Another huge thanks to Holly Scott, Aryan Yadav, Jide Alaga, Cullen O’Keefe, Haydn Bellfield and Peter Wills. This post has been greatly improved thanks to all your helpful feedback.

This is the third post in ‘Towards a Worldwide, Watertight Windfall Clause’, a sequence I’m writing on the legal viability of the Windfall Clause in seven important common law jurisdictions. Today, I’m discussing the viability of the Clause in England & Wales.

How to read this post:

This is a very long post, so you may not want to read everything I have written. If you want to get maximum value from this post in the shortest space of time, I have four recommendations:

Summary of issues considered:

Legal question:	Is this a problem for the Clause?	Is this easily fixed?
Are valuable remedies available for breach of the Clause?	Yes	No
Is a duty of good faith implied into the Agreement?	Maybe	No
Is the Clause a breach of national competition law?	Maybe	Yes
Can the Developer easily issue new shares?	Maybe	Maybe
Is agreeing to the Clause a breach of directors’ duties?	No	N/A
Can the Counterparty give good consideration for the Agreement?	No	N/A
Can a purely donative Agreement be enforced?	Yes	Yes
Are there legal restrictions on size or nature of donations?	Maybe	Yes
Can dividends be paid to avoid triggering the obligation?	No	N/A

Key takeaways:

Although English^[1] and Delaware contrac...

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