Best Efforts in the Taxonomy of Obligation – The Case of the EU Vaccine Contracts

Erich Schanze

doi:10.1017/glj.2021.50

Abstract

AbstractThe purchase of Covid-19 vaccines by the EU Commission as agent for the Member States has caused substantial political discussion, including a lawsuit against the producer AstraZeneca in Brussels in 2021. The article looks at these purchase contracts as examples for a problematic use of “best efforts“ clauses in commercial contracting, considering some key jurisdictions. The clauses are discussed from a drafting perspective, including their function and their theoretical background in comparative law. It concludes with a primer for the drafting process, looking at some basic contracting schemes for softening or intensifying obligations.

Highlights

Context: The “Advance” Purchase of Vaccines and the AstraZeneca Litigation The Covid 19-pandemic has had a revealing effect on numerous legal relationships
We observe a multitude of adjustment needs caused by the changes and interruptions of all production cycles, including education and culture
My focus here is on structural problems of the contracts concerning the “fight against the virus,” the EU vaccine purchase contracts

Summary

Introduction

A. Context: The “Advance” Purchase of Vaccines and the AstraZeneca Litigation The Covid 19-pandemic has had a revealing effect on numerous legal relationships. My focus here is on structural problems of the contracts concerning the “fight against the virus,” the EU vaccine purchase contracts.

Results

Conclusion