Twentieth century governance models used in public universities are subject to increasing doubt across the English-speaking world. Governments question if public universities are being efficiently governed; if their boards of trustees are adequately fulfilling their trust obligations towards multiple stakeholders; and if collegial models of governance are working in increasingly complex educational environments. With declining public funding for tertiary education, growing international competition among institutions of higher learning in our information age and worrisome evidence of dysfunctional governance, critics question if established governance structures are able to meet these and other challenges. Some insist that members of faculty are most suited to govern public universities because they appreciate the vision and mission of the university. Others demand that boards of governors be skilled in financial matters and drawn primarily from corporate life.Yet others call for governance based on trust and confidence between those who govern and those who are governed. The article evaluates competing trends in models of university governance in the United Kingdom, the British Commonwealth and the United States. Arguing against a one-size-fits-all model, it sets out specific factors to consider in reforming governance models to meet the demands of our times.

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This article evaluates the established judicial proposition that an agreement to negotiate in good faith is antithetical to the principles of the common law. English courts are reluctant to enforce such agreements on the ground that they constitute unenforceable “agreements to agree”. Recently, courts have started to recognise an exception in cases where parties agree to negotiate over a term mandated by an existing agreement, such as to review a price clause or resolve a dispute by undertaking negotiations in good faith. The primary arguments against enforcing an independent agreement to negotiate in good faith are threefold. First, parties engaged in good faith negotiations are assumed to lack a serious legal intention to contract. Second, such an agreement is substantively uncertain in nature and does not promise to produce a contract. Third, the failure of parties to conclude their negotiations does not lead to an easily identifiable loss. In light of these considerations, this article considers the viability of enforcing an agreement to negotiate in good faith in the absence of a pre-existing contract. It argues that the legal obstacles to recognising agreements to negotiate have been overstated. Given the commercial value of enforcing such agreements, it proposes that agreements to negotiate in good faith should be recognised and given legal content by common law courts.

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