Transport for London has just released the revised wording of controversial clauses in its Cable Car sponsorship contract with Emirates.
This follows last month’s revelations that the original agreement included a clause allowing the airline to withdraw from the deal should TfL sell or assign the cable car to a “conflicting person”.
It also included a clause gagging future Mayors and TfL officials from criticising the UAE and its Royal family.
Despite TfL repeatedly insisting there was nothing out of the ordinary about the break clause, it went further than usual, extending the definition of a “conflicting person” to include “any person who is a national of, or who is registered, incorporated, established or whose principal place of business is in a country with which the United Arab Emirates does not at the date of this Contract or at any relevant point during the Term maintain diplomatic relations;”
The effect of the clause was to limit TfL’s commercial options by making it subservient to the foreign policy of a Middle East dictatorship.
It would prevent TfL from selling all or part of the cable car to an Israeli national or business or financing the scheme through Israeli-based banks should they require its assets be put up as security.
In a series of statements issued by their press office, TfL bosses have repeatedly defended the clause, despite it being condemned by Mayor Boris Johnson who said: “I don’t believe in allowing any foreign policy considerations to intrude into the governance of London and that clause was plainly inappropriate and it’s been taken out.”
In its latest statement, TfL maintains that criticism of the original wording is based out of “confusion” on the part of critics rather than its own willingness to agree to racist language and contracts in return for cash.
That’s despite their own in-house head lawyer last month telling the London Assembly:
“The connotations of that drafting were not spotted…and I am the first to accept that that is not what should have happened. It should have been apparent and it should not have happened. It was not. It was dealt with as a routine negotiation between the commercial and legal teams and it was not spotted as a significant issue, which it should have been.”
Despite their inability to say ‘sorry’, it’s clear that the error and confusion was entirely TfL’s.
For those unhappy that a branch of their city Government is happy to enter into trade embargoes and then refuse to publish the contract for two years, here’s the original and revised contact clauses:
In the Contract, Conflicting Person was originally defined in clause 1.1 as:
“Conflicting Person” means: (i) any Competitor; or (ii) any person who is a national of, or who is registered, incorporated, established or whose principal place of business is in a country with which the United Arab Emirates does not at the date of this Contract or at any relevant point during the Term maintain diplomatic relations; [A “Competitor” is defined in clause 1.1 as “any person whose primary business relates to or is otherwise primarily associated with the provision of passenger airline and/or air cargo services and/or holiday, tour and ancillary travel services”]
The definition of Conflicting Person in clause 1.1 has changed to:
“Conflicting Person” means: (i) any Competitor; This new definition will then also apply to clause 9.4 (e) (iii), clause 13.2 (a) (vii) and clause 16.4.
In the contract clause 6.5 originally stated:
DLRL shall not, and shall procure that none of TfL, each member of the TfL Group, the Air Line Contractor (whilst it remains the operator of the Air Line System, and thereafter any replacement to it) and any other sub-contractor and none of its and their respective directors, senior staff and official spokespeople acting in the course of his/her employment shall make any statement in connection with the subject matter of this Contract that is disparaging or defamatory of the Sponsor, any member of the Emirates Group or any person forming part of the Government of Dubai and/or the Federal Government of the United Arab Emirates or any member of the Royal Families of the United Arab Emirates.
Clause 6.5 has now been changed to:
DLRL shall, and shall procure that TfL, each member of the TfL Group, the Air Line Contractor (whilst it remains the operator of the Air Line System, and thereafter any replacement to it) and any other sub-contractor and their respective directors, senior staff and official spokespeople acting in the course of his/her employment shall, ensure that any statement made in connection with this Contract is based in fact and is fair and reasonable in the circumstances.
The reworded contract is a step forward but there still some points which need addressing:
If this much simpler, racism-free language is acceptable now, why wasn’t it included in the original contract?
Who went beyond this to include references to UAE foreign policy?
Who is covering Emirates’ legal costs for renegotiating the contract?
And, most importantly, when will TfL’s management apologise for the original error?