Corporate & Securities Law

Reminder: MSCD Works Outside the U.S.

By Ken Adams

In the course of telling someone in Canada where they could buy my book, I visited the MSCD page on Amazon.ca, Amazon’s Canada storefront. In addition to noticing that Amazon.ca doesn’t itself sell the book (I’m looking into that), I saw that one “Mary M.” had recently posted a review. It’s positive, but it includes the following:

The only “downside” for non-American lawyers is that it’s written by an American, so any case law it cites is generally American caselaw. Of course, that’s not to fault the book; it just means I need to also get a book with legal Canadian caselaw that complements this book.

To Mary M., I would say the following: First, I’m delighted you’re finding the book useful. But as regards the paucity of references to Canadian caselaw, bear in mind that for purposes of MSCD, caselaw mostly serves as a source of cautionary tales on how not to draft. In that regard, U.S. caselaw is as helpful as any other.

And heaven forbid that I look to courts for direct guidance on how to articulate deal terms clearly and efficiently. For example, as I described in this May 2009 blog post, a 2009 Canadian case differs from some recent U.S. cases in that it offers a distinction between indemnify and hold harmless. Did that case cause me to revise for purposes of a Canadian readership my recommendation that you drop hold harmless? Not on your life, seeing as my recommendation is aimed at sparing the drafter from falling foul of quirky differences between jurisdictions.

I addressed in this March 2009 blog post the question of why MSCD can safely be used outside the U.S.

As for finding “a book with legal Canadian caselaw that complements this book,” you might have a long wait! But incorporating more non-U.S. caselaw would help convince international readers that they can rely on MSCD, so I’m on the lookout. I already have a handful of Canadian and English cases that I’ll be referring to in the third edition. I encourage you, dear reader, to send my way anything you think I might find relevant.

Full post as published by AdamsDrafting on March 24, 2010 (boomark / email).