Abstract

A decade after the House of Lords declared the notion of an agreement to negotiate a contract in good faith to be 'wholly unworkable in practice' the Californian Appeals court affirmed the validity of just such a 'contract', opening up the possibility of significant reliance damages arising out of future failed business ventures. The case of Copeland v Baskin-Robbins, USA has major implications for pre-closing negotiations in the State of California, and the US generally, but what, if anything, does it mean for the European Commission's ongoing 'Common Frame of Reference' strategy aimed at removing problematic divergences and inconsistencies between European contract laws? Commercial bargaining, incomplete contracts and the spectre of precontractual reliance remain a significant, if largely neglected, challenge for emergent EC contract rules, yet does Copeland provide a lead on how best to police the formation of international commercial agreements or merely represent a further weakening of party autonomy for those seeking to drive the hardest bargain? In this paper the author explores the world of almost contract, the 'contract' to bargain in good faith and looks beyond the current resistance of the English common law to sketch the parameters of a new EC reliance doctrine.