In this paper, Sean Wilken KC revisits the landmark Supreme Court decision in Braganza v BP Shipping more than a decade after it was decided and examines its continuing influence on the law applicable to contractual discretions. The article explores the extent to which courts should intervene when one party exercises a contractual discretion and whether the public law principles adopted in Braganza have a legitimate place in private commercial relationships.
Drawing on recent case law, including the ongoing debate between Lords Leggatt and Sales, the paper analyses the conceptual and practical difficulties that arise when contractual discretionary decisions are subjected to the public law standards of procedural fairness, good faith and rationality. It considers key issues such as contractual termination rights, relational contracts and public-private law distinctions, while assessing where Braganza protections may remain justified and where their application should be limited.
You can read the full article here.
