Memorandum of Understanding in UK Law

Mr. Khoury and Mr. Masri were both in London at the beginning of November 1992, so they agreed to meet at the office of CCUK, being a convenient location in London. They discussed the matter at the meeting in CCUK's offices. They agreed that a document should be signed incorporating their understanding reached at the meeting and that they would meet again that evening at Mr. Khoury's home in London, where a document would be signed.

The evidence demonstrates also, in our view clearly and without ambiguity, that the aim of the violence was not limited to delivering for Mr Mugabe victory in the run-off vote, but to ensure that the MDC support base was sufficiently dismantled as to ensure that it ceased to exist in any meaningful way as to remain a threat to Zanu-PF's hold on power.

Even though a form of agreement has now been reached in these talks, it remains to be seen whether that will bring about any reduction in the level of risk to those not able to demonstrate loyalty to Zanu-PF. After all, the Memorandum of Understanding that was signed by Mr Mugabe on behalf of his party and the regime contained assurances about the cessation of politically related violence but that has not been delivered.

Thus, fiduciary duties typically arise where one person undertakes and is entrusted with authority to manage the property or affairs of another and to make discretionary decisions on behalf of that person. The essential idea is that a person in such a position is not permitted to use their position for their own private advantage but is required to act unselfishly in what they perceive to be the best interests of their principal.

Such ‘relational’ contracts involve trust and confidence but of a different kind from that involved in fiduciary relationships. The trust is not in the loyal subordination by one party of its own interests to those of another. It is trust that the other party will act with integrity and in a spirit of cooperation. The legitimate expectations which the law should protect in relationships of this kind are embodied in the normative standard of good faith.

The agreement on this area was elaborated in oral evidence. Both experts agreed that when the court is looking for the common intention of all the potential parties to the arbitration agreement, it is seeking to ascertain the subjective intention of each of the parties, through their objective conduct. 47 The court will consider all the facts of the case, starting at the beginning of the chronology and going on to the end and looking at the facts in the round. 48

Subject to any restrictions imposed by primary legislation, the general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts — see Civil Service Unions case cited above, at pp 397–398. The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.