Of intentions

I worked in the area of executing commercial contracts for over six years. It was a difficult business, made worse by badly drafted contracts that sometimes contradicted itself, sometimes in successive paragraphs.

I blog little about my work, mainly because it is dull as hell, but that doesn't mean I can't share some of what I learnt.

Back in 2014, I was working on my first project, and there was a disagreement between the company I worked for and the customer. We could not fix it, so brought in one of the people on our side who helped negotiate the contract.

"That was not the intention of that clause", they would begin. And we would argue for the rest of the meeting.

Thing is, we learned, that it mattered not a jot what the intention was months or years ago when that clause or paragraph was agreed, its what it says now and who gets to interpret it to their satisfaction.

Back in 2014, we talked about the issues, agreed on a common sense way forward that satisfied the "spirit" of the contract, and we moved on.

Now to Brexit.

This week Sir David Frost has been explaining to MPS that the intention of the NIP was not the way in which the EU are interpreting it.

See where I am going with this.

The intention two, three years back make little sense now. It is possible the requirement in the NIP was vague to satisfy both sides, but not with enough detail to make both sides happy when push came to shove.

Legal purity means, really, that the other side is expecting you having negotiated and signed up to the NIP to honour its provisions. That it doesn't make you happy reflects on you (Frost's) poor negotiating skills. And on top of that, that is if the UK Government actually wants to make the NIP work. There is more than enough evidence to show that Johnson's intention (that word again) was to get it signed and talk some more, or failing that ignore it. Maybe not be in compliance with most or all of the NIP or the WA and/or the TCA too.

International trade agreements relies, in the end, on the lie that your word is your bond. Time and time again the UK Government has acted in bad faith, and is threatening to do so yet again, in violation of the three parts of the Brexit agreements, and international law on treaties themselves.

The EU might agree to talk about some part of the NIP or another, but the lesson here is that there is no guarantee that the UK will even live up to the new obligations, if they don't the old ones. And taken together with news of a probable trade deal between the UK and Australia, and the UK allowing in sub-standard meat and other agri-food products, the EU might think its best to draw the battle lines now with sausages and minced beef, rather than down the line. Because the NIP and TCA is not there to manage alignment, but to manage divergence, and this is the clear sign where the UK is heading.

THe EU has a right to protect its SM and CU as well as enforcing the rules, standards and regulations it has agreed, but in Ireland without the UK Government's willingness to cooperate, the land border between NI and the Republic cannot be a regulatroy border, then thos products could very easily find its way into Ireland and into the wider EU.

It is sausages now, but could be GM food next week and then, who knows? And it has both Ireland and NI to consider. This will be tricky for the EU to manage, where flexibility is rare, especially when in legal terms it is in the right.