I don’t recall Schaff touching on that specific point, perhaps because it is so unknowable. My impression is that he would have been reluctant to consider himself ‘home and dry’ on any point in such waters!

Alan Weir, at Ince & Co., writes quite convincingly, I think, in their bulletin on the decision (you’ll have to search their website) that “the sensible consistency approach to interpretation will be applied to clarify modest inconsistencies between similar terms in the two policies” (my emphasis), yet also goes on to wonder where on earth this all leaves the Full RI clause: “If these are not terms of incorporation then it is logical to ask what they mean”.

If I take anything from the decision, and it may be something that is so blindingly plain as to be not worth pointing out, it is that these are essentially points of construction — you have to look at the words and if the meaning is clear, apply it; if not, then you try and use the ‘harmonious construction’ route. But how far you can apply ‘harmonious construction’ and where the line is to be drawn is far from clear as a general principle.

I think that the law has become more subtle again. I also think that this is likely to lead to further disputes.

Jolyon