Editing Memorandum of understanding

{{short description|Agreement between two (bilateral) or more (multilateral) parties}}
{{redirect|MoU|other uses|MOU (disambiguation)}}
{{about|intentions of the parties involved |pre-contractual undertakings |Letter of understanding}}

A '''memorandum of understanding''' ('''MoU''') is a type of agreement between two ([[bilateralism|bilateral]]) or more ([[multilateralism|multilateral]]) parties. It expresses a convergence of will between the parties, indicating an intended common line of action.<ref>{{Cite book|last=Shaelou|first=St Phanie Laulh|url=https://books.google.com/books?id=m4HEAHJ15RgC|title=The Eu and Cyprus: Principles and Strategies of Full Integration|date=2010|publisher=Martinus Nijhoff Publishers|isbn=978-90-04-17619-5|language=en|access-date=2020-06-05|archive-date=2020-06-09|archive-url=https://web.archive.org/web/20200609034508/https://books.google.com/books?id=m4HEAHJ15RgC|url-status=live}}</ref> It is often used either in cases where parties do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement. It is a more formal alternative to a [[gentlemen's agreement]].<ref name="what_is_a_mou_2018_04_07_investopedia">[https://www.investopedia.com/terms/m/mou.asp "What is a Memorandum of Understanding - MOU?,"] {{Webarchive|url=https://web.archive.org/web/20210417232059/https://www.investopedia.com/terms/m/mou.asp |date=2021-04-17 }}, ''Investopedia.com'', retrieved February 12, 2019</ref><ref name="contract_or_mou_2017_03_02_score_org">Leader, Rita (attorney), [https://houston.score.org/blog/contract-or-memorandum-understanding-%E2%80%93-differences-and-uses-you-should-know "Contract or Memorandum of Understanding – The differences and uses you should know,"] {{Webarchive|url=https://web.archive.org/web/20210225162236/https://houston.score.org/blog/contract-or-memorandum-understanding-%E2%80%93-differences-and-uses-you-should-know |date=2021-02-25 }} March 2, 2017, Houston SCORE ([[Service Corps of Retired Executives]]), Houston, Texas; retrieved February 12, 2019</ref>

Whether a document constitutes a binding contract depends only on the presence or absence of well-defined legal elements in the text proper of the document (the so-called "[[Four corners (law)|four corners]]"). The required elements are [[offer and acceptance]], [[consideration]], and the [[intention to be legally bound]] (''animus contrahendi'').<ref>{{Cite web|last=Shri|first=Vikesh|date=2020-05-22|title=Memorandum that is effective, concise, and clear|url=https://www.wiki.meramaal.com/2020/05/22/tips-to-write-a-memorandum-that-is-effective-concise-and-clear/|access-date=2020-06-05|website=Meramaal|language=en-US|archive-date=2020-06-05|archive-url=https://web.archive.org/web/20200605044808/https://www.wiki.meramaal.com/2020/05/22/tips-to-write-a-memorandum-that-is-effective-concise-and-clear/|url-status=live}}</ref> In the US, the specifics can differ slightly depending on whether the contract is for goods (falls under the [[Uniform Commercial Code]]) or services (falls under the common law of the state).

Many companies and government agencies use MoUs to define a relationship between departments, agencies or closely held companies.<ref>{{Cite book|last=Kozami|first=Azhar|url=https://books.google.com/books?id=7bbTVYIXstMC|title=Business Policy and Strategic Management,2e|date=2002-01-01|publisher=Tata McGraw-Hill Education|isbn=978-0-07-044470-6|pages=439|language=en|access-date=2020-06-05|archive-date=2020-06-05|archive-url=https://web.archive.org/web/20200605050611/https://books.google.com/books?id=7bbTVYIXstMC|url-status=live}}</ref>
{{wiktionary|memorandum of understanding}}

== In private enterprise ==
In [[business]], an MoU is typically a legally non-binding agreement between two (or more) parties, outlining terms and details of a mutual understanding or agreement, noting each party's requirements and responsibilities—but without establishing a formal, legally enforceable contract (though an MoU is often a first step towards the development of a formal contract).<ref name="what_is_a_mou_2018_04_07_investopedia" /><ref name="contract_or_mou_2017_03_02_score_org" />

== In government and public affairs ==
In the [[United Kingdom]], the term MoU is commonly used to refer to an agreement between parts of [[The Crown]]. The term is often used in the context of [[devolution#United Kingdom|devolution]], for example the 1999 concordat between the central [[Department for Environment, Food and Rural Affairs]] and the [[Scottish Executive Environment and Rural Affairs Department|Scottish Environment Directorate]]. 

MoUs can also be used between a government agency and a non-commercial, non-governmental organization.

==In public international law==
In international relations, MoUs fall under the broad category of [[treaty|treaties]] and should be registered in the [[United Nations]] treaty collection.<ref>{{cite web |url=http://treaties.un.org/ |title=United Nations Treaty Collection |publisher=treaties.un.org |access-date=2013-12-31 |archive-date=2008-09-24 |archive-url=https://web.archive.org/web/20080924192949/http://treaties.un.org/ |url-status=live }}</ref> In practice and in spite of the [[United Nations Office of Legal Affairs]]' insistence that registration be done to avoid 'secret diplomacy', MoUs are sometimes kept confidential. As a matter of law, the title of MoU does not necessarily mean the document is binding or not binding under [[international law]]. To determine whether a particular MoU is meant to be a legally binding document (i.e., a treaty), one needs to examine the parties’ intent as well as the signatories' position (e.g., Minister of Foreign Affairs vs. Minister of Environment). A careful analysis of the wording will also clarify the exact nature of the document. The [[International Court of Justice]] has provided some insight into the determination of the legal status of a document in the landmark case of ''Qatar v. Bahrain'', 1 July 1994.<ref>{{cite web |url=http://www.icj-cij.org/docket/index.php?p1=3&p2=1&PHPSESSID=66a15edfa6bb89698b26627e76c1d56b&case=87&code=qb&p3=4/ |publisher=International Court of Justice |title=Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) |access-date=2013-10-13 |archive-url=https://web.archive.org/web/20160303212125/http://www.icj-cij.org/docket/index.php?p1=3&p2=1&PHPSESSID=66a15edfa6bb89698b26627e76c1d56b&case=87&code=qb&p3=4%2F |archive-date=2016-03-03 |url-status=dead }}</ref>

===Advantages===
One advantage of MoUs over more formal instruments is that, because obligations under international law may be avoided, they can often be put into effect without requiring legislative approval. Hence, MoUs are often used to modify and adapt existing treaties, in which case these MoUs have factual treaty status.<ref>{{Cite journal|last=Trivedi|first=Prajapati|date=1990|title=Lack of Understanding on Memorandum of Understanding|url=http://www.jstor.org/stable/4397025|journal=Economic and Political Weekly|volume=25|issue=47|pages=M175–M182|jstor=4397025|issn=0012-9976|access-date=2020-06-05|archive-date=2020-06-06|archive-url=https://web.archive.org/web/20200606122241/https://www.jstor.org/stable/4397025|url-status=live}}</ref> The decision concerning ratification, however, is determined by the parties' internal law and depends to a large degree on the subject agreed upon. MoUs that are kept confidential (i.e., not registered with the UN) cannot be enforced before any UN organ, and it may be concluded that no obligations under international law have been created.

Although MoUs in the [[multilateralism|multilateral]] field are seldom seen, the transnational [[aviation]] agreements are actually MoUs.

===Examples===
Examples include:
* The ''Memorandum of Understanding Relating to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems on May 26, 1972'' signed by the [[United States]] ([[Richard Nixon]]) and the [[Soviet Union]] ([[Leonid Brezhnev]]) updating the [[Anti-Ballistic Missile Treaty]]<ref>{{cite web |title=ABM Treaty: Memorandum of Understanding |work=Treaty Compliance |publisher=[[Office of the Secretary of Defense |Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics]] |url=http://www.acq.osd.mil/tc/treaties/abm/72sccreg.htm |access-date=2013-09-30 |archive-date=2012-12-09 |archive-url=https://web.archive.org/web/20121209014143/http://www.acq.osd.mil/tc/treaties/abm/72sccreg.htm |url-status=live }}</ref>
* The ''Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses'' between the US and [[Cuba]], meant to criminalize hijacking in both countries (February 3, 1973)
* The agreement between the [[Cayman Islands]] and [[Cuba]], under which Cayman immigration officers must give Cuban refugees two choices: disembark and be repatriated back to Cuba, or continue on their way with no help.<ref>{{Cite web|last=Jose Peraza Chapeu|first=James M Ryan|date=15 April 1999|title=Memorandum of Understanding between the Government of the Cayman Islands and the Government of the Republic of Cuba|url=http://www.immigration.gov.ky/portal/pls/portal/docs/1/9562620.PDF|access-date=5 June 2020|archive-date=4 August 2020|archive-url=https://web.archive.org/web/20200804004932/http://www.immigration.gov.ky/portal/pls/portal/docs/1/9562620.PDF|url-status=live}}</ref>
* The [[Agreed Framework]] between the U.S. and North Korea over nuclear weaponry on October 21, 1994
* The [[Oil-for-Food programme]], for which [[Iraq]] signed an MoU in 1996
* The agreement between the government of [[Indonesia]] and the [[Free Aceh Movement|GAM]] in the [[Aceh]] peace process, 15 August 2005.
* The agreement between the [[United Kingdom|UK]] and [[Jordan (country)|Jordan]], [[Libya]] and [[Lebanon]] regarding potential extradition of suspects (commonly [[terrorist]] suspects), who, if they are to be tried, must be tried fairly and in a manner similar to the [[European Convention on Human Rights]]; for example, withholding from using evidence obtained through the use of [[torture]] (Article 3). Such an understanding has been criticised for its inability to be legally enforced. This has been highlighted in the current deportation process of the suspected terrorist [[Abu Qatada al-Filistini|Abu Qatada]], who is wanted by Jordan in connection with a terrorist attack. However, at present, the Court of Appeal has rejected the UK Government's appeal based on the Court's concern of Jordan obtaining evidence potentially incriminating Qatada through the use of torture.
* The ''Memoranda of Understanding on Labour Cooperation'' between the [[People's Republic of China]], [[Singapore]] and [[New Zealand]] on 2008, in parallel with their respective free trade agreements
* The [[Under2 Coalition]] is a 2015 memorandum of understanding which sets [[climate change mitigation]] goals for jurisdictions with over 1 billion residents.
* On December 2, 2019, the [[Michigan Department of Natural Resources]] and the [[Saginaw Chippewa Tribal Nation]] signed an MoU to co-manage the [[Sanilac Petroglyphs Historic State Park]]. The agreement marks the first state-tribal co-management of a Michigan [[state park]].<ref>{{cite news| author=<!--Staff writer(s); no by-line.-->| title=Saginaw Chippewa And State Of Michigan To Begin Co-management Of The Sanilac Petroglyphs Historic State Park| date=December 3, 2019| website=nativenewsonline.net| url=https://nativenewsonline.net/currents/saginaw-chippewa-and-state-of-michigan-to-begin-co-management-of-the-sanilac-petroglyphs-historic-state-park/| access-date=May 4, 2020| archive-date=December 7, 2019| archive-url=https://web.archive.org/web/20191207124650/https://nativenewsonline.net/currents/saginaw-chippewa-and-state-of-michigan-to-begin-co-management-of-the-sanilac-petroglyphs-historic-state-park/| url-status=live}}</ref>

== Examples ==
Examples from U.S. law include:
* The generic sample template<ref>{{Cite web |title=Sample Memorandum of Understanding |url=https://www.justice.gov/sites/default/files/ovw/legacy/2008/10/21/sample-mou.pdf |url-status=live |archive-url=https://web.archive.org/web/20140912040829/https://www.justice.gov/sites/default/files/ovw/legacy/2008/10/21/sample-mou.pdf |archive-date=2014-09-12 |website=US Department of Justice}}</ref> for interagency agreements with the Office on Violence Against Women (OVW) from the [[U.S. Department of Justice]].

Examples from international development contexts include: 
* MoUs developed by grassroots organizations working with municipalities in South Africa to improve land and housing for the urban poor<ref>{{Cite thesis|last=Bradlow|first=Benjamin Hofman|date=2013|others=Department of Urban Studies and Planning, Massachusetts Institute of Technology.|title=Quiet conflict : social movements, institutional change, and upgrading informal settlements in South Africa|publisher=Massachusetts Institute of Technology|hdl=1721.1/80905|type=Thesis}}</ref>
* The MoU used by NGOs and the Bangladeshi government to determine tasks under the National Tuberculosis Control Programme<ref>{{Cite journal|last1=Batley|first1=Richard|last2=Mcloughlin|first2=Claire|date=2010-02-01|title=Engagement with Non-State Service Providers in Fragile States: Reconciling State-Building and Service Delivery|url=http://pure-oai.bham.ac.uk/ws/files/3895202/Batley_2010_DevelopmentPolicyReview.pdf|journal=Development Policy Review|language=en|volume=28|issue=2|pages=131–154|doi=10.1111/j.1467-7679.2010.00478.x|s2cid=154916575|issn=0950-6764|access-date=2019-12-11|archive-date=2022-09-23|archive-url=https://web.archive.org/web/20220923131419/http://pure-oai.bham.ac.uk/ws/files/3895202/Batley_2010_DevelopmentPolicyReview.pdf|url-status=live}}</ref>
* The MoU used by city authorities and NGOs in [[Harare]], Zimbabwe to collaboratively document and upgrade [[Slum|slums]]<ref>{{Cite journal|last=Shand|first=Wayne|date=2018-08-06|title=Making spaces for co-production: collaborative action for settlement upgrading in Harare, Zimbabwe|journal=Environment and Urbanization|language=en|volume=30|issue=2|pages=519–536|doi=10.1177/0956247818783962|issn=0956-2478|doi-access=free}}</ref>

== See also ==
* [[Gentlemen's agreement]]
* [[Letter of comfort (contract law)]]
* [[Memorandum]]
* [[Memorandum of conversation]]
* [[Letter of intent]]

==References==
{{reflist}}

==External links==
* {{cite web |url= https://youtube.com/watch?v=X0ROLHtpxL0 | archive-url=https://ghostarchive.org/varchive/youtube/20211107/X0ROLHtpxL0| archive-date=2021-11-07 | url-status=live|title= Donald Trump clashes with his own trade chief in front of Chinese delegation |work= MOU  |publisher= Guardian News |date= Feb 24, 2019 |quote= (Trump) I don't like MOUs because they don't mean anything.}}{{cbignore}} <!-- Trade Chief Robert Lighthizer -->


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[[Category:Agreements]]
[[Category:Contract law]]