Counterparts clauses

The guidance note on counterparts clauses provides expert legal analysis on this essential boilerplate provision widely used in agreements and deeds. Practitioners must understand how counterparts clauses enable parties to execute documents by signing separate but legally binding copies, facilitating both physical and electronic execution methods. This note covers critical distinctions and practical drafting considerations that impact contract validity and enforceability.

Topics Covered

• Purpose of counterparts clauses
• Requirement for counterparts to be identical
• Counterparts vs split execution
• Counterparts vs duplicates
• Technology-neutral signing by companies
• Key drafting considerations for counterparts clauses

Essential Insights

• Assess the legal implications when counterparts are not identical and the risk of contract disputes.
• Distinguish carefully between counterparts execution and split execution, especially for companies.
• Consider how the Corporations Act facilitates electronic and split execution but does not replace counterparts clauses.
• Evaluate when original “wet ink” counterparts might still be legally or regulatorily required.
• Draft counterparts clauses to address binding moment and permitted methods of exchange, including electronic delivery.
• Recognise the nuanced differences in executing deeds versus agreements and their formal requirements.