SpookyFrank
A cheap source of teeth for aquarium gravel
We have always been at war with Eurasia.
The big Brexit thread - news, updates and discussion
- Thread starter brogdale
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We have always been at war with Eurasia.
Spymaster
Plastic Paddy
Representations and warranties is just AZ saying that what is in the contract is true and that they have the right to enter into it.
Anju
Well-Known Member
Contract lawyer says 'you're gonna need a contract lawyer'
Yes, lots of riders about to be flying about.
ska invita
back on the other side
??
Anju
Well-Known Member
It's difficult to tell because it's so heavily redacted and the fact they've defined "best efforts" in the definitions and interpretations doesn't really help either.
View attachment 251917
Just fucking waffle, isn't it?
The infrastructure part does imply that best effort would include using whatever part of that infrastructure is necessary to meet delivery targets.
Spymaster
Plastic Paddy
That's what the head of the law society is saying, though based on the wording in a previously published vaccine supply contract.
AstraZeneca may have to renegotiate vaccine contracts, say experts
Company may be in danger of breaching contracts to supply EU and UK due to production problemamp.theguardian.com
That relies on this:
I can't find anything similar in the AZ/EU contract.
The39thStep
Urban critical thinker
estimated delivery targets in the case of this contract
Spymaster
Plastic Paddy
I just can't see where in the contract he's getting that from. If he's relying on 5.4 he's incontestably wrong. That suggests he's relying on something else but he's not telling us what.
Spymaster
Plastic Paddy
Yes. Depends on how silly the contesting gets though.
teuchter
je suis teuchter
No it doesn't. It's only saying that their best efforts should be judged against what would be reasonable to expect from another company with similar resources. It's not a part of the agreement which is specifying what resources should be used and how. The infrastructure should be used in the way that the contract states, and the contract only says that they must make best efforts to meet targets using production infrastructure in the EU.
Anju
Well-Known Member
I don't know enough or have time to read enough to check that.
There are so many possibilities as to what happened during negotiations. I suspect that the EU lawyers have done the better job. AZ executives may well believe they are OK to prioritise UK deliveries because of the best effort part of the contract but if best effort actually means best effort, not best effort but supply the higher paying customers first and is specifically linked to use of company resources and infrastructure that puts the EU in a strong position.
Spymaster
Plastic Paddy
This gives an idea of how much of what these EU big-shots are talking is bollocks:
www.theguardian.com
That's just not true. "Best effort" very clearly refers to "the development and manufacture" of the vaccine which is most certainly not in the past.
That makes the rest of her observation redundant.
EU leaves UK off exempt list for tighter vaccine export controls
Health commissioner says bloc needs to ensure pharmaceutical firms live up to their promises
That's just not true. "Best effort" very clearly refers to "the development and manufacture" of the vaccine which is most certainly not in the past.
That makes the rest of her observation redundant.
Anju
Well-Known Member
Yes but this is where the EU lawyers have outsmarted the AZ lawyers. It doesn't matter that the delivery targets are an estimate because AZ are still compelled to make best efforts to meet them. Calling them estimated isn't a get out of jail free card.
Supine
Newt Member
It doesnt really matter what the contract says - but they would be expected to have some wording around best efforts for a new product. If there are technical problems trying to understand why the yield is varying between the factories the contract doesnt mean shit.
The39thStep
Urban critical thinker
Despite the fact a) you are supplying customer 2 but not at the rate that they would like/expected and that b) customer number 2 hasnt approved the product that you are supplying. for use.
Anju
Well-Known Member
Giving up on my quest to become a contract lawyer in one easy lesson.
As it's the EU who have pushed for publication of the contract they must be fairly certain they are correctly interpreting it. It's quite possible that the AZ executives don't fully understand it or even that they have been misled by their legal team. There will have been a lot of pressure to conclude the deal and it's not beyond lawyers to smooth over weaknesses to their clients or for clients to suffer a bit of reality denial just to get to the signing off stage.
As it's the EU who have pushed for publication of the contract they must be fairly certain they are correctly interpreting it. It's quite possible that the AZ executives don't fully understand it or even that they have been misled by their legal team. There will have been a lot of pressure to conclude the deal and it's not beyond lawyers to smooth over weaknesses to their clients or for clients to suffer a bit of reality denial just to get to the signing off stage.
mauvais
on reddit or something
That's a stretch, I think - more that it is sufficiently ambiguous to be a worthwhile play in the court of public opinion.
Spymaster
Plastic Paddy
Well that works both ways. AstraZeneca have now published the contract and we've seen above the way that the President of the EU is demonstrably wrong in her interpretation of a very clear definition within it. I'm not sure there's any reason to rate her lawyers as better than those of AZ.
Contract was signed in August, when the UK was in the EU.
Spymaster
Plastic Paddy
Th UK was not in the EU in August last year.
mauvais
on reddit or something
This is correct and the most relevant thing amongst the last page or so. It's basically a legal version of "this is urgent, don't fuck about".
I don't think that Best Effort stuff is a barrier to supplying someone else simultaneously, as that's what such a company as is described would typically do. But I'm not a lawyer.
Raheem
Well-Known Member
(a) doesn't alter the logic. If you're not treating two customers equally, one of them must be getting your "second-best efforts".
On (b), the AZ vaccine is scheduled for EU approval today (although who knows if that will happen, given the ongoing).
The39thStep
Urban critical thinker
The overall problem for the EU vaccine roll out just isn't the contract with AZ . There are multiple problems , it took ages to finalise its procurement strategy and for such a large demand market came late to a supply market that the USA, Canada and UK had already entered. Add to this that normally supply and production networks for the vaccine would take years rather than months to develop , companies not surprisingly have struggled with production .AZ isn't alone in telling the EU that it cant deliver expected supplies, Pfizer/ BioNTech had problems at its plant in Belgium and then with the number of vials in each delivery, Modena has said that its deliveries to Italy and France will drop by 20% commencing February. Its not just the EU, Canada has had problems with production with Pfizer . The EU has also got problems across member states not just with levels of supplies but with states that do have have supplies but with slow vaccination roll outs and low vaccination rates. A further issue is that in some states there is an entrenched anti vaccine culture , particularly France .
Anju
Well-Known Member
That's possible but it doesn't seem too ambiguous to me as it's basically saying that the whole company infrastructure should be used as part of best efforts. There's going to be a lot of stretching going on over the next few days.
prunus
Tick tock.
This gives an idea of how much of what these EU big-shots are talking is bollocks:
EU leaves UK off exempt list for tighter vaccine export controls
Health commissioner says bloc needs to ensure pharmaceutical firms live up to their promises
That's just not true. "Best effort" very clearly refers to "the development and manufacture" of the vaccine which is most certainly not in the past.
That makes the rest of her observation redundant.
Just to stick this in here, because it's an important distinction and knowing it might be handy for someone one day when entering into a contract: There is a world of difference between 'best efforts' and 'best reasonable endeavours' in a contract - if otherwise undefined (as they often are) 'best efforts' means 'move heaven and earth to achieve' and 'best reasonable efforts' (often just 'reasonable efforts' - the 'best' becomes redundant really in most interpretations) means 'do as much as possible that would be considered reasonable [by the famous man on the clapham omnibus, or in practice really, the judge]'. Our shorthand at work for 'best efforts' is 'sell your kidney' - ie you have to do everything physically possible. Never sign a contract committing you to best efforts (or endeavours).
In this case it's moot, as it's defined, so it means exactly what it says in the definition, no more and no less - they could have used any phrase - could have said "AZ will use a Lacksidaisical Approach to the development and manufacture..." if they defined Lacksidaisical Approach the same way they'd defined Best Reasonable Efforts.
HTH
littlebabyjesus
one of Maxwell's demons
Top tip. I did not know that. I would probably interpret 'best efforts' as implying 'reasonable'.
Spymaster
Plastic Paddy
Sure. They can define it however they want. The point in quoting UVdL is that she's misinterpreting (or wilfully ignoring) the scope of it.Just to stick this in here, because it's an important distinction and knowing it might be handy for someone one day when entering into a contract: There is a world of difference between 'best efforts' and 'best reasonable endeavours' in a contract - if otherwise undefined (as they often are) 'best efforts' means 'move heaven and earth to achieve' and 'best reasonable efforts' (often just 'reasonable efforts' - the 'best' becomes redundant really in most interpretations) means 'do as much as possible that would be considered reasonable [by the famous man on the clapham omnibus, or in practice really, the judge]'. Our shorthand at work for 'best efforts' is 'sell your kidney' - ie you have to do everything physically possible. Never sign a contract committing you to best efforts (or endeavours).
In this case it's moot, as it's defined, so it means exactly what it says in the definition, no more and no less - they could have used any phrase - could have said "AZ will use a Lacksidaisical Approach to the development and manufacture..." if they defined Lacksidaisical Approach the same way they'd defined Best Reasonable Efforts.
HTH
Anju
Well-Known Member
I can't work out her grounds for claiming the best effort part was solely applicable during development stage but the rest seems correct in terms of meeting the agreement even if it is being framed incorrectly.
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