As per the Annual Judiciary Report 2021, a total of 6156 cases were registered with the Royal Court of Justice. Of the total, 4718 were civil cases of which 778 disputes were directly related to breach of contracts and 1756 matrimonial and 1355 cases were monetary disputes which probably be most related to contracts as well.  Many of these contractual disputes or in simple terms, disputes arising out of agreements could have been either easier to resolve or avoided if the agreements were drafted well.   

Generally, most Bhutanese considers the agreement drafting as simple and easy until they get into a dispute and realized the mistakes. Unfortunately, by the time the mistakes are realized, it is too late. Many disputes arising from contracts can be resolved much easier without having to go to court if parties in the contracts drafted the agreements properly.

The stories of moneylending where the courts are unable to make good decisions because agreements are too ambiguous. Sometimes, the aggrieved party has to run from one court to another because the agreement does not say where to file a case if there is a breach. In others, the lawyers, courts and parties all are confused because the agreement is too confusing, are without remedies and ambiguous. In such cases, often the weaker party loses the case. With society becoming more cosmopolitan and the economy becoming more complex, the role of contracts has become even more vital and complex in the society to maintain peace, harmony and ensure justice. Now with everything being sold or transacted on social media and digital platforms, there is a radical shift in transactions and more complex legislation are enacted.

However, the agreement drafting in Bhutan remains a conventional style of drafting. In Dzongkha, most agreements are lost in excessive adjectives and poetry and actual matters are often clubbed all together without proper organization. For example, Section 211 of the Contract Act of Bhutan, 2013 provides several remedies in case of breach and how the interpretation of contracts must be done and ways to determine remedies. However, the agreement drafters are still stuck with single sentence of remedies such as “breach of contract shall be dealt with as per the prevailing laws.” Further, important clauses in modern contracts such as consent, confidentiality, privacy, copyright, jurisdictions, and dispute settlement mechanisms are often overlooked. Added to this, many drafters in English use templates from online copy paste everything without understanding the local contexts.   

Now we need drafters who not only possess good skills in writing but also a thorough knowledge of contract laws, contractual obligations, and consequences as well as the modern concept of transactions through digital platforms. The drafts must have good knowledge of law particularly the Contract Act of Bhutan, Evidence Act and laws related to the subject matter of the proposed agreement.  For example, if a person drafts agreements on a vehicle sales deed, the drafter must have good knowledge of the Road Safety and Transport Authority Act, 1999 and rules.

The public who wants agreements also has the duty to find good drafters instead of looking for cheapest drafter. The agreements must contain all essentials of contracts including proper organization, clearly defined rights and duties, remedies, and jurisdictions.  If our agreement drafters do not upskill immediately, many other Bhutanese will continue to suffer a result of poor agreement drafting.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.