundations, developers and investors.  He is part of a team of crypto-native lawyers working alongside ambitious firms taking crypto global.

James Leabeater KC (4 Pump Court)
James Leabeater KC is a barrister practising from 4 Pump Court in commercial disputes - particularly shipping, energy, construction, insurance and professional negligence. Most of his cases are in arbitration in London, the Middle East, Hong Kong and Singapore; he also appears in the Commercial Court and the TCC. He is a co-author of “Civil Appeals” (2nd Ed 2015, Sweet and Maxwell) and “Bareboat Charters” (forthcoming, Informa). He studied history at Oxford before taking the PGDL; he was then called to the bar in 1999 and took silk in 2019.

Peter MacDonald-Eggers KC (7 King’s Bench Walk)
Peter MacDonald Eggers KC is a barrister at 7 King’s Bench Walk, London specialising in all aspects of commercial law, especially insurance and reinsurance. Peter acts as an arbitrator and has been a Deputy Judge of the High Court since 2017. Peter has appeared in leading insurance/reinsurance cases. Peter teaches at UCL and is a contributing editor of Chitty on Contracts, co-author of Good Faith and Insurance Contracts and Carver on Charterparties, and the author of Deceit: The Lie of the Law and The Vitiation of Contractual Consent.

Paul MacMahon (LSE)
Paul MacMahon is an Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme. His primary interests are contracts, commercial law, and international arbitration. Before coming to the LSE, Paul taught at Harvard and Cambridge. He studied at Oxford (BA, BCL, DPhil) and Harvard (JD), and served as a law clerk in the United States for Judge Guido Calabresi and Judge John Gleeson. Paul also worked as a litigation lawyer at Skadden, Arps, Slate, Meagher & Flom LLP in New York City and remains a member of the New York Bar. In addition to teaching at LSE, Paul is a regular Visiting Professor at Católica Global School of Law in Lisbon. He has served as an expert on English law in foreign court proceedings.

Ewan McKendrick (Oxford)
Ewan McKendrick KC (Hon) is Professor of Anglo-American Private Law at the University of Leiden, Emeritus Professor of English Private Law, University of Oxford and an Emeritus Fellow of Lady Margaret Hall.  He is a barrister in practice at 3 Verulam Buildings, Gray's Inn and is the editor of the Law Quarterly Review.  He is the author of textbooks on Contract Law, an editor of Chitty on Contracts and has written widely on contract law.

Catherine Mitchell (Birmingham)
Catherine Mitchell is Emeritus Professor of Contract Law at Birmingham Law School, University of Birmingham. She has taught contract law and related subjects in universities for over 30 years. She is the author of Vanishing Contract Law (Cambridge University Press 2022), Contract Law And Contract Practice: Bridging The Gap Between Legal Reasoning And Commercial Expectation (Hart 2013) and Interpretation of Contracts (Routledge Cavendish 2nd ed 2018). In addition to books, she has published articles and short papers on a variety of contract issues including exclusion clauses, third party rights, restitutionary damages, entire agreement clauses and contractual networks.

Charles Mitchell (UCL)
Charles Mitchell KC (Hon) FBA is a Professor of Law at UCL. His research and teaching activities range across the law of obligations and property but he has particular interests in unjust enrichment, trusts and equity.

Georgia Quenby (Fladgate)
Georgia is a partner at London law firm Fladgate LLP. She is a versatile finance and restructuring lawyer, dual qualified in England & Wales (1995) and New York (1999). Georgia read Jurisprudence at Trinity College, Oxford, graduating in 1992. Georgia’s main areas of practice are commercial finance, asset-based lending, acquisition finance and lending in the retail sector, and she also has significant experience in M&A and project finance. She has worked on financial restructurings of well-known stressed businesses, frequently representing lenders or financial investors, and has been a licensed insolvency practitioner in the UK since 2010 enabling her to advise on downside scenarios and directors’ duties as well as investment-grade transactions. Georgia is a Distinguished Practitioner Member of the Commercial Law Centre, University of Oxford, and occasional guest lecturer on the law and practice of floating charges, She is a Member of the Advisory Council, Centre for Commercial Law Studies, and has guest lectured on commercial credit and security at CCLS. Core components of many businesses and transactions she has been involved in include contractual or recurring revenue streams, real estate, business transformation including by way of M&A, ESG, commodities, green energy, and, frequently, cross-border elements. Georgia has particular expertise in English law and New York law relating to security over both tangible and intangible personal property. In addition, Georgia holds the FT Non-executive Director Diploma and has deep experience in corporate governance and directors’ duties both from a legal perspective and at board level. Georgia has held NED roles at listed and privately-held companies.

Magda Raczynska (UCL)
Magda Raczynska is Associate Professor of Law at UCL. She has written on personal property, obligations, and other aspects of commercial law. She was a lead contributor to the Secured Transactions Code developed by the City of London Law Society Financial Law Committee, executive co-director of the Secured Transactions Law Reform Project, and is an expert contributor to European Law Institute's project on European Business Code of the Henri Capitant Association. She is the author of The Law of Tracing in Commercial Transactions (OUP 2018), contributed to McKnight, Paterson and Zakrzewski on The Law of International Finance (OUP 2nd ed 2017), co-edited Contents of Commercial Contracts: Terms Affecting Freedoms (Hart 2020), and is one of the co-authors of Calnan on Taking Security (LexisNexis, 5th edition, 2024). She is also one the editors of Snell’s Equity.

Solène Rowan (KCL)
Professor Solène Rowan is the Chair in Contract Law and the Vice-Dean for Students, Culture & Community at King’s College London. She is also a Visiting Professor at Paris-Assas University and an Honorary Professor at the Australian National University. Her research interests include contract law, commercial law, and comparative law. She is a member of the editorial team of Chitty on Contracts (Sweet & Maxwell) and is the author of the award-winning monograph, Remedies for Breach of Contract: a Comparative Analysis of the Protection of Performance (OUP 2012).

Lord Sales
Lord Sales was appointed as a Justice of the UK Supreme Court in 2019. After practising at the Bar in the field of commercial law and then, as First Treasury Counsel, in public law he became a High Court judge in 2008 (sitting in the Chancery Division and the Administrative Court), and was promoted to the Court of Appeal in 2014.

Adam Sanitt (Norton Rose Fulbright)
Adam Sanitt is a Knowledge Director at Norton Rose Fulbright LLP in London, specialising in banking litigation and digital assets.  He is a member of the Law Commission’s expert advisory panel for the project “Digital assets: which law, which court?”.  His recent articles include Digital assets and applicable law: in defence of the lex situs in Lloyd’s Maritime and Commercial Law Quarterly ([2025] LMCLQ 82),  Remedies for Smart Legal Contracts in Damages, Recoveries and Remedies in Shipping Law (Ed. Soyer, 2023), What sort of property is a cryptoasset? in Butterworths Journal of International Banking and Finance Law ((2021) 2 JIBFL 83) and (with Professor Sarah Green) Smart Contracts in Contents of Commercial Contracts (ed. Davies and Raczynska, 2019).

Mrs Justice Joanna Smith
Dame Joanna Smith was called to the Bar in 1990. She was appointed Queen’s Counsel in 2009, and a Deputy High Court Judge in 2017. She became a Judge of the High Court, assigned to the Chancery Division, in 2021. She also sits in the Technology and Construction Court and the Patents Court. She has been the Chair of the Tribunal Procedure Committee since 2020.

Adam Temple (3 Verulam Buildings)
Adam is a barrister at 3 Verulam Buildings, specializing in financial services regulation, banking, insurance, and cryptoasset disputes. His practice includes disputes in the Dubai International Financial Centre and the Court of the Abu Dhabi General Markets. He is the consultant editor for the Financial Services Volume of Halsbury's Laws of England and has written several publications on financial services law.

Andrew Twigger KC (Maitland Chambers)
Andrew is a barrister practising at Maitland Chambers in domestic and international business disputes of all kinds.   He particularly enjoys appellate advocacy and represented the successful parties in the Supreme Court in Wood v Capita [2017] A.C. 1137, Barton v Morris [2023] A.C. 684 and most recently Frenkel v LA Micro [2024] UKSC 42.  He took silk in 2011 and sits as a Deputy High Court Judge.  He was Chair of the Chancery Bar Association between 2022 and 2024.

Tickets and Fees

Standard Ticket = £120
Public Sector workers = £80
Full time academics = £60
Full time students = £40

This event is in-person only.

Optional conference dinner:
Dinner ticket: £65

Companies and Goverment depts wishing to book and pay by invoice should email lisa.penfold@ucl.ac.uk. Clicking on the link will provide you with all the information we need from you.

Book online at:
https://ucl-contract-law-unexpected.eventbrite.co.uk

Queries

If you have any queries about this conference please email laws-events@ucl.ac.uk

Book your ticket