2009 Folio 192 |
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
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MIDGULF INTERNATIONAL LIMITED |
Claimant |
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- and - |
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GROUPE CHIMICHE TUNISIEN |
Defendant |
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Michael Nolan (instructed by Salans) for the Defendant
Hearing dates: 8,9 and 17 June 2009
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Crown Copyright ©
Mr. Justice Teare:
i) On 3 July 2008 GCT submitted a memorandum to the Tunisian Higher Commission for Public Deals seeking its permission to negotiate with Midgulf and purchase 150,000 mt of sulphur at a price of US$895 per mt CFR. The text of the memorandum suggests that other producers were seeking prices at $950-$1000 per mt and so the price on offer from Midgulf was regarded as attractive.
ii) On 4 July 2008 the Tunisian Higher Commission for Public Deals considered the proposed purchase of 150,000 mt of sulphur.
iii) Also on 4 July the purchasing department of GCT sent to the legal department the draft contract dated 27 June which had been amended to refer to the proposed purchase of 150,000 mt of sulphur and sought its opinion.
iv) On the same day the purchasing department also communicated with the financial department concerning the proposed purchase of 150,000 mt of sulphur and sought its opinion.
v) On 9 July the Higher Commission of Public Deals formally gave its permission in writing to the purchase of 150,000 mt of sulphur.
vi) Also on 9 July the legal department replied to the purchasing department suggesting that the contract for the purchase of 150,000 mt of sulphur be governed by Tunisian law and that disputes be resolved either in Tunisia or by ICC arbitration with the application of a neutral law. This appears to have been the basis of the fax dated 14 July sent by GCT to Midgulf (see paragraph 25 of my first judgment).
i) An offer dated 2 July 2008, accepted orally on 4 July 2008; and then confirmed or evidenced by fax dated 7 July 2008 (but sent on 8 July 2009);
ii) Alternatively, by an offer dated 2 July 2008, as accepted by a fax dated 7 July 2008 (but sent on 8 July 2008), "main terms" having been agreed orally in the intervening period on 4 July 2008;
iii) Alternatively, by an offer dated 2 July 2008, a counter-offer by fax dated 7 July 2008 (but sent on 8 July 2008) and an acceptance by e-mail dated 9 July 2008.
Midgulf's first case; an oral agreement reached on 4 July
Midgulf's second case; the offer in writing of 2 July was accepted by fax dated 7 July 2008, "main terms" having been agreed orally on 4 July.
Midgulf's third case; the counter-offer by fax dated 7 July 2008 (but sent on 8 July 2008) was accepted by e-mail dated 9 July 2008.
Conclusion