This article is written by Arunima Shrivastava, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from lawsikho.com.
Table of Contents
Introduction
Preambulatory clause used as another term for whereas clause. Simply, It is the introduction or preliminary description of the main contract.Â
Like the preamble in the Constitution, this group of clauses in the Public-Private Partnership (PPP) contract defines justification or context, sets the background and provides the order of arrangement. Even though, by themselves, clauses do not create rights and obligations, they are important and relevant when interpreting the provisions of the contract.
What is a clause
There are particular sections or provisions in your contract that address a particular aspect of the agreement. Clauses clearly specify each party’s rights, duties and privileges under the terms of the contract. One place you can use is a choice of clause. This lets you choose where the contract will be enforced. A clause is a collection of words that actively looks at the subject of the sentence while performing the verb of the sentence. The verb is known as either the operative phrase or the preambulatory phrase and is a legally recognized word at the head of each clause.Â
A clause is a specific clause within a written binding document (resolution, contract, non-disclosure agreement (NDA), etc.). A clause clearly defines the duties, rights, and privileges of each party under the conditions specified in the document. Each section addresses a specific aspect related to the overall theme of the document. A clause in the contract is a written instruction that describes the practical policy you want to implement when the resolution is passed.
In the model, the clauses are broken into preambulatory and operative clauses. Preambulatory clauses give background, and support about why we are taking functions specified in operative clauses. The operative clauses are written instructions, as a result of which the policy will be implemented practically and will be fully developed by negotiation and lobbying. Each section should cover a different idea, or aspect, and use a sub-clause to further elaborate on several variables or steps.
Resolutions are made up of clauses. The clauses are divided into two sections: the Preambulatory Clause and the Operative Clause. Preambulatory tries to outline the issue that is being discussed, and draws attention to any previous attempts and efforts to resolve it. The operative proposes the solution that your country has decided. A resolution can be read as a sentence.
What is a preambulatory clause
Pronounced Pre-amb-bu-la-tor-y, the Preambulatory Clauses (or Pream) get ahead of the important section of your resolution and outline.
Preambulatory clauses are clauses that close the resolution and take no action. For example, they will define the issue, consider it important, or focus on past actions or decisions related to the issue. Basically, they describe how presenters consider the problem and refer to ideas or beliefs regarding the problem.
Perambulatory clauses are not numbered, and they must begin with the present form of the present participle (such as believing, concerned) or with an adjective (such as concerned, alarmed). They end with a comma (,) and are separated by a blank line. They are usually not really noticed during formal debates because they only provide information and do not ask for action.
Preambulatory phrases
Preambulatory clauses should begin with a few phrases or words, a non-exhaustive list which can be found in the following as-
The preambulatory phrase should be the present biased form of the verb (usually ending in –ING or ED). Even if a resolution consists of a sentence only once, each Preambulatory clause must begin with a capital letter, and the first word(s) underlined, embossed or italicized should stand out.
Using any Preambulatory phrase or operative phrase more than once is a bad practice, there are so many to choose from.
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Sample preambulatory phrases |
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Affirming |
Desiring |
Having considered |
Noting with approval |
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Alarmed by |
Emphasizing |
Having considered |
Observing |
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Approving |
Expecting |
further |
Reaffirming |
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Aware of |
Expressing its |
Having devoted |
Realizing |
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Bearing in mind |
appreciation |
attention |
Recalling |
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Believing |
Expressing its |
Having examined |
Recognizing |
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Confident |
satisfaction |
Having heard |
Seeking |
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Contemplating |
Fulfilling |
Having received |
Taking into account |
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Convinced |
Fully alarmed |
Having studied |
Taking into account |
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Declaring |
Fully aware |
Keeping in mind |
Taking into |
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Deeply concerned |
Fully believing |
Noting with regret |
consideration |
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Deeply conscious |
Further deploring |
Noting with deep |
Taking note |
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Deeply convinced |
Further recalling |
concern |
Viewing with |
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Deeply disturbed |
Guided by |
Noting with satisfaction |
appreciation |
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Deeply regretting |
Having adopted |
Noting further |
Welcoming |
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How do you write a preambulatory clause
Preambulatory clauses’ each preamble begins with a preamble phrase. The section must meet the following criteria:
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- The preamble phrase should be italicized.
- The first word of the clause should be capitalized.
- Preamble is not numbered.
- Each preamble ends with a comma.
- Drop a line between each section. Indicate all the rows of each section after the first line.
- The preamble cannot contain sub-clauses.
- When they first appear in the resolution, it should be written Acronyms and abbreviations
Things to be included in the preambulatory clauses
- Use statistics wherever applicable.
- Refer to the previous status and the current status of the issue.
- Use any resolution passed on the issue.
- See any other organizations involved in the situation, i.e. State relevant organizations’ efforts of the concerned situation.
Plagiarism
Try to avoid copying from other proposals and sources, where statistics are the exception of the preambulatory clause can be cited as long as the source credited. They use ideas from sources and previous proposals always are re-published in their own words.
Importance of preambulatory clauses
Firstly you have the preamble clause (pre-am’s). These are general statements, which form the core of the resolution. This is where you can present facts that may be necessary for resolution, something that is clear, well known or proven. There is no action permitted in this section. You can have one or several preambulatory clauses. A comma is placed after each preambulatory clause. This section begins with WHEREAS,.
Preamble related streams have an important role in the proposal. If they do not write anything new, they remind the committee to vote on the resolution that the presenters have done their “homework”. It reminds the committee of possible existing work on the subject, describing the approach and intention with which this resolution was written, the general mood of the room or even the scale of the emergency. It sets the context and scope for the events that will follow.
As such, the preamble clause will have the role of “diagnosis”. In fact, before telling a patient anything, before being able to determine anything efficient, a physician would have to carefully scrutinize previous medical records, general well being of the body, temperature, and so on. Preambulatory clauses are as important as this diagnosis, so do not leave them under any circumstances.
What are successful preambulatory clauses
Preambulatory clauses are often as they do not actually prescribe or advise anything in a contract, and yet they are one of the most important parts of contract writing.
Like many academic fields, there are golden rules to include in your preamble streams: context, and data.
- References may include any official document or publish to the delegates based on their decision and prescription. This may include previous proposals from the same committee, proposals adopted by different committees, academic articles and non-constitutional pieces of work or scholarly articles. They are always referred to according to high standards.
- The data included in the Preambulatory clauses must be sourced from a reliable source and follow High standards. They usually take the form of statistics, but can include any demographics.
Difference between preambulatory clauses and operative clauses
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Public-Private Partnership (PPP) preambulatory clauses
(1) Mandate of agency – The preamble clause is followed for the statements of the parties. However, this statement does not mention the authority or mandate of a government agency in pursuing PPP as a development strategy or implementing a particular PPA engagement. The stakeholders reading the contract will appreciate the project knowing the agency.
(2) Project requirement – Part of the background of executing a PPP contract is that the parties entered into such a partnership for a specified project or activity. The need is usually due to a gap, insufficiency, or failure, such as lack of access to water or electricity.
(3) Applicable law or regulation – Another important relevant provision is the statement relating to the relevant PPP legislation. Based on PPP modality, it will include Build-Operate-and-Transfer Law, In 2013, Joint Venture Guidelines, Government Procurement Reform Act, Corporation Code, Civil Code, Special Law or Local Ordinance. Each law has different modalities, requirements, obligations and procedures.
(4) Pre-procedure – The PPP contract between the government and private sector mover (PSP) was not signed overnight. The PPP contract is the culmination of a selection process and does not even end with a signature. The prior procedure clause briefly determines the manner by which the PSP-signer was chosen. This is either competitive selection/ bid/ solicitation, competitive challenge/ unwanted offer or limited negotiation.
(5) Organization of public consultation – Part of the prior processes, which may be highlighted in the preamble related sections, will be to conduct consultations with stakeholders, civil-society organizations, and affected areas. The conduct of a willingness-to-accept-and-pay survey may also be mentioned.
(6) Approvals obtained – Regulatory approval for the PPP arrangement is secured before or after the PPP contract. Depending on the law and practice concerned, prior local council approval or authorization, board action and national economic and development authority approval are some of the prescribed requirements.
(7) Counsel’s opinion rendered – Having the agency’s lawyer — Department of Justice, Office of the Solicitor General, Office of the Government Corporate Counsel and local legal officers — pass upon the legality of all contractual provisions prior to the signing of the same is a legal prerequisite for most PPP modalities.
Conclusion
Learning to craft powerful Preambulatory clauses will be a game-changer for your contract writing. The ability to write strong and concise clauses will allow your delegation to control the content and the process. Just remember to be specific, detailed and make sure each clause can stand by itself. Avoid vague language, unless strategically necessary, and make sure to use facts and numbers when appropriate. As a contract is made up of clauses, when you learn to write one clause without fear or reservation, the entire contract will follow.
References
- https://sites.google.com/site/hismun/how-to-write-a-resolution
- http://fermun.org/wp-content/uploads/2015/06/ENresolution-2.pdf
- http://www.tennesseeyig.org/un/upload/pdf/Resolution%20Writing.pdf
- https://www.lths.net/cms/lib/IL01904810/Centricity/domain/110/preparation/Resolution%20Writing%20101.pdf
- http://ctstategrange.org/statedownloads/Legislative/HowtowriteaResolutionFlyer-5-2012.pdf
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