The Court of Appeal also noted the use of the mandatory “must” in clauses 6 and 9. The parties did not intend to agree or disagree on these issues. If they had not reached an agreement, the matter would be referred to the arbitrators, who would determine the application fee and the shipping plan. In other words, the agreement was sufficiently secure (or can be assured) since: the Court of Appeal found that the rule against “agreement agreements” did not constitute an obstacle to the maintenance of the contract, as the parties remained silent on the tax payable after December 31, 1994. Had they had the “commonly agreed” levy for the remaining eight years of the term, the result might have been different. The problem with the latter scenario was explained by Chadwick L J in BJ Aviation Ltd/Pool Aviation Ltd [2002] EWCA Civ 163: the Tribunal had committed to applying the Rix LJ criteria, but had finally reached an erroneous conclusion. If the treaty is not really skeletal or speaks only of an intention to approve at some point, it is unlikely to be repealed because of uncertainties under English law. However, when two clients withdrew in the past three years, the company attempted to recover commissions, but the consultant argued that the refund clause of the agreement was invalidated by uncertainties because it had not clearly defined how to calculate the amount to be repaid. The courts are reluctant to cancel a contract for the uncertainty of a provision that would have a legal effect, as indicated in Brown/Gould [3]. It was stressed that things must always be balanced, that human relations, without violating the essential principles, should be treated in the most effective way possible and that the law cannot be accused of destroying negotiations. With respect to openwork itself, it was a contractual clause in which a financial advisor would have to repay the commissions of an investment company in which the investor had prematurely withdrawn the funds from a three-year investment. The vague words that caused the dispute were: “The amount of the initial commission recovered relates to the amount invested, the time invested and the amount withdrawn,” but without further explanation of how the recovery would be calculated.

However, the High Court of Australia in Hall v Busst [11] found by a majority that a reasonable amount to cover depreciation was uncertain and therefore unenforceable.

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