Designing differently: conflict and the challenge of addressing tensions between contractual and non-contractual norms
| Autor: | Kamminga, Y.P. |
|---|---|
| Přispěvatelé: | Property Law, Public Contract Law, Kooijmans Institute |
| Jazyk: | angličtina |
| Rok vydání: | 2016 |
| Předmět: | |
| Zdroj: | Revue d'arbitrage et de médiation / Journal of Arbitration and Mediation, 6(1) Kamminga, Y P 2016, ' Designing differently: conflict and the challenge of addressing tensions between contractual and non-contractual norms ', Revue d'arbitrage et de médiation / Journal of Arbitration and Mediation, vol. 6, no. 1, pp. 9 . |
| ISSN: | 1923-6794 |
| Popis: | Lawyers are the engineers and architects of contractual frameworks.Arguably, with respect to the success of the undertaking, theyoccupy a place of equal importance to the parties executing the contracts.After all, contracts are put in place to help prevent problems fromarising in long-term business relations. As studies of business interactionsshow time and again, and I have discussed in earlier articles,keeping conflict at bay in long-term business relations is not an easytask. Many are still perplexed to learn what the research consistentlyindicates: that contracts themselves are partly responsible for the tensionsthat arise. In fact, contracts seem to do little to preserverelationships; instead, they tend to fuel disputes and trigger costly litigation.What are the factors that underlie this common failure of contracts?It appears that contract drafters ignore non-contractual norms whendesigning contracts, which leads to tension during the contractual relationship.In earlier work I identified a number of non-contractual factorsthat influence parties actions but rarely find a place in contracts(Kamminga 2008; 2011). These non-contractual drivers influence contractparties’ behavior and can, in fact, encourage parties to act contraryto what the contract text directs them to do. This article takes a problemsolving approach: it studies the dynamic between various drivers of contractualbehavior more in-depth, and looks into the drivers triggering orimpeding evolution in contract design. I discuss why and how lawyersmay better manage tensions and prevent disputes by revising their contractdesign methods and choices (and how to convince them to do so).What follows is a discussion of the dynamic interplay between theformal and informal governance mechanisms at work in every long-termrelationship. In addressing this matter, this paper points out (a) why lawyersexperience very little incentive to search for ways to improve thecooperation function of contracts; (b) how to overcome these obstacles;and (c) how to integrate social and economic drivers to increase theeffectiveness of contracts. To this end, a framework is put forward thatmight be used to (1) identify tensions between formal and informal governance structures in actual contracts and (2) provide a roadmap forcontract design that foreshadows and possibly eliminates some of thesetensions during the contract drafting process. This article aims to contributeto a broader discussion of more effective ways in which transactionlawyers can contribute to society and, more specifically, the paperexplores how a more holistic approach to contract design may help preventconflict and achieve better results for contract parties. |
| Databáze: | OpenAIRE |
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