Entire Agreement Clauses: Convergence between US and Danish Contract Law?
AbstractThe majority of worldwide concluded commercial contracts are nowadays written in English and based on Anglo-American contract models. This happens regardless of the governing law of the specific contract. When relying on those models, contractual parties often embrace not only the actual wording, but also the contract drafting style typical for common law countries. In this way, common law concepts and rules can be transferred to civil law jurisdictions, however, without certainty about the legal effects. This is especially pertinent to boilerplate provisions. On this background, the article aims to elucidate the influence of American contract law and contract drafting style on Danish contract law and practice, taking the entire agreement (EA) clause as an example. While applying comparative law method, and more specifically taking the departure in various theories on diffusion of law, it aims to investigate the treatment of EA clauses in contracts governed by Danish law and opens up a discussion whether on the example of EA clauses we can observe Americanization of Danish contract law or whether we should rather speak of legal transplants or convergence between American and Danish contract law. The findings suggest that the use of EA clauses in contracts governed by Danish law can indeed be deemed legal transplants, but that it is impossible to identify whether this transplanting process has been successful. For now, the available court decisions from the two jurisdictions dealing with the topic of EA clauses do not show mutual appreciation between the two legal systems, although the results are not as divergent as expected. Therefore, what we are experiencing seems to be convergence or transnationalization of contractual practice rather than contract law. We might thus conclude that the contract drafting process overtakes the judiciary, which is more attached to national rules and values. This does not seem to be the case for Denmark only, but appears to be a common observation in other civil law jurisdictions as well. In line with the irritant perspective on the legal transplants theory, it can then be expected that the contract drafting practice will in turn influence national legal rules and the courts’ approach. This effect can already be seen in Danish legal scholarship and its presumption that the judges will not entirely disregard EA clauses, but take a middle road in interpreting them.
Copyright (c) 2018 Katerina Mitkidis, Thomas Neumann
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