Commercial Contracts

News & Analysis as of

Clause Headings: When Do They Matter (And When Do They Not?)

Burton J stated that he would find it "… impossible not to be assisted" by a clause heading in construing it, despite a provision that "… headings shall be ignored". Citicorp International Limited v Castex Technologies...more

Texts that Bind: Text Messages May Form Binding Real Property Contract

Last month, in St. John’s Holdings, LLC v. Two Electronics, LLC (No. 16 MISC 000090 (RBF)), a Massachusetts Land Court judge held that text messages exchanged between two real estate brokers may be sufficient to constitute...more

Development of court practice on tax disputes over the use of cash pooling

On April 21, 2016 the Commercial Court of Chelyabinsk Region rendered a decision on the case of OOO Gazpromneft Chelyabinsk, No. ?76-15351/2015 (the “Decision”). In this decision the commercial court declared...more

Disputes come from two directions. Either a claim form or a letter threatening legal action lands on your desk, or you...

Disputes come from two directions. Either a claim form or a letter threatening legal action lands on your desk, or you discover that you have a potential legal claim against a third party. When this happens, what are the most...more

Brexit: Implications for Commercial Contracts

Brexit, and the possibility of a Britain which is no longer part of the EU, raise many implications for commercial contracts. Like other supervening events, it is unlikely that Brexit was contemplated by the parties when...more

Contracts May Now be Varied Orally or by Conduct

The English Court of Appeal has held that parties are free to agree to whatever terms they choose to undertake, whether in writing, by spoken words, or by conduct; this freedom trumps non-oral variation clauses....more

Significant Developments in Canadian Energy – For the month of April 2016

Conventional - April 21, 2016 – The Alberta government announced the technical formulas that will be used to calculate royalties and payout cost allowances on oil, natural gas, propane and butane starting in 2017....more

Long-term supply (and off-take) agreements: some recent themes

This Client Alert seeks to highlight certain recurring issues and themes arising in the context of long-term commodity supply and off-take agreements. It draws upon the recent collective experience of our lawyers as well as...more

The Blockchain Revolution, Smart Contracts and Financial Transactions

Originally developed as the technology underpinning bitcoin, blockchain has been heralded as an innovative technology with wide-ranging application beyond digital currency (or cryptocurrency), including as a platform for...more

Assessing New Risks in Letters of Intent - Delaware Supreme Court Creates Increased Exposure by Recognizing a Duty to Negotiate in...

Prior to entering into a definitive commercial agreement, parties often enter into a letter of intent, a term sheet or a memorandum of understanding (a preliminary agreement). Some of the provisions in the preliminary...more

Franchising Update

While dispute resolution clauses may be straightforward for domestic franchise agreements as a result of the Franchising Code, dispute resolution clauses can be one of the most neglected provisions in international master...more

Contractual Stipulations of Irreparable Harm: Helpful But Not Determinative

Business contracts frequently contain remedy clauses whereby the parties agree that a breach constitutes irreparable harm entitling the nonbreaching party to specific performance or injunctive relief to enforce the agreement....more

Ninth Circuit Refuses To Enforce Arbitration Clause In Sham Franchise Agreement

A short new opinion from the Ninth Circuit may run counter to long-standing Supreme Court precedent. In Casa Del Caffe Vergnano v. Italflavors, 2016 WL 1016779 (9th Cir. Mar. 15, 2016), the court refused to enforce an...more

You Can’t Always Get What You Want: Parties Cannot Change Scope of Judicial Review of Arbitration Awards Under Massachusetts...

In a decision that will affect commercial arbitration agreements across the Commonwealth, the Massachusetts Supreme Judicial Court (“SJC”) recently held in Katz, Nannis & Solomon, P.C. v. Levine that judicial review of...more

Canary Wharf v Deutsche Trustee Company Limited: Contractual interpretation now settled and straightforward, correct?

The English High Court has once again had to visit the principles for interpretation of contracts under English law, in Canary Wharf v Deutsche Trustee Company Limited and others. The particular issue in dispute concerned...more

Supreme Court Clarifies Test for Implied Terms

The Supreme Court has clarified that, for a term to be implied into an agreement, it must be either necessary for business efficacy or so obvious that it goes without saying. This is a significant judgment for commercial...more

Real Estate. Major Russian legislation changes for 2015

Reform of civil legislation - Federal Law No. 42-FZ on Amendments to Part One of the Russian Federation Civil Code of March 8, 2015 - The Law entered into force on June 1, 2015 and made sweeping changes to the...more

Continued Employment is Enough for a Severance Agreement

Here’s one where the tables were turned. Former employees often argue that a non-compete agreement is unenforceable because there was inadequate “consideration.” Consideration is the exchange parties to a contract make, what...more

Drafting Arbitration Clauses in Chinese/American Commercial Contracts for Arbitration in China

American companies doing business with Chinese companies in China are often concerned about the credibility, neutrality and quality of the arbitration institutions in China. As a result, American companies generally try to...more

A Guide to Endeavours Clauses

A guide to endeavours clauses: ‘best’, ‘reasonable’ and ‘all reasonable endeavours’ A frequent negotiating point in commercial contracts is the weight of an obligation. Lawyers often try to minimise the rigor of the...more

EU Sanctions: Commercial and Contract Risks

Sanctions programmes are established and developed as a political response to international relations developments; yet they impose significant obligations on commercial entities in terms of compliance. They may interfere...more

Will you be Penalised for a Penalty?

Recent Developments in the law of Penalties - The law has long struggled with two competing notions about the proper approach to penalties, namely: 1. the freedom of parties to contract, 2. preventing a party from obtaining a...more

Paying The Penalty? Supreme Court Clarifies Rule Against “Penalty Clauses”

Last week, the Supreme Court of England and Wales issued a judgment that gives some welcome clarification about when a contractual provision may be deemed an unenforceable “penalty clause”. This should help employers draft...more

Unfairly-Priced Imports Hurt U.S. Market Prices in Several Ways

Unfairly-priced imports in the U.S. market affect the prices U.S. producers receive in several ways, including an impact on supposedly "fixed" long-term contract prices. For some consumer goods, lower prices can increase...more

Reflections on the Hitachi FCPA Enforcement Action

Earlier this week, the Securities and Exchange Commission (SEC) announced resolution of a Foreign Corrupt Practices Act (FCPA) enforcement action involving the Hitachi Ltd (Hitachi). There were several interesting aspects to...more

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