Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE COOKE
Between :
SOCIMER INTERNATIONAL BANK LIMITED | Claimant |
- and - | |
STANDARD BANK LONDON LIMITED | Defendant |
Mr R Millett, QC and Mr Iain Quirk (instructed by Allen & Overy, Solicitors, London) for the Claimant
Mr S Auld, QC (instructed by Jones Day, Solicitors, London) for the Defendant
Hearing dates: 4th and 5th May 2004
Judgment
Mr Justice Cooke :
Introduction
This is the trial of a preliminary issue concerning the true construction of the agreement dated 8th November 1996 (the Agreement) which constituted the Standard Terms for Forward Sale Transactions between the claimant Bank which is in liquidation (Socimer) and the defendant Bank (Standard). The Agreement was an umbrella agreement which governed the making and performance of individual forward sales transactions between Socimer as buyer and Standard as seller of emerging market assets at set future dates and set prices. The emerging market assets were Latin American Debt Instruments of one kind or another and the individual transactions were effected orally but evidenced by documentary Trade Confirmations, as defined in the Agreement.
Socimer’s Liquidator claims that Standard should account to it under clause 14 of the Agreement for the sum of US$ 13,818,543.99 after entered liquidation on 3rd March 1998 and the concomitant termination of the Agreement on 5th March 1998 when notice was given to Standard. Socimer argues that, at that date, the value of the Designated Assets (as defined in the Agreement) which were the subject of extant Trade Confirmations exceeded the amounts payable under the Agreement by Socimer. Standard maintains that it was not the liquidation of Socimer, nor notice thereof, which brought the terminating provisions into effect but Socimer’s earlier default in failing to make payments due on 20th February 1998. For present purposes it matters little which of these dates is the relevant date since the real issue between the parties is the mechanism which operates on events of default under the terms of the Agreement. Standard says that following Socimer’s default, whether by non-payment or entering liquidation, it was entitled to sell the Designated Assets in its discretion over an extended period of time and apply the proceeds against sums owing to it under the Agreement from Socimer. Because of the timing of the sales and the way in which the market moved, following Socimer’s default, the assets were sold for amounts which fell far short of the amounts which Socimer owed Standard at the date when Socimer contends that the Agreement was terminated, so that Standard alleges that Socimer owes money to Standard and not vice versa.
Socimer’s primary business was as an investment bank specialising in emerging market bonds and other instruments, involving trading with its customers on margins. It did this in part by forward selling emerging market assets to such customers. In order to be able to undertake such transactions, Socimer itself had entered into forward purchase and/or re-purchase transactions with other banks such as Standard. Socimer’s relationship with Standard in respect of such trades began in 1994 or earlier and there were various agreements entered into between them during 1994 and 1995 governing such trades. Initially there were documents governing individual deals but on 6th November 1995, the parties entered into an umbrella agreement to govern future forward sales, and on 8th November 1996, they agreed that the Agreement in issue would govern. The terms of the critical clause did not change much between the two umbrella agreements.
The Agreement
Under the terms of the Agreement Standard agreed to sell and Socimer agreed to buy such relevant emerging market assets as might be traded from time to time (the “Designated Assets”) at a fixed price payable (defined as the “Forward Value”) on an agreed forward date, generally 90 days following the conclusion of each individual agreement which was evidenced by a Trade Confirmation. That forward date was defined in the Agreement as “the Forward Settlement Date”. Socimer paid a “Downpayment” (as defined) on the making of the trade which represented a percentage of the sum due on the Forward Settlement Date. The market value of the Designated Assets was monitored by Standard by marking the assets (or a group of such assets) “to market”, and if the Downpayment was insufficient as a percentage to cover the Forward Price by the agreed amount (half the remaining equity in the assets or group of assets) Standard could call for Additional Downpayments and Subsequent Additional Downpayments (as defined) in a similar way to margin calls.
The assets which were the subject of the forward sales were usually assets sold by Socimer to Standard as spot sales or were assets purchased by Standard at Socimer’s request. At the Forward Settlement Date, Standard was obliged to sell and Socimer to purchase the Designated Assets concerned at the Forward Value. Socimer was obliged to pay the unpaid amount which was in essence the difference between Forward Value and the Downpayment, Additional Downpayments and Subsequent Additional Downpayments already made. If by the Forward Settlement Date, the market value of the Designated Asset had fallen as against the Forward Value, Socimer was bound to pay the unpaid amount and would suffer the loss in market value of the asset in the meantime. If however the market value of the Designated Asset had risen against the Forward Value, then Socimer would be in profit.
Although Standard maintained that in essence, the Forward Sales Transactions took effect as loans, and that the default provisions had to be considered in that light, Socimer stressed that the parties had deliberately framed their transactions as Forward Sales with real sale and purchase obligations. Moreover, under the terms of the Agreement there is no doubt that Standard retained ownership of the Designated Assets until payment of the unpaid amount by Socimer, who had until then no legal or equitable interest in the Designated Assets at all.
Standard adduced evidence of fact as to the matrix of the Agreement and expert evidence with regard to Forward Sales in the Emerging Markets Debt Market. There were arguments as to the admissibility of some of this evidence but the following was clear from the terms of the Agreement and the evidence given:
The forward sale transactions entailed Standard funding the difference between the Market Value (as defined) of the relevant Designated Assets at inception of the Transaction and the Downpayment (or Additional Downpayments) during the period up to the Forward Settlement Date. Thus, in the circumstances set out in paragraph 5 of this Judgment, Socimer was effectively able to borrow the difference for its own commercial purposes and Standard received remuneration for that in the shape of the Forward Value, payable by Socimer on the Forward Settlement Date which took account of the costs of funding.
By monitoring the value of each Designated Asset, Standard was able to restore the ratio of the value of the Designated Asset to the amount of financing provided by it, by seeking Additional Downpayments and thus maintaining the same level of “security” in the event of Socimer’s failure to pay the Forward Value.
Standard carried out a valuation process, using its reasonable judgment on a daily basis. For liquid assets, the valuation would be carried out on the basis of screen prices for the assets and conversations with various market participants. For more illiquid assets where there were no readily available markets and no screen prices, Standard might have to use its own commercial judgment.
In the case of such illiquid assets, the value placed upon them by Standard was not necessarily that which would be obtained on an actual sale, because of the difficulty of evaluation of such assets and the volatility of the market.
Smaller debts from less developed economies are highly illiquid, are traded infrequently and are known as “exotics”. For debts like these, it would be difficult to find buyers, even in the specialist market for emerging market debt where those involved were almost invariably serious risk takers. Most trading in the global over-the-counter market for emerging market debt instruments has centred on or around 15 to 20 major dealers over the last 10 years and much of this trading takes place through dealers. Exotics would not however be transacted through brokers, nor would prices be available on screens.
Volatility is a hallmark of the market so that market players have to have a high-risk appetite. Many will borrow funds in order to invest in the market. There are a number of ways in which leverage can be achieved by the obtaining of finance, namely:-
Buying an asset spot and obtaining a loan to pay for it.
Buying an asset spot and obtaining finance via a re-purchase (or Repo) agreement.
Purchasing an asset on a basis which allows for the purchase proceeds to be paid on a deferred basis, namely a forward purchase or looked at from the seller’s perspective, a forward sale.
In each of these cases, the buyers would take the financial risk and reward of the asset whilst being responsible for the payment of a financing cost inherent in the arrangement.
In a forward sale of the kind described above, the risk taken by the seller is essentially twofold: firstly, the counterparty risk, namely the risk of non-payment by the buyer: secondly, the assets risk, namely the risk that the instrument purchased would prove inadequate to satisfy the contractual forward price agreed with the buyer should it default (or indeed any price previously paid by the seller in order to obtain the asset in the first place).
Downpayments and margin calls or demands for Additional Downpayments mitigate the risk. A typical Downpayment on a liquid asset would be 15–25% whereas, in the case of an illiquid asset it could fall within the range of 30-50% of the price payable. Under the Agreement routinely the Downpayment was of the order of 30%.
On highly liquid assets, such as sovereign debt, prices are freely available and monitoring for margin calls is relatively straightforward. With more illiquid assets, however, there is an absence of real prices and the mark-to-market mechanics are difficult to operate. Almost invariably in such circumstances the contractual mechanism provides for the Seller to determine the Market Value and to be able to require additional margin or Downpayments in accordance with that judgment.
There is a difference between the terms usually available for forward buying of liquid assets and more illiquid assets. The former terms are more balanced, as between seller and buyer whilst the latter almost invariably favour the seller whose risk is increased because of the difficulty in realising the debt in the event of default by the buyer.
The expert’s view was that, once a default had occurred, it was essential to the Seller that he was able to access real prices in order to assess whether he had any exposure to loss. The only definitive measure of value was, in his view, the price for which the assets could actually be sold, rather than any prices which were theoretically to be seen on screens or to be gauged by database systems (such as Bloomberg), telephone calls to market professionals, arrangers/ lead managers of the issue in question, research sheets and comparable instruments. The expert opined that if there were no real buyers for the debt in the market and there was therefore no price at which the debt could be sold, it would be necessary to value the asset at zero. With such an Instrument, the Downpayment was likely to be high.
The standard form documentation for forward sales of liquid assets accorded with the PSA/ISMA terms and conditions but these were tailored to individual transactions. Nonetheless, they were more evenly balanced than the terms and conditions which would be expected for forward sale agreements for illiquid assets.
The assets actually traded under the Agreement were those to be expected for an agreement of this kind. They were what was described as a “mixed bag” containing certain assets which were liquid and some which were described as “illiquid”.
Different lists were produced by the parties amounting to 35 or 47 Designated Assets traded under the Agreement, but all save about 8 of these appear to have been sovereign debt instruments which were readily tradeable. Less than 25% could be considered relatively illiquid or exotic. The evidence established that it was the corporate indebtedness which was not securitised which constituted the most illiquid assets whilst the government bonds were the subject of reasonably regular deals.
Of the 8 or so “illiquid” debts referred to, it appears that at least 5 or 6 of these had been sold by the time of the events in question. As at close of business on 30th September 1998, 2 of the assets which were considered illiquid, namely Socma Americana SA 10.5% Maturing 11/2002 and Brazil TDA-ES with various maturities had not been sold and the unpaid amounts due in respect of them from Socimer totalled just over $ 10M. 4 other assets remained unsold which do not appear to have been particularly illiquid on which the Unpaid Amount (as defined) due ran to the order of US$ 4M.
Some of the Designated Assets were, in market perception, capable of being traded under PSA/ISMA terms and, on the documents, were so traded by Socimer with other counterparties.
Standard maintained that the exotics were not tradeable on these terms.
There was no evidence before the Court to illustrate any common objective on the part of Standard and Socimer in entering into deals on the basis of the Agreement, as compared with the PSA/ISMA terms and conditions. The PSA/ISMA terms contained a detailed set of provisions as to what was to occur on the happening of an event of default. This involved a calculation of the Default Market Value at the Default Valuation Time (as defined in PSA/ISMA type agreements) and the taking of an account for each Transaction on the Re-purchase Date which was deemed immediately to occur. Standard contrasted this with Socimer’s own terms and conditions for its customers which gave it a wide discretion in a fairly one-sided document as to disposal of the assets to ensure that it did not lose out from its customers’ defaults. At the PSA/ISMA end of the spectrum was a valuation procedure, whilst at the Socimer/customer end of the spectrum, there were wide ranging powers of sale which were exercisable by Socimer to recoup losses resulting from customers’ breaches.
Earlier agreements between the parties were produced at the hearing but little was to be gained from this and any comparison between them.
It was against this background that the terms of the Agreement fell to be construed.
The terms of the Agreement
The relevant terms of the Agreement are as follows:-
““ Forward Value” means, with respect to each Transaction, the value in the Payment Currency at which the Transaction is entered into on the Trade Date, inclusive of the Seller’s cost of Funds, as specified in the Trade Confirmation.
…….
“Mark-to-Market Loss” means, on any day and for any Transaction, either of (a) where (i) the Market Value is less than the Forward Value and (ii) the Policy Unpaid Amount is less than the Unpaid Amount, an amount determined by subtracting the Forward Value from the Market Value, or (b) where (i) the Market Value is greater than or equal to the Forward Value and (ii) the Policy Unpaid Amount is less than the Unpaid Amount, an amount determined by subtracting the Unpaid Amount from the Policy Unpaid Amount.
“Market Value” means, on any day and for each Transaction, the value in the Payment Currency determined by the Seller in its sole and absolute discretion for assets of the same description and type, denominated in the same currency and in the same principal amount as the Designated Assets.
………….
“Policy Unpaid Amount” means, for each Transaction, an amount determined by multiplying the Policy Unpaid Percentage by the Market Value.
“Policy Unpaid Percentage” means, for each Transaction, the maximum permissible Unpaid Amount (expressed as a percentage of the Market Value) determined by the Seller min its sole and absolute discretion,
………….
“Unpaid Amount” means, on any day, and for each Transaction, the total outstanding currency amount payable with respect to the relevant Transaction as determined by the Seller, being the Forward Value less the Downpayment, any Additional Downpayment and any Subsequent Additional Downpayment(s) plus any other moneys owing to the Seller.
…….
2. DOWNPAYMENT
(a) A downpayment as determined by the Seller (the “Downpayment”) will be required from the Payer and shall be payable to the Seller with respect to each individual Transaction. The Downpayment……..will be treated as a partial payment of the amount due to the Seller. The parties hereby agree that the Downpayment shall be non-returnable once paid.
………
3. CONSIDERATION FOR SALE AND PURCHASE
(a) On or prior to the Forward Settlement Date for each Transaction, the Buyer shall pay to the Seller the Unpaid Amount with respect to such Transaction in the Payment Currency.
……..
(c) For the avoidance of doubt and subject to receipt of the Unpaid Amount in accordance with Section 3(a), the Buyer shall not acquire any legal or equitable interest in the Designated Assets until the Forward Settlement Date but the Seller shall consult with the Buyer (without any obligation to carry out the Buyer’s wishes) in connection with the exercise of any right or discretion or performance of any obligation by the Seller under or pursuant to any of the Designated Assets.
4. FORWARD SALE
(a) On each Forward Settlement Date, subject to the prior receipt by the Seller in full of the consideration referred to in Section 3, the Seller shall sell to the Buyer, without recourse, and the Buyer shall purchase from the Seller, all of the Seller’s rights, title and interest in respect of the Designated Assets (which expression shall include all interest and in the case of bonds, coupons, and other amounts due in respect thereof) for the period from (but excluding) the Effective Date to (and including) the Forward Settlement Date). ………..
6. ADDITIONAL DOWNPAYMENTS, SUBSEQUENT ADDITIONAL DOWNPAYMENTS
(a) Additional Downpayments
If at any time there is:
(aa) where Buyer has elected calculation of Additional Downpayments by reference to a particular Transaction only, (i) a Mark-to-Market Loss and (ii) the Mark-to-Market Loss is greater than one half of the Remaining Equity; or
……., then
the Seller may at any time while such circumstance exists request the Buyer, such request to be confirmed in writing, to make such further payment (a “Transaction Additional Payment”, …… to the Seller as will result in the Unpaid Amount, Sub-Portfolio Unpaid Amount or Portfolio Unpaid Amount being equal to the Policy Unpaid Amount, Sub-Portfolio Policy Unpaid Amount or Portfolio Policy Unpaid Amount, as the case may be. Upon any such request by the Seller, the Buyer shall, within one (1) Business Day or two (2) Business Days if not in U.S. Dollars), make such payment to the Seller in the amount notified to the Buyer in such request”
[Similar provisions applied to the making of Subsequent Additional Downpayments for a particular transaction and for portfolio and sub-portfolio assets]
“……….
(f) Any calculation made by the Seller under this Section 6 shall be conclusive and binding on the Buyer, in the absence of any manifest error.
………..
14. EVENTS OF DEFAULT
In the event that:
(i) the Buyer fails to pay when due any amount payable by it under these Standard Terms or any Trade Confirmation; or
(ii) a party becomes insolvent or generally fails or becomes unable to pay its debts as they become due or commences any bankruptcy, insolvency, liquidation, administration, receivership, administrative receivership or similar proceedings or any such proceedings are commenced against it; or
……….
(ix) a party repudiates or does or causes or permits to be done any act or thing evidencing an intention to repudiate these Standard Terms or any Trade Confirmation; then
(a) where such party is the Buyer, the Buyer shall promptly inform the Seller of such event and the obligation of the Seller to sell the Designated Assets to the Buyer and all of the other obligations of the Seller under these Standard Terms and each Trade Confirmation shall, save as otherwise provided in these Standard terms, terminate. Upon such termination, neither party shall be required to refund, pay or otherwise account to the other in any way whatsoever for any payments paid hereunder except as follows:
the Seller shall have the right, in its sole discretion, either:
(aa) to refund to the Buyer any Additional Downpayments and any Subsequent Additional Downpayments paid to it with respect to such terminated Transactions, after deducting therefrom any amounts due and owing to it under these Standard Terms and the Trade Confirmations (including without limitation any Downpayments or the amount of any losses, costs or expenses of the Seller, arising as a result of this termination, but not the Unpaid Amounts in respect of such terminated Transactions, the Buyer’s obligation to pay the same being terminated in consideration of the termination of the Seller’s obligation to deliver the Designated Assets in respect of such terminated Transactions); or
(bb) to liquidate or retain sufficient Designated Assets and to apply the proceeds of their sale to satisfy to the extent possible any amounts payable to the Seller under these Standard Terms and the Trade Confirmations, particularly, and without limitation, the amount of any Unpaid Amount, Downpayment, Additional Downpayment, Supplementary Additional Downpayment payable by the Buyer and the amount of any losses, costs or expenses of the Seller arising as a result of this termination and the sale of the Designated Assets.
The Seller may in its sole and absolute discretion sell the Designated Assets at such time, in such manner and at such price as it deems reasonable and appropriate. The value of any Designated Assets liquidated or retained and any losses, expenses or costs arising as a result of the termination or sale of the Designated Assets shall be determined on the date of termination by Seller.
Any Designated Assets remaining following the satisfaction of the Seller’s claims, shall be sold to the Buyer, in the same manner as is contemplated by these Standard Terms and the relevant Trade Confirmation, as soon as practicable after the date of termination. Any proceeds from the sale of the Designated Assets remaining following the satisfaction of all amounts payable to the Seller as stated above, shall be paid by the Seller to the Buyer.
In the event that any amounts payable to the Seller cannot be satisfied in full by the application of any Additional Downpayments and Subsequent Additional Downpayments, where (aa) applies, or the Designated Assets in the manner above, where (bb) applies, then the Buyer shall pay to the Seller an amount equivalent to the amount of the deficiency. The Seller shall prepare a certificate specifying the amount of the deficiency, and such certificate shall be conclusive and binding on the Buyer, in the absence of any manifest error. The Buyer shall make payment of such deficiency upon delivery of the certificate by the Seller in the currency or currencies specified in such certificate.
(b) where such party is the Seller, then ………
15. TERMINATION EVENTS
(a) In the event that:
“(i) due to the adoption of, or any charge in, any applicable law after the date on which any Transaction is entered into, or due to the promulgation of, or any change in, the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law after such date, it becomes unlawful, impossible or impracticable for the Seller to deliver the Designated Assets in respect of such Transaction or for either party to perform all or any of its obligations under or to comply with any other material provision of these Standard Terms or any Trade Confirmation; or
(ii) due to the adoption of, or any change in, any applicable tax law after the date on which any Transaction s entered into, or die to the promulgation of, or any change in, the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable tax law after such date, either party is or will be required to pay any additional amount in respect of tax relating to any part of, or a withholding or deduction is made from any payment to be made with regard to each Transaction; or
(iii) a Non-Convertibility Event occurs;
then the Transaction or Transactions so affected shall terminate with immediate effect upon notice being given of such termination by the party affected to the other party. Upon such termination the obligations of each party with respect to that Transaction or Transactions only shall terminate, save as otherwise provided in these Standard Terms and other than obligations equivalent to those set out in Section 14(a), which shall apply to such termination.
………………..
ACKNOWLEDGEMENT BY THE BUYER
The Buyer hereby acknowledges that:-
………….
(ii) the Seller shall not be liable for any loss or liability involving any Designated Asset, or arising from a currency transaction or contract or any other transaction or contract entered into in relation to a Transaction, including, without limitation, where such loss or liability results, directly or indirectly, from market or price fluctuations; or nationalisation, expropriation, devaluation, revaluation, confiscation, seizure, cancellation, destruction or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority or currency restrictions, exchange controls, taxes, levies or other charges affecting the Designated Assets or any Transaction, or acts of war, terrorism, insurrection or revolution, or any act or event beyond the Seller’s control; and
(iii) (A) it invests in and is a sophisticated buyer of assets similar to the Designated Assets in the normal course of its business; (B) it is familiar with the type of transaction undertaken pursuant to these Standard Terms and with assets of the type and description of the Designated Assets; (C) it has made its own independent appraisal of and investigations into the financial condition, credit-worthiness, affairs, status and nature of all the Obligors and the Designated Assets and the Asset Documents, and has examined such information concerning the Designated Assets as it has deemed appropriate; (D) it understands and is able to assume the risk of loss associated with such Designated Assets and has sufficient knowledge and experience to be able it evaluate the merits and risk of entering into Transactions with the Seller pursuant to these Standard Terms and (E) it recognises the volatile nature of the emerging markets and understands and accepts that circumstances may hereby arise in which it is impracticable for the Seller to notify or consult the Buyer before liquidating a position.
………. ”.
Principles of Construction
There was nothing between the parties on this but my attention was inevitably drawn to a number of authorities:-
In Rank Enterprises v Gerard [2001] AER 449 Mance LJ at p.452 identified the Court’s essential task as follows:
“To construe the documents in a manner which affects the mutual intention of the parties, against the background of the transaction as a whole, looking for the meaning which the language used – would convey to a reasonable person, having all the background knowledge which would reasonably have been available to the parties … but excluding previous negotiations and evidence of subjective intent.”
Lord Hoffman, in his well known judgment in the Investors Compensation Scheme v West Bromwich Building Society [1998] 1 AER 98 described the fundamental change which has overtaken this branch of the law as intended, at pages 912-913, as follows,
“To assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of “legal interpretation” has been discarded.”
The principles which emerged from Lord Hoffman’s judgment are in summary as follows:
(1) Interpretation/construction is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge available to the parties at the time of the contract.
(2) The phrase famously used by Lord Wilberforce “matrix of fact” if anything understates what the background may include. Subject to the requirement that it should be reasonably available to the party (save as to specific exceptions) it includes absolutely anything which could have affected the way in which the language of the document would have been understood by a reasonable man. The exclusions concern previous negotiations and subjective intent which are admissible only in relation to rectification.
(3) The meaning which a document (or for that matter any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of the words is a matter of dictionaries and grammar; the meaning of a document is what the parties using those words against the relevant background could reasonably have been understood to mean.
(4) The relevant background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must for whatever reason have used the wrong words or syntax.
(5) The rule that words should be given their natural and ordinary meaning reflects the common sense proposition that one does not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”
In Mannai Investments v Eagle Star [1997] 3 AER 352 Lord Steyn said:-
“In determining the meaning of the language of a commercial contract and unilateral contractual notices the Court therefore generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of a reasonable commercial person is hostile to technical interpretations and undue emphasis on the niceties of language.”
Lord Hoffman in Mannai specifically dealt with the question of “wrong words”. He observed (at page 375):
“It is of course true that the law is not concerned with the speaker’s subjective intentions. But the notion that the law’s concern is therefore with the meaning of his words conceals an important ambiguity. The ambiguity lies in a failure to distinguish between the meaning of words and the question of what would be understood as the meaning of a person who uses words. The meaning of words as they would appear in a dictionary and the effect of their systematical arrangement as it would appear in a grammar is part of the material which we use to understood a speaker’s utterance. But it is only a part; another part is our knowledge of the background which enables us not only to choose the intended meaning when a word has more than one dictionary meaning but also to understand the speaker’s meaning often without ambiguity when he used the wrong words.”
In Don King Promotions v Warren [1998] 2 ADR 608 at page 624 Lightman J summarised the position as follows:-
“The essential task of construction is to deduce, if this is possible, from the two agreements construed against their commercial background, the commercial purpose which the businessmen and entities who are parties to them must as a matter of business common sense have intended to achieve by entering into them; and if such intent can fairly be deduced and if this is necessary to effectuate that intent, the Court may require what may appear to be errors or inadequacies in the choice of language to yield to that intention and be understood as saying what (in light of that purpose) that language must reasonably be understood to have been intended to mean.”
I bear these principles very much in mind and also the need, in any commercial contract, to construe it in the light of commercial and business common sense. The authorities clearly show that the more unreasonable the result, the more unlikely it is that the parties can have intended it and if they do intend it then it is necessary that that intention should be made abundantly clear.
Mr Stephen Auld QC, for Standard argued that the Agreement had to be seen in the light of its underlying purpose, which was to govern what amounted to a series of lending transactions between Standard and Socimer with the result that clause 14 fell to be construed as a clause protecting the “lender” in the event of default by the “borrower” and giving powers to the lender to realise the security to satisfy amounts owing. Thus Standard focused on the sentence which referred to the Seller’s discretion to sell the Designated Assets and the first line of clause 14(a)(bb) where there was reference to application of the proceeds of sale to satisfy the amounts payable to Standard. Standard contended that the Close-out Valuation process which was part of the PSA/ISMA terms was entirely different from the sales process which was envisaged by clause 14 and the accounting between the parties which followed from realisation of the Designated Assets by sale. These processes involve different concepts and different mechanisms and were not to be confused. Where the sub-clause referred to the value of Designated Assets being determined on the date of termination by the Seller, the words used could not bring in a valuation process and were either to be treated as surplusage or to be ignored, as if struck out by a “blue pencil”. The only meaning which could be given to the sentence involved reading the “date of termination” upon which the determination was to be made as the date when the whole process of accounting terminated rather than giving it the same meaning as applied elsewhere in the clause. In reality, Standard could give no real meaning to this clause and required it either to be “blue pencilled” or redrafted in accordance with one of four options which were put before the Court.
The construction advanced by Standard would enable it to hold on to the Designated Assets, following default by Socimer and to sell them at any point in the future, applying the proceeds of that sale to the accounting equation for which clause 14 provided so that the Unpaid Amounts and all additional losses were fully covered. As appeared from a letter of September 1998, the practical effect was that considerable delay could ensue before finalisation of the position and the drop in the market over the intervening period meant that lower prices were obtained than might have been achieved on an earlier sale whilst, in accordance with the terms of the Agreement, Standard could charge Socimer interest at the high default rate for which the Agreement provided on the Unpaid Amounts.
Whilst Standard states that a construction which did not give it the freedom to realise the Designated Assets over a period of time in order to recoup its loss was uncommercial, Mr Richard Millett QC for Socimer maintained that Standard’s construction was uncommercial because it would leave Socimer subjected to continuing uncertainty for an indeterminate period in the future about the extent of any surplus or shortfall between the Unpaid Amount and Designated Assets and about the Designated Assets available to it, after a balance was struck (if any). It would permit Standard to “play the market” in the Designated Assets at Socimer’s expense whilst refraining from striking the equation and in the meantime charging Socimer interest at the default rate. Socimer contended there was no difficulty in treating this clause as a valuation clause because Standard was given a wide discretion in relation to valuation whilst “termination” in the clause meant the same wherever it appeared.
Socimer also contended that there was no problem here about liquid or illiquid assets since the Agreement drew no distinction between one or the other and treated all as capable of having a value to be determined by Standard. With such discretion in valuation, even if Standard was to be treated as a “lender”, it had adequate protection on Socimer’s construction of clause 14 in the event of default by Socimer.
Construction of the Agreement
A number of provisions in the Agreement make it clear that valuation of the Designated Assets, following conclusion of a Transaction, lies exclusively in the hands of Standard. Equally, the terms of the Agreement make it plain that such a value is assumed to be capable of assessment on any day. Thus:
Market Value means “on any day and for each Transaction” the value “determined by the Seller in its sole and absolute discretion” for assets of the same description, type, currency and principal amount.
This Market Value, as determined by Standard is then used for calculations for the Mark-to-Market Loss, for the purpose of assessing the need for Additional Downpayments and Subsequent Additional Downpayments. Any calculation made by Standard for that purpose “shall be conclusive and binding on the buyer in the absence of any manifest error”.
The definition of “Unpaid Amount” means “on any day and for each Transaction” the total payable “as determined by the Seller”, taking into account the agreed Forward Value, the agreed Downpayment and any Additional Downpayments and Subsequent Additional Downpayments which have been calculated by Standard and are conclusive and binding in the absence of any manifest error.
Under clause 14 itself, upon which the argument centres, “the value of any Designated Assets liquidated or retained shall be determined on the date of termination by Seller”.
Whilst the Agreement sets out Socimer’s acknowledgement of the volatile nature of the emerging markets in which the Transactions involving Designated Assets are taking place and the impracticability for Standard to notify or consult it before liquidating a position [clause 16(a)(iii)] and the considerable risks involved in the Designated Assets themselves [clause 16(a)(ii)] and therefore the difficulties which may arise with regard to the liquidation of such assets, the whole of the Agreement proceeds on the basis that it is possible to value the Designated Assets on any day. If the Designated Assets are the subject of forward sale, then the Agreement assumes that there is a market for such assets or at least that a “Market Value” can be determined for them by Standard, although the method by which it makes that assessment is left entirely to Standard’s own discretion. This, in my judgment is a crucial factor when approaching the question of construction of clause 14. That is not to say that there may not be difficulties in valuation if there are problems in identifying “assets of the same description and type” as referred to in the definition of “market value”, but as the procedure for calculation lies in the hands of Standard, it can hardly be put forward as an impossible valuation to make.
The importance of this is clear when the options given to Standard by clause 14 (a) (bb) are examined. It is accepted by Standard that if Standard exercises the option to retain sufficient Designated Assets to satisfy in part or in whole any amounts payable to it under the Agreement and the Trade Confirmations, a valuation exercise has to be effected. Unless such valuation is carried out, there is no basis for offset of those Designated Assets against the amounts owing to Standard by Socimer.
There is therefore inbuilt into clause 14 and the Agreement as a whole a requirement for valuation to which the crucial sentence, upon which Socimer relies, refers. This crucial sentence reads:-
“The value of any Designated Assets liquidated or retained and any losses, expenses or costs arising as a result of the termination or the sale of the Designated Assets shall be determined on the date of termination by Seller.”
The overall structure of clause 14 is clear. The first paragraph sets out a series of events of default, including the buyers’ failure to pay, the insolvency of a party or its inability to pay its debts as they fall due and the repudiation of the Agreement. One or more of these applies in the present case to Socimer. The next part of the clause (sub-clause (a)) sets out the position where the defaulting party is Socimer, whilst the last part of the clause (sub-clause (b)) sets out the position where the defaulting party is the Seller. It is sub-clause (a) which gives rise to the dispute between the parties and this itself falls into three distinct parts, namely sub-clause (aa), sub-clause (bb) which, as can be seen from the degree of indentation of the paragraphs, includes three paragraphs before the third part of sub-clause (a) constituting the last paragraph of it which, on its own terms clearly refers to both (aa) and (bb).
The terms of sub-clause (a) provide for the parties’ obligations under the Agreement and each Trade Confirmation to terminate upon the event of default or the notice given by Socimer of its own default, except as specifically provided in the clause. This is clear from:
The first sentence which provides expressly that the obligation of Standard to sell the Designated Assets to the Buyer and all its other obligations under the Agreement and each Trade Confirmation shall terminate, save as otherwise provided.
Upon that termination, neither party is required to refund or repay any amount previously paid, save as expressly provided thereafter (see the second sentence of sub-clause (a)).
The Seller then has the right, in its discretion to adopt either the procedure set out in sub-clause (aa) or sub-clause (bb). Sub-clause (aa) refers in terms to “such terminated transactions” in three places, in the context of Standard’s election to refund Additional Downpayments and Subsequent Downpayments, after deducting sums due to it (including any losses but not the Unpaid Amount) while Socimer’s obligation to pay the Unpaid Amount is terminated in consideration of the termination of the Seller’s obligation to deliver the Designated Assets.
If Standard should decide that the procedure set out in sub-clause (bb) should be followed, that sub-clause gives the right to Standard to liquidate or retain sufficient Designated Assets to satisfy amounts payable to it under the Agreement and Trade Confirmations and refers to “this termination” and in the two succeeding sub-paragraphs to “the date of termination” which can only mean the date of termination previously referred to, namely the termination of Standard’s obligation to sell (which carries with it termination of Socimer’s obligation to pay the Unpaid Amount) and thus the Transactions as a whole, which are referred to as being terminated in sub-clauses (a) and (aa).
In my judgment there is no gainsaying the consistent references to termination in clause 14(a) and the date of termination can only be the date of the event of default or notice of that event.
Clause 15 of the Agreement reinforces this point inasmuch as it provides for termination of individual Transactions upon the happening of the events set out in that clause which make it unlawful, impossible or impracticable for the particular Transaction to be fulfilled. That clause provides expressly for termination of the Transaction or Transactions so affected and for the obligations of each party with respect to that Transaction or Transactions to terminate, save as otherwise provided in the Agreement and save for the obligations set out in clause 14(a) which are to apply to the termination.
Clause 14(a)(bb) has then to be construed in this context. It is clear that clause 14(a)(bb) provides in the first paragraph for Standard either to liquidate or retain sufficient Designated Assets and to apply the proceeds of their sale to satisfy amounts payable to it. Where the reference is to “proceeds of their sale” this must be taken to include the notional proceeds where the Designated Assets in question are retained and valued, as Standard accepted in argument. Of course, under the terms of the Agreement, the Designated Assets belong to Standard at all times until payment of the Unpaid Amount and transfer to Socimer, so that sub-clause (bb) gives Standard the right either to liquidate or to retain sufficient Designated Assets to satisfy the amounts outstanding under the Agreement. There is no question of Standard selling Designated Assets to itself since it already owns them but the object of sub-clause (bb) is plainly to make Standard “whole”, as Counsel for Standard put it in argument. Standard had expected to transfer the Designated Assets to Socimer on payment of the Unpaid Amount at the Forward Settlement Date, thus receiving the full agreed Forward Value which included its costs of funds without taking any risk on the value of the Designated Assets. The intention of the sub-clause is that Standard should recoup the amounts which it would otherwise have received and not be out of pocket in respect of any losses, costs or expenses which arise as a result of the termination and the sale of the Designated Assets. It could therefore sell Designated Assets to a third party or retain them itself in order to recoup these amounts, following which the third paragraph of sub-clause (bb) comes into play.
The third paragraph of sub-clause (bb) sets out what is to occur following “the satisfaction of the Seller’s claims”, namely the recoupment by Standard of the sums to which reference is made in the sub-clause. Once that has been done, the remaining Designated Assets which have not been liquidated or retained are to be sold to the buyer as contemplated by the Agreement and the Trade Confirmations, “but as soon as practicable after the date of termination”. Moreover if there is any balance from the sale of the Designated Assets following satisfaction of all amounts payable to Standard, Standard is also to pay this to Socimer. This provision makes it plain that the whole process of liquidation or retention is to take place “as soon as practicable after the date of termination”, which, as I have already held, can only mean the date of the event of default or notice thereof.
This means that Standard must elect whether to liquidate by sale to third parties or keep Designated Assets at the date of termination or at least as soon thereafter as is practicable, since the remittance to Socimer of any balance, after satisfaction of Standard’s claims, has to take place by that point.
It follows therefore that the second sentence of the second sub-paragraph of (bb), which I have already set out earlier in this Judgment, is entirely consistent with the procedure envisaged. If Standard elects to liquidate or retain particular Designated Assets, their value is to be determined on the date of termination by Standard itself. Self-evidently, the words “on the date of termination” must allow some latitude to Standard, particularly if the event occurs or notice of the event is given at 23.59 hours on the date in question. In practice it requires a determination “as at” the date of termination, but the principle is clear in requiring the election and the liquidation or the retention to be effected at that point or so soon thereafter as is practicable. The value of those Designated Assets, as determined by Standard, then has to be taken into account to satisfy amounts payable to Standard under the Agreement and the Trade Confirmation (which have also to be ascertained at that point), as provided by the sub-clause, including any losses, expenses or costs arising as a result of the termination of the sale of the Designated Assets.
The sub-clause does not envisage such lack of liquidity as would render this impossible to achieve. The words “the proceeds of their sale” in the first line of sub-clause (bb), which refer to the Designated Assets, are not therefore to be seen as inconsistent with the valuation “on the date of termination” in the second paragraph of that sub-clause. Standard itself can assess the value of the Designated Assets liquidated or retained in the same way as it can assess the Market Value as set out in the definitions clause in the Agreement. The whole point of the exercise is to crystallise the position as at the date of termination by reference to value as at that date.
Standard relied heavily on the first sentence of the second paragraph of sub-clause (bb) which stated that:-
“The Seller may in its sole and absolute discretion sell the Designated Assets at such time, in such manner and at such price as it deems reasonable and appropriate.”
Standard maintained that this sentence operated to give it discretion to sell the Designated Assets and apply the proceeds of the sale which they achieved, however long after the date of termination, in satisfaction of the sums owing to it under the Agreement, regardless of the second sentence of the second paragraph requiring the value of any Designated Assets liquidated or retained to be determined on the date of termination. The central difficulty with Standard’s construction of the clause is the absence of any meaning which it can properly give to the second sentence. The same problem does not exist with Socimer’s construction, since the purpose of the first sentence of the second paragraph of sub-clause (bb) is to make it clear that Standard does have, as it must have as owner of the Designated Assets in any event, a complete discretion about sale, whilst the clause as a whole is designed to ensure that the calculation of the net position between Standard and Socimer takes place at or immediately following the termination of the parties’ obligations, with immediate sale to third parties or retention by Standard, so that the existence of a surplus or deficiency is immediately obvious on the basis of the value of the assets as at the termination date. If there is a surplus the third paragraph of sub-clause (bb) comes into operation whereas if there is a deficiency, the last paragraph of sub-clause (a) as a whole comes into play with the preparation by the Seller of a certificate specifying the amount of the deficiency, which is again to be conclusive and binding on Socimer in the absence of any manifest error and which gives rise to the obligation on Socimer to make good that deficiency.
There is no difficulty in this from Standard’s point of view since the valuation exercise lies entirely in its hands as at the date of termination. If the value on the screens, or the information available from other sources, indicates a value which it regards as too high because of the nature of the Designated Assets and the difficulty in liquidation, Standard can take such matters into account, and provided that the assessment is in good faith and is not challengeable on any other basis, it can value the assets at a lower figure. If the assets are truly liquid then although it may be impracticable for Standard to notify or consult Socimer before liquidating, it can sell and the value which it would ordinarily attribute, in good faith, to the Designated Assets would be the value actually realised. If the assets appear completely illiquid, then in theory a zero valuation is possible. That is the essential assumption upon which sub-clause (b) works so that there is no conflict between “the proceeds of their sale” and the “value of any Designated Assets liquidated” as “determined on the date of termination by Seller”.
Whilst clause 14(a)(bb) is not a model of drafting, the overall intention is, in my judgment, clear. Whereas sub-clause (aa) provides for Standard to opt to retain the Downpayment and the Designated Assets and only to refund the Additional Downpayments and Subsequent Additional Downpayments (after deducting other amounts due and owing and losses arising as a result of termination), which Standard would presumably wish to operate if the Market Value of the Designated Assets exceeded the Forward Value or in a rising market, sub-clause (bb) provides for it to liquidate, whether by sale to third parties or retention at a value for its own account, sufficient Designated Assets to meet the outstanding amounts owing to it under the Agreement, which it would presumably wish to operate if the Market Value was lower than the Forward Value or in the event of a falling market. In the latter situation it would take on the market risk of particular assets which it chose to retain. Whilst it remained free in its sole and absolute discretion to sell the Designated Assets which it owned at any time and in any place and at any price, it was the value of those assets at the point of election to liquidate or retain which fell to be taken into account as a credit against the sums owing to it under the Agreement, before assessing the surplus or deficiency which would give rise to the remaining obligations in clause 14(a), under the last sub-paragraph of sub-clause (bb) and the final paragraph of sub-clause (a).
Conclusion
I hold therefore that, on the proper construction of the Agreement, Standard was obliged to value the Designated Assets as at the date of termination of the Agreement for the purpose of clause 14(a) of the Agreement and to bring into account the value so assessed as a credit against the amounts payable to Standard under the Agreement and Trade Confirmations and was not entitled to bring into account the actual proceeds of sale of those Designated Assets for the purpose of its continuing obligations to Socimer under that clause.
The parties may address me on the form of the declaration to be made and on the question of costs but, without making a final determination without hearing the parties, it seems to me inevitable that Standard should be ordered to pay Socimer’s costs of the preliminary issue, unless there is some peculiarity of which I am unaware.