There are binding orders and the contract is crystal clear," Mrs von der Leyen said in Friday morning's radio interview. Best effort' was valid while it was still unclear whether they could develop a vaccine. That time is behind us. The vaccine is there.
Crikey EU officials talking about "war" now (albeit in context of vaccine not an actual one... yet) the eurocrats really have gone nuts haven't they?
Seriously I know we have the fact they fucked up and Brexit in a potent combination but they are acting deranged right now
And setting back re-join in the process........
After this re-join isn't going to be an popular option.
I know people keep saying this but I would ask how much penetration this whole argument is really having into the public consciousness. I agree that if the EU really started insisting on vaccines coming from UK plants which affected UK supply then it would certainly become a major public issue but right now I don't see that the public as a whole are really aware of this whole argument to the extent that it would change anyone's view overall of the EU.
For the record I know many EU supporters on here are unhappy with the way the EU has behaved and it may even change some minds about any rejoin campaign on here. But of course we are not normal people.
I would agree that at the moment only the nerds are interested. But that will quickly change if the EU start asking for UK vaccines or stop Pfizer from delivering to the UK.
As long as AZN stick to their interpretation of the contract isn't a lot of all this moot? It would take months to argue this through the courts, by which time production across all the plants should be at full speed and AZN will be able to meet obligations?
Yes, that seems to be why this is all political theater - unless AZ caves and diverts supply from others to the EU, which presumably would have an explosive response from others, all this froth won't actually get any vaccines to them any quicker. Pfizer are apparently increasing capacity, AZ are no doubt working on improving things, and the other vaccines are on the way, so hopefully the reduction in deliveries won't last too long and be too catastophic, but little seems able to be done about it.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below) to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be Euros for distribution within the EU (the “Initial Europe Doses”), with an option for the Commission, acting on behalf of the Participating Member States, to order an additional 100 million Doses (the “Optional Doses”). WHEREAS, AstraZeneca will supply the Initial Europe Doses to the Participating Member States according to the terms of this Agreement.
That does *not* say that there are no commitments that rank above/prior to the “Initial Europe Doses.” In fact it imoplies that there are, because if you are talking about scaling up/increasing capacity that implies that you were already making vaccines for someone else. This doesn't help them.
But AZN has affirmed that there are no other contracts that would impede the delivery of this contract?
That is a warranty, and under English law (unless modified in the contract) would only have to be correct at the time it is given, when presumably AZ believed it could meet all orders simulatenously.
The document says "laws of Belgium".
What remedy is the EU seeking? Specific performance? Damages? Surely regardless of this dispute they will struggle to enforce anything in reality, regardless of any legal merits?
I'm unsure over whether AZ will suffer negative commercial consequences over this. They have the kudos of having a working vaccine after all, and they will deliver eventually.
The only remedy they seem to be seeking is specific performance with AZN delivering the UK manufactured vaccines (which are in the EU due to clause 5.4) to the EU.
Which I can imagine would be very hard to enforce if the vaccines are already in the UK and AZN are unwilling to ship them.
So like @TOPPING says this seems to be a moral highground dispute more than anything, considering we should (hopefully) be swimming in vaccines in a month or so.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
It is still ambiguous in relation to passengers unaccompanied by animals.
One day, a long, long time from now we will be able to read pb and the word sclerotic will not appear all day.
The sclerotic/nimble dialectic is going to be with us for a very long time. It will make us yearn for the lost innocence of pb.com's âge d'or of endless J-class travel anecdotes.
I'm sure at some point, once everyone is fed up with sclerotic/nimble we can switch to ossified/agile
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below) to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be Euros for distribution within the EU (the “Initial Europe Doses”), with an option for the Commission, acting on behalf of the Participating Member States, to order an additional 100 million Doses (the “Optional Doses”). WHEREAS, AstraZeneca will supply the Initial Europe Doses to the Participating Member States according to the terms of this Agreement.
That does *not* say that there are no commitments that rank above/prior to the “Initial Europe Doses.” In fact it imoplies that there are, because if you are talking about scaling up/increasing capacity that implies that you were already making vaccines for someone else. This doesn't help them.
But AZN has affirmed that there are no other contracts that would impede the delivery of this contract?
That is a warranty, and under English law (unless modified in the contract) would only have to be correct at the time it is given, when presumably AZ believed it could meet all orders simulatenously.
The document says "laws of Belgium".
What remedy is the EU seeking? Specific performance? Damages? Surely regardless of this dispute they will struggle to enforce anything in reality, regardless of any legal merits?
I'm unsure over whether AZ will suffer negative commercial consequences over this. They have the kudos of having a working vaccine after all, and they will deliver eventually.
The only remedy they seem to be seeking is specific performance with AZN delivering the UK manufactured vaccines (which are in the EU due to clause 5.4) to the EU.
Which I can imagine would be very hard to enforce if the vaccines are already in the UK and AZN are unwilling to ship them.
So like @TOPPING says this seems to be a moral highground dispute more than anything, considering we should (hopefully) be swimming in vaccines in a month or so.
We will, but the EU haven't signed a deal for Novavax yet. They're making the same idiot mistakes over and over again.
Beginning to see the issue here (h/t David Allen Green, obvs).
The issue is that as far as can be assumed, the agreement with the EU did have that best efforts clause but that related to manufacturing capacity. It likely made no mention of prioritisation of the product. It seems that AZN does have sufficient manufacturing capacity for the EU order in isolation.
Hence, the EU is behaving as though its agreement is the only one on the planet. AZN, meanwhile, probably realising that they didn't explicitly set out the allocation schedule, has said that the UK ordered first (which it did) and therefore the obligation is to the UK.
But the EU seemingly doesn't care about other contracts it cares about its own contract. AZN has the manufacturing ability hence the EU believes that as that is the only best efforts constraint, the EU should receive its full allocation.
I expect to repost this several times today so I shall label this v1.0.
But the best efforts definition used (according to DAG, in the other contract, so probably in this one too) explicitly did refer to commitments to others.
AZN's commitments to earlier contracts falls under that surely?
Well IANAL, obvs, but according to DAG that is the general description and then it is applied, specifically, to two scenarios which creates the actual obligation.
‘(i) to obtain EU marketing authorisation for the Product and (ii) to establish sufficient manufacturing capacities to enable the manufacturing and supply of the contractually agreed volumes of the Product to the participating Member States in accordance with the estimated delivery schedule set out below in Article I.11 once at least a conditional EU marketing authorisation has been granted.’
It is DAG's contention that the general description is without meaning or force unless it is further refined, as it is in 1.3 (i).
"sufficient" = "sufficient taking our other obligations into account."
DAG did a tweet in 2016 saying the NEC was going to win the challenge over eligibility to vote in the leadership elections, and (I paraphrase) "I know this because I am a Big Important Lawyer and the rest of you look like little ants to me." The NEC lost, the tweet got deleted. Ignore.
Well that is a bold claim to ignore his point. IANAL but do you/they really add phantom phrases to explicit contracts to suit their (client's) needs?
Well, you can't gloss everything in the contract. If the UK is entitled to 100 things a day and the EU also wants 100 things a day and I have one factory which can produce a maximum of 100 things a day, then on one view I have sufficient capacity to satisfy the EU and on another I haven't. So lawyers argue about which was really meant, and courts decide.
Yes absolutely - as I noted in my subsequent post. It is going to turn on exactly that.
AZN will say but we told you we would take into account other purchasers; and the EU will say we don't care about other purchasers, the "operative provision" relates only to manufacturing capacity alone.
I think it gets interesting if there is anything in the contract about where things will be manufactured - but for the moment it's an issue of "you can't have things that don't exist no matter how much you scream".
Furthermore, the EU claim to have been told "some of your vaccine will come from UK factories/you have a right to UK product"; were they also told in advance at the time "but the UK has bought up the initial batches, so you won't get UK stuff for ages"? Presumably AZ have seen both contracts, but the UK and EU haven't. And that's the basic plot structure for every farce ever written.
Had AZ's ability to produce vaccine matched their ability to sell it, that would all be fine. It hasn't, which is why there's a problem. And no, there's no good way out of this.
Yes there is, just ignore the EU, let them shout and scream for a bit and wait for them to calm down. Ultimately this is the result from EU underinvestment in vaccine procurement, they chose a very poor strategy of not subsidising production and now they need to deal with it. There's nothing more to it than that. This political posturing from them is pissing into the wind and the threat of an export ban is a joke as it would come with a gigantic international retaliation that means everyone loses.
I don't get it. Or your point.
The EU, on behalf of its Member States, agreed a contract to buy some vaccines from AZN. They are now arguing over whether AZN is in breach of that contract. There is merit in both sides according to what we know (as discussed above).
How is that proof if proof be needed of the sclerotic nature of the EU which has underinvested in vaccine programmes?
Plus of course "the EU" doesn't invest in vaccine programmes, its Member States do.
I would suggest you take up your argument with the FT who published the figures a couple of days ago showing that the UK and US had both invested 7 times more than the EU per capita in vaccine development.
Because the EU is not a state.
So you agree with the UK Gov not giving their ambassador equal weight with those of the member states then?
Excellent.
That seemed petty on the face of it. What do you think was the reason for it?
The Foreign Office said it would set a precedent by treating an international body in the same way as a nation state. Other international organisations would apply leading to a proliferation of other such bodies seeking diplomatic status.
The EU gets offended by being referred to as an international organisation as they view themselves as a supranational union of Europeans (all for one and one for all) and an emerging federal state.
Under the skin, the issue is probably that the UK prefers to hold foreign, defence and security policy discussions with member states directly, and wants to deal with the EU institutions as little as possible.
I see. The Trumpy "transactional and unilateral" doctrine. That figures. The "precedent" argument sounds flimsy. Apparently this is a deviation from the norm in that the EU ambassador has full monty status in most places.
I hope she has good lawyers after what she said this morning, or she's going to be like a stepmom on (insert TSE's favourite comment here) once AZN get after her.
Edit - actually, I'm being unfair. I suspect that was drafted by AZN's lawyers. The moron was the person who checked it.
Quick - let’s check the brexit agreement again. May be some interesting workarounds 😂
Crikey EU officials talking about "war" now (albeit in context of vaccine not an actual one... yet) the eurocrats really have gone nuts haven't they?
Seriously I know we have the fact they fucked up and Brexit in a potent combination but they are acting deranged right now
And setting back re-join in the process........
After this re-join isn't going to be an popular option.
I know people keep saying this but I would ask how much penetration this whole argument is really having into the public consciousness. I agree that if the EU really started insisting on vaccines coming from UK plants which affected UK supply then it would certainly become a major public issue but right now I don't see that the public as a whole are really aware of this whole argument to the extent that it would change anyone's view overall of the EU.
For the record I know many EU supporters on here are unhappy with the way the EU has behaved and it may even change some minds about any rejoin campaign on here. But of course we are not normal people.
Absurd anecdote time, but the lady on the till at M&S this morning started - unprompted - about the EU trying to grab our vaccines.... I would say this issue is cutting through.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
But what happens if one presents oneself at the ticvket barrier sans pooch AND pussy?
I think that would be a eunuch situation.
Neuter surely, if I read you aright (must be a new meaning of dogging).
It looks like the future of television will just be broadcasting people shouting at the TV to each other.
Tbf it seemed to be Carole ‘do my lips look big in this’ Malone doing most of the shouting.
‘Treacherous!’
Fatso Ferrari on LBC was whining like a big jessie boy about Sturgeon to be done for Treason if she published the numbers. Tories really are cretins.
More to the point, traitors really are cretins.
Now - let's have none of that traitor stuff. It's wrecking PB. And you might not realise it, but when Alistair described Davie Clegg as 'noted cybernat' he was using something called Scottish Irony. Mr Clegg is not. That's the whole point.
crapping himself that the person who leaked the classified government info to his newspaper will be unmasked..........ooops his "friend" has already been daubed in
Hi Malc.
Surprised you are not explaining about the Vietnam Whats app group
Never heard of it G, is it about the Vietnam war, or are you talking about Murrel and his merry band of whatsappers planning their stitch up on whatsapp , as you do.
Without wishing to be rude, I think Ms Von der Leyen is out of her tiny mind.
Politico quotes her as saying: "Best efforts' applies as long as it was not clear whether [AstraZeneca] could develop a vaccine. This time is now behind us ..."
The document they have released today actually has a paragraph specifically defining what it meant by the phrase, which includes: "... the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization ..." [my emphasis]
Regardless of the outcome of the AZN / EU dispute, boy oh boy I am glad the UK have such a diversified portfolio of vaccines and put so much emphasis on UK production.
Crikey EU officials talking about "war" now (albeit in context of vaccine not an actual one... yet) the eurocrats really have gone nuts haven't they?
Seriously I know we have the fact they fucked up and Brexit in a potent combination but they are acting deranged right now
And setting back re-join in the process........
After this re-join isn't going to be an popular option.
I know people keep saying this but I would ask how much penetration this whole argument is really having into the public consciousness. I agree that if the EU really started insisting on vaccines coming from UK plants which affected UK supply then it would certainly become a major public issue but right now I don't see that the public as a whole are really aware of this whole argument to the extent that it would change anyone's view overall of the EU.
For the record I know many EU supporters on here are unhappy with the way the EU has behaved and it may even change some minds about any rejoin campaign on here. But of course we are not normal people.
I would agree that at the moment only the nerds are interested. But that will quickly change if the EU start asking for UK vaccines or stop Pfizer from delivering to the UK.
At which point the UK government blocks exports of raw materials to the EU and Pfizer manufacturing grinds to a halt.
There's simply no way they will try and mess with Pfizer deliveries.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
It is still ambiguous in relation to passengers unaccompanied by animals.
"If a Person brings an Animal onto the Underground, the Animal should be carried by that Person."
With Animal defined like the above and Underground defined as any property owned or part of the TFL system, or something like that.
I hope she has good lawyers after what she said this morning, or she's going to be like a stepmom on (insert TSE's favourite comment here) once AZN get after her.
Edit - actually, I'm being unfair. I suspect that was drafted by AZN's lawyers. The moron was the person who checked it.
Quick - let’s check the brexit agreement again. May be some interesting workarounds 😂
Doesn't say a lot for our side that all indications are they were outmanouevered by this lot, tbh.
Why didn't we ask AZN to negotiate the withdrawal agreement for us?
Without wishing to be rude, I think Ms Von der Leyen is out of her tiny mind.
Politico quotes her as saying: "Best efforts' applies as long as it was not clear whether [AstraZeneca] could develop a vaccine. This time is now behind us ..."
The document they have released today actually has a paragraph specifically defining what it meant by the phrase, which includes: "... the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization ..." [my emphasis]
What she has said is a blatant lie.
And we are shocked to find out she cribbed half her PhD thesis....
Yes, maybe I'm being an idiot and someone can correct me but if the UK is only deemed part of the EU in section 5.4 it removes any ambiguity for all the other sections as the UK is definitely not included for 5.1 or anywhere else.
I expected the EU to fight this based on the ambiguity of whether the UK counted as being in the EU or not during the transition period but that's surely not possible now.
Yes, it's completely unambiguous. Spectacularly bad drafting, but not ambiguous drafting. I'm sure they didn't mean to exclude the UK manufacturing facility from 5.1, but that's what they've done. In fact, AZ would have been in breach of the contract if they'd been trying to manufacture the Initial Doses in the UK rather than in the EU.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below) to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be Euros for distribution within the EU (the “Initial Europe Doses”), with an option for the Commission, acting on behalf of the Participating Member States, to order an additional 100 million Doses (the “Optional Doses”). WHEREAS, AstraZeneca will supply the Initial Europe Doses to the Participating Member States according to the terms of this Agreement.
That does *not* say that there are no commitments that rank above/prior to the “Initial Europe Doses.” In fact it imoplies that there are, because if you are talking about scaling up/increasing capacity that implies that you were already making vaccines for someone else. This doesn't help them.
But AZN has affirmed that there are no other contracts that would impede the delivery of this contract?
That is a warranty, and under English law (unless modified in the contract) would only have to be correct at the time it is given, when presumably AZ believed it could meet all orders simulatenously.
The document says "laws of Belgium".
What remedy is the EU seeking? Specific performance? Damages? Surely regardless of this dispute they will struggle to enforce anything in reality, regardless of any legal merits?
I'm unsure over whether AZ will suffer negative commercial consequences over this. They have the kudos of having a working vaccine after all, and they will deliver eventually.
That is absolutely true. They will surely not expect the UK to divert vaccines to the EU. And by the time this gets to court as @MaxPB has noted about teacher vaccinations, we will be swimming in vaccines and, if it takes as long as EU court cases usually do, we might be onto Covid24 by then.
I think it is a moral high ground thing.
Absolutely- though encouraging AZ to find a few spare vaccines down the sofa, or getting them to put more resource into fixing the problems in the Euro factories sharpish won't go amiss. Wait for the press conference with rictus smiles.
It does rather look like the "no conflicting contracts" warranty wasn't a wise one for AZ to give; I don't know how much comfort Brussels should have taken from that, but it doesn't look consistent with the UK having a "first dibs" contract, and that might explain the anger.
But the big picture remains. The UK has done well at vaccine procurement, the EU has not done well (though remember Japan/Australia/Canada are no better to worse), we'll be done by early summer, they'll be done by late summer, possibly still with a lower overall death rate.
And it's not as if the UK government doesn't sometimes lose its rag performatively as a matter of policy, is it?
Without wishing to be rude, I think Ms Von der Leyen is out of her tiny mind.
Politico quotes her as saying: "Best efforts' applies as long as it was not clear whether [AstraZeneca] could develop a vaccine. This time is now behind us ..."
The document they have released today actually has a paragraph specifically defining what it meant by the phrase, which includes: "... the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization ..." [my emphasis]
This contract shows what I said the other day, when one party starts banging on about a 'moral obligation to deliver' then the contract isn't in their favour.
I'd much rather have a contractual obligation to deliver than a moral obligation to deliver.
Yes, maybe I'm being an idiot and someone can correct me but if the UK is only deemed part of the EU in section 5.4 it removes any ambiguity for all the other sections as the UK is definitely not included for 5.1 or anywhere else.
I expected the EU to fight this based on the ambiguity of whether the UK counted as being in the EU or not during the transition period but that's surely not possible now.
Yes, it's completely unambiguous. Spectacularly bad drafting, but not ambiguous drafting. I'm sure they didn't mean to exclude the UK manufacturing facility from 5.1, but that's what they've done. In fact, AZ would have been in breach of the contract if they'd been trying to manufacture the Initial Doses in the UK rather than in the EU.
Can we have an header from the lawyers on PB on this subject?
One thing the EU are probably achieving here is a reinforcing of the UK's attractiveness and desirability as a global pharmaceutical hub in future.
I could see consolidation and investment in the UK after this as various firms realise the EU is capable of playing politics with them and acting in bad faith.
That might have been true but the key issue for most big pharmaceutical companies is the availability of highly trained and qualified staff.
The UK is generally not seen as a place where professionals want to settle at the moment. It is seen as unwelcoming and insular and therefore attracting the right people is going to be very difficult.
Oh dear - try to inject a touch of reality
As I have been recruiting for 30 years I have plenty of reality Floater.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below) to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be Euros for distribution within the EU (the “Initial Europe Doses”), with an option for the Commission, acting on behalf of the Participating Member States, to order an additional 100 million Doses (the “Optional Doses”). WHEREAS, AstraZeneca will supply the Initial Europe Doses to the Participating Member States according to the terms of this Agreement.
That does *not* say that there are no commitments that rank above/prior to the “Initial Europe Doses.” In fact it imoplies that there are, because if you are talking about scaling up/increasing capacity that implies that you were already making vaccines for someone else. This doesn't help them.
But AZN has affirmed that there are no other contracts that would impede the delivery of this contract?
That is a warranty, and under English law (unless modified in the contract) would only have to be correct at the time it is given, when presumably AZ believed it could meet all orders simulatenously.
The document says "laws of Belgium".
What remedy is the EU seeking? Specific performance? Damages? Surely regardless of this dispute they will struggle to enforce anything in reality, regardless of any legal merits?
I'm unsure over whether AZ will suffer negative commercial consequences over this. They have the kudos of having a working vaccine after all, and they will deliver eventually.
The only remedy they seem to be seeking is specific performance with AZN delivering the UK manufactured vaccines (which are in the EU due to clause 5.4) to the EU.
Which I can imagine would be very hard to enforce if the vaccines are already in the UK and AZN are unwilling to ship them.
So like @TOPPING says this seems to be a moral highground dispute more than anything, considering we should (hopefully) be swimming in vaccines in a month or so.
We will, but the EU haven't signed a deal for Novavax yet. They're making the same idiot mistakes over and over again.
I suspect any negotiation with Novavax is now going to take way longer than it would have done last week.
And Novavax are not going to be offering a no profit contract either.
It looks like the future of television will just be broadcasting people shouting at the TV to each other.
Tbf it seemed to be Carole ‘do my lips look big in this’ Malone doing most of the shouting.
‘Treacherous!’
Fatso Ferrari on LBC was whining like a big jessie boy about Sturgeon to be done for Treason if she published the numbers. Tories really are cretins.
More to the point, traitors really are cretins.
Now - let's have none of that traitor stuff. It's wrecking PB. And you might not realise it, but when Alistair described Davie Clegg as 'noted cybernat' he was using something called Scottish Irony. Mr Clegg is not. That's the whole point.
crapping himself that the person who leaked the classified government info to his newspaper will be unmasked..........ooops his "friend" has already been daubed in
Hi Malc.
Surprised you are not explaining about the Vietnam Whats app group
Never heard of it G, is it about the Vietnam war, or are you talking about Murrel and his merry band of whatsappers planning their stitch up on whatsapp , as you do.
All rather grubby and hard to follow this story. I can't figure out at what point Salmond became persona non grata to others in the party
The story I read, and it was a fear that he might come back.
Remember he stood down as leader of the SNP in 2000, decided his successor wasn't very good and became leader again in 2004.
To quote Dame Shirley Bassey, that's it's all just a little bit of history repeating?
The other interpretation is that the MeToo movement (and the general Zeitgeist within the SNP as regards gender etc under Ms S) led to introduction of a stricter code anyway, and (especially with the scandals at Westminster) Ms S wasn't going to be seen to give anyone - of any party or prominence - special treatment by omission. So ... The timings seemed to support that at the time, about a year or so ago, but I haven't looked at this issue more recently.
It looks like the future of television will just be broadcasting people shouting at the TV to each other.
Tbf it seemed to be Carole ‘do my lips look big in this’ Malone doing most of the shouting.
‘Treacherous!’
Fatso Ferrari on LBC was whining like a big jessie boy about Sturgeon to be done for Treason if she published the numbers. Tories really are cretins.
More to the point, traitors really are cretins.
Now - let's have none of that traitor stuff. It's wrecking PB. And you might not realise it, but when Alistair described Davie Clegg as 'noted cybernat' he was using something called Scottish Irony. Mr Clegg is not. That's the whole point.
crapping himself that the person who leaked the classified government info to his newspaper will be unmasked..........ooops his "friend" has already been daubed in
Hi Malc.
Surprised you are not explaining about the Vietnam Whats app group
Never heard of it G, is it about the Vietnam war, or are you talking about Murrel and his merry band of whatsappers planning their stitch up on whatsapp , as you do.
Kenny MacAskill MP, who has made these allegations, is in hot water himself due to making trips from his holiday home in Speyside to his constituency in East Lothian. Makes you wonder how that came to be public knowledge. Ferrets in a bag.
When can we expect the Crown to intervene , they will have the 22 strong Salmond Detective task force on it , surely they will manage one day to get someone found guilty before they bankrupt the country paying damages.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
TBH, looking at all the above, the EU's case for any substantial diversion seems risible.
It would seem to rest on the idea that a contract signed 3 months after that which AZ signed with the UK should somehow negate whatever clauses were put in the UK contract that guaranteed the UK's supply. Even though we haven't seen the UK contract, there must surely be such clauses, certainly in relation to UK-based output, given the risks that the UK as opposed to the EU was taking. The only clause that clearly applies is that on "best reasonable effort" and that would clearly park it in the remit of the courts to make an interpretation.
What would the judiciary regard as relevant to "best reasonable efforts"? The EU may claim that it is it irrelevant that the EU came so late to the process, but the judiciary would surely take a different view. "Best reasonable efforts" would apply to production decisions after the contract was signed, not those made earlier. They would take into account the efforts and risks taken by the UK to get production up and running, and take a dim view of the idea that this had no bearing on the fulfillment of the UK contract. They would also take account I think of the fact that the EU is already piggy backing risk free on the UK's efforts because of the lessons learnt in working up UK supply of the AZ drug at a time when it wasn't even known that it would work.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
It is still ambiguous in relation to passengers unaccompanied by animals.
"If a Person brings an Animal onto the Underground, the Animal should be carried by that Person."
With Animal defined like the above and Underground defined as any property owned or part of the TFL system, or something like that.
Would that work?
It would work, but you'll never make a living writing laws and contracts that are succinct and unambiguous. Have you done the Obfuscation module yet?
Without wishing to be rude, I think Ms Von der Leyen is out of her tiny mind.
Politico quotes her as saying: "Best efforts' applies as long as it was not clear whether [AstraZeneca] could develop a vaccine. This time is now behind us ..."
The document they have released today actually has a paragraph specifically defining what it meant by the phrase, which includes: "... the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization ..." [my emphasis]
What she has said is a blatant lie.
And we are shocked to find out she cribbed half her PhD thesis....
How can anyone trust anyone so dishonest - and so stupid that she releases a document that exposes the lie on the same day she tells it?
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Yes, maybe I'm being an idiot and someone can correct me but if the UK is only deemed part of the EU in section 5.4 it removes any ambiguity for all the other sections as the UK is definitely not included for 5.1 or anywhere else.
I expected the EU to fight this based on the ambiguity of whether the UK counted as being in the EU or not during the transition period but that's surely not possible now.
Yes, it's completely unambiguous. Spectacularly bad drafting, but not ambiguous drafting. I'm sure they didn't mean to exclude the UK manufacturing facility from 5.1, but that's what they've done. In fact, AZ would have been in breach of the contract if they'd been trying to manufacture the Initial Doses in the UK rather than in the EU.
Yes, actually that's a good point. If the UK is considered an acceptable manufacturing site for the purposes of 5.4 but isn't listed in 5.1 then what mechanism exists for the EU to ask for supplies to be redirected?
This does seem somewhat of an own goal, but I don't speak legalese so maybe my reading is wrong.
Regardless of the outcome of the AZN / EU dispute, boy oh boy I am glad the UK have such a diversified portfolio of vaccines and put so much emphasis on UK production.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Exclusively, or as examples of a larger set?
Well, there are plenty of mice on the underground, but I've never seen anyone carrying one.
Without wishing to be rude, I think Ms Von der Leyen is out of her tiny mind.
Politico quotes her as saying: "Best efforts' applies as long as it was not clear whether [AstraZeneca] could develop a vaccine. This time is now behind us ..."
The document they have released today actually has a paragraph specifically defining what it meant by the phrase, which includes: "... the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization ..." [my emphasis]
What she has said is a blatant lie.
And we are shocked to find out she cribbed half her PhD thesis....
How can anyone trust anyone so dishonest - and so stupid that she releases a document that exposes the lie on the same day she tells it?
PiratePolitican
Remember that she has form for doing this - repeatedly briefed the press against H&K and then the case was thrown out of court.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Exclusively, or as examples of a larger set?
Well, there are plenty of mice on the underground, but I've never seen anyone carrying one.
Another point - the EU still is in the process of negotiating contracts with other manufacturers.
I bet the lawyers for those manufacturers will be making very, very sure the EU can't play games with them
1.1.1. Confidentiality. Both sides agree this document, in its entirety, is confidential and commercially sensitive. Neither side shall publish any part of it for a period of ten years following the completion of its execution.
This contract shows what I said the other day, when one party starts banging on about a 'moral obligation to deliver' then the contract isn't in their favour.
I'd much rather have a contractual obligation to deliver than a moral obligation to deliver.
But they've got Unity and Solidarity™, haven't you been listening?
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below)
Best Reasonable Efforts” means (a) in the case of AstraZeneca, the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact, across the world but taking into account efficacy and safety; and (b) in the case of the Commission and the Participating Member States, the activities and degree of effort that governments would undertake or use in supporting their contractor in the development of the Vaccine having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact, across the world.
That black marker pen is hiding an awful lot more words than can fit under it if they think it gives them the ability to grab vaccines from the UK today.
It's quite clearly giving an expected (subject to best reasonable efforts) timetable for delivery.
But of course the agreement was signed on the 29th August last year - and that expected timetable went out of the window, along with that for the UK, when AZN ran into manufacturing problems in Q4 2020.
Bottom line is that it's not exactly unknown by anyone involved in the purchase of vaccines that even the most routine production (the annual flu jabs), at the best of times is frequently attended by problems in manufacturing, and late or partial delivery. And 'Best Reasonable Efforts' can only be understood in that context.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Exclusively, or as examples of a larger set?
Well, there are plenty of mice on the underground, but I've never seen anyone carrying one.
"Best reasonable efforts" is certainly a less strong obligation than "best endeavours".
I don't think the warranty helps the European Commission much, as AZ is only warranting that no other contract prevents it from using best reasonable efforts to fulfil the terms of this contract.
However, there's something more basic here. The Commission's contract is with Astra Zeneca AB, a Swedish company. I expect that our contract is with Astra Zeneca plc, a British company. Nothing that is contracted for by the former has any bearing on what is contracted for by the latter.
Yes, maybe I'm being an idiot and someone can correct me but if the UK is only deemed part of the EU in section 5.4 it removes any ambiguity for all the other sections as the UK is definitely not included for 5.1 or anywhere else.
I expected the EU to fight this based on the ambiguity of whether the UK counted as being in the EU or not during the transition period but that's surely not possible now.
Yes, it's completely unambiguous. Spectacularly bad drafting, but not ambiguous drafting. I'm sure they didn't mean to exclude the UK manufacturing facility from 5.1, but that's what they've done. In fact, AZ would have been in breach of the contract if they'd been trying to manufacture the Initial Doses in the UK rather than in the EU.
Yes, actually that's a good point. If the UK is considered an acceptable manufacturing site for the purposes of 5.4 but isn't listed in 5.1 then what mechanism exists for the EU to ask for supplies to be redirected?
This does seem somewhat of an own goal, but I don't speak legalese so maybe my reading is wrong.
5.1 seems to completely absolve AZN of any responsibility to manufacture the doses outside of the EU, regardless of what 5.4 says.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
The EU clearly wanted it made in the EU
But why, when you are trying to maximise supply not constrain it?
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Exclusively, or as examples of a larger set?
Well, there are plenty of mice on the underground, but I've never seen anyone carrying one.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Exclusively, or as examples of a larger set?
Well, there are plenty of mice on the underground, but I've never seen anyone carrying one.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
The EU clearly wanted it made in the EU
But why, when you are trying to maximise supply not constrain it?
Like I said, I think Trump must have secretly taken over.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
For the purposes of regulatory compliance I think, essentially they are saying that should they choose to supply from the UK, the EU can't ask for a new regulatory approval.
Hate to tear myself away from this but life calls. Save to observe that almost exclusively people here on PB are arguing that the contract is reinforcing their own positions on the matter.
It looks like the future of television will just be broadcasting people shouting at the TV to each other.
Tbf it seemed to be Carole ‘do my lips look big in this’ Malone doing most of the shouting.
‘Treacherous!’
Fatso Ferrari on LBC was whining like a big jessie boy about Sturgeon to be done for Treason if she published the numbers. Tories really are cretins.
More to the point, traitors really are cretins.
Now - let's have none of that traitor stuff. It's wrecking PB. And you might not realise it, but when Alistair described Davie Clegg as 'noted cybernat' he was using something called Scottish Irony. Mr Clegg is not. That's the whole point.
crapping himself that the person who leaked the classified government info to his newspaper will be unmasked..........ooops his "friend" has already been daubed in
Hi Malc.
Surprised you are not explaining about the Vietnam Whats app group
Never heard of it G, is it about the Vietnam war, or are you talking about Murrel and his merry band of whatsappers planning their stitch up on whatsapp , as you do.
All rather grubby and hard to follow this story. I can't figure out at what point Salmond became persona non grata to others in the party
The story I read, and it was a fear that he might come back.
Remember he stood down as leader of the SNP in 2000, decided his successor wasn't very good and became leader again in 2004.
To quote Dame Shirley Bassey, that's it's all just a little bit of history repeating?
The other interpretation is that the MeToo movement (and the general Zeitgeist within the SNP as regards gender etc under Ms S) led to introduction of a stricter code anyway, and (especially with the scandals at Westminster) Ms S wasn't going to be seen to give anyone - of any party or prominence - special treatment by omission. So ... The timings seemed to support that at the time, about a year or so ago, but I haven't looked at this issue more recently.
One other thing people forget is just how vulnerable, relatively speaking, Nicola Sturgeon was in 2017.
In 2016 she lost the SNP majority at Holyrood then a year later she lost 21 MPs (including one A. Salmond).
I think the latter was quite the conundrum, losing the majority of them to the Brexit backing Tories in EU supporting Scotland required a complex understanding.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
This is exactly the point I made above. The U.K. is in the EU for 5.4 ONLY. And 5.4 explicitly only relates to acceptable places for manufacture, not that the EU has any claims over vaccines manufactured there.
Fucking lazy drafting. A properly drafted law says
Dogs must be carried on the Underground Cats must be carried on the Underground
Not
Dogs must be carried on the Underground Cats are deemed to be dogs for the purposes of this rule.
Well in an ideal world in my opinion it would say "Animals must be carried on the Underground". With "Animals" defined in a schedule to include both "Cats" and "Dogs".
Exclusively, or as examples of a larger set?
Well, there are plenty of mice on the underground, but I've never seen anyone carrying one.
Elephants? I'd like to see that.
I'd be quite curious to see anyone carrying an elephant. Wouldn't have to be on the underground. Quite happy to go to Botswana to watch.
Hate to tear myself away from this but life calls. Save to observe that almost exclusively people here on PB are arguing that the contract is reinforcing their own positions on the matter.
But not you of course
For the record, until these vaccine wars I was an ardent remainer. I'm certainly not now.
"Best reasonable efforts" is certainly a less strong obligation than "best endeavours".
I don't think the warranty helps the European Commission much, as AZ is only warranting that no other contract prevents it from using best reasonable efforts to fulfil the terms of this contract.
However, there's something more basic here. The Commission's contract is with Astra Zeneca AB, a Swedish company. I expect that our contract is with Astra Zeneca plc, a British company. Nothing that is contracted for by the former has any bearing on what is contracted for by the latter.
Incidentally, this is an excellent example of Nabavi's Law of Contract Drafting: no matter how much both sides pay their lawyers, any contract they come up with will be riddled in logical errors and unintended consequences, and you need to go through it yourself with a fine tooth-comb before signing.
Hate to tear myself away from this but life calls. Save to observe that almost exclusively people here on PB are arguing that the contract is reinforcing their own positions on the matter.
Hate to tear myself away from this but life calls. Save to observe that almost exclusively people here on PB are arguing that the contract is reinforcing their own positions on the matter.
But not you of course
For the record, until these vaccine wars I was an ardent remainer. I'm certainly not now.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
No, it doesn't say that at all. It says that no existing contract impedes the obligations undertaken by AZN at the time of the signing of the contract.
But those obligations are not absolute, and are constrained by unpredictable manufacturing issues - which AZN ran into in Q4.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
The EU clearly wanted it made in the EU
But why, when you are trying to maximise supply not constrain it?
Same reason that the UK specified a UK plant.
After the PPE fiasco, international supply chains became less popular for strategic items.
Well, that's not fair. You're not, for a start, and yet you're the most ardent remainer on these boards.
As I have pointed out, the most ardent refusenik remainers tend to be also the most ardent pro lock downers and the most ardent anti-Trumpers. And the most radical environmentalists.
"Best reasonable efforts" is certainly a less strong obligation than "best endeavours".
I don't think the warranty helps the European Commission much, as AZ is only warranting that no other contract prevents it from using best reasonable efforts to fulfil the terms of this contract.
However, there's something more basic here. The Commission's contract is with Astra Zeneca AB, a Swedish company. I expect that our contract is with Astra Zeneca plc, a British company. Nothing that is contracted for by the former has any bearing on what is contracted for by the latter.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below) to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be Euros for distribution within the EU (the “Initial Europe Doses”), with an option for the Commission, acting on behalf of the Participating Member States, to order an additional 100 million Doses (the “Optional Doses”). WHEREAS, AstraZeneca will supply the Initial Europe Doses to the Participating Member States according to the terms of this Agreement.
That does *not* say that there are no commitments that rank above/prior to the “Initial Europe Doses.” In fact it imoplies that there are, because if you are talking about scaling up/increasing capacity that implies that you were already making vaccines for someone else. This doesn't help them.
But AZN has affirmed that there are no other contracts that would impede the delivery of this contract?
That is a warranty, and under English law (unless modified in the contract) would only have to be correct at the time it is given, when presumably AZ believed it could meet all orders simulatenously.
The document says "laws of Belgium".
What remedy is the EU seeking? Specific performance? Damages? Surely regardless of this dispute they will struggle to enforce anything in reality, regardless of any legal merits?
I'm unsure over whether AZ will suffer negative commercial consequences over this. They have the kudos of having a working vaccine after all, and they will deliver eventually.
That is absolutely true. They will surely not expect the UK to divert vaccines to the EU. And by the time this gets to court as @MaxPB has noted about teacher vaccinations, we will be swimming in vaccines and, if it takes as long as EU court cases usually do, we might be onto Covid24 by then.
I think it is a moral high ground thing.
Absolutely- though encouraging AZ to find a few spare vaccines down the sofa, or getting them to put more resource into fixing the problems in the Euro factories sharpish won't go amiss. Wait for the press conference with rictus smiles.
It does rather look like the "no conflicting contracts" warranty wasn't a wise one for AZ to give; I don't know how much comfort Brussels should have taken from that, but it doesn't look consistent with the UK having a "first dibs" contract, and that might explain the anger.
But the big picture remains. The UK has done well at vaccine procurement, the EU has not done well (though remember Japan/Australia/Canada are no better to worse), we'll be done by early summer, they'll be done by late summer, possibly still with a lower overall death rate.
And it's not as if the UK government doesn't sometimes lose its rag performatively as a matter of policy, is it?
Oh for some council byelections to discuss...
I miss Thursday night by elections. Who is representing the good people of ribblethorpe on Thames?
It looks like the future of television will just be broadcasting people shouting at the TV to each other.
Tbf it seemed to be Carole ‘do my lips look big in this’ Malone doing most of the shouting.
‘Treacherous!’
Fatso Ferrari on LBC was whining like a big jessie boy about Sturgeon to be done for Treason if she published the numbers. Tories really are cretins.
More to the point, traitors really are cretins.
Now - let's have none of that traitor stuff. It's wrecking PB. And you might not realise it, but when Alistair described Davie Clegg as 'noted cybernat' he was using something called Scottish Irony. Mr Clegg is not. That's the whole point.
crapping himself that the person who leaked the classified government info to his newspaper will be unmasked..........ooops his "friend" has already been daubed in
Hi Malc.
Surprised you are not explaining about the Vietnam Whats app group
Never heard of it G, is it about the Vietnam war, or are you talking about Murrel and his merry band of whatsappers planning their stitch up on whatsapp , as you do.
All rather grubby and hard to follow this story. I can't figure out at what point Salmond became persona non grata to others in the party
When he decided he would like to come back in to politics , scared the crap out of them. So they hatched the plot to change the complaints process, backdate it to catch one person and made a complete hash of it , despite Westminster and police telling them it was dodgy. So after coaching some of the complainants they appointed the coach to be the investigator. Salmond told them they had not a leg to stand on but they went ahead , but had to pay him lots when their dodgy dealings were going to come out in court. They then panicked and against complainants wishes got the police involved and it went from bad to worse, all the fake charges were dismissed and as stuff leaks out they are getting more and more desperate. Crown are keeping the evidence secure and saying it cannot be released. Only a matter of time till it all comes out now.
It looks like the future of television will just be broadcasting people shouting at the TV to each other.
Tbf it seemed to be Carole ‘do my lips look big in this’ Malone doing most of the shouting.
‘Treacherous!’
Fatso Ferrari on LBC was whining like a big jessie boy about Sturgeon to be done for Treason if she published the numbers. Tories really are cretins.
More to the point, traitors really are cretins.
Now - let's have none of that traitor stuff. It's wrecking PB. And you might not realise it, but when Alistair described Davie Clegg as 'noted cybernat' he was using something called Scottish Irony. Mr Clegg is not. That's the whole point.
crapping himself that the person who leaked the classified government info to his newspaper will be unmasked..........ooops his "friend" has already been daubed in
Hi Malc.
Surprised you are not explaining about the Vietnam Whats app group
Never heard of it G, is it about the Vietnam war, or are you talking about Murrel and his merry band of whatsappers planning their stitch up on whatsapp , as you do.
Had a look at the Sky report. Looks pretty familiar stuff except for the explanation, or speculation, about the derivation of the name Vietnam for this purpose, but as PBers have shown there are various possibilities.
I searched on vietnam whatsapp and it looked like lists of porn sites so assumed that was not what G was referring to.
No it was not Malc.
I would not want to introduce such a topic into the debate
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
The EU clearly wanted it made in the EU
I had assumed it was because the EU might be concerned with the quality control of vaccines produced elsewhere in the world but accepted that those made in the UK would be of an acceptable standard given we were almost still members at the time. They would probably want further checks if AZN came back and said they were going to provide vaccine made in plants in Ulan Bator.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
It's to try to discourage AstraZeneca from manufacturing for the EU outside the EU+UK, for example in India or somewhere.
The only implication of the UK=EU provision is that the EU would have no objection to it being manufactured in the UK if AZ wants to do it there instead of inside the EU. There is no implication at all that AZ has any obligation to use sites in the UK or elsewhere outside the EU.
I dont think she's invincible, I just think at present her position, or rather the SNPs, is strong enough to shrug off things that would imperil others.
Incidentally, this is an excellent example of Nabavi's Law of Contract Drafting: no matter how much both sides pay their lawyers, any contract they come up with will be riddled in logical errors and unintended consequences, and you need to go through it yourself with a fine tooth-comb before signing.
fine-tooth comb, no? It's not an alternative to the tooth-brush!
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
WHEREAS, as part of that scale-up, AstraZeneca has committed to use its Best Reasonable Efforts (as defined below) to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be Euros for distribution within the EU (the “Initial Europe Doses”), with an option for the Commission, acting on behalf of the Participating Member States, to order an additional 100 million Doses (the “Optional Doses”). WHEREAS, AstraZeneca will supply the Initial Europe Doses to the Participating Member States according to the terms of this Agreement.
That does *not* say that there are no commitments that rank above/prior to the “Initial Europe Doses.” In fact it imoplies that there are, because if you are talking about scaling up/increasing capacity that implies that you were already making vaccines for someone else. This doesn't help them.
But AZN has affirmed that there are no other contracts that would impede the delivery of this contract?
Have they?
They promise 100 things to the UK and 50 things to the EU. What they are saying is that none of the 50 things is promised elsewhere, they are saying nothing about the (different) 100 things. Your interpretation assumes that either the EU had no idea, and AZN made no attempt to tell them, that AZN were making vaccines for the UK, or that the parties cheerfully concluded an agreement to shaft the UK. Unrealistic.
A naive reading is that AZ told the UK they would deliver x doses from the UK factories, and the EU that they would deliver y doses from the EU and UK factories - which is fine if their production equals x+y.
But they've also told the EU that there's no contract that would impede delivery of doses. Now they're telling the EU that there is a prior contract.
It does look like AZ have messed up the contract. That they didn't specify the UK plants were also producing doses for another contract.
What is 5.4 (AZ to manufacture in UK/EU if poss, give written explanation if want to manufacture elsewhere) about anyway? Who of any sense gives a monkeys where their vaccine is manufactured, provided it gets manufactured?
The EU clearly wanted it made in the EU
I had assumed it was because the EU might be concerned with the quality control of vaccines produced elsewhere in the world but accepted that those made in the UK would be of an acceptable standard given we were almost still members at the time. They would probably want further checks if AZN came back and said they were going to provide vaccine made in plants in Ulan Bator.
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
No, it doesn't say that at all. It says that no existing contract impedes the obligations undertaken by AZN at the time of the signing of the contract.
But those obligations are not absolute, and are constrained by unpredictable manufacturing issues - which AZN ran into in Q4.
Yes, hence the "best reasonable effort" get out clause.
Also as Sean has pointed out a few minutes ago, the UK will have signed a contract with AstraZeneca plc, the EU has signed one with AstraZeneca AB, they are legally separate entities and one doesn't have the ability to put a claim on the other's production.
Yes, maybe I'm being an idiot and someone can correct me but if the UK is only deemed part of the EU in section 5.4 it removes any ambiguity for all the other sections as the UK is definitely not included for 5.1 or anywhere else.
I expected the EU to fight this based on the ambiguity of whether the UK counted as being in the EU or not during the transition period but that's surely not possible now.
Yes, it's completely unambiguous. Spectacularly bad drafting, but not ambiguous drafting. I'm sure they didn't mean to exclude the UK manufacturing facility from 5.1, but that's what they've done. In fact, AZ would have been in breach of the contract if they'd been trying to manufacture the Initial Doses in the UK rather than in the EU.
Can we have an header from the lawyers on PB on this subject?
Incidentally, this is an excellent example of Nabavi's Law of Contract Drafting: no matter how much both sides pay their lawyers, any contract they come up with will be riddled in logical errors and unintended consequences, and you need to go through it yourself with a fine tooth-comb before signing.
In my day job I have to review Insurance clauses in contracts from time to time - as you say, some very strange things have at times been found including clauses that flatly contradict other clauses
(e) it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;
Whoo-wee!
THAT is the clause.
IMHO.
Could you explain please for those of us with lesser contractese?
Well first I've no idea - ask a lawyer.
But it really, really seems to me that this is saying that no other contract (with the UK, for example) is allowed to get in the way of the supplies promised in this contract.
I am not so sure , you would never be able to restrict a company to only deal with you using this, no court would count that as breach. Best I suspect is they could not take specific EU vaccines and give to someone else but they will have many similar contracts with dates and schedules. If they have made reasonable efforts then they are OK, and reasonable does not mean using all efforts or depriving other commercial clients, especially given AZ have cut UK numbers as well.
They can deal with anyone and everyone. But this contract seems to say that no other deal should impede the delivery of the initial doses to the EU.
I think you are missing a crucial point in this Topping. And I absolutely accept that I am not a lawyer so this is just my impression.
The section 5.4 on Including the UK within the EU for the purposes of being an acceptable location for the production of vaccine for the EU is absolutely explicit that it applies only to that clause itself. The EU will accept vaccine produced within the UK without further question or need for confirmation from the EU.
But it does not apply to any other clause in the contract. That is made explicit. So the EU cannot lay claim to vaccine from the UK factories for the purposes of fulfilling the clause about assured delivery. It simply does not apply.
It is the only reason I can see that AZN have made sure that caveat is in the contract.
No, the effect of the clause is merely to say that for the definition of manufacturing sites, and for that purpose only, the UK is treated as being part of the EU.
Yes, maybe I'm being an idiot and someone can correct me but if the UK is only deemed part of the EU in section 5.4 it removes any ambiguity for all the other sections as the UK is definitely not included for 5.1 or anywhere else.
I expected the EU to fight this based on the ambiguity of whether the UK counted as being in the EU or not during the transition period but that's surely not possible now.
Yes, it's completely unambiguous. Spectacularly bad drafting, but not ambiguous drafting. I'm sure they didn't mean to exclude the UK manufacturing facility from 5.1, but that's what they've done. In fact, AZ would have been in breach of the contract if they'd been trying to manufacture the Initial Doses in the UK rather than in the EU.
Can we have an header from the lawyers on PB on this subject?
Well, that's not fair. You're not, for a start, and yet you're the most ardent remainer on these boards.
Which proves his actual commitment to the EU, including noting its failings presumably so it improves, and not to the idea alone as some posturing position.
Incidentally, this is an excellent example of Nabavi's Law of Contract Drafting: no matter how much both sides pay their lawyers, any contract they come up with will be riddled in logical errors and unintended consequences, and you need to go through it yourself with a fine tooth-comb before signing.
fine-tooth comb, no? It's not an alternative to the tooth-brush!
AArgh! You took the elephant away!* Just as I was leaving you a thank you message...
Comments
The contract is crystal clear.
And from what I've seen, supports AZN not her from first to last.
https://twitter.com/Keroppo/status/1355128035285065728?s=20
So like @TOPPING says this seems to be a moral highground dispute more than anything, considering we should (hopefully) be swimming in vaccines in a month or so.
Because if not, oh boy oh boy oh boy...
Breaking confidentiality AND being proved to be liars or morons is definitely a suboptimal outcome.
Even Donald Trump didn't quite manage something as dumb as that.
Remember he stood down as leader of the SNP in 2000, decided his successor wasn't very good and became leader again in 2004.
To quote Dame Shirley Bassey, that's it's all just a little bit of history repeating?
Politico quotes her as saying:
"Best efforts' applies as long as it was not clear whether [AstraZeneca] could develop a vaccine. This time is now behind us ..."
The document they have released today actually has a paragraph specifically defining what it meant by the phrase, which includes:
"... the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization ..."
[my emphasis]
What she has said is a blatant lie.
There's simply no way they will try and mess with Pfizer deliveries.
Canada is receiving none this week - 0, zero, nada, nothing.
I bet the lawyers for those manufacturers will be making very, very sure the EU can't play games with them
With Animal defined like the above and Underground defined as any property owned or part of the TFL system, or something like that.
Would that work?
Why didn't we ask AZN to negotiate the withdrawal agreement for us?
https://twitter.com/MacaesBruno/status/1355126892836364289?s=20
It does rather look like the "no conflicting contracts" warranty wasn't a wise one for AZ to give; I don't know how much comfort Brussels should have taken from that, but it doesn't look consistent with the UK having a "first dibs" contract, and that might explain the anger.
But the big picture remains. The UK has done well at vaccine procurement, the EU has not done well (though remember Japan/Australia/Canada are no better to worse), we'll be done by early summer, they'll be done by late summer, possibly still with a lower overall death rate.
And it's not as if the UK government doesn't sometimes lose its rag performatively as a matter of policy, is it?
Oh for some council byelections to discuss...
If that happens of course, they will go back to the table...for a price.
I'd much rather have a contractual obligation to deliver than a moral obligation to deliver.
Maybe you could jog on?
But then....
And Novavax are not going to be offering a no profit contract either.
It would seem to rest on the idea that a contract signed 3 months after that which AZ signed with the UK should somehow negate whatever clauses were put in the UK contract that guaranteed the UK's supply. Even though we haven't seen the UK contract, there must surely be such clauses, certainly in relation to UK-based output, given the risks that the UK as opposed to the EU was taking. The only clause that clearly applies is that on "best reasonable effort" and that would clearly park it in the remit of the courts to make an interpretation.
What would the judiciary regard as relevant to "best reasonable efforts"? The EU may claim that it is it irrelevant that the EU came so late to the process, but the judiciary would surely take a different view. "Best reasonable efforts" would apply to production decisions after the contract was signed, not those made earlier. They would take into account the efforts and risks taken by the UK to get production up and running, and take a dim view of the idea that this had no bearing on the fulfillment of the UK contract. They would also take account I think of the fact that the EU is already piggy backing risk free on the UK's efforts because of the lessons learnt in working up UK supply of the AZ drug at a time when it wasn't even known that it would work.
This does seem somewhat of an own goal, but I don't speak legalese so maybe my reading is wrong.
Remember that she has form for doing this - repeatedly briefed the press against H&K and then the case was thrown out of court.
But of course the agreement was signed on the 29th August last year - and that expected timetable went out of the window, along with that for the UK, when AZN ran into manufacturing problems in Q4 2020.
Bottom line is that it's not exactly unknown by anyone involved in the purchase of vaccines that even the most routine production (the annual flu jabs), at the best of times is frequently attended by problems in manufacturing, and late or partial delivery.
And 'Best Reasonable Efforts' can only be understood in that context.
I don't think the warranty helps the European Commission much, as AZ is only warranting that no other contract prevents it from using best reasonable efforts to fulfil the terms of this contract.
However, there's something more basic here. The Commission's contract is with Astra Zeneca AB, a Swedish company. I expect that our contract is with Astra Zeneca plc, a British company. Nothing that is contracted for by the former has any bearing on what is contracted for by the latter.
https://metro.co.uk/2019/04/18/uks-first-guide-horse-rides-train-prepares-life-london-9257621/
https://twitter.com/tom_nuttall/status/1355132270613553156
In 2016 she lost the SNP majority at Holyrood then a year later she lost 21 MPs (including one A. Salmond).
I think the latter was quite the conundrum, losing the majority of them to the Brexit backing Tories in EU supporting Scotland required a complex understanding.
For the record, until these vaccine wars I was an ardent remainer. I'm certainly not now.
pay their lawyers, any contract they come up with will be riddled in logical errors and unintended consequences, and you need to go through it yourself with a fine tooth-comb before signing.
And no one is a remainer any more.
It says that no existing contract impedes the obligations undertaken by AZN at the time of the signing of the contract.
But those obligations are not absolute, and are constrained by unpredictable manufacturing issues - which AZN ran into in Q4.
After the PPE fiasco, international supply chains became less popular for strategic items.
Pure coincidence of course.
https://twitter.com/YearCovid/status/1355108413072691205/photo/1
The only implication of the UK=EU provision is that the EU would have no objection to it being manufactured in the UK if AZ wants to do it there instead of inside the EU. There is no implication at all that AZ has any obligation to use sites in the UK or elsewhere outside the EU.
While they still made some very dumb decision around schooling at the time and since, I was wrong about them overreacting.
But they've also told the EU that there's no contract that would impede delivery of doses. Now they're telling the EU that there is a prior contract.
It does look like AZ have messed up the contract. That they didn't specify the UK plants were also producing doses for another contract.
Also as Sean has pointed out a few minutes ago, the UK will have signed a contract with AstraZeneca plc, the EU has signed one with AstraZeneca AB, they are legally separate entities and one doesn't have the ability to put a claim on the other's production.
Perhaps she is communing with the 'pooter.
*But did you carry it?
Others on here furiously peddling to excuse the EU should consider your honesty, whilst no doubt you continue your support of the EU generally