Contractual rights which are contrary to accepted principles of law must be expressly agreed between parties to be effective, says Chris Nillesen
Lawyers inherently try to obtain the most favourable terms for their clients when negotiating on their behalf. However can an overzealous lawyer actually damage their clients’ interest in (for example) making exercisable rights or remedies so broad or narrow that their application becomes either too general or too academic?
Recent cases MSC Mediterranean Shipping Company SA v Cottonex Anstalt [2015] EWHC 283 (Comm), [2015] 2 All ER (Comm) 614 (MSC) and Aston FFI (Suisse) SA v Louis Dreyfus Commodities Suisse SA [2015] EWHC 80 (Comm), [2015] 1 All ER (Comm) 985 (Aston) show that the courts in England and Wales are not afraid to use legal interpretation to ensure a contractual dispute resolution is “fair” rather than strictly interpreting freely negotiated wording between the parties.
Is this a case of judicial activism gone too far or a welcome injection of fairness to ensure contracts do not become a tool for abusing commercial bargains?
Contractual freedom
In many jurisdictions and most European
