This blog addresses the use of pointing words such as the somewhat dusty ‘said‘ and a few techniques to link provisions to each each other. Please share your thoughts here.
Said. Some drafters like to use said instead of one of the plain English alternatives the, this, that, these or those. The ICC model arbitration clause contains such example:
All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
Best practice. It is good practice to link sentences to another and to provide for a clear and understandable sequence (see also the Contract Drafting Manual on the use of signaling sentences – click here). Similarly, topical sentences may provide a transition from one paragraph to the next. In such case, a pointing word or transition phrase clearly marks whether the paragraph expands on the paragraph before, contrasts with it, or takes a completely different direction.
Three techniques to link. Bryan Garner divided such links and transitions into three categories:
1. Pointing words: this, that, these, those and the. These words – especially this and that – refer directly to an antecedent. If the preceding sentence or paragraph describes a principle or prohibition, and the next paragraph begins with “An exception to this…” the word this makes a clear connection.
2. Echo links: words or phrases echo a preceding qualification, condition or concept. An echo link between two provisions of a contract provides a strong connection and is therefore a useful technique to avoid ambiguity. At the same time, contract drafters tend to expand the echo links to avoid ambiguity. Therefore, always remember the general drafting principles of keeping a contract simple and clear (i.e., ‘write short sentences’ and ‘delete unnecessary words’). An ‘echo link’ often appears together with the pointing word such (e.g., “…such prohibitions do not…”). As a matter of style, consider limiting yourself to the more elegant pointing word the or this.
For example, it is unnecessary to repeat or summarise prohibitions if qualifying them as such (or identifying them by their number) is unequivocally clear. So after an enumeration of three prohibitions, avoid elaborate echo links such as:
The three prohibitions not to modify, manufacture or use the Prototype do not apply in the event that…
Given the strong interrelationship created by an echo link, it is recommended to minimise it to what is really necessary for making the transition (and avoiding ambiguity):
The three prohibitions do not apply if…
It would probably be appropriate, especially if the preceding enumeration consists of visually separated subitems, to continue with the mere caveat “…, except if…“.
Note that the echo link may well be used to express a qualification of what precedes. However, be reluctant to introduce more than one qualification in such echo links: the qualifications themselves may be a source of ambiguity. Note that the use of defined terms is a species of echo links.
3. Explicit connectives: words intrinsically making a transition (such as further, also, therefore). Explicit connectives greatly improve the readability of a contract because the coherence of provisions increases. Garner categorised the explicit connectives:
- Adding a point: also, and, in addition, besides, similarly, further;
- Giving an example: for example, for instance, for one thing (and for another);
- Restating or summarising: in other words, that is, in short, put differently, again;
- Introducing a result: so, as a result, therefore, accordingly, then;
- Contrasting: but, however, on the other hand, nevertheless, conversely;
- Summing up: to summarize, to conclude, in conclusion, in short;
- Sequencing qualifications, conditions or concepts: Firstly,… Secondly,… Thirdly,… Finally,…
 Bryan A. Garner, Legal Writing in Plain English, University of Chicago Press, Chicago 2001, p. 67-71.