Introduction

The previous Chapters have addressed the approaches to letter of intent in the Netherlands, France, England and Wales, and the United States. This Chapter will identify commonalities and differences in the national approaches and explain the main converging and diverging tendencies. The comparison will be structured around the main provisions of letter of intent – obligations that contractually organize the dynamics of negotiations. Each obligation will be illustrated and analysed in a comparative perspective. The structure of the Chapter aims to reflect the content of letter of intent used in practice. For this reason, a note on the selection of the provisions will be made prior to the analysis.

Comparative observations will address the following questions. What is the approach of each provision framing the dynamics of negotiations in a comparative perspective? What similarities and differences can be observed? Is each obligation treated as severable and stand-alone, as hypothesized in Chapter 2? Can converging tendencies be revealed in the liability that may be incurred for the breach of the obligations? How can the similarities and differences identified be explained?

After a note on the provenance and selection of the provisions discussed (Section 7.2), the following clauses of letter of intent will be addressed in this Chapter. Firstly, the provisions whereby the parties endorse an obligation to negotiate (Section 7.3) or conduct negotiations in a specific way, for example require bona fides, best efforts and similar, with or without specifying the content of the duty (Section 7.4). Secondly, clauses whereby the parties purport to keep negotiations non-binding and free from any regulation, contractual and non-contractual (Section 7.5) or make an explicit division between the binding and non-binding provisions of letter of intent (Section 7.6). Thirdly, the formulations purporting to create stand-alone obligations confined to the process of negotiations and limited in time to contract formation. This is the case with an obligation of confidentiality. Parties may agree on non-disclosure of any information disclosed in the course of negotiations, for example in the domain of innovation. Parties may also aim to keep secret the mere fact of negotiations, because it may represent a value in itself, while public disclosure of the fact of negotiations may be used as a bargaining tactic, as noted earlier (Section 7.7).