23 - Drafting and final clauses

Summary

The party of the first part shall be known in this contract as ‘the party of the first part’ … the party of the second part shall be known in this contract as ‘the party of the second part’.

Although from a comedy, the quote is a useful reminder that lawyers are not always that good at drafting. Yet, the Greece–Republic of Macedonia Agreement 1995 refers to the parties only as ‘the party of the first part’ and ‘the party of the second part’. This was because Greece (which has a province called Macedonia) objected to the name ‘Republic of Macedonia’, and it was therefore an imaginative way of breaking the impasse. When in a ticklish spot, such is the resourcefulness of the draftsman.

This chapter will therefore describe the way in which treaties, and to some extent MOUs, should be drafted, and what is good practice and what is not. It ends with some drafting tips. The views are inevitably subjective, though all are based on practical experience, including having to grapple with some thoroughly badly drafted treaties.

Treaties do not have to be in any particular form. But, with the principal exception of exchanges of notes (which are dealt with later in this chapter), most treaties consist of a single main instrument which follows a well-established pattern:

• title;

• preamble;

• main text;

• final clauses;

• testimonium and signature block;

• attachments (if any).