Courts are reluctant to cancel a contract because of the uncertainty of a provision intended to produce legal effects, as noted in Brown v Gould . It was stressed that things must always be compensated, that man`s affairs are handled in the most effective way possible without violating essential principles and that the law cannot be accused of destroying negotiations. Nevertheless, the Court of Appeal (when approving the decision of the first instance) did not hesitate to make a linear calculation, that is, . « If the funds are withdrawn on a given day between the day following the investment and the day three years after that date, the amount of the recovery is the part of the commission that reflects the time elapsed between these two data. » Our own experience is that the courts do indeed try to make sense of treaties that, at first glance, seem vague or contradictory. This approach applies to « in-house » agreements as well as documents between legal advisors. The starting point will normally be that words should have meaning, otherwise why should they be included? The likelihood that a court will completely ignore certain parts or parts of a contract for reasons of uncertainty is usually quite low. The Openwork case only reinforces this position. « The existence of an arbitration clause can help courts to consider that a contract is sufficiently secure or mature, probably with reference to a commercial and contractual mechanism that can be implemented with the help of experts in this field, by which the parties can settle their dispute in the absence of agreement. » The case itself concerned a two-year timber sales agreement, briefly mentioned for: in Mamidoil-Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD [EWCA Civ 406], the Court of Appeal examined the authorities and distilled a (non-exhaustive) list of principles to serve as a guide for each court or arbitrator, who are considering contractual provisions that may appear uncertain or incomplete. The first principle, which characterizes contract law, is that any agreement must be constructed taking into account its own conditions and the circumstances arising therefrom. It always depends on that. Rix L J gave the following indications (as completed by us): « .
it provided a commercial and contractual mechanism that could be implemented with the assistance of experts in this field, with which the parties, in the absence of agreement, were able to settle a dispute over reasonable processing costs and the shipping plan. The first question was whether there was a binding contract – if there is one, the use of phrases such as « to be agreed » is less likely to be fatal for applicability. . . .