Memorandum of understanding


Memorandum of understanding

A memorandum of understanding (MOU) is a document describing a bilateral or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement. It is a more formal alternative to a gentlemen's agreement.

In some cases depending on the exact wording, MOUs can have the binding power of a contract; as a matter of law, contracts do not need to be labeled as such to be legally binding.[citation needed] Whether or not a document constitutes a binding contract depends only on the presence or absence of well-defined legal elements in the text proper of the document (the so-called "four corners"). This can include express disclaimers of legal effect, or failure of the MOU to fulfill the elements required for a valid contract (such as lack of consideration in common law jurisdictions).

Contents

In private law

In private U.S. law, MoU is a common synonym for a letter of intent. One example is the MoU between Bush and Kerry for the 2004 debates iii.

Inside a company or government agency

Many companies and government agencies use MoUs to define a relationship between departments, agencies or closely held companies. In the United Kingdom, such an MoU is often called a concordat. An example is the 2004 Concordat between bodies inspecting, regulating and auditing health or social care. The term is often used in the context of devolution, for example the 1999 concordat between the central Department for Environment, Food and Rural Affairs and the Scottish Environment Directorate.

In Public international law

In international relations, MoUs fall under the broad category of treaties and should be registered in the United Nations treaty database.[1] In practice and in spite of the United Nations' Legal Section insistence that registration be done to avoid 'secret diplomacy,' MoUs are sometimes kept confidential. As a matter of law, the title of MoU does not necessarily mean the document is binding or not binding under international law. To determine whether or not a particular MoU is meant to be a legally binding document (i.e. a treaty), one needs to examine the intent of the parties as well as the position of the signatories (e.g. Minister of Foreign Affairs vs Minister of Environment). A careful analysis of the wording will also clarify the exact nature of the document. The International Court of Justice has provided some insight into the determination of the legal status of a document in the landmark case of Qatar v. Bahrain, 1 July 1994.

Advantages

One advantage of MoUs over more formal instruments is that, because obligations under international law may be avoided, they can be put into effect in most countries without requiring parliamentary approval. Hence, MoUs are often used to modify and adapt existing treaties, in which case these MoUs have factual treaty status. The decision concerning ratification, however, is determined by the parties' internal law and depends to a large degree on the subject agreed upon. MOUs that are kept confidential (i.e. not registered with the United Nations) cannot be enforced before any UN organ, and it may be concluded that no obligations under international law have been created. As was obvious[citation needed] in the Qatar v. Bahrain case, disputes may arise concerning the status of the document once one of the parties seeks to enforce its provisions.

Although MOUs in the multilateral field are seldom seen, the transnational aviation agreements are actually MoUs.

Examples

Examples include:

  • The Memorandum of Understanding Relating to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems on May 26, 1972 signed by US President Richard Nixon and the USSR Successor States updating the Anti-Ballistic Missile Treaty[2]
  • The agreement between the Cayman Islands and Cuba under which Cayman immigration officers must give Cuban refugees two choices: disembark and be repatriated back to Cuba, or continue on their way with no help[citation needed]
  • The Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses between the US and Cuba, meant to criminalize hijacking in both countries (February 3, 1973)
  • The Agreed Framework between the U.S. and North Korea over nuclear weaponry on October 21, 1994
  • The Oil for Food program, for which Iraq signed an MoU in 1996
  • The agreement between the government of Indonesia and the GAM in the Aceh peace process, 15 August 2005.
  • The agreement between the UK and Jordan, Libya and Lebanon regarding potential extradition of suspects (commonly terrorists suspects) who if they are to be tried, must be tried fairly and in a manner similar to the European Convention on Human Rights, for example withholding from using evidence obtained through the use of torture(Article 3). Such an understanding has been criticised for its inability to be legally enforced. This has been highlighted in the current deportation process of the suspected terrorist Abu Qatada, who is wanted by Jordan in connection with a terrorist attack. However, at present, the Court of Appeal have rejected the UK Government's appeal based on their concern at Jordan obtaining evidence potentially incriminating Qatada through the use of torture.
  • The Memorandums of Understanding on Labour Cooperation between The People's Republic of China, Singapore and New Zealand on 2008, in parallel with their respective free trade agreements

See also

References

External links


Wikimedia Foundation. 2010.

Look at other dictionaries:

  • memorandum of understanding — memoˌrandum of underˈstanding noun memoranda of understanding PLURALFORM or memorandums of understanding PLURALFORM [countable] LAW a document signed by two organizations to say that they are willing to work together, perhaps before a more… …   Financial and business terms

  • memorandum of understanding — n. A legal document that expresses an agreement between two parties but that is not as formal or binding as a contract. abbrv. MOU The Essential Law Dictionary. Sphinx Publishing, An imprint of Sourcebooks, Inc. Amy Hackney Blackwell. 2008.… …   Law dictionary

  • memorandum of understanding — noun A document outlining the broad details of a proposed business agreement as a precursor to a legal contract • • • Main Entry: ↑memorandum …   Useful english dictionary

  • Memorandum of Understanding — (kurz MoU) ist ein englischer Begriff, der eine Absichtserklärung unter künftigen Vertragspartnern bezeichnet. Es handelt sich um ein Dokument, das die Eckpunkte eines noch abzuschließenden Vertrages festlegt. Diese grundsätzliche Vereinbarung… …   Deutsch Wikipedia

  • Memorandum of understanding — Unter einer Absichtserklärung versteht man die Erklärung eines Verhandlungspartners, die das Interesse an Verhandlungen und am Abschluss eines Vertrages ausdrückt. Sie hat regelmäßig keine rechtliche Bindungswirkung. Vor allem im Bereich des… …   Deutsch Wikipedia

  • Memorandum of Understanding — (MOU)    In November 1981, Israel and the United States of America negotiated and signed an MOU on strategic cooperation, in which it was agreed that U.S. Israel strategic cooperation is designed against the threat to peace and security of the… …   Historical Dictionary of Israel

  • memorandum of understanding — меморандум о взаимопонимании, предварительный письменный договор, отражающий позиции сторон по определенным вопросам. Как правило, не может быть обращен к принудительному исполнению. Термин близок к понятию letter of intent …   Glossary of international commercial arbitration

  • Memorandum of Understanding — n. MOU, document signed by two parties which includes the initial agreement and future obligations …   English contemporary dictionary

  • Memorandum of Understanding - MOU — A legal document outlining the terms and details of an agreement between parties, including each parties requirements and responsibilities. The MOU is often the first stage in the formation of a formal contract. An MOU is far more formal then a… …   Investment dictionary

  • memorandum of agreement — memoˌrandum of aˈgreement noun memoranda of agreement PLURALFORM or memorandums of agreement PLURALFORM [countable] LAW another name for memorandum of understanding …   Financial and business terms


Share the article and excerpts

Direct link
Do a right-click on the link above
and select “Copy Link”

We are using cookies for the best presentation of our site. Continuing to use this site, you agree with this.