Commercial Contracts Bulletin

Transcription

1 CMS_LawTax_Negative_ ep Commercial Contracts Bulletin May 2016

2 CONTENTS Is Your Contract Brexit-Proof? Deleted Words Approved as an Aid to Interpretation of Contracts Past the Point of No Return: High Court Provides Guidance on Termination Rights Modern Slavery and Supply Chain Reporting Dude, Where s My Car? : Rare Porsches and Agreements to Agree Contractual Interpretation Revisited: Using Imperative Language Commercial Contracts Round-Up 2016 Key Contacts Commercial contracts

3 IS YOUR CONTRACT BREXIT-PROOF? Is Your Contract Brexit-Proof? With the UK holding a referendum on its membership of the EU on 23rd June 2016, businesses need to consider how a Brexit could affect their commercial contracts. We look at how certain elements of contracts may be affected by a Brexit and consider the contractual protections that can be put in place to help minimise the potential negative effects. Brexit and contractual obligations For some contracts, Brexit could have the effect of making it significantly more difficult (or costly) to perform the contractual obligations. For example, a contract for the international supply of goods could become subject to tariffs or the goods may no longer benefit from mutual recognition of regulatory authorisations. In some cases, under English law, it may be possible to argue that Brexit has frustrated the contract. However, there are certain measures that parties can include in their contracts to provide greater certainty of what will happen in the event of a Brexit. Parties could expressly provide that a Brexit gives a party the right to terminate the contract or, alternatively, provide that specific terms need to be renegotiated. Parties may also expressly include or exclude a Brexit from the definition of a force majeure event. Existing contracts should be reviewed to consider whether Brexit would fit into the force majeure definitions of those contracts. In each case, these clauses could be drafted to trigger automatically following a Brexit in any event, or only if certain specific events occur, e.g. the imposition of tariffs on goods that form the subject matter of the contract. Territorial application of contracts Certain contracts, such as intellectual property licences and distribution agreements, often grant rights in relation to a specified geographical area. For any contracts where the EU is specified as the territory, businesses will need to consider whether after a Brexit the contract will still grant rights for the area originally contracted for. For example, after Brexit, a patent licence covering the territory of the European Union would likely be interpreted to no longer grant the licence for the UK. In such circumstances, the licensee would lose exploitation rights in respect of the UK and the licensor may be able to license the patent to another bidder. For any contracts being negotiated between now and 23rd June 2016 (and, if the UK votes to leave, contracts negotiated between 23rd June 2016 and the eventual exit date) which are to be made in relation to the EU territory, parties should consider expressly stating whether the UK will be included after Brexit. If the UK is not to be included, then it would be prudent to include a provision reducing the fees payable under the contract. Jurisdiction and governing law Brexit is not likely to constitute a major deterrent for businesses considering contracting in English law or choosing the English courts to have jurisdiction, as many of the attractions of English law and courts are not dependent on EU membership. In addition, it seems unlikely that there will be major changes to the rules that courts apply to determine the governing law and which courts have jurisdiction. Businesses are therefore unlikely to need to change their approach on these matters. However, it should be noted that some of the current simplicity in these respects could be lost as the rules applicable to determining these factors are mostly set out in EU legislation. For choice of governing law, parties can take comfort in the fact that the EU legislation that currently determines applicable governing law will continue to be applied by Member States, so a choice of English law will still be respected across the EU. 3

4 IS YOUR CONTRACT BREXIT-PROOF? As rules determining jurisdiction are generally based on the principle of reciprocity, it is less certain whether Member State courts will continue to recognise a choice of English law. Additionally, the exact rules applicable will be more dependent on what treaties the UK is party to. For example, the Hague Convention, which the UK would likely sign up to in its own right (currently it is bound by the convention through its membership of the EU), only applies to exclusive jurisdiction clauses. Parties may therefore wish to ensure their jurisdiction clauses are made to be exclusive to ensure these benefit from the Hague Convention. 4 Commercial contracts Comment When negotiating contracts in the run up to the referendum (or in the period from 23rd June 2016 to the eventual exit date, if the UK votes to leave), businesses should consider whether any of the above issues will affect their contract and exactly how any negative impacts can be mitigated. Businesses should also review their existing contracts to consider how these may be impacted in light of the points set out above.

5 DELETED WORDS APPROVED AS AN AID TO INTERPRETATION OF CONTRACTS Deleted Words Approved as an Aid to Interpretation of Contracts In Narandas-Girdhar and Another v Bradstock [2016] EWCA Civ 88, the Court of Appeal has confirmed that deleted words may be used as an aid to interpretation where the remaining words in a contract are ambiguous. The judgment emphasises the importance of clear and precise contract drafting. Facts The appellant and his wife each sought to enter into an Individual Voluntary Arrangement ( IVA ) with Mr Bradstock, an insolvency practitioner. Mr Bradstock circulated a proposal to the appellant (the Proposal ) which included a provision stating that the appellant s acceptance of his IVA was conditional on his wife s acceptance of her own IVA (Clause 4.3). Before the appellant entered into the IVA, various modifications to the Proposal were made, with one modification resulting in the deletion of Clause 4.3 and the conditionality requirement. The appellant was subsequently made bankrupt due to the failure of the IVA and he applied to set aside the IVA. He argued his acceptance of the Proposal had been conditional upon his wife s approval of her IVA, a condition which had not been fulfilled. At first instance, the judge refused the application on the basis that the Proposal was not conditional on the appellant s wife approving her IVA. The decision was appealed. Decision The Court of Appeal dismissed the appeal on the grounds that it was clear that the conditional element was not agreed. It held that deleted words may be taken into account in order to resolve an ambiguity in the words that remain in the contract. The Court cited and approved Mopani Copper Mines plc v Millennium Underwriting Ltd [2008] EWHC 1331 (Comm), which held that recourse to deleted words may be made where there is ambiguity in the remaining words and the fact of deletion shows what it is the parties agreed that they did not agree. The Court found that where account is taken of the deleted words, however, care is required as to what inferences (if any) can be taken from them. The Court acknowledged that the words may have been deleted because they added nothing or due to an inconsistency with another provision in the contract. The relevant principle was that if the fact of deletion shows what the parties did and did not agree and there is ambiguity in the words that remain, then the deleted provision may be an aid to construction, albeit one that must be used with care. Applying that principle to the circumstances at hand, the Court found that the provisions of the modified Proposal were ambiguous and it was entitled to consider what the modifications removed from the Proposal. It found that the words of conditionality had been removed altogether. As a result, it was clear that this condition was not agreed as part of the IVA and the appeal was dismissed. Comment The judgment confirms that the courts are willing and able to take account of original deleted wording where the remaining terms of an agreement are ambiguous. Although this is a somewhat disconcerting prospect, the decision also stresses that such recourse should be exercised with caution and care must be taken as to what inferences, if any, can be drawn from the deleted words. It further emphasises the importance of careful and precise drafting of contracts to ensure there are no ambiguous provisions. 5

6 PAST THE POINT OF NO RETURN: HIGH COURT PROVIDES GUIDANCE ON TERMINATION RIGHTS Past the Point of No Return: High Court Provides Guidance on Termination Rights In C&S Associates Ltd v Enterprise Insurance Company Plc [2015] EWHC 3757 (Comm), the High Court confirmed that a party can justify termination of an agreement by reference to a failure which it was not aware of at the time of termination. The Court also provided useful guidance on the circumstances in which a contractual right to terminate may preclude a party s common law right to terminate for repudiatory breach. Facts C&S Associates UK Ltd ( C&S ) was a motor insurance claims handler for Enterprise Insurance Company plc ( Enterprise ). Enterprise wanted to conduct an audit on the claims which C&S handled on its behalf, but C&S refused to deliver the files to Enterprise s external auditor. As a result, Enterprise terminated the agreement for repudiatory breach and subsequently cited C&S s poor performance as further grounds for termination. C&S brought a claim against Enterprise seeking damages for wrongful termination arguing that: 1. Enterprise should not be able to rely on C&S s poor performance to terminate as C&S would have been able to rectify the failure had it been notified of it. This exception to the general rule was established in Heisler v Anglo Dal Ltd [1954] 1 WLR 1273; and 2. Enterprise should not be able to terminate for repudiatory breach because the agreement contained a clause permitting either party to terminate for material breach on 30 days notice. Decision exception to the rule established in Heisler only applies to anticipatory breaches or to situations where steps could have been taken by the defaulting party to avoid the breach altogether. In this case, C&S would not have been able to remedy the breach even if it had been notified of it as the date for performance had already passed. On the second point, the High Court confirmed that it is open to parties to agree that certain breaches will not amount to a repudiatory breach. However, the parties had not done so in the present case. The agreement between Enterprise and C&S contained a clause permitting either party to terminate for material breach provided that, if the breach could be remedied, that party must give the defaulting party 30 days notice. C&S argued that this amounted to an agreement that any material breach capable of remedy could not be treated as repudiatory. The High Court rejected this argument on the basis that the clause did not expressly prevent a sufficiently serious breach from amounting to repudiation of the contract. Therefore it did not extinguish Enterprise s common law right to terminate immediately for repudiatory breach. The High Court rejected C&S s arguments and confirmed that a party can justify termination of an agreement by reference to a failure of which it was not aware at the time of termination. The High Court explained that the 6 Commercial contracts

7 PAST THE POINT OF NO RETURN: HIGH COURT PROVIDES GUIDANCE ON TERMINATION RIGHTS Comment This decision is a useful reminder that a party can justify a decision to terminate by reference to a failure of which it was previously unaware. The Heisler exception will only apply if the other party could have taken steps to prevent the contractual breach from occurring had it received notice of the failure. Further, contracting parties should consider whether they wish to exclude the right to terminate for certain repudiatory breaches or to specify a time period within which such breaches must be rectified. If so, the parties should take care to ensure that their intentions in this regard are clearly set out in the contract. 7

8 MODERN SLAVERY AND SUPPLY CHAIN REPORTING Modern Slavery and Supply Chain Reporting The Modern Slavery Act 2015 (the Act ) came into force on 26th March 2015 and consolidates various offences relating to slavery, forced labour and human trafficking in the United Kingdom. In an attempt to address modern slavery in supply chains, the Government introduced section 54 of the Act which seeks to encourage businesses to identify and address slavery and human trafficking occurring in their own supply chains and organisations. Supply Chain Transparency Provisions Under section 54 of the Act, all commercial organisations carrying on business in the UK with a global turnover exceeding 36m are required to publish an annual modern slavery transparency statement. Section 54 came into force on 29th October The requirement to publish an annual modern slavery transparency statement applies to organisations with a financial year-end of 31 March 2016 or later. Commercial organisations with a financial year that ends before 31 March 2016 do not have to make a statement in respect of that financial year. The statement should be published ideally within six months of the organisation s financial year-end. The statement should set out either (i) the steps which the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chain or any part of its business; or (ii) that it has taken no such steps. The Act does not dictate the precise content of the statement or how the statement should be structured. However, the Act does provide a non-exhaustive list of information which may be included, such as: an outline of the organisation s business model, structure and supply chain relationships; the organisation s policies relating to modern slavery, including the due diligence and auditing processes implemented; details of the training available and provided to members of the organisation; the principal risks relating to slavery and human trafficking, including how the organisation evaluates and manages those risks in their organisation and supply chain; and relevant performance indicators to gauge the organisation s progress on the above from year to year. Statutory Guidance While the requirement under section 54 of the Act section is only to report on the steps taken, if any, to ensure that slavery and human trafficking is not taking place in a commercial organisation or its supply chains, the statutory guidance encourages all organisations to develop an appropriate and effective response to modern slavery. The Government s hope is that transparency in this area will lead to a race to the top as organisations compete in terms of the quality and content of their statements. Neither the Act nor the statutory guidance defines supply chain. The statutory guidance suggests that the reporting obligation applies to the whole supply chain extending beyond an organisation s first tier suppliers (i.e. those who directly supply to the organisation). The guidance encourages organisations to also engage with lower tier suppliers (i.e. those who supply to the first tier and others). The extent to which organisations can report on the steps taken with lower tier suppliers will vary and may be an area of the statement which organisations can develop year on year. 8 Commercial contracts

9 MODERN SLAVERY AND SUPPLY CHAIN REPORTING Comment When contemplating what actions to take in response to the requirement under section 54 of the Act, an organisation may wish to consider: whether its supplier due diligence includes an assessment of initial or on-going modern slavery risks. The extent of due diligence procedures should be proportionate to the level of influence which an organisation may have and the severity of any identified risk which could include country risks, sector risks or transactional risks; developing a modern slavery policy or amending a current policy and ensuring that suppliers are aware and understand the organisation s approach to modern slavery; adapting its commercial contract templates to include zero tolerance modern slavery clauses and statements ensuring compliance with local laws. These provisions could also include an obligation on suppliers that they have appropriate due diligence and similar modern slavery provisions with the lower tier(s) of the supply chain; the contractual consequences in relation to a breach of modern slavery provisions. The statutory guidance encourages corrective action and remediation and, where possible, the relevant organisation should work with the supplier to improve the situation. In circumstances where remediation is not possible it may be appropriate to include termination rights; and the existing agreements which they have in place with their suppliers. Organisations may wish to review the change of law clause and notify suppliers of the Act or ask suppliers to sign up to an addendum to incorporate modern slavery provisions. There is no requirement under the Act to implement the considerations noted, however they represent good practice and risk management and will assist in the organisation s ability to report on and address modern slavery risks within its supply chain and business. If your business requires advice regarding the applicability of or compliance with the Modern Slavery Act, please get in contact with a member of the CMS team. See below our earlier Law-Now articles and previous updates on the Modern Slavery Act: Quick off the mark: Businesses prepare to publish modern slavery statements from 31 March 2016 Government guidance now released on modern slavery and human trafficking statements Modern Slavery Act - is your business caught? 9

10 DUDE, WHERE S MY CAR? : RARE PORSCHES AND AGREEMENTS TO AGREE Dude, Where s My Car? : Rare Porsches and Agreements to Agree The Court of Appeal has considered the extent to which agreements to agree are enforceable in Hughes v Pendragon (2016) EWCA Civ 18. It held that a binding contract can be formed even where no final price or delivery date has been agreed and that damages should be awarded for a failure to deliver the goods in those circumstances. Background An agreement to agree can arise when parties enter into a contract in which key terms are left to be agreed upon in the future. If this results in a lack of sufficient certainty then such an agreement may be rendered unenforceable. Case law has established a number of indicators for use in determining what may constitute sufficient certainty, such as the clarity of the terms, the intentions and conduct of the parties as well as the wording of the obligation to enter into the agreement itself. Facts The circumstances of this case were described by the court as somewhat unusual. A customer contacted a car dealer to express his interest in purchasing a limited edition Porsche model, and was subsequently asked over the telephone to place a deposit that day if he wanted to be first on the order list. The customer placed the deposit and signed a vehicle order form incorporating the dealership s standard terms and conditions (although the price and specification sections were left blank). He then received confirmation by that he would be the first in line for a car if one was allocated to the dealership. The car was subsequently supplied to another purchaser. The original customer claimed damages for the difference between the list price he had contracted to pay (despite not knowing the exact amount at the time) and the current market value of the Porsche as determined by experts. The claim was dismissed in the County Court on the grounds that there was no contract but merely an agreement to agree. Even if there had been a binding contract, it was found that the dealership was not obliged by its standard terms to fulfil orders in the sequence they were placed and there would have been no breach. The first instance decision was duly appealed. Decision The Court of Appeal allowed the appeal, on the basis that the Sales of Goods Act 1979 ( SGA ) provides that a contract for sale of future goods can exist, and this may be the case even if the acquisition depends on a contingency which may or may not happen. It did not matter that, at the time of the agreement, there was no vehicle to sell, nor that the dealership may have never been allocated one. Similarly, it was held that the SGA explicitly recognises that the price of goods can be left to be fixed in a manner agreed by the contract. In this case, the standard terms and conditions that were signed contained a mechanism to fix a final price when the specification was agreed. The document had all the hallmarks of what would be expected in an agreement to sell a vehicle (including, for example, a governing law and jurisdiction clause). The lack of a delivery date was also not relevant to the existence of the contract, since under the SGA, where a seller is bound to send goods to a buyer and the time for this to occur is not specified, they are to be delivered within a reasonable time. Furthermore, the Court of Appeal found that the parties had entered into a collateral contract of which the confirmation sent to the customer was evidence. This was intended to have contractual effect. The effect of the collateral contract was to vary the terms of the principal contract, including in particular the discretion in the terms and conditions that orders for vehicles did not have to be fulfilled in the sequence that they were placed. Since the total number of vehicles produced was so few, there was no available market for the goods to allow for an accurate assessment of a measure for damages 10 Commercial contracts

11 DUDE, WHERE S MY CAR? : RARE PORSCHES AND AGREEMENTS TO AGREE under the SGA. The customer was therefore awarded a sum amounting to the difference between the price he would have paid for the Porsche and the price he would have paid for the nearest equivalent vehicle. Comment The judgment is an interesting one on a number of levels. Firstly, it confirms that agreements to agree can be binding where the lack of certainty is not so significant to be fatal to the working of the contract or the intention to create legal relations. Nevertheless, those seeking to rely on future agreements should ensure that as much detail as possible, including any mechanisms for determining detailed provisions, are included at the point of sale. Secondly, the decision is a reminder that oral statements (such as those given over the telephone to the customer before placing his deposit) can render written terms ineffective. In these circumstances, entire agreement clauses may be useful in ensuring that contractual terms are not later altered. Finally, it illustrates how a court may calculate loss of damages where there is no market for a buyer to purchase replacement goods and highlights the types of evidence which may be required for such a calculation to be made

12 CONTRACTUAL INTERPRETATION REVISITED: USING IMPERATIVE LANGUAGE Contractual Interpretation Revisited: Using Imperative Language The High Court has reaffirmed the principles that apply to the interpretation of commercial contracts in Canary Wharf v Deutsche Trustee Company Limited and others [2016] EWHC 100 (Comm). It is now clear that the starting point is to examine the language used by the parties in the contract. Only where the language is unclear should the court consider the commercial sense of the provisions in question. Facts A company in the Canary Wharf Group (the Issuer ) issued mortgage-backed debentures (the Notes ) as part of the securitisation of the Group s property portfolio. The terms of the Notes were set out in a trust deed (the Trust Deed ). The Issuer lent the sums raised by the Notes to another company in the Group (the Borrower ) pursuant to an Intercompany Loan Agreement (the ICLA ). The Borrower further on-lent the sums to the owner of a secured property which was part of the securitised portfolio (the Mortgaged Property ). The Mortgaged Property was sold in June Clause 17 of the ICLA allowed the release of a secured property once a specified prepayment was made pursuant to condition 5 of the Trust Deed: (a) Each of the Issuer and the Trustee shall, upon the request of the Borrower, release the Security Interests it holds over a Mortgaged Property (and over any proceeds of sale thereof). if: (ii) in connection with the release of any Mortgaged Property the Borrower makes a prepayment of the Loans in an amount sufficient to enable the Issuer to redeem Notes in a principal amount equal to the Release Prepayment Amount for such Mortgaged Property, together with all accrued interest thereon and any other amounts payable by the Issuer in connection with the redemption of the Notes (including, without limitation, pursuant to condition 5 of the Conditions) The Borrower paid a portion of the sale price to the Issuer. The Issuer then used the money to redeem some of the Notes early. The issue was whether the Issuer had effected the redemption of the Notes under condition 5(b)(iv) of the Trust Deed, which applied when the proceeds were a mandatory repayment arising from the release of mortgaged property, or whether the redemption had been effected under condition 5(c), which concerned optional redemption. This distinction was important as, under condition 5(b) (iv), the Issuer was required to pay accrued interest on the mandatory repayment, whereas under condition 5(c), the Issuer would have to pay an additional sum as a premium on the optional redemption (which was in the region of 169 million). The Issuer argued that the payment had been made under condition 5(b)(iv) and therefore it did not have to pay the premium. The question for the Court was whether the payment made under Clause 17 of the ICLA and condition 5 of the Trust Deed could be categorised as a mandatory or optional prepayment. The Decision The Court found against the Issuer. It held that the language of the relevant provisions was clear and unambiguous and, accordingly, the prepayment was a voluntary prepayment, not mandatory. It also found that the construction of the provisions was consistent with the commercial sense of the transaction. 12 Disputes Commercial Digest contracts

13 CONTRACTUAL INTERPRETATION REVISITED: USING IMPERATIVE LANGUAGE The Court applied the principles of interpretation summarised in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, as follows: 1. the aim of contractual interpretation is to ascertain what a reasonable person would have understood the parties to have meant; 2. the relevant reasonable person is one who has all the background knowledge which would have reasonably been available to the parties in their situation at the time of the contract; 3. if there are two possible constructions of the contract, the court is entitled to prefer the construction which is consistent with business common sense; 4. however, where the parties have used unambiguous language, the court must apply it; and 5. the resolution of an issue of interpretation is an iterative process, requiring checking each possible meaning against the other provisions of the document and considering the commercial consequences. The Court found that the language of Clause 17 of the ICLA did not impose any obligation on the Borrower to make a prepayment. Other provisions in the ICLA used the word shall where the Borrower was required to make mandatory prepayments to the Issuer. Clause 17 of the ICLA, in contrast, did not contain any imperative wording but applied if the Borrower makes a prepayment of the Loans. The Court held that the Issuer had effected an optional redemption pursuant to condition 5(c) of the Trust Deed and a premium was payable. Although the Court had satisfied itself that the provisions were sufficiently clear and unambiguous, it then considered the commercial purpose of the agreement of the for the sake of completeness and by way of a cross check. It found that the commercial purposes of the securitisation was to provide the Canary Wharf Group with long-term finance while at the same time providing the holders of the Notes a specified fixed rate of return over the same period. If the Issuer could redeem the Notes at par at any time this would make a nonsense of the structure of the transaction and undermine the benefit of the long-term Notes. It was therefore not surprising that the ICLA and the conditions of the Trust Deed ensured a premium was payable to the Noteholders if redemption occurred through a voluntary prepayment. Comment This case reaffirms the approach of the courts when considering issues of contractual interpretation. It confirms that the courts will determine the intention of the parties to a contract by considering the written provisions of the document. The decision also emphasises the importance of using imperative language appropriately to reflect the commercial intention of the parties. Although the Court in this instance did consider the commercial purpose of the transaction, this was clearly a secondary consideration and merely served as a cross-check against the unambiguous language of the documents. 13

14 Commercial Contracts Round-up 2016 CMS is delighted to invite you to attend our Commercial Contracts Round-up 2016: a practical session focusing on key cases and recent legal developments in the world of commercial contracts, as well as a look at what s on the horizon in the coming year, including: recent changes in the courts approach to interpretation of commercial contracts; drafting enforceable penalty clauses; war stories: lessons learnt from contractual disputes; e-contracts; and termination. The Round-up is taking place at our offices in Glasgow, London,Edinburgh and Aberdeen in September The session will be of interest not just to in-house lawyers but also to those dealing with commercial contracts on a regular basis. Please click below to register your interest. Glasgow: 8.30am 11am, Monday 19 September Please register my interest London: 8.30am 11am, Friday 23 September Please register my interest Edinburgh: 8.30am 11am, Wednesday 28 September Please register my interest Aberdeen: 8.30am 11am, Friday 30 September Please register my interest 14 Commercial contracts

15 COMMERCIAL COURT INTERPRETS EXCLUSION OF LIABILITY CLAUSE IN SUPPLY CONTRACT Key Contacts Carina Healy Partner, Commercial - Glasgow T +44 (0) E carina.healy@cms-cmck.com Gemma Lampert Partner, Disputes - Edinburgh T +44 (0) E gemma.lampert@cms-cmck.com Kimberley Cross Associate, Commercial - Glasgow T +44 (0) E kimberley.cross@cms-cmck.com Lynn Gray Associate, Commercial - Glasgow T +44 (0) E lynn.gray@cms-cmck.com 15

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