The applicant does not dispute that delivery dates are an essential issue. However, the parties could not have foreseen that the option agreement was non-binding and they also contained an effective mechanism for determining delivery dates, without the need for an agreement in the future. The applicant argued that the latter point was based on two other implied terms. Its main case was the delivery date was the earliest date that the defendant with his best efforts in 2016 (option 1) or 2017 (options two and three) and failing that, the earliest date they could offer with his best efforts. Furthermore, it argued that the delivery date was objectively appropriate if the defendant`s undertaking was taken into account, given the defendant`s obligation, which must be determined by the court if it is not agreed. The Commercial Court followed the applicant`s argument that the parties wanted to enter into a binding contract and therefore had to attempt to implement the option agreement. In particular, he indicated that the option agreement was part of a “set of contracts” and that the defendant granted him the options, including the applicant`s subsidiaries that entered into the shipbuilding contracts. The High Court held that Swanton was not required to provide Morris with further advisory activities, since the contractual clause was merely an “agreement of agreement.” On this basis, it was not in force for uncertainty (the rest of the agreement was deemed enforceable). At first, it seems paradoxical: how can a party know what it will accept in the future if it does not know what it is prepared to do now? However, some trade agreements contain elements that should be negotiated at a later date. In particular, price and logistics clauses cannot be agreed immediately and require additional time to negotiate.
Some common agreements, which can be considered agreements to be concluded, are directors of agreements or declarations of intent. In the first appeal, the High Court found that the applicant had an enforceable right to counselling services for the first four-year period, but was not entitled to do so for another period. The obligation on the parties to agree on the length of an additional period was not applicable, as it was an agreement that did not contain a “mechanism” or “objective standard” for the Tribunal to “conclude” on the duration of the extension. The use of the word “option,” that is, a right contrary to the obligation to provide, did not help the applicant, who was still too uncertain to apply. The Court of Appeal also found that the word “reasonable” had been used to dictate how the parties should reach an agreement and not to compel them to a reasonable period of time. In addition, the factors identified by the applicant to assist the Tribunal in assessing the period were all economic factors that the parties, not the Tribunal, had to consider in their hearings. Therefore, even if the deadline had required the parties to agree on an appropriate extension, this would not have been applicable in the absence of an objective reference criterion in the GSO (or in the completion of the initial period) until the extension period would be set. The Tata case is a welcome reminder that the courts will generally attempt to put an end to fairly broad and vague renegotiation clauses in otherwise binding contracts, particularly when the parties have already largely fulfilled their respective obligations. But there are opportunities to increase the chances of a court applying such a clause: Morris is a useful reminder that the courts distinguish when it comes to agreements: as a result, the Commercial Court has decided that the parties have found that the option agreement is binding, but that because of the uncertainty, as an essential matter, the delivery times were not applicable. , did not make the agreement and were left for a future agreement between the parties.