Interpreting “Notwithstanding” in Legal Context
In legal terminology, the term "notwithstanding" is a relatively short word with a big impact. Although it consists of just 12 letters, that which follows the term will have a strong effect on the rest of the context. Generally, "notwithstanding" has the meaning of "despite."
The American Heritage Dictionary defines "notwithstanding" as something that occurs despite an obstacle. The term is sometimes used in conjunction with "thereof," as in, "The defendant notwithstanding thereof…" A few examples of the use of the term are as follows: "Notwithstanding anything to the contrary…" or "Notwithstanding anything in the contract…" or simply, "Notwithstanding this agreement…"
In commercial leases, the term "notwithstanding" is often used in the phrase "Notwithstanding anything in this lease, Landlord agrees to…," in order to make it clear that the contradicted section of the lease is subject to whatever section follows the phrase.
"Notwithstanding" is commonly found in statutes and constitutions going back several centuries. Notably, the term appears three times in the Constitution of the United States; Article 1, Section 9 (Limits on Congress’s legislative power), Article 1, Section 10 (Limits on the power of state legislatures), and the 10th Amendment (Limitations on citizen challenges to the Constitution).
Under common law, "notwithstanding" was generally recognized to be subject to "the doctrine of the last antecedent." The last antecedent says that a statement that comes last in a provision has to be the main idea, but that which comes immediately before it qualifies the last antecedent. In fact, the deferential approach to implied legal terms is very arguable.
Some courts determine that the last antecedent holds a great deal more weight than we think. Other courts point out that the same term, "notwithstanding," is actually negated by the word "unless," making "notwithstanding" an even stronger qualifier .
The last antecedent "rule" is actually a presumption, not a hard-and-fast administrative rule. Nevertheless, it is largely accepted by the courts. Deciding whether a provision qualifies the preceding statement or the following clause requires an extremely close reading of the document in context, using the same rules that apply in many statutes.
In most legal agreements, the express "notwithstanding" language imposes a right to override the "notwithstanding." Despite the fact that private agreements can be made using "notwithstanding," the Constitution generally gives Congress the ability to override, if necessary. This means that the term has almost never been disputed in court.
However, the common practice is still to assume that the presumption carries the day. In other words, in a case where the term "notwithstanding" is being discussed, the last antecedent will likely be upheld.
If the term "notwithstanding" appears multiple times in a single provision, for example, "notwithstanding (a), (b) and (c)," in general, the last "notwithstanding" will govern the entire sentence.
When it comes to other uses of "notwithstanding" in the U.S. Constitution, in the United States v. McPartland (1958), Judge Benjamin Cardozo assumed that it meant "in the absence of." The basic purpose of the subsection of the Constitution that contains "notwithstanding" is to prevent states from conflicting with federal law.
University of California – Hastings College of the Law professor (now retired) Jesse Choper refers to the term "notwithstanding" as an "ostensible safety valve." In other words, instead of giving the courts power to do what they think is right, the use of "notwithstanding" means that courts can only do what is clearly indicated.
The Virginia Supreme Court observed in Zayre, Inc. v. C. & P. Telephone Co. that the term "notwithstanding" may be either restrictive or permissive. However, there is little debate among legal attorneys about the meaning of the word.
Use of “Notwithstanding” in Legal Agreements
In contracts, "notwithstanding" is often used to affect how an otherwise normally-read clause should be read, and to qualify what might otherwise be the full effect of that preceding provision. The word, which could similarly be replaced with "regardless" or "despite this" (or even it’s synonyms in Latin: "notwithstanding" being synonymous with the phrase "non obstante"), is meant to ensure that specific parts of a contract can supersede other clauses without needing to revise the entire contract. It’s used to create hierarchies of clauses and factors that are considered when determining which interpretation of a contract provision is correct.
Consider the following example:
Clause 14. Dispute Resolution
In the event of any dispute or disagreement arising out of the terms or performance of this contract, the parties shall first meet in person to discuss and resolve their differences. Any failure to resolve the dispute after such meeting shall be accessed by the Court in Ottawa, Ontario.
Clause 14. When Notwithstanding
Notwithstanding the provisions within clause 14 of this agreement, the parties agree that such disputes shall be solved via binding arbitration at the office of Counselling in Ottawa, Ontario.
In the above example (a real example from one of my trade association clients, albeit simplified), clause 14 is rendered moot because of the second ‘notwithstanding’ clause. Notwithstanding the provisions of clause 14, the parties have agreed that in the event of any dispute, the matter shall be forwarded to arbitration.
Differences Between “Notwithstanding” and Related Terms
In comparison to similar terms, "notwithstanding" can be a more flexible contract language choice. As explained below, using "subject to" is another option, although it can sometimes be more ambiguous.
"Subject to," for instance, is commonly used in contracts to convey the right of one party to take precedence in certain situations. "Subject to" adds the possibility that there are exceptions to the given rule. For example, a merger and acquisition agreement may state that shareholders are entitled to dividends "subject to" the board’s discretion, meaning that the board has the right to decide whether or not to issue a dividend under certain circumstances.
"Provided that" is similar to "subject to," but it is more definitive. The phrase indicates that the first requirement will not apply if the second part is met. By using "provided that," the contract language becomes technically more complicated because it lists exact scenarios in which the first requirement ceases to be in effect. This can have the unintended results of limiting the parties’ flexibility in circumstances that do not fit perfectly within the given parameters. For example, a relief contract might limit deductions for repairs in the event that insurance proceeds don’t cover the costs. It is possible that a contract could expressly allow for repairs to be taken from insurance proceeds and additional costs to be covered elsewhere, but listing out that possibility would create unnecessary language.
"Except for" has similar results to "provided that." Like the latter, "except for" establishes that the first requirement or condition will not apply in the event that a second one is met. This carries the same risks as "provided that."
Instead of using the more specific "subject to," "provided that," or "except for," "notwithstanding" provides better contract language because it does not define or limit the scope of the first requirement. It provides flexibility to define and determine exceptions in a separate section, clause, or sub-clause.
Usage of “Notwithstanding” Clause in Practical Scenarios
Consider the following scenario: Employee A sues Employer B for wrongful termination. In doing so Employee A intentionally violated Employer B’s confidentiality provisions and shared sensitive internal compliance material with a journalist, which then becomes public knowledge. Although disclosed in violation of Workplace Policies, the information later proves essential to government regulation. Here, it may be argued that Employee A did not violate the law, or was acting pursuant to "the public interest" exception, thus arguably providing Employee A with protection under whistleblower statutes—laws intended to mitigate or prevent potential employer retaliation against an employee for engaging in protected conduct. In such cases, the court will scrutinize the language of the statute and also look to its legislative history. Courts have generally focused on the intent of ‘whistleblower’ provisions, explicitly stating that the provisions should be interpreted broadly to give effect to legislature’s intent; however, judicial decisions frequently delineate the limits of applicability. In such case, many courts have concluded that the "notwithstanding" language opening whistleblower provisions trump opposing employer interests in maintaining confidentiality and proprietary information (e.g., non-disclosure agreements). For example, in 2017, the U.S. Court of Appeals for the Third Circuit held that the Sarbanes-Oxley Act (SOX) protected employees who disclose information about relevant criminal violations, even though the plaintiffs in that case violated traditional contract law prohibiting outside sharing of basic information . The court stated: Despite Employers’ arguments that they had valid and enforceable agreements to keep such Confidential Information confidential, SOX plainly states that "[n]otwithstanding the provisions of any other Federal or State law . . . no employer may discharge, demote, suspend, threaten, harassment, directly or indirectly, or in any other manner discriminate against an employee . . . because of any lawful act done by the employee . . . in providing information . . . to or causing to be provided . . . any information . . . relating to any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348 . . . ." 18 U.S.C. § 1514A(a). We are not free to simply ignore the foregoing language, which clearly indicates that Congress intended SOX’s whistleblower protections to implicitly override other laws, including state law regarding confidentiality. Therefore, notwithstanding, the plaintiff discharged their contractual obligation not to disclose information regarding Employer’s internal information and trade secrets—language appearing in the plaintiff’s non-disclosure agreement—the information shared with the journalist was not protected. As illustrated above, a notwithstanding provision’s implementation is rarely simple or straightforward and vary based on intent and context. Where a ‘notwithstanding’ clause appears in a statute, its legal effect can turn on the contours of the statute as a whole and its legislative history. As the above cases illustrate, a ‘notwithstanding’ clause may simply express an intention to override other or existing laws; or may be deemed more powerful than, thus trumping, pertinent contract language.
When to Consider “Notwithstanding” Clauses Carefully
The utility of the word notwithstanding in drafting a clause or a series of clauses lies in its ability to make it clear to the reader that the clause or clauses are not limited by prior sections of the document, particularly where the document is a contract containing multiple sections with various limitations and qualifications. There is very little that is necessary to do in terms of drafting style to ensure that this intention is clear to the reader.
Some basic considerations remain, however. To be effective, it usually follows that the word notwithstanding should not appear more than once in a clause and never at all in a sub-clause . If there is an exception contained within the provision that is not subject to the exceptions that apply to the preceding clauses, that exception should begin with a notwithstanding. A common mistake in drafting is for a party, whether deliberately or otherwise, to imply that the "notwithstanding" applies to only part of the wording that immediately follows. It is clear, however, from the text of the word notwithstanding that the overriding intention of the clause is that the section it introduces is entirely free of the limitations and exceptions of any preceding clauses; in a sub-clause, any words omitted prior to the notwithstanding should be in brackets.