Commercial Common Sense in Contract Interpretation: Observations on the Court of Appeal in Technix v Fitzroy and The Malthouse v Rangatira

The contemporary principles of contract interpretation require courts to have regard to a number of factors to determine the meaning of a contract, including the plain meaning of the express contractual language, the contract's context, and commercial common sense. These principles superseded the narrower plain meaning rule, which directed courts to interpret contracts in a manner largely consistent with the plain and ordinary meaning of their express words. Since their manifestation some 20 years ago, these principles have undergone change, development and elaboration to the extent that some commentators now claim the approach to contract interpretation more closely resembles the former plain meaning rule, with courts giving "primacy" to the words of the contract in order to deliver "commercial certainty". This article argues that while courts must give primacy to the express contractual language, that does not mean courts should maintain an unwavering loyalty to the plain meaning of those words, even if their meaning is clear. Courts that adopt this approach, referred to by some as the "conservative approach", risk obscuring the true meaning of a contract that can only be obtained through the careful balancing of a contract's internal and external factors, including commercial common sense. This article demonstrates the problem with the "conservative approach" through the analysis of two Court of Appeal decisions, and argues that courts should not overstate the circumstances in which departure from the plain meaning of a contract should occur.

The Bona Fide Investor: Corporate Nationality and Treaty Shopping in Investment Treaty Law

<p>This thesis addresses the problem of treaty shopping in investment treaty law. It seeks to illustrate how the problem stems from, and can in part be resolved by, the concept and definition of corporate nationality. It explores whether, and if so how and what, limits ought to be placed on the manipulation of nationality for the purpose of gaining investment treaty protection, to enable a principled basis to utilise nationality to prescribe the extent of rights and obligations in investment treaties. The importance of nationality requirements in investment treaties cannot be overstated—the definition of “investor” in any treaty defines which entities are entitled to substantive protections contained in the treaty for the benefit of states and investors alike. Entities making an investment need to know whether, and if so how, they can structure their investment to achieve protection of applicable investment treaties. Investors who have suffered damage need to know whether they are entitled to make a claim. States need to appreciate the extent of their potential obligations. Many investment treaties define qualifying investors in a broad way that includes any entity incorporated in a contracting state. Putative investors, including those from third states, or nationals of the host state of the investment, seek to come within the relevant definition, often by insertion of an intermediary company incorporated in the desired home state into the ownership chain of the investment. This thesis challenges the view that fulfilment of formalities set out in an investment treaty is sufficient to qualify as an investor where there is no substance behind the corporate form. To some degree, states and investment treaty tribunals have tried to abrogate treaty shopping by manipulation of corporate nationality by reference to the international law concept of genuine connection with the claimant’s state of incorporation, or by way of imposition of criteria for nationality based on the nationality of the corporate entity’s controller or proof of substantial business activity in its state of incorporation. The majority of investment treaty tribunals, however, have eschewed efforts to imply a substantive test or check on the attribution of nationality beyond literal fulfillment of nationality criteria. This thesis promotes a purposive approach that requires fulfillment of express treaty criteria for nationality, but also subjects the claimant to a substantive economic reality check in which the inquiry is to determine the reason for existence of the corporate claimant in relation to the relevant investment. Such an approach is required by an interpretative methodology that gives equal weight to the four tenets of art 31(1) of the Vienna Convention: ordinary meaning, good faith, context and object and purpose. If a corporate entity exists primarily to procure treaty rights, then it is not a bona fide investor consistent with the object and purpose of investment treaty jurisdictional provisions, even if it complies with the ordinary meaning of the express formal nationality criteria. If, however, it meets any express criteria and has a genuine ulterior commercial reason to exist in the ownership structure of the investment, then it qualifies as an investor entitled to the protection of an investment treaty. The approach promoted by this thesis is derived from the treaty shopping antidote crafted by municipal courts assessing the bona fides of corporate applicants for tax relief under double tax treaties. In addition, the thesis analyses municipal law regarding piercing the corporate veil, the law of diplomatic protection, and analogous jurisdictional concepts in investment treaty law including the application of the principle of abuse of right, and identifies that underlying all these areas of inquiry is the central question of the purpose, or commercial reason to exist, of the relevant corporate entity. Finally, this thesis demonstrates how a substantive approach can be applied in a principled and reasonably certain way. The use of corporate structures by foreign investors to procure rights under favourable investment treaties (treaty shopping) threatens to undermine the legitimacy of international investment treaty arbitration. Simon Foote QC's research illustrates how the problem stems from the concept and interpretation of corporate nationality criteria at international law. It promotes a new way to distinguish bona fide foreign investors by looking to the commercial purpose of corporate entities in relation to the relevant investment. It illustrates how that approach derives from analogous concepts in international and municipal law and how it can be implemented by states and investment treaty tribunals.</p>

The Bona Fide Investor: Corporate Nationality and Treaty Shopping in Investment Treaty Law

<p>This thesis addresses the problem of treaty shopping in investment treaty law. It seeks to illustrate how the problem stems from, and can in part be resolved by, the concept and definition of corporate nationality. It explores whether, and if so how and what, limits ought to be placed on the manipulation of nationality for the purpose of gaining investment treaty protection, to enable a principled basis to utilise nationality to prescribe the extent of rights and obligations in investment treaties. The importance of nationality requirements in investment treaties cannot be overstated—the definition of “investor” in any treaty defines which entities are entitled to substantive protections contained in the treaty for the benefit of states and investors alike. Entities making an investment need to know whether, and if so how, they can structure their investment to achieve protection of applicable investment treaties. Investors who have suffered damage need to know whether they are entitled to make a claim. States need to appreciate the extent of their potential obligations. Many investment treaties define qualifying investors in a broad way that includes any entity incorporated in a contracting state. Putative investors, including those from third states, or nationals of the host state of the investment, seek to come within the relevant definition, often by insertion of an intermediary company incorporated in the desired home state into the ownership chain of the investment. This thesis challenges the view that fulfilment of formalities set out in an investment treaty is sufficient to qualify as an investor where there is no substance behind the corporate form. To some degree, states and investment treaty tribunals have tried to abrogate treaty shopping by manipulation of corporate nationality by reference to the international law concept of genuine connection with the claimant’s state of incorporation, or by way of imposition of criteria for nationality based on the nationality of the corporate entity’s controller or proof of substantial business activity in its state of incorporation. The majority of investment treaty tribunals, however, have eschewed efforts to imply a substantive test or check on the attribution of nationality beyond literal fulfillment of nationality criteria. This thesis promotes a purposive approach that requires fulfillment of express treaty criteria for nationality, but also subjects the claimant to a substantive economic reality check in which the inquiry is to determine the reason for existence of the corporate claimant in relation to the relevant investment. Such an approach is required by an interpretative methodology that gives equal weight to the four tenets of art 31(1) of the Vienna Convention: ordinary meaning, good faith, context and object and purpose. If a corporate entity exists primarily to procure treaty rights, then it is not a bona fide investor consistent with the object and purpose of investment treaty jurisdictional provisions, even if it complies with the ordinary meaning of the express formal nationality criteria. If, however, it meets any express criteria and has a genuine ulterior commercial reason to exist in the ownership structure of the investment, then it qualifies as an investor entitled to the protection of an investment treaty. The approach promoted by this thesis is derived from the treaty shopping antidote crafted by municipal courts assessing the bona fides of corporate applicants for tax relief under double tax treaties. In addition, the thesis analyses municipal law regarding piercing the corporate veil, the law of diplomatic protection, and analogous jurisdictional concepts in investment treaty law including the application of the principle of abuse of right, and identifies that underlying all these areas of inquiry is the central question of the purpose, or commercial reason to exist, of the relevant corporate entity. Finally, this thesis demonstrates how a substantive approach can be applied in a principled and reasonably certain way. The use of corporate structures by foreign investors to procure rights under favourable investment treaties (treaty shopping) threatens to undermine the legitimacy of international investment treaty arbitration. Simon Foote QC's research illustrates how the problem stems from the concept and interpretation of corporate nationality criteria at international law. It promotes a new way to distinguish bona fide foreign investors by looking to the commercial purpose of corporate entities in relation to the relevant investment. It illustrates how that approach derives from analogous concepts in international and municipal law and how it can be implemented by states and investment treaty tribunals.</p>

‘Exertion is not connected to success’: everyday Yoruba discourse of work and success

Work hard, work smart, make the right connections, get the right education, invest wisely – yet after doing all the supposedly right things, success remains elusive to many. For a few, however, who may or may not have done exactly these things, success seems to come effortlessly. Some are very fortunate and others not so much. The lack of correspondence between exertion and success or work and good fortune is an issue that confronts lay persons and professionals alike. Focusing on Yoruba people, I discursively present lay Yoruba persons’ apprehension and common-sense view of this conundrum as reflected in their contextualized language use and supported by other ‘mundane’ information from day-to-day life. By looking at their everyday language, it is possible to deduce their reality as socially constructed in their discourses and gain insight into how they reconcile individual exertions with a view that asserts determinism. Further, I will suggest that the basis of the Yoruba conventional knowledge system informing their utterances and actions pertaining specifically to people's earthly fortunes lies in their origination narrative and original life quest, the essence of which remains inarguable even if temporarily pliable. The popular saying ‘iṣẹ́ o kan oríire’, exertion does not relate to success, is used as a point of departure and sense contained in their orature – situational utterances, pithy proverbs, aphorism and anecdotes – to tease out the Yoruba ordinary meaning of success/fortune and how it is acquired, relative to individuals’ earthly journey and preoccupation. Based on the sampled day-to-day utterances, individual life, it seems, unfolds as presumably scripted, despite apparent avowal and disavowal of ordination in people's pronouncements. Orí (head) retains its position at the summit, assenting – or not – to earthly endeavours.

Still Lagging Behind: Diagnosing Judicial Approaches to ‘Bodily Injury’ Claims for Psychiatric Injury under the Montreal Convention of 1999

International civil aviation is today a mature global industry, without which the modern world is unimaginable. That modern world increasingly recognises, in view of advancing medical science, that the dualist distinction between body and mind is artificial. Yet recent judicial interpretation of the term ‘bodily injury’ in the Convention for the Unification of Certain Rules for International Carriage by Air (‘Montreal’) of 1999 has revalidated this distinction by denying compensation for psychiatric injury in the field of international civil aviation. This article challenges that interpretation by explaining the physical nature of psychiatric injury with reference to medical literature and neuroimaging technologies. It argues that the ordinary meaning of ‘bodily injury’ across Montreal’s authentic texts encompasses psychiatric injury, supporting this construction by examining both Montreal’s travaux préparatoires and its parties’ municipal jurisprudence. After briefly addressing policy concerns, it concludes that national courts may permit recovery for pure psychiatric injury under Montreal.

Rethinking the Meaning of Ordinary Meaning in Light of the ICJ’s Jurisprudence

Article 31 of the Vienna Convention on the Law of Treaties calls for consideration of the ordinary meaning as the starting point in the process of interpretation. Although the linguistic concept of ordinary meaning is founded on the idea that the meaning of a sentence is directly imposed by the norms of language so that interpreters are provided with an objective standard which is external to their subjectivity, this article demonstrates that the interpretive jurisprudence of the International Court of Justice has departed from the imperatives of the ordinary meaning doctrine. Rather, the Court, mindful of the problem that no mere sequence of words can represent actual legal meaning, has moved towards construction of ordinary meaning.

Towards a Communicative Model of Language of International Law: From Linguistic Sign to Cognitive Complements

From past up to here one of the most important questions in international law has been focused on how interpretation of IL texts and instruments should be elaborated. Answering this question definitely, we could see the positive results. Despite all of the efforts of ICJ, UN special comities for conclusion of VCLT in 1969 and the other international law organs, we observe basic problems and inconveniences while trying to understand IL instruments and texts. Some scholars have tried to create links between hermeneutic, the knowledge of comprehending and interpreting texts, while the others, have tried to analyze in detail the unseen intentions of VCLT creators and writers specially when speaking about terms like “context” and “ordinary meaning”. We believe that deciphering some specific VCLT terms and also, understanding the true sense of language of international law is not possible but through interdisciplinary innovator sturdies which could show the necessity of understanding the “communicative language” designed for IL.

6. Exemption clauses and unfair contract terms

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with exemption clauses and unfair contract terms. An exemption clause is a term in a contract or notice that can be either an exclusion clause (excluding liability or remedies) or a limitation clause (limiting liability to a specified sum). The chapter primarily focuses on the requirements that must be satisfied before an exemption clause can be relied upon, the question of construction and the natural and ordinary meaning of the clause, contra proferentem, liability for negligence, limitation clauses, inconsistent terms, and fundamental breach. It then examines the legislative regulation of exemption clauses, emphasizing the growing distinction between commercial and consumer contracts in this context. It considers in some depth the enforceability of exemption clauses in a B2B context in accordance with the Unfair Contract Terms Act 1977 and its interpretation in case law. In the B2C context, it discusses control of unfair terms in accordance with Part 2 of the Consumer Rights Act 2015 and the case law interpreting the previous legislative regulation of unfair terms.

Servants or Masters? Linguistic Aids in Legal Interpretation

This paper presents the role of some intrinsic sources in legal interpretation. Some of linguistic aids follow from provisions of the law and other from the commonly accepted ruling practice or views expressed in literature. The position of those aids was verified through the analysis of case-law, literature, and provisions of law. The first section and second section focus on the priority of plain meaning rule and intrinsic sources in legal interpretation which is strongly emphasized in legal literature, case-law and the interpretative provisions of many countries. Next, it presents how certain linguistic tools work in case law practice, what problems they can cause and what problems they can solve. The third point addresses the use of dictionaries as tools of linguistic interpretation. The fourth section explores the role of selected interpretative canons often found in legal regulations and case law practice: ordinary meaning canon, gender/number canon, ejusdem generis canon, presumption of consistent usage and prefatory-materials canon. It is concluded that the priority of a linguistic interpretation is not absolute and can never be understood as its exclusivity. Linguistic tools are not in themselves determinants of correct meaning. In order to make a correct interpretation, it is necessary not to be guided, by indications labelled as objective, sometimes artificially imposed, but by the intention of the legislator, which such tools may discover and should only be used for that purpose.

The Use of Corpus Linguistics in Legal Interpretation

Over the past decade, the idea of using corpus linguistics in legal interpretation has attracted interest on the part of judges, lawyers, and legal academics in the United States. This review provides an introduction to this nascent movement, which is generally referred to as Law and Corpus Linguistics (LCL). After briefly summarizing LCL's origin and development, I situate LCL within legal interpretation by discussing the legal concept of ordinary meaning, which establishes the framework within which LCL operates. Next, I situate LCL within linguistics by identifying the subfields that are most relevant to LCL. I then offer a linguistic justification for an idea that is implicit in the case law and that provides important support for using corpus analysis in legal interpretation: that data about patterns of usage provide evidence of how words and other expressions are ordinarily understood. I go on to discuss linguistic issues that arise from the use of corpus linguistics in disputes that involve lexical ambiguity and categorization. Finally, I point out some challenges that the growth of LCL will present for both legal professionals and linguists.