Interpretation of market standard form contracts
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Peer-reviewed
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Abstract
There has been considerable academic discussion of the phenomenon of Market Standard Form Contacts, particularly in the US, but also in UK journals. The literature focuses on the benefits and drawbacks of such contracts, largely from an economic point of view, and analyses what techniques of interpretation can best nurture such benefits while avoiding the drawbacks. Perhaps not surprisingly, the insights from this literature have not informed the approach to interpretation taken by the English courts. The paper therefore seeks to do three things. First, to analyse the literature in a way that enables its insights to be applied to English cases. Second, to evaluate how far the approach of the English courts correlates to the approach suggested in the literature, and to identify the possible justifications for that approach other than those articulated in the cases. Third, to consider what challenges still exist and how they can be addressed.