Nor will a court force the parties to meet and reach an agreement. First, such an injunction would require the court to play an important supervisory role, which it will not do, and second, it would have all the problems arising from an agreement to accept. In the United Kingdom, the term MoU is often used to enter into an agreement between parties to The Crown. This term is often used in the context of decentralization, for example. B in the 1999 concorda between the Central Ministry of Environment, Food and Rural Affairs and the Scottish Environment Directorate. The current position in most legal systems is that there is not much the angry party can do in such a situation. There have been a number of cases in which the courts seem to distinguish between these “negotiation” obligations and “performance” obligations. See z.B. Barbudev v Eurocom Cable Management Bulgaria EOOD ([2012] EWCA Cir 1560) and Shaker v Vistajet Group Holdings SA ([2012] EWHC 1329 in England, Hyundai Engineering and Construction Company Ltd ([2005] 3 HKLRD 723) in Hong Kong and Baldwin v Icon Energy Ltd ([2015] QSC 12) in Australia. This distinction appears to be based on misconceptions that there is no “valid and enforceable contract” during negotiations, that there is too much uncertainty, and that the bargaining clause should be interpreted by the parties as an obligation to agree, i.e. that it is an agreement.
If you do the above analysis, you would use an MOU if you have an understanding, but you don`t have agreements on the issues under discussion. You would use HoA if you reach an agreement on certain points and want a roadmap for a full contract. In the economy, a protocol is generally a legally non-binding agreement between two or more parties that defines the terms and modalities of mutual understanding or agreement and notes the requirements and responsibilities of each party – without concluding a formal and legally enforceable contract (although a MoU is often a first step towards the development of a formal contract). [2] [3] But here, it can get tricky. You may not feel that you intend to enter into a legal agreement, but the courts are looking at high-altitude cases and assessing whether there is a formal legal agreement, based not only on the words of the MoU, but also on your statements and actions, everything you have already done, letters, emails or even commercial uses. The second part, which has often been raised by the courts, is the argument that there is too much uncertainty about the rules of negotiation (see z.B. Watford v Miles). While this is true for some bargaining clauses, this is not necessarily the case in others. For example, if the parties have simply entered into a Memorandum of Understanding that simply expresses the intention (or even an “agreement”) to negotiate in good faith the terms of an agreement, then it is easy to see how a court would have difficulty making sense of that “agreement”.