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Memorandum of understanding

From Wikipedia, in a visual modern way
"MoU" redirects here. For other uses, see MOU (disambiguation).
This article is about intentions of the parties involved. For pre-contractual undertakings, see Letter of understanding.

A memorandum of understanding (MoU) is a type of agreement between two (bilateral) or more (multilateral) parties. It expresses a convergence of will between the parties, indicating an intended common line of action.[1] It is often used either in cases where parties 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.[2][3]

Whether 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"). The required elements are offer and acceptance, consideration, and the intention to be legally bound (animus contrahendi).[4] In the US, the specifics can differ slightly depending on whether the contract is for goods (falls under the Uniform Commercial Code) or services (falls under the common law of the state).

Many companies and government agencies use MoUs to define a relationship between departments, agencies or closely held companies.[5]

Look up memorandum of understanding in Wiktionary, the free dictionary.

Discover more about Memorandum of understanding related topics

Bilateralism

Bilateralism

Bilateralism is the conduct of political, economic, or cultural relations between two sovereign states. It is in contrast to unilateralism or multilateralism, which is activity by a single state or jointly by multiple states, respectively. When states recognize one another as sovereign states and agree to diplomatic relations, they create a bilateral relationship. States with bilateral ties will exchange diplomatic agents such as ambassadors to facilitate dialogues and cooperations.

Multilateralism

Multilateralism

In international relations, multilateralism refers to an alliance of multiple countries pursuing a common goal.

Gentlemen's agreement

Gentlemen's agreement

A gentlemen's agreement, or gentleman's agreement, is an informal and legally non-binding agreement between two or more parties. It is typically oral, but it may be written or simply understood as part of an unspoken agreement by convention or through mutually-beneficial etiquette. The essence of a gentlemen's agreement is that it relies upon the honor of the parties for its fulfillment, rather than being in any way enforceable. It is distinct from a legal agreement or contract.

Four corners (law)

Four corners (law)

The Four Corners Rule is a legal doctrine that courts use to determine the meaning of a written instrument such as a contract, will, or deed as represented solely by its textual content. The doctrine states that where there is an ambiguity of terms, the Court must rely on the written instrument solely and cannot consider extraneous evidence.

Offer and acceptance

Offer and acceptance

Offer and acceptance are generally recognised as essential requirements for the formation of a contract, and analysis of their operation is a traditional approach in contract law. The offer and acceptance formula, developed in the 19th century, identifies a moment of formation when the parties are of one mind. This classical approach to contract formation has been modified by developments in the law of estoppel, misleading conduct, misrepresentation, unjust enrichment, and power of acceptance.

Consideration

Consideration

Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts. The concept has been adopted by other common law jurisdictions.

Uniform Commercial Code

Uniform Commercial Code

The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Acts that have been established as law with the goal of harmonizing the laws of sales and other commercial transactions across the United States through UCC adoption by all 50 states, the District of Columbia, and the Territories of the United States.

In private enterprise

In business, an MoU is typically a legally non-binding agreement between two (or more) parties, outlining terms and details of a mutual understanding or agreement, noting each party's requirements and responsibilities—but without establishing a formal, legally enforceable contract (though an MoU is often a first step towards the development of a formal contract).[2][3]

In government and public affairs

In the United Kingdom, the term MoU is commonly used to refer to an agreement between parts of The Crown. 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.

MoUs can also be used between a government agency and a non-commercial, non-governmental organization.

Discover more about In government and public affairs related topics

United Kingdom

United Kingdom

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and Northern Ireland. The United Kingdom includes the island of Great Britain, the north-eastern part of the island of Ireland, and many smaller islands within the British Isles. Northern Ireland shares a land border with the Republic of Ireland; otherwise, the United Kingdom is surrounded by the Atlantic Ocean, the North Sea, the English Channel, the Celtic Sea and the Irish Sea. The total area of the United Kingdom is 242,495 square kilometres (93,628 sq mi), with an estimated 2023 population of over 68 million people.

The Crown

The Crown

The crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions. The term can be used to refer to the office of the monarch or the monarchy as institutions, to the rule of law, or to the functions of executive, legislative, and judicial governance and the civil service.

Department for Environment, Food and Rural Affairs

Department for Environment, Food and Rural Affairs

The Department for Environment, Food and Rural Affairs (DEFRA) is a department of His Majesty's Government responsible for environmental protection, food production and standards, agriculture, fisheries and rural communities in the United Kingdom. Concordats set out agreed frameworks for co operation, between it and the Scottish Government, Welsh Government and Northern Ireland Executive, which have devolved responsibilities for these matters in their respective nations.

Scottish Executive Environment and Rural Affairs Department

Scottish Executive Environment and Rural Affairs Department

The Scottish Executive Environment and Rural Affairs Department (SEERAD) was a civil service department of the Scottish Executive. SEERAD was responsible for the following areas in Scotland: agriculture, rural development, food, the environment and fisheries. Following the change of administration in May 2007, a restructuring exercise led to most SEERAD functions being continued under the new Scottish Executive 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 collection.[6] In practice and in spite of the United Nations Office of Legal Affairs' 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 a particular MoU is meant to be a legally binding document (i.e., a treaty), one needs to examine the parties’ intent as well as the signatories' position (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.[7]

Advantages

One advantage of MoUs over more formal instruments is that, because obligations under international law may be avoided, they can often be put into effect without requiring legislative approval. Hence, MoUs are often used to modify and adapt existing treaties, in which case these MoUs have factual treaty status.[8] 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 UN) cannot be enforced before any UN organ, and it may be concluded that no obligations under international law have been created.

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 the United States (Richard Nixon) and the Soviet Union (Leonid Brezhnev) updating the Anti-Ballistic Missile Treaty[9]
  • 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 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.[10]
  • The Agreed Framework between the U.S. and North Korea over nuclear weaponry on October 21, 1994
  • The Oil-for-Food programme, 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 terrorist 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 has rejected the UK Government's appeal based on the Court's concern of Jordan obtaining evidence potentially incriminating Qatada through the use of torture.
  • The Memoranda 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
  • The Under2 Coalition is a 2015 memorandum of understanding which sets climate change mitigation goals for jurisdictions with over 1 billion residents.
  • On December 2, 2019, the Michigan Department of Natural Resources and the Saginaw Chippewa Tribal Nation signed an MoU to co-manage the Sanilac Petroglyphs Historic State Park. The agreement marks the first state-tribal co-management of a Michigan state park.[11]

Discover more about In public international law related topics

International law

International law

International law is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for states across a broad range of domains, including war, diplomacy, economic relations, and human rights. Scholars distinguish between international legal institutions on the basis of their obligations, precision, and delegation.

International Court of Justice

International Court of Justice

The International Court of Justice, sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordance with international law and gives advisory opinions on international legal issues. The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law.

Multilateralism

Multilateralism

In international relations, multilateralism refers to an alliance of multiple countries pursuing a common goal.

Aviation

Aviation

Aviation includes the activities surrounding mechanical flight and the aircraft industry. Aircraft includes fixed-wing and rotary-wing types, morphable wings, wing-less lifting bodies, as well as lighter-than-air craft such as hot air balloons and airships.

Leonid Brezhnev

Leonid Brezhnev

Leonid Ilyich Brezhnev was a Soviet politician who served as General Secretary of the Communist Party of the Soviet Union between 1964 and 1982 and Chairman of the Presidium of the Supreme Soviet between 1960 and 1964 and again between 1977 and 1982. His 18-year term as General Secretary was second only to Joseph Stalin's in duration. Brezhnev's tenure as General Secretary remains debated by historians; while his rule was characterised by political stability and significant foreign policy successes, it was also marked by corruption, inefficiency, economic stagnation, and rapidly growing technological gaps with the West.

Anti-Ballistic Missile Treaty

Anti-Ballistic Missile Treaty

The Anti-Ballistic Missile Treaty (1972–2002) was an arms control treaty between the United States and the Soviet Union on the limitation of the anti-ballistic missile (ABM) systems used in defending areas against ballistic missile-delivered nuclear weapons. It was intended to reduce pressures to build more nuclear weapons to maintain deterrence. Under the terms of the treaty, each party was limited to two ABM complexes, each of which was to be limited to 100 anti-ballistic missiles.

Cuba

Cuba

Cuba, officially the Republic of Cuba, is an island country comprising the island of Cuba, as well as Isla de la Juventud and several minor archipelagos. Cuba is located where the northern Caribbean Sea, Gulf of Mexico, and Atlantic Ocean meet. Cuba is located east of the Yucatán Peninsula (Mexico), south of both the American state of Florida and the Bahamas, west of Hispaniola, and north of both Jamaica and the Cayman Islands. Havana is the largest city and capital; other major cities include Santiago de Cuba and Camagüey. The official area of the Republic of Cuba is 109,884 km2 (42,426 sq mi) but a total of 350,730 km2 (135,420 sq mi) including the exclusive economic zone. Cuba is the second-most populous country in the Caribbean after Haiti, with over 11 million inhabitants.

Cayman Islands

Cayman Islands

The Cayman Islands is a self-governing British Overseas Territory, and the largest by population. The 264-square-kilometre (102-square-mile) territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, which are located to the south of Cuba and northeast of Honduras, between Jamaica and Mexico's Yucatán Peninsula. The capital city is George Town on Grand Cayman, which is the most populous of the three islands.

Agreed Framework

Agreed Framework

The Agreed Framework between the United States of America and the Democratic People's Republic of Korea (북미제네바기본합의서) was signed on 21 October 1994, between North Korea (DPRK) and the United States. The objective of the agreement was the freezing and replacement of North Korea's indigenous nuclear power plant program with more nuclear proliferation resistant light water reactor power plants, and the step-by-step normalization of relations between the U.S. and the DPRK. Implementation of the agreement was troubled from the start, but its key elements were being implemented until it effectively broke down in 2003.

Iraq

Iraq

Iraq, officially the Republic of Iraq, is a country in Western Asia. It is bordered by Turkey to the north, Iran to the east, the Persian Gulf and Kuwait to the southeast, Saudi Arabia to the south, Jordan to the southwest and Syria to the west. The capital and largest city is Baghdad. Iraq is home to diverse ethnic groups; mostly Arabs, as well as Kurds, Turkmens, Assyrians, Armenians, Yazidis, Mandaeans, Persians and Shabakis with similarly diverse geography and wildlife. The majority of the country's 40 million residents are Muslims – the notable other faiths are Christianity, Yazidism, Mandaeism, Yarsanism and Zoroastrianism. The official languages of Iraq are Arabic and Kurdish; others also recognised in specific regions are Suret (Assyrian), Turkish and Armenian.

Indonesia

Indonesia

Indonesia, officially the Republic of Indonesia, is a country in Southeast Asia and Oceania between the Indian and Pacific oceans. It consists of over 17,000 islands, including Sumatra, Java, Sulawesi, and parts of Borneo and New Guinea. Indonesia is the world's largest archipelagic state and the 14th-largest country by area, at 1,904,569 square kilometres. With over 275 million people, Indonesia is the world's fourth-most populous country and the most populous Muslim-majority country. Java, the world's most populous island, is home to more than half of the country's population.

Free Aceh Movement

Free Aceh Movement

The Free Aceh Movement was a separatist group seeking independence for the Aceh region of Sumatra, Indonesia. GAM fought against Indonesian government forces in the Aceh insurgency from 1976 to 2005, during which over 15,000 lives are believed to have been lost.

Examples

Examples from U.S. law include:

Examples from international development contexts include:

  • MoUs developed by grassroots organizations working with municipalities in South Africa to improve land and housing for the urban poor[12]
  • The MoU used by NGOs and the Bangladeshi government to determine tasks under the National Tuberculosis Control Programme[13]
  • The MoU used by city authorities and NGOs in Harare, Zimbabwe to collaboratively document and upgrade slums[14]

Source: "Memorandum of understanding", Wikipedia, Wikimedia Foundation, (2023, March 7th), https://en.wikipedia.org/wiki/Memorandum_of_understanding.

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Further Reading

Treaty

Biological Weapons Convention

Flag of convenience

Treaty on the Final Settlement with Respect to Germany

Letter of intent

Convention on the Conservation of Migratory Species of Wild Animals

Port state control

EUCLID (university)

POSCO India

Budapest Memorandum

Memorandum of Understanding on the Conservation of Migratory Sharks

Under2 Coalition

Libya (GNA)–Turkey maritime deal

Artemis Accords

Intellectual Property Agency of Armenia
See also
References
  1. ^ Shaelou, St Phanie Laulh (2010). The Eu and Cyprus: Principles and Strategies of Full Integration. Martinus Nijhoff Publishers. ISBN 978-90-04-17619-5. Archived from the original on 2020-06-09. Retrieved 2020-06-05.
  2. ^ a b "Memorandum of Understanding (MOU) Defined, What's In It, Pros/Cons, MOU vs MOA". Investopedia. Retrieved 2023-03-07.
  3. ^ a b "Local Resources | SCORE". www.score.org. Retrieved 2023-03-07.
  4. ^ Shri, Vikesh (2020-05-22). "Memorandum that is effective, concise, and clear". Meramaal. Archived from the original on 2020-06-05. Retrieved 2020-06-05.
  5. ^ Kozami, Azhar (2002-01-01). Business Policy and Strategic Management,2e. Tata McGraw-Hill Education. p. 439. ISBN 978-0-07-044470-6. Archived from the original on 2020-06-05. Retrieved 2020-06-05.
  6. ^ "United Nations Treaty Collection". treaties.un.org. Archived from the original on 2008-09-24. Retrieved 2013-12-31.
  7. ^ "Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)". International Court of Justice. Archived from the original on 2016-03-03. Retrieved 2013-10-13.
  8. ^ Trivedi, Prajapati (1990). "Lack of Understanding on Memorandum of Understanding". Economic and Political Weekly. 25 (47): M175–M182. ISSN 0012-9976. JSTOR 4397025. Archived from the original on 2020-06-06. Retrieved 2020-06-05.
  9. ^ "ABM Treaty: Memorandum of Understanding". Treaty Compliance. Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics. Archived from the original on 2012-12-09. Retrieved 2013-09-30.
  10. ^ Jose Peraza Chapeu, James M Ryan (15 April 1999). "Memorandum of Understanding between the Government of the Cayman Islands and the Government of the Republic of Cuba" (PDF). Archived (PDF) from the original on 4 August 2020. Retrieved 5 June 2020.
  11. ^ "Saginaw Chippewa And State Of Michigan To Begin Co-management Of The Sanilac Petroglyphs Historic State Park". nativenewsonline.net. December 3, 2019. Archived from the original on December 7, 2019. Retrieved May 4, 2020.
  12. ^ Bradlow, Benjamin Hofman (2013). Quiet conflict : social movements, institutional change, and upgrading informal settlements in South Africa (Thesis). Department of Urban Studies and Planning, Massachusetts Institute of Technology. Massachusetts Institute of Technology. hdl:1721.1/80905.
  13. ^ Batley, Richard; Mcloughlin, Claire (2010-02-01). "Engagement with Non-State Service Providers in Fragile States: Reconciling State-Building and Service Delivery" (PDF). Development Policy Review. 28 (2): 131–154. doi:10.1111/j.1467-7679.2010.00478.x. ISSN 0950-6764. S2CID 154916575. Archived (PDF) from the original on 2022-09-23. Retrieved 2019-12-11.
  14. ^ Shand, Wayne (2018-08-06). "Making spaces for co-production: collaborative action for settlement upgrading in Harare, Zimbabwe". Environment and Urbanization. 30 (2): 519–536. doi:10.1177/0956247818783962. ISSN 0956-2478.
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