Commercially reasonable manner: recent jurisprudence on the much used qualifier

In over-the-counter financial instruments, phrases such as ‘commercially reasonable manner’ are often employed, sometimes with complete abandon, as a contractual check and balance or control exercise, but often at the cost of speed and certainty for the parties to the transaction.

The search for a universally applicable definition or test of what the term means is not possible because the meaning of the phrase has to be determined as a matter of construction of the particular agreement in its particular context.

However, the recent decision of the English Court of Appeal in Barclays Bank plc v Unicredit Bank AG & Anr at least provides some up-to-date judicial guidance on the phrase much used in the context of determinations made by parties to financial instruments…

Click on the link below to read the rest of the Macfarlanes briefing.

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