The Protocol of Agreement

The Protocol of Agreement is:

  • an act under private seal, between natural or legal persons,
  • a public or international act between subjects of public law such as the communities or the States,

which took note of one or more specific points, which it materializes in a legal act as binding as a contract.

Part of the Anglo-Saxon legal doctrine regards Protocol of Agreement as an agreement to later agree, in other words, as a convention of later agreement.

I refuse this definition, which I amend as follows: the Protocol of Agreement is an agreement stating the agreed points and on the procedures and formulas that will determine the parties’consents on the open points to be agreed later.

It is common practice for the Protocol of Agreement to consist of a prior agreement on generalities to be confirmed by a more precise and detailed legal act or by a series of legal acts.

In financial and corporate law, it is commonly used to set the rules, procedures, duration and scope of the due diligence.

Under Swiss law, a memorandum of understanding has the same binding force as a contract for points on which valid consent has been given.

Under French law, a memorandum of understanding must be executed like any contract, and as such, is a law between the parties in accordance with Article 1134 para. 1 of the Civil Code.