Research student to present at SLS Annual Conference 2016

Haward Soper will present the paper ‘Contract, conflict and cooperation – the use of contractual discretion and the views of commercial experts’ at this years SLS Annual conference in September.
Research student to present at SLS Annual Conference 2016

Haward Soper

Haward will discuss how many contractual decisions are made under contractual powers granted to one party to ensure that there is a mechanism in place to facilitate essential decisions.

When Courts examine such provisions there are four common outcomes

  • no 'control' is imposed.
  • acting in an arbitrary, capricious or irrational manner is not permitted.
  • Certifiers, usually in construction or infrastructure contracts, should act fairly and impartially.
  • 'commercially unacceptable' or 'unconscionable' conduct will be controlled.

Power is normally conferred on the party best placed to make decisions, so on interest rates a bank is clearly the right party, an employer to judge how a pension plan be managed, and so on.

Empirical evidence suggests that controls are acceptable to the commercial world. Common standard forms of contract do not limit judicial control of discretion. In my empirical work 410 experienced managers were reacted to a scenario in which they had absolute discretion and no time. A large majority of respondents would not use their discretion in an absolute way but, despite the absence of time, would consult.

The Society of Legal Scholars annual conference provides discussion on current topics and facilitates networking among academic lawyers.

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