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Guardrails on contractual discretions: navigating the content and consequences of the Braganza constraint
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Contractual discretions and absolute rights are conventionally distinguished, with rationality constraints applying only to the former. The better analysis is that these concepts exist on a spectrum rather than as distinct categories. The trend in recent cases is increasingly in favour of implying rationality constraints but tailoring their scope depending on where the decision falls on this spectrum. The issue of relief remains underexamined in the case-law. It remains unclear which types of Braganza breaches result in nullity and what effect nullifying a decision produces. These issues will likely generate future disputes.
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