A Memorandum of Understanding (MoU) is a kind of agreement between two or more (bilateral) parties. It expresses a convergence of will between the parties and indicates a planned common line of action[1]. It is often used either in cases where the parties do not imply a legal obligation, or in situations where the parties cannot conclude a legally enforceable agreement. It is a more formal alternative to a gentlemen`s agreement. [2] [3] Although softs are rarely visible in the multilateral field, transnational air agreements are actually soft. In the UK, the term MoU is often used to refer to an agreement between certain parts of The Crown. This term is often used in the context of decentralisation, for example in the 1999 Concordat between the Central Ministry for Environment, Food and Rural Affairs and the Scottish Environment Directorate. In economics, a statement of intent is usually a non-legally binding agreement between two (or more) parties that defines the terms and details of a mutual understanding or agreement and determines the requirements and responsibilities of each party, but does not enter into a legally enforceable formal contract (although a memorandum of understanding is often a first step towards developing a formal contract). [2] [3] Examples of international development contexts are as follows: many companies and government authorities use softs to define a relationship between closely related departments, agencies or companies. [5] Soft can also be used between a governmental authority and a non-governmental non-market organization. Whether a document constitutes a binding contract depends solely on the presence or absence of clearly defined legal elements in the actual text of the document (the “four corners”). The necessary elements are: offer and acceptance, consideration and intention to be legally bound (animus contrahendi). [4] In the United States, details may vary slightly depending on whether the contract is for goods (under the Uniform Commercial Code) or services (which fall under the customary law of the state).
In international relations, MoUs fall into the broad category of treaties and should be registered in the United Nations Treaty Collection. [6] In practice and despite the insistence of the United Nations Office of Legal Affairs to proceed with registration in order to avoid “secret diplomacy”, MoUs are sometimes treated confidentially. Legally, the title of the MoU does not necessarily mean that the document is binding or non-binding under international law. Determining whether a particular moU should be a legally binding document (i.e. a treaty) requires the intention of the parties as well as the position of the signatories (e.g. B Minister for Foreign Affairs v. Minister for the Environment). Careful analysis of the text will also clarify the exact nature of the document. The International Court of Justice provided an overview of the determination of the legal status of a document in the pioneering case of Qatar. Bahrain, 1 July 1994.
[7] One of the advantages of MO over more formal instruments is that international obligations can often be implemented without authorization, as international obligations can be avoided. As a result, softs are often used to modify and adapt existing treaties, in which case these softs have a de facto contractual status. [8] However, the decision of ratification is determined by the domestic law of the parties and depends to a large extent on the agreed issue. Softs that remain confidential (i.e. are not registered with the United Nations) cannot be imposed before any United Nations body and it can be concluded that no obligation under international law has been created. . . .
