The use of ordinary words in legal drafting can create difficulties, particularly where their interpretation is ambiguous (for examples of this, see China Business Law Journal volume 1, issue 5: “Shall” or “Must”? Words of Obligation; and China Business Law Journal volume 4, issue 1: May and may not). Difficulties can also arise as a result of the way in which the usage of words evolves over time. The language of legal drafting that was used 200 years ago is very different from the language that is used today, whether in Chinese or English.
The word “any” in English
As discussed in a previous column, a common – and often confusing – feature of English legal terminology is that two or more words are used to describe the same noun, adverb, adjective or verb. Often referred to as synonym strings, this practice has its roots both in traditional legal concepts and also in the way in which language was traditionally used (for a discussion of this practice, see China Business Law Journal volume 3, issue 7: Transfer or assign?).
An example of a synonym string or “doublet” in English is “any and all” as used in the following provision:
Any and all notices required or permitted to be given under this Agreement must be in writing.
If the provision commenced simply with “Any notices” or “All notices”, instead of “Any and all notices”, would the outcome be the same?
The reason why this question is relevant is that the words “any” can be interpreted to mean “all” or “any one” depending on the context. Of course, this may still lead to the same outcome in the above-mentioned example. But what about the following example?
The minister may appoint a person to any executive position at the commission.
Does this mean that the minister may appoint a person to two or more executive positions at the commission? If the intention were to limit the power of the minister to appoint a person to one position only, it would be better to draft the provision as: “The minister may appoint a person to one of the executive positions at the commission.” If the intention were to enable the minister to appoint a person to one or more positions, it would be better to draft the provision as: “The minister may appoint a person to one or more of the executive positions at the commission.”
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia
