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…

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