LEGAL DRAFTING

OSGOODE HALL LAW SCHOOL

2013 Dr.Stan Benda

Class 6 Boilerplate & Precedents
 AGENDA
2

Review
Boilerplate

ADR

Precedents
 Themes and Tools
3

What was MEANT What was SAID

Personality
Speech Community
Consent vs Promise
Aspirational vs Promissory
Business / Legal Dimension
Economic welfare maximizing
5 Audiences
5 Audiences
Contract Devices (key paragraphs)
Purposeful Textual Reading
Aesthetics/Structure (*Recitals)
Grammar / Language of
performance. etc.
Elements (*Reps and Warrants)
Obligation / Discretion / Control (e.g.
ceilings / caps / triggers / thresholds)
 Past meets Present
4

PURGE PUNCTILIOUS

and/or - oxymoron Shall: obligations,

promissory, duties
provided that -- May: discretion, is
permitted to
obscures a condition Is Entitled to: a right
whereas Sculpture: manage thoughts &
punctuation
of the first part Deemed v hereby
 Elements 1
5

DEFINITIONS COVENANTS

Foundation Promissory
Taxonomy Obligation
Only counter-intuitive Duty
deemed W5
Means, includes, shall
does not include Breached
 Elements 2
6

CONDITIONS STATEMENTS

Criteria, time, benefit Policy (rules under

Hidden by language contract)
such as provided that
is
will if a condition
must if condition
precedent
 Elements 3 -Reps and Warrants
7

PURPOSE STRUCTURE
Substitute for and focus Representation (idiosyncratic to
due diligence subject matter)

Effective up to closing Warrants

date but not future
because you cant control Qualifications
Rep and warrant
Remedy
Misrep breach
 Careful with RWs
8

Meant v said
Implied v inferred

The R & W holds it has webbed feet, lays a clutch of

eggs, has a bill, lives an aquatic life
The implication is a platypus but the inference is a duck
 Option (covenant + statement)
9

W5 very precise to Discretion:

rights, execution, time, conditions,
triggers, timings actions; can impose
(push along/ drag
Grant, Entitled to, along) to elect (take a
will licence)
US v EU distinction Value merits additional
Can survive termination consideration
 Indemnity, defend, & save harmless
10

Insurance from one Control scope, timing

contracting party to the
Type of damages
other
Irascible part of Thresholds (material)

negotiations Caps
Dont get wed to them, Who defends
waive in exchange for
currency / concession Joint and Several?
 Ceilings & Floors
11

If there is any vagueness (e.g. reasonable costs;

according to commercial practice; usual
administrative fees) put in a fixed ceiling or floor
Conversely if the price is fixed, put in a escalator

clauses for war, rising fuel costs, government

restrictions (e.g. China and so-called rare earths)
 Movie Star Endorsement Contract
12

RISKS TOOLS

Erotic / Porno
Death / Injury
Option / RFR
Morality Issues / Boyfriends (Hells Angels) To renew
Competing Product
BMI changes / Plastic Surgery / Cosmetic Surgery To terminate

Criminal Behavior
Sales Decline due to porno
Definitions

Sales Jump at end due to porno
Dangerous Activities
RWs
Expectation of sales not met Covenants +ve / -ve
Refuses to pose with a snake
No say over photo shopping / placement Conditions
Copyright
 BOILERPLATE
13

What is it?
Extensive provisions, some can be pages long
Think if you need them -- all or any or none?
Appendix or Web?
Boilerplate that you need, are any modifications
required (harmonization with contract)?
 Useless?
14

Boilerplate is used to reduce the effects of sloppy

administration or fuzzy thinking.
Fire retardant not fire proof
 List
15

Entire Agreement Arbitration

No Assignment Appendices
Time of the Essence Headings
Not a Partnership Forum
No Contra Preferentum No Jury
Force Majeure - Excusable Waiver
Delay
Counterpart Severability
Notices Survival
 Entire Agreement
16

This Agreement constitutse the entire agreement between the Parties

pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, or inducing
pre-contractual representations, whether oral or written, of the
Parties pertaining to such subject matter. There are no warranties,
representations or other agreements between the Parties in
connection with the subject matter hereof, except those specifically
set out herein. The execution of this Agreement has neither been
induced by, nor do any of the Parties rely upon or regard as
material, any representations not included in this Agreement.
 TIME
17

Time is of the Essence Why?

For which provisions?
 Contra Proferentum
18

There is no presumption that any ambiguity in the

Agreement be resolved in favour of either of the
Parties. For greater certainty, the contra proferentum
rule is not applicable to any interpretation of the
Agreement
 Headings
19

The headings in this Agreement are fore ease of

reference only and are not be taken into account in the
construction or interpretation of any provisions to which
they refer
Nevertheless an arbitrator or judge may use any, or all, of the
table of contents, recitals, and headings when reviewing the
covenants, statements, representations and warranties and
conditions subsequent to better understand the commercial
and legal intent of the Licenses provisions.
 Schedules
20

The schedules and appendices constitute an integral

part of this Agreement
The following schedules are attached to and form

part of this Agreement:

Schedule A -- Title
Schedule B -- Title
 Precedence -Careful
21

If there is a conflict or ambiguity between the

License proper and any appendix thereto, the
interpretation consistent with License proper (taking
into consideration the statements in the recitals and
headings) shall prevail and apply, notwithstanding
any wording to the contrary in the applicable
appendix.
 Waiver
22

No supplement, modification or waiver of the

Agreement is binding unless executed in writing by
the Parties. No waiver of any of the provisions of
the Agreement constitutes a waiver of any other
provision (whether or not similar) nor does such
waiver constitute a continuing waiver unless
otherwise expressly provided.
 Amendment
23

No change or modification of this agreement is

valid unless it is in writing and signed by each party
 Severability
24

If any provision of this Agreement is determined to

be invalid or unenforceable in whole or in party,
such invalidity or unenforceability attaches only to
such provision and everything else in this Agreement
continues in full force and effect
 Severability II
25

If any provision of this agreement is held by

competent authority to be invalid, illegal or
unenforceable, for any reason, the remaining
provisions of this agreement and it attachments
continue in full force so long as they express the
intent of the parties. If the inent of either party
cannot be preserved this agreement shall be either
renegotiated or terminated by the parties
 Binding
26

This agreement enures to the benefit of and binds

the parties and their respective heirs, executors,
administrators, successors and permitted assigns
 No Assignment
27
The Agreement is personal to the Company and cannot be assigned,
in whole or in part, including any interests, rights or obligations
hereunder (however, such an assignment might be structured,
including but not limited to: share sales, operation of law, merger,
transfer, amalgamation or other direct or indirect manner), without
the prior written consent of X, which consent may not be
unreasonably withheld. The failure to obtain written consent shall
render the assignment (or transfer) void. Any consent from shall be X
effective only upon receipt by X of payment of five percent (5%) of
all consideration involved in the assignment, transfer, sale,
encumbrance or other transaction.
 Joint and Several
28

The parties declare themselves to be bound jointly

and severally with one another with respect to the
fulfillment of all the terms and conditions of this
agreement and hereby renounce their benefits of
division or discussion.
 Recitals
29

The Parties acknowledge the truth and accuracy of

the recitals and acknowledge that the recitals may
be used by a court, mediator or arbitrator to help
resolve any Dispute.
 Forum
30

The terms of this Agreement, as well as the rights

and obligations of the parties hereto, shall be
construed and enforced in the applicable Courts of
Ontario in accordance with the laws of the Province
of Ontario, Canada, without reference to conflicts
of laws principles.
 Notice
31

Any notice, demand or other communication required to

be given to a party is to be in writing and either:
Delivered personally to
Sent by registered mail or courier to

Sent by email to

Address for party A

Address for party B
 Survival / Non-Merger
32

The following provisions survive the termination or

expiry of this Agreement and continue in full force
and effect and no not merge: section title, section
title
 Counterparts
33

This Agreement may be executed in any number of

counterparts with the same effect as if all parties
hereto had all signed the same document. All
counterparts are to be construed together and
constitute one and the same original agreement
 No USA Jury Trial
34
The Company waives any right to a trial by jury of any claim, demand action or caution of action:

13.17.1. arising under the License; or

13.17.2. in any way connect with or related or incidental to the dealings of the Parties in respect of the
License or any other agreements or the transactions related hereto or thereto in each case whether now existing
or hereafter;

13.17.3. whether in contract, tort, equity or otherwise.

The Company agrees and consents that any such claim, demand, action or cause of action shall be decided by a
court without a jury. X may file an original counterpart of the License with any court, as written evidence of the
consent of the Parties, to the waiver of their right to a trial by jury.
 Again Boilerplate
35

preserves what the parties negotiated

insulates against legal doctrines that could erode that
which was agreed
protects against sloppy contract administration

prescribes parameters for any interpretation

 ADR
36

For there to be arbitration:

A dispute must exist between the parties
Decision-making authority is granted to a neutral third party

The decision-making is conducted in a judicial or quasi-

judicial manner

n Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564

 STATUTORY FRAMEWORK
37

Arbitration in Ontario is governed by the Arbitration Act

(Domestic) or the International Commercial Arbitration
Act (International)
The general thrust of the Acts is to limit court intervention
in the arbitral process
Canada acceded to the UNCITRAL Model Law on
International Commercial Arbitration
 Judicial deference - grounds for review
38

Incapacity
Agreement invalid under proper law
Significant procedural irregularities denial of natural justice
Dispute outside jurisdiction
Composition or procedure not in accord with parties agreement
Fraud
Contrary to public policy
 ADVANTAGES Party line
39

n Forum n Choice of remedies

n Choice of decision n Choice of procedure/
flexibility
maker/expertise
n Informality
n Cost n Agreements within an
n Speed/certainty of industry
timing n Ease of registration in
n Law other jurisdictions
n Confidentiality n Language
 Advantages Real
40

Confidentiality
Commercial Preservation (marriage counseling)

International Registration
 ADR Elements
41

Forum
Rules / Procedure

Laws
 INSTITUTIONAL OR AD HOC
42

Institutional bodies will provide a list of arbitrators usually

categorized by expertise
Institutional bodies provide for a more organized and
orderly process
Provide a certain measure of quality control
Provide established and predictable procedural rules
Are more costly, but provide predictability with respect to
costs
Less flexibility in designing procedures
 Cont
43

Institutionalarbitration is handled by a specific institution

such as a chamber of commerce and provides procedural
rules, administrative services, quality controls for the
arbitration, and greater predictability with respect to the
costs
ad hoc arbitration
n does not rely upon an institution or specific rules, which allows for
more flexibility in the arbitration process
n arbitrators operate on their own but many of the organizational or
administrative aspects now fall to the arbitrator
 INSTITUTIONS
44

International Chamber of Commerce (ICC)

Swiss Rules of International Arbitration (SRIA)
London Court of International Arbitration (LCIA)
International Centre for Dispute Resolution (ICDR)
American Arbitration Association (AAA)
 FOUNDATION
45

There must be offer and acceptance

Regarded as a separate stand alone contract
that survives the breach or failure of the main
contract
The arbitration clause must be tailored to
each situation
 DRAFTING PRINCIPLES
46

Intent to require binding arbitration should be clearly and

unequivocally stated
If relying on institutional support, ensure the correct name
and existence of the institution designated to administer the
arbitration
Avoid naming a particular person or establishing unrealistic
preconditions/qualifications
Ensure that the procedure adopted is clear, workable, and
has realistic, identifiable end points
 KEY ELEMENTS
47

Seat of arbitrator
Institutional vs. ad hoc arbitration
Number and appointment of arbitrators
Scope of the arbitration clause
Exclusive jurisdiction of the arbitral tribunal
 SEAT
48

Specify the country and city

the arbitration may still be held at a place convenient
for both parties even though a different law governs
in international context, common jurisdictions are New
York, Geneva, Zurich, Paris, London and Milan
ensure the provision sets out the procedural law
governing the arbitration
 NUMBER of ARBITRATORS
49

should be specified in the arbitration clause

generally one or three arbitrators are appointed
one arbitrator is often best in situation of less than $1M,
where time is of the essence, where the matter is less
complex and where obtaining a speedier award is
important
in ad hoc arbitrations it is always advisable to specify
the number of arbitrators and procedures for
appointment to minimize the potential for disputes
 SCOPE
50

nGOOD: Any controversy, dispute or claim arising

out of or relating to this contract or the
performance, enforcement, breach, termination
or validity of it, including the determination of the
scope of the contract to arbitrate, shall be
determined by arbitration
 EXCLUSIVE JURISDICTION
51

the parties shall submit their disputes to final and

binding arbitration
 Some Additional Issues
52

Language
Entry of an award in court
Multi-party arbitration
Mediation prior to arbitration
Appeals
Currency
 SHORT IF NECESSARY
53

Any dispute, controversy, or claim arising out of or

relating to this contract or the breach, interpretation,
termination, or validity thereof shall be settled by
final and binding arbitration in accordance with the
UNCITRAL Arbitration Rules as currently in force.
The seat of the arbitration shall be Geneva,
Switzerland
 DONT SAY
54

In the event of a dispute the parties agree to

negotiate in good faith failing which the matter will
be submitted to arbitration
 ADR
55

Do not get seduced by ADR

Remember --- foist / vest / situate problem with

those that have RESPONSIBILITY and POWER

Those that have only one or the other have no

interest in resolution or ability to effect it

 GREATER TORONTO AIRPORTS
AUTHORITY
56

Disputes (as defined) as remitted to the CEOs of both

organizations for resolution
If they cant resolve it, litigation
Why --- subordinates fearful to resolve it, let ADR deal
with it, then not responsible
Feeds and perpetuates disputes litigation grinds on /
churns along
Have to determine if you will use ADR and under what
sort of matrix
 ADR ARTICLE / PARAGRAPH
57

If you are indifferent to ADR or the sums are modest,

then a paragraph arbitration clause coupled to a
CEO referral provision sufficient
If you have significant monies and a long term
relationship at stake, that can ripple into other
relationships then have a fully fleshed out
chapter, division, appendix
 FULLY FLESHED OUT
58

A fully fleshed out ADR speaks to all of the issues ---

forum, laws, procedures ---in a manner that requires
no input from the disputing parties, only the
unilateral triggering of the process
 PRECEDENTS Joys & Tears
59

YEA!!!! BUTIII

Provides a checklist Not to think

Not to creatively problem
Framework solve
Not to update
Saves time
Not to avoid the box
Not to apply extant facts
Not to use the appropriate
 WHERE TO FIND THEM?
60

Precedent texts OBriens

Texts
Government, NIH, Universities
Trade Associations
Industry Sites (aviation)
CLE
Firm Files
International Organizations (WTO. FAO)
 WHERE cont.
61

Contacts
Friends

Persons / institutions in field

In a related field

Access to information
 NOT FIXED
62

Precedents are like store bought meals and soups

Check the best before date
Right ingredients / fats / allergies / rep & warrants
Spice them up sculpture, harmonize
Dont get locked up in the box -- cross fertilize -- film
contracts might have useful clauses for r & d; aviation
might teach something about highway contracts
 DRAFT 407 TOLL PROVISION
63

Turnpike charges
Highways, bridges
Ships, canals, aviation landing fees
Government/ Business Partnerships
Government privatizations
International highway developers
 PROBLEM
64

Precedents reflect an idiosyncratic

generic, and fixed factual / legal /
business situation
Speak to only one audience, the one at
the time of creation
 SOLUTION
65

Lawyer must identify the applicable precedent and

effectively blend:
deal / facts
current legal / business considerations
law, bald and nuanced
temporal considerations
drafting styles / creativity
remember your reading audience of 5 groups
 PRECEDENT DRAFTING
Is not an Oxymoron
66

Conceptually harmonious with Deal

subject matter
risk allocation
Paragraph sculpture / Sentence Structure
Weave in definitions that are bolded / italicized
Insert headings / double check any x-references
Sequence
YOU DO NOT CUT AND PASTE
 ITS OVER !!!!
Well but for the assignment
67

****Clarityof thought****

Precedents you control and revise not vice versa

Boilerplate not automatic but automatically honed
ADR why, how much and GTAA solution instead
 Widescreen Presentation
68
This template is formatted
with a 16:9 widescreen
aspect ratio. Its a great way
to take advantage of
laptops, televisions and
projectors equipped with
widescreen displays.
Even if you do not have a
widescreen display, you can
still create and present 16:9
slides. PowerPoints Slide
Show always resizes your
slides to fit any screen.
 Widescreen Advantages
69

Side by side material fits

more naturally.
Widescreen adds drama
to graphics and images.
 Widescreen Graphics
70

East West North

Even a single 90
graphic, such
as a chart,
can be
presented
46.9
more 45.9 45 43.9
38.6
dramatically 30.6
34.6
31.6
27.4
in widescreen. 20.4 20.4

1st Qtr 2nd Qtr 3rd Qtr 4th Qtr

71 Widescreen Pictures
Pictures can also be presented more dramatically in widescreen.
 Creating 16:9 Presentations
72

To setup a widescreen
presentation, do one of the
following: Important: Always start with your slide size
set to the aspect ratio you intend to use. If you
Start with this template. Simply change the slide size after youve created
some slides, your pictures and other graphics
delete the example slides and will be resized. This could potentially distort
add your own content. their appearance.
Or, on the Themes tab, under
Page Setup, click Slide Size, and
then click Widescreen (16:9).
(Note: we also support 16:10,
which is a common widescreen
laptop resolution. )
 Slide Show Tips
73

To present in true widescreen, youll need a

computer and, optionally, a projector or flat
panel that can output widescreen
resolutions.
Common computer widescreen resolutions
are 1280 x 800 and 1440 x 900. (These
are 16:10 aspect ratio, but will work well
with 16:9 projectors and screens.)
Standard high definition televisions
resolutions are1280 x 720 and 1920 x
1080.
Use the Test Pattern on the next slide to
verify your slide show settings.
 Widescreen Test Pattern (16:9)

Aspect Ratio Test

(Should appear
circular)

4x3

74 16x9