Memorandum of understanding

"MoU" redirects here. For other uses, seeMOU (disambiguation).

This article is about intentions of the parties involved. For pre-contractual undertakings, seeLetter of understanding.

Amemorandum 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.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 agentlemen's agreement.

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 areoffer and acceptance,consideration,and theintention to be legally bound(animus contrahendi).In the US, the specifics can differ slightly depending on whether the contract is for goods (falls under theUniform 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.

In private enterprise

Inbusiness,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).

In government and public affairs

In theUnited Kingdom,the term MoU is commonly used to refer to an agreement between parts ofThe Crown.The term is often used in the context ofdevolution,for example the 1999 concordat between the centralDepartment for Environment, Food and Rural Affairsand theScottish Environment Directorate.

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

In public international law

In international relations, MoUs fall under the broad category oftreatiesand should be registered in theUnited Nationstreaty collection.In practice and in spite of theUnited 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 underinternational 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. TheInternational Court of Justicehas provided some insight into the determination of the legal status of a document in the landmark case ofQatar v. Bahrain,1 July 1994.

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.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 themultilateralfield are seldom seen, the transnationalaviationagreements are actually MoUs.

Examples

Examples include:

• TheMemorandum 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, 1972signed by theUnited States(Richard Nixon) and theSoviet Union(Leonid Brezhnev) updating theAnti-Ballistic Missile Treaty
• TheMemorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offensesbetween the US andCuba,meant to criminalize hijacking in both countries (February 3, 1973)
• The agreement between theCayman IslandsandCuba,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.
• TheAgreed Frameworkbetween the U.S. and North Korea over nuclear weaponry on October 21, 1994
• TheOil-for-Food programme,for whichIraqsigned an MoU in 1996
• The agreement between the government ofIndonesiaand theGAMin theAcehpeace process, 15 August 2005.
• The agreement between theUKandJordan,LibyaandLebanonregarding potential extradition of suspects (commonlyterroristsuspects), who, if they are to be tried, must be tried fairly and in a manner similar to theEuropean Convention on Human Rights;for example, withholding from using evidence obtained through the use oftorture(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 terroristAbu 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.
• TheMemoranda of Understanding on Labour Cooperationbetween thePeople's Republic of China,SingaporeandNew Zealandon 2008, in parallel with their respective free trade agreements
• TheUnder2 Coalitionis a 2015 memorandum of understanding which setsclimate change mitigationgoals for jurisdictions with over 1 billion residents.
• On December 2, 2019, theMichigan Department of Natural Resourcesand theSaginaw Chippewa Tribal Nationsigned an MoU to co-manage theSanilac Petroglyphs Historic State Park.The agreement marks the first state-tribal co-management of a Michiganstate park.

Examples

Examples from U.S. law include:

• Thegeneric sample templatefor interagency agreements with the Office on Violence Against Women (OVW) from theU.S. Department of Justice.

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
• The MoU used by NGOs and the Bangladeshi government to determine tasks under the National Tuberculosis Control Programme
• The MoU used by city authorities and NGOs inHarare,Zimbabwe to collaboratively document and upgradeslums

See also

• Gentlemen's agreement
• Letter of comfort (contract law)
• Memorandum
• Memorandum of conversation
• Letter of intent

External links

• "Donald Trump clashes with his own trade chief in front of Chinese delegation".MOU.Guardian News. Feb 24, 2019.Archivedfrom the original on 2021-11-07.(Trump) I don't like MOUs because they don't mean anything.