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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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Wednesday, 05 April 17
THE AVERAGE SECOND HAND PANAMAXES AND CAPES PRICES FOR A 5-YR OLD VESSEL HAS INCREASED MORE THAN 19% AND 20% RESPECTIVELY M/M - INTERMODAL
With the help of what so far appears to be a very strong grain season together with the fact that imports from China have remained so far robust in ...
Tuesday, 04 April 17
THE IRON ORE HAS BEEN ABLE TO KEEP ITS GROWTH PATH FAIRLY WELL; THERE IS STILL ONE PART OF THE WORLD THAT IS STILL HEAVILY COMMITTED TO COAL
With the close of March having let us with a very positive after taste and having witnessed near the end of the month the Baltic Dry Index at its h ...
Monday, 03 April 17
WORLD COAL TRADE STABLE IN 2016: DEMAND SHIFTS TO SOUTH-EAST ASIA - ASSOCARBONI
ASSOCARBONI: Coal confirmed as the leading fuel for electricity generation, accounting for 40% of overall production in 2016.
World coal trade ...
Monday, 03 April 17
DRY BULK RATES CONTINUING TO FIRMING UP
COALspot.com: The Freight market was continuing to firming up. Baltic Panamax Index rose 12.81 percent week over week.
The Baltic Exchang ...
Friday, 31 March 17
U.S. COAL PRODUCTION INCREASE SLIGHTLY WEEK OVER WEEK
COALspot.com – U.S., the world’s second largest coal producers have produced approximately totaled an estimated 14.5 million short tons ...
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Showing 2081 to 2085 news of total 6871 |
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- Kideco Jaya Agung - Indonesia
- Indogreen Group - Indonesia
- Xindia Steels Limited - India
- Renaissance Capital - South Africa
- Thiess Contractors Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Globalindo Alam Lestari - Indonesia
- The University of Queensland
- Therma Luzon, Inc, Philippines
- Gujarat Sidhee Cement - India
- European Bulk Services B.V. - Netherlands
- Krishnapatnam Port Company Ltd. - India
- Ambuja Cements Ltd - India
- CIMB Investment Bank - Malaysia
- Miang Besar Coal Terminal - Indonesia
- Parry Sugars Refinery, India
- Carbofer General Trading SA - India
- Mjunction Services Limited - India
- Indonesian Coal Mining Association
- Cigading International Bulk Terminal - Indonesia
- Bayan Resources Tbk. - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Medco Energi Mining Internasional
- Uttam Galva Steels Limited - India
- Aditya Birla Group - India
- Independent Power Producers Association of India
- Malabar Cements Ltd - India
- Standard Chartered Bank - UAE
- Attock Cement Pakistan Limited
- Power Finance Corporation Ltd., India
- IHS Mccloskey Coal Group - USA
- Siam City Cement PLC, Thailand
- Holcim Trading Pte Ltd - Singapore
- AsiaOL BioFuels Corp., Philippines
- Coal and Oil Company - UAE
- Agrawal Coal Company - India
- London Commodity Brokers - England
- SN Aboitiz Power Inc, Philippines
- Jindal Steel & Power Ltd - India
- Makarim & Taira - Indonesia
- Sarangani Energy Corporation, Philippines
- Karbindo Abesyapradhi - Indoneisa
- McConnell Dowell - Australia
- Billiton Holdings Pty Ltd - Australia
- Kapuas Tunggal Persada - Indonesia
- Kumho Petrochemical, South Korea
- Straits Asia Resources Limited - Singapore
- Toyota Tsusho Corporation, Japan
- GN Power Mariveles Coal Plant, Philippines
- Metalloyd Limited - United Kingdom
- Simpson Spence & Young - Indonesia
- VISA Power Limited - India
- Rashtriya Ispat Nigam Limited - India
- Singapore Mercantile Exchange
- Bukit Asam (Persero) Tbk - Indonesia
- Port Waratah Coal Services - Australia
- Posco Energy - South Korea
- Indika Energy - Indonesia
- Indian Oil Corporation Limited
- Ceylon Electricity Board - Sri Lanka
- Sindya Power Generating Company Private Ltd
- Formosa Plastics Group - Taiwan
- Star Paper Mills Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- Global Green Power PLC Corporation, Philippines
- Bhatia International Limited - India
- Neyveli Lignite Corporation Ltd, - India
- Sakthi Sugars Limited - India
- Electricity Authority, New Zealand
- Electricity Generating Authority of Thailand
- Eastern Energy - Thailand
- Edison Trading Spa - Italy
- Meenaskhi Energy Private Limited - India
- Vizag Seaport Private Limited - India
- Orica Mining Services - Indonesia
- Heidelberg Cement - Germany
- Karaikal Port Pvt Ltd - India
- Thai Mozambique Logistica
- Bangladesh Power Developement Board
- Bank of Tokyo Mitsubishi UFJ Ltd
- Anglo American - United Kingdom
- The State Trading Corporation of India Ltd
- Iligan Light & Power Inc, Philippines
- Petrochimia International Co. Ltd.- Taiwan
- MS Steel International - UAE
- Leighton Contractors Pty Ltd - Australia
- Banpu Public Company Limited - Thailand
- Lanco Infratech Ltd - India
- Essar Steel Hazira Ltd - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Australian Commodity Traders Exchange
- Marubeni Corporation - India
- Tamil Nadu electricity Board
- Bukit Makmur.PT - Indonesia
- Coastal Gujarat Power Limited - India
- Binh Thuan Hamico - Vietnam
- GVK Power & Infra Limited - India
- Bhushan Steel Limited - India
- Eastern Coal Council - USA
- Chettinad Cement Corporation Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Wood Mackenzie - Singapore
- OPG Power Generation Pvt Ltd - India
- Madhucon Powers Ltd - India
- IEA Clean Coal Centre - UK
- Goldman Sachs - Singapore
- The Treasury - Australian Government
- Siam City Cement - Thailand
- Meralco Power Generation, Philippines
- Price Waterhouse Coopers - Russia
- Gujarat Electricity Regulatory Commission - India
- Global Business Power Corporation, Philippines
- Georgia Ports Authority, United States
- Ministry of Mines - Canada
- Savvy Resources Ltd - HongKong
- Riau Bara Harum - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
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- Parliament of New Zealand
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- Maheswari Brothers Coal Limited - India
- SMC Global Power, Philippines
- LBH Netherlands Bv - Netherlands
- ICICI Bank Limited - India
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- PowerSource Philippines DevCo
- Antam Resourcindo - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Mintek Dendrill Indonesia
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- Vijayanagar Sugar Pvt Ltd - India
- GAC Shipping (India) Pvt Ltd
- Bukit Baiduri Energy - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Altura Mining Limited, Indonesia
- Manunggal Multi Energi - Indonesia
- Rio Tinto Coal - Australia
- Baramulti Group, Indonesia
- Sojitz Corporation - Japan
- Ministry of Transport, Egypt
- Kohat Cement Company Ltd. - Pakistan
- Sical Logistics Limited - India
- Merrill Lynch Commodities Europe
- International Coal Ventures Pvt Ltd - India
- Gujarat Mineral Development Corp Ltd - India
- PTC India Limited - India
- Minerals Council of Australia
- CNBM International Corporation - China
- Coalindo Energy - Indonesia
- India Bulls Power Limited - India
- New Zealand Coal & Carbon
- South Luzon Thermal Energy Corporation
- ASAPP Information Group - India
- Bulk Trading Sa - Switzerland
- Vedanta Resources Plc - India
- Central Java Power - Indonesia
- Directorate Of Revenue Intelligence - India
- Barasentosa Lestari - Indonesia
- Timah Investasi Mineral - Indoneisa
- Salva Resources Pvt Ltd - India
- Dalmia Cement Bharat India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Global Coal Blending Company Limited - Australia
- Latin American Coal - Colombia
- Kobexindo Tractors - Indoneisa
- Energy Link Ltd, New Zealand
- Africa Commodities Group - South Africa
- SMG Consultants - Indonesia
- Kaltim Prima Coal - Indonesia
- Kartika Selabumi Mining - Indonesia
- Oldendorff Carriers - Singapore
- Central Electricity Authority - India
- Economic Council, Georgia
- Jorong Barutama Greston.PT - Indonesia
- Ministry of Finance - Indonesia
- Interocean Group of Companies - India
- Aboitiz Power Corporation - Philippines
- Planning Commission, India
- Mercuria Energy - Indonesia
- Kepco SPC Power Corporation, Philippines
- PNOC Exploration Corporation - Philippines
- Videocon Industries ltd - India
- Semirara Mining Corp, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Bharathi Cement Corporation - India
- Wilmar Investment Holdings
- Romanian Commodities Exchange
- TeaM Sual Corporation - Philippines
- Commonwealth Bank - Australia
- Australian Coal Association
- Tata Chemicals Ltd - India
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