Some thoughts on the EU-AstraZeneca vaccine contract

Now that we have a (redacted) copy of the contract to look at, it is possible to share some thoughts about it, with the proviso the applicable law to it is the Belgian law and the same goes for the jurisdiction. Now, I did not qualify in Belgium but at least I did so on another civil law jurisdiction and have done more than my fair share of procurement contracts, including in healthcare. As for why common lawyers are busy embarrassing themselves with terrible hot takes on twitter is beyond me.

The second disclaimer is that the contract lacks some key information, above all the deliverables. Without knowing what is actually in the annex in terms of deliverables all this carefully constructed legal edifice rests on quicksand. With that warning out of the way, the key discussion seems to be what is meant by "best effort" since AZ's CEO claimed it never committed to anything more than that in the contract.

Best efforts is an obligation of means (to undertake the steps to achieve a goal) and not of result (to actually achieve the desired outcome).

Without further ado let's look at clauses 5.1 and 5.4:

5.1 Initial Europe Doses. AstraZeneca shall use its Best Reasonable Efforts to manufacture the Initial Europe Doses *within the EU* for distribution(…).

5.4 Manufacturing site. AstraZeneca shall use its Best Reasonable Efforts to manufacture the Vaccine at manufacturing sites located within the EU (which, for the purpose of this Section 5.4 only shall include the United Kingdom) and may manufacture the Vaccine in non-EU facilities, if appropriate, to accelerate supply of the Vaccine in Europe(…).

(emphasis mine)

For me the logic of these two clauses are self-evident. The EU is trying to ensure that the vaccine is primordially produced in the EU for obvious reasons regarding security of supply. This is very advised since vaccines  (like PPE last year) can easily fall prey to export restrictions so the EU is attempting to manage that risk.

So this clause cannot be construed as a best efforts clause in terms of the actual deliverables but only where the vaccine is to be produced instead. So if it cannot be produced in the EU to fulfill the contractual obligations, AZ will have to get them from other manufacturing sites instead (unless the redacted bit on deliverables says otherwise of course)

One of the really bad takes I have seen on twitter is that because the UK only gets mentioned on clause 5.4 as part of the EU for manufacturing purposes and not 5.1, therefore its own manufacturing sites are not covered by 5.4 for the Initial Europe Doses.

It is obvious people are not understanding that the restriction on the UK as being part of the EU applies to relevant concept covered in clause 5.4, that is manufacturing sites, and nothing else say storage, distribution or materials needed to produce the vaccine.

As such the UK is considered as part of the EU for the purpose of manufacturing sites for any dose that is to be delivered by means of this contract, be it the initial doses or any others.

In conclusion: from the information available, the best efforts commitment is towards the preference for the manufacturing to be done in the EU for risk management purposes (UK included) and not of the deliverables themselves.