Thread by @hissgoescobra

How Ukraine worked a masterpiece in its Minerals Agreement with the United States: a thread 🧵:

To summarize, Ukraine placated Trump with a vague, unenforceable document with no specific obligations whose described purpose is Ukraine's security and prosperity.

Link at end.

The "Agreement to Agree." This is the quintessential structure of the document. It sets forth only general understandings and puts off any specific duties, rights, and obligations to a later contract, the Fund Agreement.

Why is this critical? Because any enforcement tribunal, whether a court, arbiter, or UN or EU panel, will ask the basic question? How can specific performance be ordered? What specifically are the parties obligated to do?

"Agreements to agree" are universally treated as aspirational expressions of future intent, not enforceable contracts. What product is to be delivered at what price in the Minerals Agreement? What act is Ukraine required to do on what schedule? None of this can be answered.

There is another clear, unmistakable indication that Ukraine is not obligated to give away its minerals in this Minerals Agreement: the document acknowledges that the later, specific Fund Agreement must be ratified by Ukraine's parliament as an international treaty.

If any and all specific obligations, rights, and duties between the two parties are subject to the discretion and refusal of a third party who is not a signatory, by definition, this is just an "agreement to agree" to have future negotiations.

Another indication of this is the fact that the Representations and Warranties are not in this Minerals Agreement, but in the future, undrafted Fund Agreement. Reps and warranties are essential to any complex contractual relationship. You can't have a deal without them.

Finally, another key component of the Minerals Agreement that limits Ukraine's exposure is the fact that its stated purpose is to ensure Ukraine's future security and prosperity through reconstruction.

This is key because there are a host of contract defenses that arise when its very purpose cannot be achieved. It also drives the analysis of intent behind all of the language in a contract: it must be construed consistent with that intent.

Thus, if the U.S. screws over Ukraine, such as by refusing reasonable security guarantees or especially by refusing to sell weapons or putting operational restrictions on existing weapons, Ukraine's very limited duties evaporate. These are interdependent.

Both from a textual perspective and also from a political-personality perspective, Ukraine deserves a silent applause. Marvelous work. Who knows what the future holds but good for now. Trump is more positive on Ukraine today. Link to Minerals Agreement:

jmp.sh/G6JgDmTd