Considerations of transaction structure – these are atypical and complex transactions that have experienced the implementation of the contract. An example would be a succession of events. It should also be noted that the intentions of the parties, as expressed in the recitals, may be important for the Tribunal`s consideration of whether or not a clause in the agreement should be considered. The 2006 AIPN-Model-Form gas sales contract states that its interpretive clause applies to «this agreement, including recitals and annexes, unless expressly provided otherwise: . . . In the event of a conflict, the provisions of the main body of this agreement prevail over the provisions of the annexes.» The fact that the recitals of the second half of this provision are not mentioned suggests that the recitals will not prevail over the operational provisions (except, as noted above, in case of ambiguity) and that there is therefore no need to make an explicit statement to that effect. Recitals can play a useful role in helping third parties conclude or re-examine the contract at a later date in order to understand the intent of the original parties. The reality is that the commercial intent of a written contract does not always appear easily in the material provisions. The contracting parties may be surprised to find that their carefully crafted provisions, which became clear at the time of development, are indeed ill-equipped to deal with unforeseen problems that will arise after the treaty enters into force.
The reason is that the treaty has probably been the subject of lengthy negotiations (as is often the case with complex trade agreements), with the final text being a compromise between opposing trade positions. Types of clauses of consideration. The recitals provide general information on the parties, the context of the agreement and the introduction into the agreement itself. There are several types of clauses in the recital: the recitals must not include the rights or obligations of the parties, but are of a scenographer or explanatory nature. However, caution should be exercised in the drafting of the recitals, since if the operational or essential conditions of the agreement give rise to ambiguity or uncertainty, the courts may consider the recitals to determine the intentions of the parties to the agreement. In Toomey, the applicant unsuccessfully argued that the object clause contained explicit operational conditions. The Tribunal upheld Aspdin and cautiously accepted that it was possible for a recital to have operational provisions, particularly where there is a clear deficiency in the main part of the contract. However, the text on the purpose of the agreement was merely an introduction to the following detailed conditions. According to Mr.
Mackenzie, the recital was not able to repeal the clear language that was then uttered in the treaty. This was not a case in which recitals could be used to resolve ambiguities in explicit terms. Moreover, a very general statement on the purpose of an agreement could not find specific explicit conditions. Whether or not the recitals may have a legal effect depends on the design of the contract as a whole.