The conference mostly consisted of academic lawyers at UCL and elsewhere giving 15-minute summaries of papers that they had written, on topics relevant to the overall theme of the conference. After each summary, another person, often a practitioner, gave a 5-minute response, and then the subject was opened to questions and comments from the audience. In this way, 18 diverse topics were discussed, ranging from implied terms of good faith under English law, to negative covenants in loan agreements.
Two discussions particularly engaged with IP Draughts and prompted him to ask questions. The first was a paper from Richard Calnan of Norton Rose Fulbright, on the subject Controlling Contract Interpretation. He circulated a one-page set of interpretation clauses of a kind that is rarely seen, some of which instructed the court to ignore some of the general principles of interpretation that they usually apply. For example, one of his clauses stated that where party was given a discretion, he could exercise that discretion in his own unfettered interests.
IP Draughts’ question to Richard was why he had selected some of the principles of interpretation but not others. Could there not be a 20-page set of terms that more thoroughly overrode or confirmed the general principles of interpretation that the English courts apply? Richard’s slightly unsatisfactory response was that this set of terms was a ‘teaser’.
The second talk that caused IP Draughts to raise his hand was given by Professor Sarah Green of the University of Bristol, on the subject Distance and Discretion: The Implications of Smart Contracting for Freedom of Contract. IP Draughts was keen to know the panellists views on whether the (future) rise in smart contracts was likely to affect how contracts generally were interpreted. Might the courts follow the lead of smart contracts, where terms were rigidly applied, rather than find ways around the strict adherence to contract terms, using long-established principles of interpretation?
IP Draughts gave the example of a contract that provided that, on termination of the contract, one party (the principal) could require the other (the distributor) to sell him certain equipment that had been used by the distributor in the course of performing the contract, but only if notice to buy was delivered to the seller within 28 days of termination. IP Draughts had been involved in a case with similar facts to these, where it was suggested that, in practice, the court would ignore the 28 day condition. Surely this was a situation where the time limit would be strictly enforced if it formed part of a smart contract?
The speakers for this session agreed with IP Draughts’ premise that there would be a general move towards a stricter enforcement of contract terms by the courts, even where the contract was not ‘smart’.
IP Draughts is grateful to the speakers for delivering such thought-provoking material, and to Professor Paul Davies and Dr Magda Raczynska at the UCL Centre for Commercial Law for organising the conference. It seems that the organisers hope to run similar conferences in future and that they would like suggestions on topics.
IP Draughts would like to put in a plea for a conference that focuses mainly on high-tech contracts and those where IP is important. Much as he enjoyed this conference, at times he found its focus on traditional ‘City’ subjects such as insurance, shipping and banking rather remote and, dare he say it, slightly old-fashioned.