Review Essay Good Faith In Public International Law Mckinsey Problem Solving
Following the decision in “the implication of a duty of good faith will only be possible where the language of the contract, viewed against its context, permits it.
It is thus not a reflection of a special rule of interpretation for this category of contract.” .
It also should be noted that the recognition of a general doctrine of good faith is not limited to just civil law jurisdictions.
For example, Australian courts have been known to imply broad duties of good faith into commercial contracts, and the Supreme Court of Canada recently recognised a new common law duty of honest performance.3 Yet, as Sana Mahmud asks, to what extent do the English Courts recognise the concept of good faith?
The examples he cited as falling within the definition of a included joint venture agreements, franchise agreements and the type of long-term distributorship that was the subject of this dispute.
Other examples, though not mentioned specifically, would also likely have included certain types of construction and engineering contracts.
In the view of the court, it would be more difficult to imply a term into a detailed and professionally drafted document.
Where parties have expressly included good faith obligations in their contract, the general approach is that the courts will seek to give effect to those express provisions which relate to the actual performance of a particular obligation.
However, whether a party can successfully rely on such a provision will depend to a great degree on the specific wording of the particular clause.
There is no generally accepted definition of the concept under English law, but in the same judgment, Lord Justice Bingham described good faith as being most aptly conveyed by colloquialisms such as .
If the term is not expressly defined in a contract, parties will have scope for argument about what an obligation of good faith in a particular context means.