The EU rejects ‘the logic of first-come first-serve,’ said the EU’s health commissioner Stella Kyriakides. ‘That may work at the neighbourhood butcher’s but not in contracts, and not in our advanced purchase agreements’.
Contract law is an area of law I know well. And it is not a political comment to say the commissioner is wrong.
We don’t know precisely what the contract between AstraZeneca and EU member states says. But the EU did publish another vaccine supply contract here.
All this makes it very difficult to see what case the EU has
In any would-be-case involving this contract, the EU has two massive hurdles to jump. Firstly, contractors undertake to use their ‘reasonable best efforts’ to manufacture enough supply. On Page 10, we see that is further limited, because it is defined as:
‘a reasonable degree of best effort to accomplish a given task, acknowledging … the timely availability of raw materials, inventories and liquid funds; yield of process; the … contractor’s commitments to other purchasers of the Product … and any other currently unknown factors which may delay or render impossible, contractor’s successful completion of the particular task’
To win a case, the EU has to show that the other side didn’t act with a reasonable degree of best effort.
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