IP Draughts is still raw from the debate over best and reasonable efforts, and whether UK judges are guilty of “institutional wackiness”, “lame” reasoning, thralldom to “magic wordery” and even “insanity” for making distinctions between different levels of efforts or endeavours, which their US judicial brethren (and whatever the female of brethren is – sistren? sororen?), with commendable clarity of thinking, avoid.
This nightmare came back to IP Draughts when he read about the recent climate change treaty negotiations. Apparently, one country, India, refused to sign up to “legally binding” mechanisms, but agreed to the phrase “legal force” instead. In the words of the Guardian newspaper:
A compromise, suggested by the Brazilian delegation, saw the EU and Indians agree to a road map which commits countries to negotiating a protocol, another legal instrument or an “agreed outcome with legal force”.
Reading the treaty documents on the UN website, it is difficult to track the sequence of drafts. The Conference seems to have generated a vast number of documents. This draft of the so-called Durban Platform uses the phrase “agreed outcome with legal force”. This text refers to the parties working to adopt:
this protocol, legal instrument or legal outcome…
Has the phrase “outcome with legal force” been further watered down to “legal outcome”, or is this a different reference?
We advise clients not to engage in “creative ambiguity” when drafting contracts, not least because, under English law, the contra proferentem rule may cause the judge to adopt the interpretation least favourable to the party seeking to rely on the ambiguous wording.
Different considerations seem to apply to countries when negotiating diplomatic treaties.