Contract law update
Drafting contracts key lessons from 2020
In this briefing we look at the lessons to be learnt from some of the English contract law cases of 2020. While these cases did not involve any significant developments in contract law, they serve as a useful reminder of some key issues for those drafting and managing contracts. We also include a summary of the main Brexit-related contract points, now that the Brexit implementation period has ended, and an outline of the impact of the discontinuation of LIBOR at the end of 2021.
Table of contents
1. Formation 2. Variation 3. Interpretation 4. Good faith 5. Notice provisions 6. Force majeure 7. Discontinuance of LIBOR 8. Impact of Brexit on contract terms
1 2 3 4 5 7 8 9
The question of whether or not a binding contract exists frequently comes before the courts. In previous briefings
we have covered cases which focussed on issues such
as offer and acceptance, intention to create legal relations and certainty of terms, and the case that we outline below is an example of the use of the phrase "subject to contract".
Joanne Properties Ltd v Moneything Capital Ltd  EWCA Civ 1541
Herbert Smith Freehills British and Irish Legal Information Institute
The parties had agreed a settlement of legal proceedings, which was embodied in a formal signed agreement. Amongst other things the settlement agreement provided for the sum of 140,000 to be ring-
the transcripts of all the cases we refer to are available free of charge from this website with the exception of the Totsa case in the section on force majeure
fenced pending agreement as to how it should be allocated between the parties. A dispute arose as to whether a further binding agreement was reached in inter-solicitor correspondence about the allocation of the ring-fenced sum.
The inter-solicitor correspondence started with the defendant's solicitors putting forward offers stated to be "subject to contract"; further correspondence from the defendant's solicitors in some cases included the "subject to contract" proviso and in other cases omitted it. The claimant's solicitors also put forward offers which included the "subject to contract" proviso. The final offer came from the defendant's solicitor in an email headed "without prejudice and subject to contract". The claimant's solicitor replied the same day in an email also headed "without prejudice and subject to contract". The reply began with the word "Agreed" and the solicitor said he would liaise with counsel and "put a proposal to you to achieve the desired end".
The defendant's solicitor subsequently wrote to the claimant's solicitor "subject to contract" with a draft consent order containing additional terms. The draft order was not agreed and the defendant applied to
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court for an order in those terms. The claimant's position was that no binding agreement had been reached. The High Court found that a binding agreement had been reached and the claimant appealed.
The Court of Appeal, overturned the High Court's decision. In reaching this decision the court noted that the intention to enter into a legally binding contract must be determined objectively but that the context is also of importance. On the facts, the most important feature of the context was the use of the phrase "subject to contract". The court referred to earlier cases including one which explained the meaning of the phrase as "(a) neither party intends to be bound either in law or in equity unless and until a formal contract is made; and (b) that each party reserves the right to withdraw until such time as a binding contract is made".
The Court of Appeal decided that since negotiations had begun "subject to contract", this condition was carried all the way through the negotiations, as nothing to the contrary was agreed explicitly, nor implicitly. The final letter from the claimant's solicitor included the proviso and also plainly contemplated that a consent order would be needed to embody the compromise. The court commented, in the context of negotiations to settle litigation which are expressly made "subject to contract", that the consent order is the equivalent of the formal contract.
Practice points formation
Remember the basic requirements for a binding contract an agreement, which is intended to be legally binding, supported by consideration, and sufficiently certain and complete to be enforceable and that a contract may become binding, even though there are still terms to be agreed, if the parties have agreed on all the terms that are essential for the formation of legally binding relations between them.
Take care to avoid entering into a contract unintentionally and avoid saying anything in negotiations or correspondence which may subsequently be construed as evidence of an intention to be contractually bound.
When negotiating transactions or settlements, clearly state the condition under which negotiations are carried out, for example by providing that any agreement is "subject to contract", but be aware that, even if a "subject to contract" proviso has been used, subsequent conduct may indicate that a binding agreement has been reached.
Be clear about when draft contracts are in an approved and agreed form and then have a clear procedure for both parties to enter into the contract.
Whenever possible, include all essential terms in a written agreement signed by all the parties before any obligations are performed. If you have to use some form of interim arrangement before the final terms are agreed, build in as much protection as possible. Clearly state the scope of the works and the terms on which it will be carried out and specify which parts of the document (if any) are intended to be legally binding. Consider what is to happen if the full contract is in fact never signed.
Most commercial contracts contain a variation clause providing that any variation must be in writing and signed by the parties now commonly referred to as a "no oral modification" or "NOM" clause. The 2016 Court of Appeal decision in MWB Business Exchange Centres Ltd v Rock Advertising Ltd caused a degree of concern among commercial parties as it found that a contract may be varied informally even if it contains such a clause. The Supreme Court subsequently reversed the Court of Appeal decision and restored an element of certainty about the effect of these clauses; a contract which contains a NOM clause may only be varied informally if "(i) [there were] some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more would be required for this purpose than the informal promise itself". For further detail on the Supreme Court ruling please see our 2018 contract briefing.
The following case, concerning the enforcement and recognition of an arbitral award, illustrates the high bar set by the test in Rock Advertising.
KababJi S.A.L (Lebanon) v. Kout Food Group (Kuwait)  EWCA Civ 6
The case concerned an English law agreement originally entered into by the appellant ("KJS") as licensor and a Kuwaiti company as licensee. Following a corporate reorganisation, the original licensee became a subsidiary of Kout Food Group (Kuwait) ("KFG"). A dispute arose under the agreement and KJS started arbitration proceedings against KFG (not the original licensee). One of the questions raised was whether
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KFG had become an additional party to the agreement. The other key issue was which law governed the arbitration agreement but that is not covered in this briefing; for further information please see this blogpost by our arbitration team. The French Court of Appeal has reached a different conclusion to the English Court of Appeal on the governing law of the arbitration agreement, and both decisions are currently being appealed. However, the outcome of these decisions does not affect the analysis below of the English Court of Appeal regarding NOM clauses.
The arbitral tribunal concluded that, as a matter of English law, a novation was to be inferred by the conduct of the parties, even though the agreement contained the following, fairly standard NOM clause:
"The Agreement may only be amended or modified by a written document executed by duly authorised representatives of both Parties."
The agreement also required the written approval of KJS for any transfer of rights by the original licensee and specified that any waiver of any provision had to be in writing and signed. KJS argued that the good faith and fair dealing provisions contained in the agreement overrode the NOM clause and KFG could therefore be a party to the arbitration agreement without written consent. In response, KFG argued that the parties had sought to achieve a high level of business certainty in the drafting of the agreement and any amendment and consent to an amendment could only be effective in writing and any consent to waive these requirements also had to be in writing.
The Court of Appeal agreed with KFG that the principles of good faith and fair dealing could not be relied on to make someone a party to the agreement who would not otherwise be a party. The NOM clause could only be overridden to the extent that the test set out in Rock Advertising was satisfied and as the first instance finding of fact showed that this was not the case, the enforcement of the arbitral award was refused.
Practice points variation
Remember that a contract may be varied orally or by conduct, so consider including a NOM clause requiring all variations to be in writing and specifying who may agree amendments on behalf of each party.
Ensure that any variations comply with the requirements of any NOM clause in the original contract. In any correspondence or discussion about a potential variation, state that the variation will not take effect until it has been agreed in accordance with the relevant clause. As the KababJi case shows failing to comply with a NOM clause can have very serious consequences.
Think carefully about the administration of ongoing contracts and ensure that contract management teams are aware of, and comply with, any variation provisions.
When agreeing a variation, pay careful attention to the effect of the proposed variation on other provisions of the contract.
Where contracts involve complex calculations, the use of worked examples can aid the interpretation by demonstrating the way in which the parties intended the calculation to work. This next case involves such a worked example but highlights the risk of inconsistencies. Altera Voyageur Production Ltd v Premier Oil E&P UK Ltd  EWHC 1891 (Comm)
The case involved a charter contract for one of Altera's vessels which was used by Premier in the development of a North Sea oil field. The contract set the basic hire rate and included a complex mechanism to adjust the hire depending on the vessel's availability. The mechanism was set out in narrative followed by two worked examples. The worked examples included two steps which were not expressly set out in the narrative so the key question for the court was whether the narrative provisions took precedence over the two worked examples.
Premier argued that applying the formula in the way set out in the worked examples produced a result inconsistent with the preceding narrative, the other terms of the contract and commercial common sense; applying the formula as set out in the narrative would give effect to what a reasonable person would say was the intention of the parties as conveyed by the words which they have used in the contract as a whole.
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The judge disagreed and decided that the worked examples should prevail over the operative provisions within the contract, saying that "It seems to me to be inherently more probable that the parties' true bargain is to be found in the "Worked Examples"".
On the facts, the worked examples were a fundamental part of the contractual terms which explained how an adjustment should be calculated. The judge found that the narrative provisions could disguise (or, at least, not make clear) their consequences when applied to factual situations; in contrast, the worked examples were expressions of the parties' true intentions, as these were something to which the parties had particularly turned their minds when entering into the agreement.
Practice points interpretation
Consider using worked examples to demonstrate the parties' intention as to how complex formulae and calculations should operate.
But remember that these examples will form an integral part of any commercial contract and should be consistent with the substantive provisions, so carry out rigorous testing to avoid inconsistencies or ambiguities. Consider specifying which should take precedence in the event of inconsistency.
Similarly in a contractual arrangement made up of various different documents include a priority clause but be aware that a court will seek to make the contract documents effective as a whole, before it will give effect to the priority clause.
As a general rule, test the wording of your contract from a litigator's point of view and rectify any potential uncertainties. Where practical, demonstrate in the drafting the commercial rationale for key provisions.
4. Good faith
The 2013 case of Yam Seng Pte v International Trade Corp Limited (covered in our 2013 contract briefing) suggested that duties of good faith were more likely to be implied into so-called "relational" contracts contracts which involve a longer-term relationship between the parties and which may require a high degree of communication, co-operation and predictable performance based on mutual trust and confidence. Since that ruling we have seen various cases in which a duty of good faith has been implied into contracts characterised as "relational". The case below considered whether a contract could be considered a relational contract purely by virtue of being a long term contract. TAQA Bratani Limited and Others v Rockrose UKCS8 LLC  EWHC 58 (Comm)
The dispute involved several joint operating agreements (JOAs) governing the operation of a number of oil production blocks in the North Sea. Marathon Oil UK LLC, as operator, was responsible for managing each block and the costs of funding the operations was split between Marathon and the other four parties (the claimants in the case) in proportion to their equity interest in the venture.
In early 2019, Rockrose announced that it was to acquire Marathon. The other JOA parties claim that they already had concerns about Marathon's performance as operator and in June 2019, the four claimants served notice under each JOA terminating Marathon's position as operator. Rockrose, which subsequently completed its acquisition of Marathon, challenged the validity of the termination. It claimed that the right to terminate was not unqualified but was subject to an implied obligation to act in good faith and not capriciously or arbitrarily. Rockrose alleged that the claimants had not acted in good faith as one of them wished to assume the role of operator for commercial gain. The claimants maintained that their power to terminate was unqualified and could not be subject to any implied terms.
The High Court decided that the termination provision within the JOAs granted an unqualified right for the non-operator parties to terminate the operator's position. The judge outline the following reasons:
the language of the relevant provision was clear and unambiguous;
the rest of the contract supported that interpretation;
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the parties could have included an express qualification of the right to terminate if that had been their intention; and
the intended purpose of the JOAs, which expressly stated that the parties were to act in their own interests.
Rockrose's argument of an implied term to act in good faith was therefore dismissed. The court noted that the JOAs were long-term contracts and therefore may arguably constitute relational contracts, but this, in itself, did not make it necessary to imply a good faith obligation into the exercise of the right to terminate. In fact it was impermissible to imply a term that would qualify what the parties had expressly agreed between them.
Practice points good faith
Remember that the courts may imply a duty of good faith into contracts which require a high degree of co-operation and communication between the parties and that the counterparty may well, in any dispute, allege an implied duty of good faith.
Consider addressing the issue of good faith expressly, particularly in long term relational contracts, and, where appropriate, seek to limit or exclude any implied duty of good faith.
Remember that just including good faith wording in a contract does not create certainty as to what the parties must do to comply with the obligation, so consider specifying the actions which a party is required to take to satisfy a good faith obligation and those actions which it is not required to take.
Pay particular attention when drafting rights to terminate and state clearly whether such rights are absolute or qualified by other obligations, such as a duty to act in good faith.
Do not ignore an express contractual obligation to use good faith and remember that fulfilling such an obligation will involve more than not acting in bad faith. It could include, for example, a duty of disclosure and a duty to cooperate. Keep a record of actions taken to satisfy the obligation.
5. Notice provisions
Notice provisions are not generally treated as key clauses in a contract and are often skipped over as boilerplate provisions. However, we have frequently included cases about notice provisions in our contract briefings, including a number which were taken to the Court of Appeal, which indicates that these provisions can prove a major stumbling block to contractual claims if not closely considered and adhered to. The following cases from 2020, both of which relate to notices given under a share purchase agreement or SPA, provide further confirmation that notice clauses require close attention. They further highlight the importance of careful drafting of the actual contractual provisions and absolute compliance when giving notice. Towergate Financial Limited v Hopkinson  EWHC 984 (Comm)
The SPA in this case provided for the sale of a financial advisory company by the defendant sellers to Towergate and contained an indemnity relating to professional negligence claims for the mis-selling of financial products.
In 2013, five years after buying the company, Towergate became aware of certain professional negligence claims in relation to mis-selling. It instructed specialist consultants in mid-2013 to evaluate the claims, developed internal estimates and notified its insurers of the potential claims in 2014. It subsequently issued a notice to the sellers in July 2015. The notice provision in the SPA provided as follows:
"The Purchaser shall not make any Claims against the Warrantors nor shall the Warrantors have any liability in respect of any matter or thing unless notice in writing of the relevant matter or thing (specifying the details and circumstances giving rise to the Claim or Claims and an estimate in good faith of the total amount of such Claim or Claims) is given to all the Warrantors as soon as possible and in any event prior to:
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- the seventh anniversary of the date of this Agreement in the case of any Claim solely in relation to the Taxation Covenant;
- the date two years from the Completion Date in the case of any other Claim; and
- in relation to a claim under the indemnity ... on or before the seventh anniversary of the date of this Agreement."
The provision and Towergate's July 2015 notice have already been the subject of a Court of Appeal decision (see our 2019 contract briefing) but the current question for the court was whether the July 2015 notice satisfied the timing requirements of the SPA. The sellers alleged that the notice was not valid as it was not served "as soon as possible". Towergate's case was that, as the notice had been given before the seventh anniversary of the SPA, it was valid; their argument was that the much of the initial wording of the clause, including the words "as soon as possible", did not apply to an indemnity claim (which did not fall within the defined term "Claim") and that only the third sub-clause was relevant in determining the deadline.
The court preferred the sellers' construction and broke the relevant provision into two separate conditions meaning that a notice of an indemnity claim must be given (i) before the long-stop date, and (ii) as soon as possible. Although the notice given to the sellers in 2015 satisfied the first condition it had not been served "as soon as possible" and so did not satisfy the second condition.
Dodika Ltd v United Luck Group Holdings Ltd  EWHC 2101 (Comm)
In this case, the sellers promised to reimburse the defendant buyer for any tax liabilities of the target group, which came from events that occurred before completion. The SPA required the buyer to bring a claim under the indemnity by giving "written notice to the Warrantors stating in reasonable detail the matter which give [sic] rise to such Claim, the nature of such Claim and (so far as reasonably practical) the amount claimed in respect thereof".
About 18 months after completion of the acquisition, the Slovenian tax authorities started an investigation into one of the target group companies regarding its transfer pricing practices. Representatives of the sellers were kept informed of the material developments of the investigation, given access to documents, attended key meetings and were generally involved in strategy discussions. In June 2019, the buyer sent a letter to the sellers, purporting to give written notice of a claim under the SPA; the notice referred to the tax investigation and provided a chronology. It also noted that it was not possible to quantify the amount claimed.
In light of such notice, and in accordance with the terms of the SPA, the final tranche of the purchase price was not released from escrow as intended in July 2019. The sellers brought a claim for summary judgment for the release of the amount in escrow, on the basis that the buyer's claim notification did not comply with the requirements of the SPA's notice provision. The June 2019 letter had focused on the tax investigation, but the sellers argued that this was not the correct approach; the matters which gave rise to the claim were the transfer pricing practices resulting in the tax authorities' investigation, not the investigation itself. The buyer claimed that its letter did constitute valid notice and that, even if it did not, this should not result in the claim being contractually barred because, as a matter of fact, the sellers were fully aware of the circumstances in which the claim arose because they had been involved in the group company's response to the tax authorities.
The High Court accepted the sellers' argument and found that the buyer's notice of claim failed to comply with the notification requirements as it did not identify specific transfer pricing practices or transactions which led to the investigation.
Practice points notice provisions
Don't neglect the boilerplate provisions in any contract; disputes about how the contract is to work are just as likely as disputes about the substantive provisions.
As with any provision, avoid dealing with multiple issues in the same clause given the scope for differing interpretations. For example, the notice requirements in the Towergate case might have been clearer if they were split into two separate clauses one dealing with the notice requirements for indemnity claims and one dealing with the notice requirements for other types of claim.
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Ensure that contractual provisions about notice or service are clear and unambiguous and have the intended effect.
If you are up against a contractual (or any other) time bar assume the least favourable interpretation of any deadlines. Pay careful attention to any provision which includes two deadlines as in the Towergate case and, to avoid any doubt, serve any notice by the earlier date wherever possible.
If you are making a claim ensure that the notice is clear on its face that it is such a notice and that the contents comply in every respect with the requirements of the agreement. As the Dodika case shows, missing out required information can be fatal when lodging a claim even where the counterparty is already aware of the matters giving rise to the claim.
6. Force majeure
A force majeure clause typically excuses a party from liability where it is prevented from performing some or all of its obligations under the contract due to some event or circumstance beyond its control. In light of the global Covid-19 pandemic, force majeure clauses have really been under the spotlight. For further details about force majeure considerations in the "second wave" of Covid-19 please see this blogpost and for a high-level overview of the approach taken to force majeure clauses in key jurisdictions during 2020, please see Covid-19: Force majeure: A global perspective. 2 Entertain Video Ltd v Sony DADC Europe Limited  EWHC 972 (TCC)
The claimant ("2E") stored stock in a warehouse owned by Sony under a Logistics Services Agreement. During the London riots in 2011, the warehouse was attacked and looted before being burnt down completely. 2E lost over 40 million worth of stock and incurred further losses from being unable to deliver on its contractual obligations.
2E received around 8 million from Sony's insurers, and subsequently issued claims against Sony seeking damages for its other losses on the basis that Sony had failed to keep the stock secure in the warehouse or to adequately assess the risk of intruders or fire. Sony denied the allegations and raised various alternative defences including reliance on a force majeure clause.
The High Court found that Sony had failed to take reasonable fire precautions and security measures, which enabled the break-in and subsequent fire causing the loss of stock. The court went on to consider whether the force majeure clause within the Logistics Service Agreement could prevent liability arising. The agreement contained the following clause:
"Neither party shall be liable for its failure or delay in performing any of its obligations hereunder if such failure or delay is caused by circumstances beyond the reasonable control of the party affected including but not limited to industrial action (at either party), fire, flood, wars, armed conflict, terrorist act, riot, civil commotion, malicious damage, explosion, unavailability of fuel, pandemic or governmental or other regulatory action."
The judge decided that, although it was conceivable that the riots in London were "unforeseen and unprecedented", the risk of intruders was foreseeable as there had been a number of previous break-ins. The risk of arson, and the destruction of the warehouse, was also foreseeable, as a number of fire safety documents were available to Sony before the fire. The judge decided that if Sony has taken the adequate security and fire safety measures, the attack on the warehouse would probably have been deterred or delayed (reducing the damage caused). As a result, the fire and resulting losses were not outside the reasonable control of Sony and the force majeure clause could not be relied upon as a defence. Totsa Total Oil Trading SA v New Stream Trading AG  EWHC 855 (Comm)
A supply contract between Totsa and New Stream provided for an advance payment of 90% of the provisional value of the product. The contract also included a force majeure clause which provided that neither party would be in breach of contract as a result of any failure or delay in performance resulting from an event reasonably beyond its control. The clause specifically provided that if any delivery was delayed or prevented by force majeure for more than 30 days, either party could terminate the contract by giving written notice.
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Totsa, as buyer, made the advance payment in the middle of March 2019. About a month later New Stream gave notice of a force majeure event, and no delivery under the contract was ever made. Totsa argued that the existence of any force majeure event did not affect New Stream's obligation to repay the advance payment and brought a claim for the amount. New Stream argued that, where the time for delivery was extended by force majeure, there could be no obligation to repay the advance payment. This prompted Totsa to send a notice terminating the contract for alleged repudiatory breaches, or, if the seller was entitled to rely on force majeure, under the contractual provision allowing termination by either party.
The Commercial Court agreed with Totsa and granted summary judgment, finding that New Stream was required to repay in circumstances where there had been no delivery by reason of force majeure, just as it would be required to do if there had been no delivery for any other reason. The court noted however, that where the failure to deliver was due to force majeure and this triggered an extension to the delivery timeframe, it could not be said that product had not been delivered "in accordance with the contract and any agreed extension" until the contract was actually terminated in accordance with its terms.
Practice points force majeure
Remember that force majeure is not a term of art if you include a force majeure provision in your contracts ensure that you include a definition. Consider whether a longer form clause and detailed definition should be included in order to create further certainty as to what constitutes force majeure.
If there is a particular event which may impact on the ability to perform contractual obligations consider dealing with it expressly rather than seeking to rely on a generic force majeure clause. For example, many contracts are now including express provisions dealing with pandemics and the resulting restrictions.
Think about how the contract should operate in a force majeure situation and reflect that in the drafting. Consider whether any other terms of the contract, such as exclusivity, should be treated as amended if the force majeure clause is triggered and whether there should be a right of termination, for one or both parties, if the event continues for a specified period.
Remember that a force majeure clause does not excuse liability for events which were within a party's control. While there is no general requirement under English law that an event must be unforeseeable to give rise to a claim for force majeure relief, the more an event is foreseeable the more it may be possible to guard against it having an impact on contractual performance, and the more a failure to do so may be seen as the real cause of non-performance.
7. Discontinuance of LIBOR
In line with its 2017 announcement the Financial Conduct Authority will not encourage or compel banks to continue to provide quotes for LIBOR after the end of 2021. While LIBOR will not necessarily cease to exist at that point there is considerable regulatory pressure to find an alternative, nearly risk-free rate to use in its place for each LIBOR currency.
The near risk-free rates for sterling (SONIA) and dollars (SOFR), which are overnight, backwards-looking rates based on actual transactions, are starting to be adopted in financial products and we expect to see this increase substantially as we move through 2021. In the absence of an easily available screen rate for these risk-free rates, and a term, forward-looking rate based on them, contracting parties should consider using the base rate of a selected lending bank as the starting point for any contractual terms which previously would have referred to LIBOR in non-financial contracts.
For further information please see this briefing published by our finance team, which looks at the status of LIBOR transition across various different currencies and products and explores some of the events which will catalyse the transition in 2021.
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8. Impact of Brexit on contract terms
Parties entering into new contracts or reviewing existing contracts should be sure to take into account the fact that the Brexit implementation period ended on 31 December 2020. Pre-existing agreements may contain provisions drafted prior to Brexit which are no longer appropriate so be aware when reviewing or renegotiating any such agreements and when using them as a precedent for future transactions. Some key points to consider are set out below but for further detail please refer to our online Brexit Legal Guide, in particular the sections on Contract and Other Obligations, and Disputes. We continue to update the guide to take into account the latest developments and to explain the anticipated impact of Brexit in various practice and sector areas.
Practice points English law contracts post-Brexit
Consider the impact of the end of the Brexit transition period on any new or existing contract and whether any of the provisions have been impacted.
Pay particular attention to references to the EU in order to avoid an unintended treatment of the UK; does your existing reference define the EU as its Member States from time to time, or at the time of the agreement, or as something else? In new contracts clearly define the UK and EU separately.
Review references to EU legislation; directly applicable EU law has now been retained in the UK by virtue of the European Union (Withdrawal) Act 2018 and references should (in most cases) be to the UK version of the relevant legislation.
Consider the position regarding the enforcement of judgments; the EU has not yet indicated whether it will consent to the UK's accession to the 2007 Lugano Convention and while the UK, since 1 January 2021, is a member to the Hague Convention in its own right, there remains a dispute between the EU and UK in relation to the applicability of the Hague Convention to any contracts preceding this date. To ensure the applicability of the Hague Convention to any future disputes under an agreement consider restating its jurisdiction clause. See this blogpost for further details.
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Herbert Smith Freehills LLP 2021 The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on the information provided herein.