In preparation for continuing our journey into the world of legal writing and drafting – in particular, contract drafting - I am going to do a mini-series on contract formation in English law. In this short series, we will look at one or two foundational cases in English contract law, which I hope you will find interesting. This will give us the chance to look at some important contractual principles. It will also give us the chance to take a look at how judicial precedent works in the English common law system. 

OISE Cambridge's Legal English Podcast

SMOKE AND MIRRORS: THE FORMATION OF CONTRACTS IN ENGLISH LAW (1)

Legal English tutors Mark Fletton and Simon Taylor-Gill discuss OISE Cambridge's upcoming Summer Law School, which is held this July and August at Cambridge University's Selwyn College.

OISE Cambridge Summer Law School - In Conversation...with Simon Taylor-Gill

Mark Fletton talks to Alexandra Shishkareva from St Petersburg State University, about the history of Russian Law.

Russian Law: In Conversation with.....Alexandra Shishkareva

So, what other techniques and strategies can we use to improve our legal writing and drafting? Here are three more important tips which should help you.1. First, use active verbs wherever possible. Active verbs are the simplest kind of verb. Active verbs express action. When you use them, it is easy to see the thing that is being done by the subject of the sentence. 2. The second tip is that keeping the subject, verb, and object in a sentence close together increases the reader’s understanding of the relationship between them. 3. The third piece of advice is that you should avoid nominalisation, again as far as possible. Nominalisation (also sometimes called ‘nouning’) is the process of creating a noun phrase from another word class, such as a verb or adjective.

ENGLISH FOR LEGAL WRITING AND DRAFTING (4)

PART 1 – GENERAL PRINCIPLESUnit 1 – Drafting in Plain English (continued)In the last edition, we started to consider some general principles of legalwriting and drafting in plain English. The first general principle webegan to consider was to keep your sentences as short as possible. Thekey principle to remember here is that every sentence should containone, and only one, idea.We suggested that writing and drafting in plain English is not necessarilyeasier than what we called the ‘traditional’ method. However, it hasseveral advantages. One of them is that it allows you, as a lawyer, toclarify your own thoughts. For example, if you have a case where thefacts or law are complex, separating the complexity out into single ideas,one sentence at a time, is very helpful. It allows you to see the issuesmore clearly and identify those where you may need to think morecarefully about them.

ENGLISH FOR LEGAL WRITING AND DRAFTING 2

For more than twenty years, English lawyers have been expected to write and draft legal documents in a style called ‘plain English’. Basically, plain English is ‘a message written with the reader in mind…..that is clear and concise.’1 Essentially, when you draft or write any legal document, you are trying to produce a ‘readable’ text. However, having a definition of what plain English is will not help you practically draft or write a legal document in plain English. The definition only provides the standard you are expected to meet. This series is designed to help you as you try to meet this standard. We will give you suggestions and tips on how to approach this task.

ENGLISH FOR LEGAL WRITING AND DRAFTING

Today, in this short edition, we’re going to be looking forward to the first series of podcasts that we will be doing in early 2020. And, if you want to improve your English skills for legal writing and drafting, and your confidence doing it, we think you will find it a very useful series. So, if you are a young international lawyer, or an international law student who wants to practise law or enter the world of international commerce, join us as we start a journey to help you raise your written game substantially. 

ENGLISH FOR WRITING AND DRAFTING LEGAL DOCUMENTS

The English language dominates the landscape when it comes to international commercial contracts. Whatever the historical reasons for this may be, the pre-eminence of the English language in the commercial world has gone hand in glove with the decision of those drafting cross-border commercial contracts to incorporate clauses which provide that these contracts will both be governed by English law, and also be under the jurisdiction of the English courts, if a dispute arises.Research undertaken recently by Portland has revealed that the number of commercial cases heard by the London Commercial Court grew significantly in 2018. The Portland report disclosed that the number of different nationalities and litigants using the London Commercial Court, and the number of judgments handed down by the court, were at record highs when compared with the previous five years. This, of course, is in spite of the decision made by the United Kingdom in June 2016, following a referendum, to leave the European Union, otherwise known as ‘Brexit’. 

THE RISE OF THE INTERNATIONAL COMMERCIAL COURT

In contrast to most civil law jurisdictions, and indeed some common law ones, English law does not currently recognise a general implied duty requiring the parties to a contract to perform the obligations under it in good faith. There are some exceptions to this general rule. For example, an agent owes a duty of good faith to his or her principal, and a fiduciary owes the duty to the counterparty to the fiduciary relationship. In these situations, trust, honesty and transparency are an essential and integral part of the agreement. 

THE IMPLIED DUTY OF GOOD FAITH IN ENGLISH CONTRACT LAW

In a landmark judgment which was handed down on the 16th October 2019, the Supreme Court of the United Kingdom held that whistleblowing judges are entitled to the safeguards and protections afforded to other employees and workers. The decision marks the end of a six-year legal battle by appellant Claire Gilham, who is a district judge, against the Ministry of Justice, to establish that judges are entitled to the same whistleblowing protections as other workers.

LANDMARK WHISTLEBLOWING JUDGEMENT IN UK

Anyone who practises in the field of international commercial law, or is a student of it, will almost certainly already be familiar with acronyms and abbreviations such as ‘FOB’ (which stands for ‘free on board), ‘CIF’ (‘cost, insurance and freight’), FCA (‘free carrier’), and EXW (‘Ex Works’). They are just four of a number of Incoterms – more formally, international commercial terms – which are a set of internationally recognised contractual provisions which have been developed and published by the International Chamber of Commerce (the ‘ICC’), an organisation based in Paris, France. In September 2019, the ICC published Incoterms ® 2020, which update the previous version, Incoterms ® 2010, and which will come into force on 1st January 2020.In this podcast, we will briefly look at the history of the ICC and ‘Incoterms’, before considering one or two of the key changes that will come into effect on the 1st January 2020 and also some considerations of ‘best practice’ when it comes to using Incoterms ® 2020. 

INCOTERMS ® 2020 PUBLISHED

A Legal English Podcast with contemporary content aimed at improving your confidence when it comes to the language of law. You can test out your English with our customised grammatical aids. Give us your feedback - any areas of law that you'd like our podcasts to cover?

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OISE Cambridge's Legal English Podcast

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