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Thursday, 30 March 17
WHERE AN AGREEMENT FAILS TO DELIVER - WATSON FARLEY & WILLIAMS
 KNOWLEDGE TO ELEVATE
Watson Farley & Williams acted for MRI Trading AG in a leading case on ‘agreements to agree’ that was finally decided by the Court of Appeal in 20131 . That decision has recently been considered in the High Court by Mr Justice Walker in Teekay Tankers Ltd v STX Offshore & Shipbuilding Co. Ltd, 2 a shipbuilding case of particular relevance to parties that enter into long-term agreements or options leaving delivery terms to be agreed.
Agreeing to agree
Under English law, you cannot ‘agree to agree’. Where parties agree that they will agree to enter into a contract and no such contract is concluded, that initial ‘agreement’ will be unenforceable or void on the basis of uncertainty. An English court will not step in to complete the parties’ bargain where one or more essential terms of that bargain are uncertain. However, parties may not want to fix every contractual term at the outset of their relationship. For example, in long-term supply contracts, they may wish to finalise certain terms only when future market circumstances are known.
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“AN ENGLISH COURT WILL NOT STEP IN TO COMPLETE THE PARTIES’ BARGAIN WHERE ONE OR MORE ESSENTIAL TERMS OF THAT BARGAIN ARE UNCERTAIN.” |
A common way for drafters of contracts to achieve this is by reference to an objective standard, such as a published price index, against which a price adjustment can be made. However, even where the chosen mechanism fails or the contract does not provide for such a mechanism, there are circumstances in which English law will nevertheless uphold the parties’ bargain. The English courts have made it clear that each case is to be decided on its own facts and terms, but have identified factors that might indicate that the parties intended their bargain to be enforceable, in which case the courts will strive to give effect to that intention and seek, where possible, to preserve the parties’ bargain.
The facts of Teekay
In Teekay v STX, subsidiaries of Teekay had entered into four shipbuilding contracts with STX (“the SBCs”) and Teekay had entered into an option contract with STX by which Teekay was granted three options to order three additional sets of up to four vessels from STX (“the Option Agreement”). The Option Agreement provided that, on Teekay exercising each option, (subsidiaries of) Teekay would enter into shipbuilding contracts with STX on materially identical terms to the SBCs, but the “Delivery Dates for each [of the] Optional Vessels shall be mutually agreed upon at the time of [Teekay’s] declaration of the relevant option”. Importantly, the clause also provided that STX was to use its “best efforts” to “have a delivery” for each of the first set of optional vessels within 2016 and for each of the second and third sets of optional vessels within 2017.
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“STX DEFENDED THE CLAIM ON THE GROUNDS THAT IT HAD NO LIABILITY TO TEEKAY BECAUSE THE PROVISION IN THE OPTION AGREEMENT REGARDING DELIVERY DATES AMOUNTED TO AN ‘AGREEMENT TO AGREE’ THAT WAS VOID FOR UNCERTAINTY.” |
The specific Delivery Date for each vessel was integral to the operation of the anticipated shipbuilding contracts that would then be concluded, including the delay, cancellation and liquidated damages provisions. After Teekay exercised the first of the three options, STX’s statements and conduct demonstrated that it would not perform the Option Agreement. Teekay accepted those statements and conduct as a repudiation at common law, as a result of which the Option Agreement came to an end with no agreement having been reached as to the Delivery Dates.
Teekay claimed damages of over US$100m and STX defended the claim on the grounds that it had no liability to Teekay because the provision in the Option Agreement regarding Delivery Dates amounted to an ‘agreement to agree’ that was void for uncertainty.
For each set of vessels, Teekay asked the High Court to imply either of the following terms into the Option Agreement to resolve this apparent uncertainty:
a) the Delivery Date should be a date that STX offered within 2016 (for the first set of optional vessels) or 2017 (for the second and third sets) using its best efforts to do so, or, if STX was not able to offer such dates, the earliest date thereafter which it could offer using its best efforts (“the Offer Date Implied Term”); or
b) the Delivery Date was to be an objectively reasonable date (having regard to STX’s best efforts), to be determined by the Court if not agreed by the parties (“the Reasonableness Implied Term”).
The decision
Mr Justice Walker considered the authorities in detail, including MRI, and found that the starting point should be that the parties had intended the Option Agreement to be legally binding and that the court should strive to uphold the parties’ bargain.
Relevant factors taken into account by Mr Justice Walker in determining this starting point were that the Option Agreement formed part of a package of contracts that had been partially performed and the parties had acted as if the Option Agreement were binding.
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“THE STARTING POINT SHOULD BE THAT THE PARTIES HAD INTENDED THE OPTION AGREEMENT TO BE LEGALLY BINDING AND THAT THE COURT SHOULD STRIVE TO UPHOLD THE PARTIES’ BARGAIN.” |
From that starting point, Mr Justice Walker sought to determine whether the implied terms contended for by Teekay could properly be regarded as being the objective intention of the parties at the time they entered into the Option Agreement. Mr Justice Walker found that they were not and therefore they could not be implied, as a result of which the Option Agreement was void for uncertainty.
In relation to each implied term, Mr Justice Walker’s reasoning can be summarised as follows:
a) the Offer Date Implied Term would mean that the Delivery Dates would be at STX’s unilateral declaration, which would be contrary to one of the English law tests for implying a contractual term. It was not said to be objectively obvious, at the time that Teekay and STX concluded the Option Agreement, that if a Delivery Date was not agreed STX should unilaterally be able to declare a Delivery Date; and
b) as to the Reasonableness Implied Term, two factors were of particular importance:
(i) the Delivery Date was a critical term in the SBC that affected other provisions of the SBC; and
(ii) the Delivery Date was subject to STX’s “best efforts” obligation. As to the first factor, Mr Justice Walker noted that both parties would want to select a Delivery Date that suited their own commercial interests (which they were entitled to take into consideration) and their respective interests may be in conflict.
As to the second, the language of “best efforts” implicitly recognised that the parties would have contrasting interests in selecting a Delivery Date. Those circumstances precluded an identification of a date based on what would be reasonable; there could hardly be an objectively reasonable outcome if the parties had completely divergent interests. The reference to “best efforts” was, in Mr Justice Walker’s judgment, part of a process of seeking to agree an essential term in the SBC and very different from an enforceable obligation to use best efforts to achieve a result.
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“TEEKAY DEMONSTRATES THAT, WHERE THERE IS NO CLEAR CONTRACTUAL PATH BY WHICH THE COURT CAN PICK ITS WAY THROUGH THE PARTIES COMPETING COMMERCIAL INTERESTS, IT MAY NOT BE ABLE TO UPHOLD A BARGAIN DESPITE STRIVING TO DO SO.” |
In this sense, the Teekay and STX Option Agreement can be seen as a “one off” contract in which no objective criteria had been specified to determine a Delivery Date. Selecting a Delivery Date would involve both Teekay and STX taking into account a variety of commercial and practical considerations, which might affect their ability and willingness to agree. In those circumstances, “reasonableness” was not a sufficient criterion that would enable the Court to reconcile the parties’ potentially conflicting wishes.
Conclusion
It may come as a surprise to some commercial parties and seem somewhat unjust that otherwise carefully negotiated and detailed agreements might be held to be unenforceable or void because one or more (albeit essential) terms are uncertain. The courts have recognised this risk and have set out a clear and helpful framework against which they might uphold parties’ bargains. However, the courts have stressed that each ‘agreement to agree’ case is to be decided on its own unique facts and terms.
In MRI, the High Court and the Court of Appeal upheld the bargain by implying a term that a price adjustment and delivery schedule should be “reasonable” where the agreement stated that those matters “shall be agreed” but the parties had not agreed them. A key factor in that case was that the agreement had been entered into as part of a settlement agreement compromising a previous dispute and the remainder of that settlement agreement had been fully performed. However, this was in principle similar to Teekay, which involved a suite of contracts.
The court’s attempt to distinguish MRI on the basis that deliveries under commodities contracts were matters of routine was not borne out by MRI, where the London Metal Exchange Tribunal had found as a matter of fact (acknowledged in the appeal proceedings) that shipping schedules were not to be dismissed as matters of detail and involved important considerations concerning the parties’ commercial needs.
Teekay demonstrates that, absent any clear contractual path by which the court can pick its way through the parties’ competing commercial interests, it may not be able to uphold a bargain despite striving to do so. With this in mind, two drafting points of general importance arise from Mr Justice Walker’s judgment.
1. Parties entering into contracts should ensure that all their contractual terms are certain at its outset or, if that is not possible, include a contractual mechanism against which a term can be determined in the absence of agreement.
2. Parties should consider carefully the mechanism that will be used. The inclusion of a non-specific “best efforts” obligation in the Option Agreement may have been intended to compel STX to take appropriate action, but in fact worked against the implication of a term by the court. Teekay would have been in a better position if the Option Agreement had provided for a specific objective mechanism to set the Delivery Date, but may also have been in a better position if they had said nothing about “best efforts” at all.
At the time of writing it does not appear that this decision has been appealed. Perhaps the decision not to do so was for pragmatic reasons owing to the bankruptcy of STX and concerns over the eventual value of the claim even if the decision were to be subsequently overturned.
By: ANDREW HUTCHEON
Partner, Watson Farley & Williams
London
BEN LAMBLE
Senior Associate, Watson Farley & Williams
London
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Thursday, 20 April 17
CHINA'S IMPORT OF IRON ORE TO PROPEL DRY BULK SHIPPING DEMAND IN 2017 - PETER SAND
China's import of iron ore will continue to be a key driver for the demand growth in 2017 for the dry bulk shipping industry, alongside shippin ...
Monday, 17 April 17
THE PANAMAX INDEX (BPI) ROSE (12.89%) WEEK OVER WEEK
COALspot.com: The Freight market was firm, week over a week as all segments show a positive upward trend this past week.
The Baltic Exchange, ...
Monday, 17 April 17
U.S. WEEKLY COAL OUTPUT FELL 5% WEEK OVER WEEK - EIA
COALspot.com – U.S., the world’s second largest coal producers have produced approximately totaled an estimated 13.8 million short tons ...
Thursday, 13 April 17
OPEC OVER-DELIVERS ON OIL CUTS, BUT SEES RIVALS' OUTPUT RISING
Crude Oil Price Movements
The OPEC Reference Basket averaged $50.32/b in March, representing a decline of 5.7% from the previous month. Crude fut ...
Wednesday, 12 April 17
THE PORT OF NEWCASTLE SHIPPED 13.791 MILLION TONS OF COAL IN MARCH 2017
COALspot.com: The Port of Newcastle, Australia’s major trading ports and the world’s largest coal export ports has shipped $AU 1,688.5 ...
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Showing 2071 to 2075 news of total 6871 |
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- Bulk Trading Sa - Switzerland
- Electricity Authority, New Zealand
- IHS Mccloskey Coal Group - USA
- Banpu Public Company Limited - Thailand
- Coalindo Energy - Indonesia
- The Treasury - Australian Government
- Bukit Asam (Persero) Tbk - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- White Energy Company Limited
- Oldendorff Carriers - Singapore
- Sinarmas Energy and Mining - Indonesia
- Global Coal Blending Company Limited - Australia
- New Zealand Coal & Carbon
- Gujarat Sidhee Cement - India
- India Bulls Power Limited - India
- Directorate General of MIneral and Coal - Indonesia
- Kartika Selabumi Mining - Indonesia
- Videocon Industries ltd - India
- Ministry of Mines - Canada
- Minerals Council of Australia
- Indian Oil Corporation Limited
- Bhatia International Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Vedanta Resources Plc - India
- Marubeni Corporation - India
- Chamber of Mines of South Africa
- Indogreen Group - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Orica Mining Services - Indonesia
- VISA Power Limited - India
- Karaikal Port Pvt Ltd - India
- TeaM Sual Corporation - Philippines
- Malabar Cements Ltd - India
- Cement Manufacturers Association - India
- Mercuria Energy - Indonesia
- Uttam Galva Steels Limited - India
- Indo Tambangraya Megah - Indonesia
- Orica Australia Pty. Ltd.
- The University of Queensland
- Mintek Dendrill Indonesia
- Global Business Power Corporation, Philippines
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Offshore Bulk Terminal Pte Ltd, Singapore
- Semirara Mining and Power Corporation, Philippines
- Therma Luzon, Inc, Philippines
- Pendopo Energi Batubara - Indonesia
- Straits Asia Resources Limited - Singapore
- PTC India Limited - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sojitz Corporation - Japan
- Parry Sugars Refinery, India
- Pipit Mutiara Jaya. PT, Indonesia
- Salva Resources Pvt Ltd - India
- GVK Power & Infra Limited - India
- PNOC Exploration Corporation - Philippines
- Iligan Light & Power Inc, Philippines
- Australian Commodity Traders Exchange
- Asmin Koalindo Tuhup - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Standard Chartered Bank - UAE
- Australian Coal Association
- Miang Besar Coal Terminal - Indonesia
- Sarangani Energy Corporation, Philippines
- Independent Power Producers Association of India
- Vijayanagar Sugar Pvt Ltd - India
- Interocean Group of Companies - India
- Agrawal Coal Company - India
- Electricity Generating Authority of Thailand
- GMR Energy Limited - India
- Singapore Mercantile Exchange
- Edison Trading Spa - Italy
- Wood Mackenzie - Singapore
- Karbindo Abesyapradhi - Indoneisa
- Posco Energy - South Korea
- Maheswari Brothers Coal Limited - India
- Ministry of Finance - Indonesia
- Africa Commodities Group - South Africa
- Sree Jayajothi Cements Limited - India
- Energy Development Corp, Philippines
- Ambuja Cements Ltd - India
- Vizag Seaport Private Limited - India
- ICICI Bank Limited - India
- Medco Energi Mining Internasional
- Toyota Tsusho Corporation, Japan
- Bayan Resources Tbk. - Indonesia
- GAC Shipping (India) Pvt Ltd
- San Jose City I Power Corp, Philippines
- Indonesian Coal Mining Association
- Krishnapatnam Port Company Ltd. - India
- Kohat Cement Company Ltd. - Pakistan
- GN Power Mariveles Coal Plant, Philippines
- Price Waterhouse Coopers - Russia
- Cigading International Bulk Terminal - Indonesia
- Intertek Mineral Services - Indonesia
- Latin American Coal - Colombia
- Jaiprakash Power Ventures ltd
- Savvy Resources Ltd - HongKong
- Bukit Baiduri Energy - Indonesia
- Aboitiz Power Corporation - Philippines
- Billiton Holdings Pty Ltd - Australia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Riau Bara Harum - Indonesia
- Xindia Steels Limited - India
- Bukit Makmur.PT - Indonesia
- Binh Thuan Hamico - Vietnam
- Dalmia Cement Bharat India
- Bharathi Cement Corporation - India
- Globalindo Alam Lestari - Indonesia
- London Commodity Brokers - England
- McConnell Dowell - Australia
- Borneo Indobara - Indonesia
- Power Finance Corporation Ltd., India
- Formosa Plastics Group - Taiwan
- Indika Energy - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Central Java Power - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Rio Tinto Coal - Australia
- Altura Mining Limited, Indonesia
- PowerSource Philippines DevCo
- Petron Corporation, Philippines
- Eastern Coal Council - USA
- Kobexindo Tractors - Indoneisa
- Antam Resourcindo - Indonesia
- LBH Netherlands Bv - Netherlands
- Holcim Trading Pte Ltd - Singapore
- SMG Consultants - Indonesia
- Georgia Ports Authority, United States
- MS Steel International - UAE
- Star Paper Mills Limited - India
- Semirara Mining Corp, Philippines
- Wilmar Investment Holdings
- IEA Clean Coal Centre - UK
- Planning Commission, India
- Gujarat Mineral Development Corp Ltd - India
- Indian Energy Exchange, India
- Port Waratah Coal Services - Australia
- Mjunction Services Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Sical Logistics Limited - India
- Central Electricity Authority - India
- Timah Investasi Mineral - Indoneisa
- Ind-Barath Power Infra Limited - India
- Samtan Co., Ltd - South Korea
- Leighton Contractors Pty Ltd - Australia
- Mercator Lines Limited - India
- Tata Chemicals Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- ASAPP Information Group - India
- Economic Council, Georgia
- Baramulti Group, Indonesia
- Heidelberg Cement - Germany
- Manunggal Multi Energi - Indonesia
- South Luzon Thermal Energy Corporation
- Metalloyd Limited - United Kingdom
- Ceylon Electricity Board - Sri Lanka
- Essar Steel Hazira Ltd - India
- Bhushan Steel Limited - India
- Larsen & Toubro Limited - India
- Commonwealth Bank - Australia
- Siam City Cement - Thailand
- CIMB Investment Bank - Malaysia
- Merrill Lynch Commodities Europe
- Bahari Cakrawala Sebuku - Indonesia
- Deloitte Consulting - India
- Alfred C Toepfer International GmbH - Germany
- Goldman Sachs - Singapore
- Chettinad Cement Corporation Ltd - India
- Aditya Birla Group - India
- Kapuas Tunggal Persada - Indonesia
- Attock Cement Pakistan Limited
- Sakthi Sugars Limited - India
- Carbofer General Trading SA - India
- Siam City Cement PLC, Thailand
- SN Aboitiz Power Inc, Philippines
- CNBM International Corporation - China
- Makarim & Taira - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Kumho Petrochemical, South Korea
- SMC Global Power, Philippines
- Coal and Oil Company - UAE
- International Coal Ventures Pvt Ltd - India
- Thiess Contractors Indonesia
- Meralco Power Generation, Philippines
- The State Trading Corporation of India Ltd
- OPG Power Generation Pvt Ltd - India
- AsiaOL BioFuels Corp., Philippines
- Bangladesh Power Developement Board
- Kideco Jaya Agung - Indonesia
- Simpson Spence & Young - Indonesia
- Barasentosa Lestari - Indonesia
- Coastal Gujarat Power Limited - India
- Thai Mozambique Logistica
- Jindal Steel & Power Ltd - India
- Renaissance Capital - South Africa
- European Bulk Services B.V. - Netherlands
- Rashtriya Ispat Nigam Limited - India
- Meenaskhi Energy Private Limited - India
- Kaltim Prima Coal - Indonesia
- Madhucon Powers Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Tamil Nadu electricity Board
- Sindya Power Generating Company Private Ltd
- Grasim Industreis Ltd - India
- Romanian Commodities Exchange
- Global Green Power PLC Corporation, Philippines
- Eastern Energy - Thailand
- Energy Link Ltd, New Zealand
- Anglo American - United Kingdom
- Ministry of Transport, Egypt
- Kepco SPC Power Corporation, Philippines
- Directorate Of Revenue Intelligence - India
- Bhoruka Overseas - Indonesia
- Trasteel International SA, Italy
- Neyveli Lignite Corporation Ltd, - India
- Lanco Infratech Ltd - India
- Parliament of New Zealand
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