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The big Brexit thread - news, updates and discussion

Anju said:
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.
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Understandably. AZ are only a small firm who are renowned for using dodgy and conniving legal advisers.
 
Anju said:
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.
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It's not saying this. Read what teuchter wrote. It's not a particularly meaningful clause.

If you and I signed a contract that said,

"Anju will write as good a post as a poster with similar experience would write, having regard to the fact that the world is in the middle of a global pandemic, but taking into account spelling and grammar"

then I couldn't sue you if you only wrote a post that was actually half good, half shit, because for a start you could rightly say that it was still just as good as one of - say - Spymaster's.

The middle about the pandemic - in either contract - seems to be illustrative flourish and legally useless.

It would be a breach of contract if AstraZeneca could be shown to be unreasonably underperforming in comparison to another global pharma company undertaking similar efforts.
 
teuchter said:
Only if you have the same agreement with each customer. They don't (it seems).

You make your best efforts to deal with each customer according to the agreement you have with them.
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But if your agreement says "best efforts" and someone else gets better efforts, then your agreement has been breached. What it says in their contract is not relevant to you.
 
Raheem said:
But if your agreement says "best efforts" and someone else gets better efforts, then your agreement has been breached. What it says in their contract is not relevant to you.
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No, because it defines best efforts to mean, well, not actually best efforts.
 
Anju said:
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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Well the 'development stage' part of what she said is pure nonsense. She's just trying it on. The rest is dependant on everything else we've been discussing here and just doesn't seem to be borne out by the contract.
 
The39thStep said:
Understandably. AZ are only a small firm who are renowned for using dodgy and conniving legal advisers.
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The EU have managed to negotiate contracts which hold vaccine manufacturers to account for future problems where neither UK or US have done so. I'm not saying AZ's lawyers are incompetent just that they have been outmanoeuvred in this case.
 
Raheem said:
But if your agreement says "best efforts" and someone else gets better efforts, then your agreement has been breached. What it says in their contract is not relevant to you.
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Best efforts to manufacture something in a certain location means just that. If you manufacture it in a different location, you are not making best efforts to do what you agreed, you are making best efforts to go above and beyond what you agreed (and at the cost of compromising an agreement you've made with someone else).

If I agree that I'll make my best efforts to get you to America by rowing boat, and the boat has sunk, then it would not reasonable to expect me to charter a plane, because I did not agree to make best efforts to get you to America by any means.
 
prunus said:
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 :)
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This is good to know. I did sign a thing recently that committed me to do a thing to my best reasonable efforts and am now very glad that the Reasonable bit is in there.
 
Also - it would seem quite plausible that AZ put that 5.1 clause in, precisely because they knew they had already committed to supply the UK from their UK sites (we don't know what those agreements actually say but I think we do know that the UK contract was agreed first). So it would be entirely reasonable for them only to commit, in this agreement, to providing capacity elsewhere.

It would certainly be interesting to know what was said in whatever negotiations led to the wording of 5.1. Because if AZ effectively said, ok, here is what we can offer you because we've already offered the output of the UK plant to the UK, then the EU has no reasonable grounds to start saying now that supplies should be diverted from there. If they weren't happy with that agreement they shouldn't have signed up to it.
 
mauvais said:
No, because it defines best efforts to mean, well, not actually best efforts.
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No, because what appears in the definitions section is "best reasonable efforts", whereas what the agreement requires of AZ wrt manufacturing is "best efforts" - as someone noted above, these are distinct terms of art.
 
Anju said:
The EU have managed to negotiate contracts which hold vaccine manufacturers to account for future problems where neither UK or US have done so. I'm not saying AZ's lawyers are incompetent just that they have been outmanoeuvred in this case.
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How does this ' The EU have managed to negotiate contracts which hold vaccine manufacturers to account for future problems' work in practise?
 
Anju said:
The infrastructure part does imply that best effort would include using whatever part of that infrastructure is necessary to meet delivery targets.
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I'm not a contract lawyer, but common sense suggests that best efforts don't include riding rough shod over the terms of another entirely separate contract to supply the same product to a third party, particularly when that contract with the third party was entered into three months beforehand.
 
Just now on the news, a spokesman for that bastion of transparency and accountability The EU talking solemnly about how glad he was the EU-AZ contract has been published, because transparency and accountability are so very important.

He sounded German, so I'm not sure he was necessarily joking.
 
teuchter said:
Best efforts to manufacture something in a certain location means just that. If you manufacture it in a different location, you are not making best efforts to do what you agreed, you are making best efforts to go above and beyond what you agreed (and at the cost of compromising an agreement you've made with someone else).

If I agree that I'll make my best efforts to get you to America by rowing boat, and the boat has sunk, then it would not reasonable to expect me to charter a plane, because I did not agree to make best efforts to get you to America by any means.
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What you are saying doesn't match up to what's in the document. AZ agreed to use their best efforts to manufacture within the UK and EU, not at a particular site.
 
mojo pixy said:
Just now on the news, a spokesman for that bastion of transparency and accountability The EU talking solemnly about how glad he was the EU-AZ contract has been published, because transparency and accountability are so very important.

He sounded German, so I'm not sure he was necessarily joking.
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Our gov has apparently said they won’t publish the UK’s contract with AZ for national security reasons.
Sounded English so not sure if necessarily pompous and secretive.
 
Raheem said:
No, because what appears in the definitions section is "best reasonable efforts", whereas what the agreement requires of AZ wrt manufacturing is "best efforts" - as someone noted above, these are distinct terms of art.
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I didn't see anywhere AZ had committed to best efforts (as opposed to Best Reasonable Efforts) - can you point out please?
 
Raheem said:
No, because what appears in the definitions section is "best reasonable efforts", whereas what the agreement requires of AZ wrt manufacturing is "best efforts" - as someone noted above, these are distinct terms of art.
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No, it's "best reasonable efforts" regarding the manufacturing. If you got "best efforts" from one of my posts it was me being lazy. Apologies.
 
Raheem said:
What you are saying doesn't match up to what's in the document. AZ agreed to use their best efforts to manufacture within the UK and EU, not at a particular site.
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No they didn't, they agreed to use their best efforts to manufacture in the EU.
 
Anju said:
From what I can tell the EU believe that AZ have been moving supplies from Belgian plant to UK, hence the inspection of the factory. If that's the case then AZ are most likely in breach of their contact.
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Then they would have passed through customs to get there. AZ have factories in the uk anyway.
 
andysays said:
I'm not a contract lawyer, but common sense suggests that best efforts don't include riding rough shod over the terms of another entirely separate contract to supply the same product to a third party, particularly when that contract with the third party was entered into three months beforehand.
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Agree with that. I think most likely outcome will be compromise on both. UK are refusing to publish our contract so it's difficult to speculate on what changes might be made but given that we have about 10 times our population in vaccine dose orders any adjustments might be more on the UK side as it seems reasonable to look at the overall situation and then work towards a more even distribution.
 
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