Reinforcing my experience
The latest Arcadis Global Disputes Report (2022) confirms a few of the experiences I have as a contracts lawyer:
- contracts are rarely without errors – in 2021 errors or omissions in the contract documents were the second biggest cause of global disputes
- contracts reviews are worth the money – in 2021 they were noted as the most effective claims avoidance technique
- clients are proactively evaluating their contract language…to effectively avoid, mitigate and resolve disputes – I have worked with companies around the globe interested in using contracts more effectively to minimise problems during the project.
Wrongly blaming language
However, I take issue with this element of UK section of the report (emphasis added):
As always, our view in previous reports has been that
contractual obligations ostensibly drafted in plain English by lawyers may not be as easily understood by practitioners.
If the Report said that contractual obligations are not easily understood by users, then I would say YES.
It’s their reference to plain language that I object to. They have misunderstood what it means and blamed it incorrectly. Plain language, by its very nature, is understood by users. That is its definition!
In the Europe section, a contributor to the Report draws the correct conclusion: the goal of dispute avoidance is achieved by securing first a clear deal, as embodied by the contract documents, capable of being read and understood by those who will actually perform the project.
What should you do?
As the Report focuses on dispute avoidance, you can minimise issues by:
- clear accurate contracts
- documents written so that users can read, understand and use them
- training contract administrators and users to follow the key processes.