Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

“Man plans,God laughs”: Canada's national strategy for protecting critical infrastructure

Critical Infrastructure Protection seeks to enhance the physical and cyber‐security of key public and private assets and mitigate the effects of natural disasters, industrial accidents and terrorist attacks. In 2009, several Canadian governments published the National Strategy and Action Plan for Critical Infrastructure (NS&AP), a framework for governments and the owners and operators of critical infrastructure – largely in the private sector – to collaborate on the security and increased resiliency of Canada's critical assets. Drawing on the social science risk literature, audits, and a three‐year research and education project, this article argues that the strategy of relationship building, collaborative risk management and information sharing is under‐developed and limited by market competition, incompatible institutional cultures, and legal, logistical and political constraints. The NS&AP should better delineate risks and identify how governments can work with industry, and acknowledge the paradox between trust and transparency, the role of small‐ and medium‐sized enterprise, and how risk management processes can vary.