ON APPEAL FROM QUEEN'S BENCH DIVISION
2008 Folio 1057, 2009 Folio 192
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE PATTEN
| MIDGULF INTERNATIONAL LIMITED
|- and -
|GROUPE CHIMIQUE TUNISIEN
Michael Nolan (instructed by Salans LLP) for the Respondent
Hearing dates: 19 and 20 January 2010
Crown Copyright ©
Lord Justice Toulson :
"Buyer to guarantee the draft at Gabes Tunisia to be 32 feet
Arbitration. English law to govern. Venue in London.
All other terms and conditions as per Midgulf Saudi Arabia standard sales contract."
"Further to the above mentioned offer and our subsequent phone exchanges, we are pleased to confirm our agreement to purchase the offered cargo provided the following amendments to your offer:
The origin of the cargo is the Kingdom of Saudi Arabia produced by Saudi Aramco quality of which shall comply with GCT standard specifications as per annex 1 herewith attached.
The max guaranteed draft at both discharging ports Gabes and Sfax is 31 feet high tide.
Other terms and conditions as per your a/m offer except for its two last lines which must be cancelled."
"Thank you for your confirmation dated 26th of June, 2008. Kindly find attached the contract signed and stamped by us. Kindly countersign and stamp and send us a copy to the following fax number…"
Buyer to guarantee the draft at Port Gabes or Sfax, Tunisia, is 31.00 feet salt water.
10.4.4. Other terms
Buyer guarantees that vessel will be safely accommodated and discharged at discharge port if vessel arrive at a maximum draught of 31 feet…
This contract is to be construed and governed in all respects in accordance with English law.
English law to govern. Venue in London."
"Further to your offer by fax dtd 02/07/08 and further to your fax ref mg/j/2851 dtd 02/07/08, we are pleased to confirm the purchase of 150,000 mt of Saudi crushed lump sulphur at the following conditions:
Product: bright yellow crushed sulphur
Quantity: 150,000 mt +/- 10% (seller's option)
Draft at Gabes and Sfax ports: 31 feet maximum at high tide
Quality specifications: as per your offer by fax dtd July 2nd 2008
Origin: Saudi Arabia
Shipment: July, August, September 2008
Price: USD 895 pmt cfr (free out) Gabes or Sfax (buyer option) to be declared before crossing Suez Canal.
Consequently, you are kindly requested to submit to us the loading schedule at the rate of probably two vessels per month as well as the name of the performing vessels in July 2008.
We congratulate ourselves for this conclusion and look forward to its smooth execution."
"Thank you for your confirmation of acceptance of our offer dated 02/07/2008 per your fax….dated 07/07/2008. Accordingly we are in contract…"
"Subject: Crushed sulphur contract
Further to your fax dtd 27/06/08 enclosing the am contract, please find hereafter our proposed amendments
This contract is to be construed and governed in all respects in accordance with Tunisian law.
We suggest that the settlement of disputes to be submitted either to the Tunisian jurisdiction or to the arbitration of the International Chamber of Commerce with the application of a neutral law by both parties."
The judgment of Teare J
"Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing."
1. Midgulf's offer of 2 July was accepted orally on 4 July; or
2. Midgulf's offer of 2 July was accepted by GCT's fax dated 7 July but sent on 8 July; or
3. the agreement was contained in Midgulf's offer of 2 July, GCT's counter offer by fax dated 7 July and Midgulf's acceptance by email dated 9 July.
"What was confirmed in the telephone call of 4 July was GCT's agreement to purchase 150,000 mt of sulphur at $895 per ton. Such an agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later; see Pagnan v Feed Products  2 Lloyd's Rep 601 at p 619 (principles 4-6). However, if the oral agreement of 4 July was enforceable it did not contain a London arbitration clause."
1. A reasonable person knowing the background and circumstances would have understood what Mr Hamrouni said as nothing more than an expression of willingness in principle to buy 150,000 mt of sulphur at the price offered, coupled with an indication that the terms of the proposed sale would be addressed in a fax which was to follow.
2. It did not amount to an acceptance of Midgulf's offer of 2 July, but it did amount to the conclusion of a contract of sale on "main terms", which did not include an arbitration clause.
3. There was a mutual intention to conclude an oral contract, but it was void for uncertainty.
4. It amounted to an acceptance of Midgulf's offer including the arbitration clause.
"A communication may fail to take effect as an acceptance because it attempts to vary the terms of the offer… On the other hand, statements which are not intended to vary the terms of the offer, or to add new terms, do not vitiate the acceptance, even where they do not precisely match the words of the offer…The test in each case is whether the offeror reasonably regarded the purported acceptance "as introducing a new term into the bargain and not as a clear acceptance of the offer"."
As the judge acknowledged, the document did not invite a further discussion of terms, but appeared to treat a contract as having been concluded. In my view the most reasonable interpretation is that this was indeed its effect.
1. When an English court is considering an issue of jurisdiction in relation to a contractual dispute which may be governed either by English law or by a foreign court, it cannot use the putative law to resolve it; by default, it has no choice but to apply its own law.
2. In considering whether to grant an anti-suit injunction, the court should have regard to the fact that a foreign court, applying the alternative putative law, may reach a different result.
3. It would not be just to grant an anti-suit injunction when the English court's assumption of jurisdiction was not based on a reasoned comparison of the alternative possible governing laws but on a default rule.
4. In the present case there is evidence from an expert in Tunisian law that a Tunisian court would consider that the July contract was governed by Tunisian law and did not include an English arbitration clause.
"Where there is more than one possible putative law (as here) it makes no sense to decide which one to choose by any putative law. At this stage the court has no choice but to apply the law of the forum…"
"The question is whether the plaintiffs have a good arguable case that English law is the proper law. If they have, then there is jurisdiction to give leave. It may well be that there is also a good arguable case for some other law being the proper law and, if the action goes forward that case will prevail at the trial. That is not the point, at all events unless it is clear that the question of proper law cannot be further illuminated at the trial."
1. Under Tunisian law, when an offer indicates a fixed time for acceptance it is revoked if the indication of assent does not reach the offeror within the time he had fixed.
2. GCT's offer of 2 July, as amended by its later fax of the same date, was stated to be valid until mid-day on 7 July.
3. Since GCT did not reply to the offer by that deadline, the offer was treated as revoked.
4. The fax from GCT dated 7 July but sent on 8 July amounted to a new offer.
5. In order for that offer to give rise to a contract, it had to be accepted as it was and without the introduction of any new terms, according to Article 32 of the Tunisian Civil Code which states:
"The agreement to an offer is considered as similar to this offer when the acceptor says only I accept (without adding any new condition) or when he begins the execution of the contract without making any reserve."
6. Midgulf's fax of 9 July would not be considered an acceptance, applying the requirements of Article 32, but amounted to a new offer.
7. The parties were still in negotiation when GCT sent its fax of 14 July proposing Tunisian law and jurisdiction.
8. The negotiation period came to an end on 18 July when the parties agreed the final terms of a letter of credit covering the first delivery and so began the execution of the contract without further reserve.
9. GCT's proposal of 14 July regarding Tunisian law and arbitration had not been rejected by Midgulf and would be considered by a Tunisian court to be part of the deal.
"As a matter of principle, Mr Ben Fadhel's reasoning under Tunisian law is not proper because simply under the contract the parties agreed that it is to be construed and governed in all respects in accordance with English law."
"A court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed."
Documents for the appeal
"125. Practitioners who ignore practice directions on skeleton arguments (see CPR 52PD paras 5.10 "Each point should be stated as concisely as the nature of the case allows") and do so without the imposition of any formal penalty are well advised to note the risk of the court's negative reaction to unnecessarily long written submissions. The skeleton argument procedure was introduced to assist the court, as well as the parties, by improving preparations for, and the efficiency of, adversarial oral hearings, which remain central to this court's public role.
126. We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.
127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the growth in written advocacy (written opening and closing submissions and "speaking notes", as well as skeleton arguments) has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing, reading and writing time. As has happened in this case, the opponent's skeleton argument becomes longer and the judgment reflecting the lengthy written submissions tends to be longer than is really necessary to explain to the parties why they have won or lost an appeal.
128. The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them "in our own time" after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court."
Lord Justice Patten:
Lord Justice Mummery: