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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Forum Services International Ltd & Anor v OOS International BV [2020] EWHC 170 (Comm) (31 January 2020) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2020/170.html Cite as: [2020] EWHC 170 (Comm) |
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2020] EWHC 170 ( Comm) | ||
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL
COURT (QBD)
Royal Courts of Justice Strand, London, WC2A 2LL |
||
2020 |
B e f o r e :
____________________
| (1) FORUM SERVICES INTERNATIONAL LIMITED (2) FORUM MACAÉ SERVIÇOS DE PETROLEO EIRELI |
Claimants |
|
- and – |
||
| OOS INTERNATIONAL BV |
Defendants |
____________________
Nigel Eaton QC (instructed by Holman Fenwick Willan LLP) for the Defendant
Hearing dates: 7-10 and 15 October 2019
____________________
Crown Copyright ©
Robin Knowles J:
Introduction
commission
of approximately US$13.5 million from OOS as a result, at 3% of the contract value.
The parties
The facts
The 2010 Bid
communication
[Mr Overdulve] was receiving by Petrobras was forwarded to me as a matter of information … as a matter of coordination of our work". Mr Overdulve accepted that "it would be a wide-ranging cooperation, not just for Petrobras bids and market inquiries, but also if there were any spot opportunities", and that the "main part" of the relationship was that Forum would act as agent in dealing with bids and market inquiries from Petrobras.
commercial
representation for the contract. Then, when the contract with Petrobras is signed, we can establish a local services agreement for services to be provided in Brazil by us (our Brazilian entity)".
commission
of 3% of contract value, including mobilisation of "the Asset" to the location, should a customer contract for "the Asset".
commission
if it facilitated a charter of "Halani 1" between its owner and Petrobras. On 26 October 2010 Mr Duhen told Mr Overdulve that he would prepare the "SMU bid". On 27 October 2010 OOS proposed the "Halani 1" and the "HOS Achiever" to Petrobras.
Commission
(3%)".
communications
with Petrobras and representatives of the proposed vessels, and corresponding with and attending meetings with Petrobras.
The 2011 Market Inquiry
comments
from Petrobras about what they required in their "preferred vessels".
commission
requested by DRJ (including Anaje's fee) was "7.5% (2.5% + 5%) as discussed in Brazil".
commission
the following day and attached a draft
commission
agreement. On 10 July 2011 Mr Overdulve emailed Mr Mayer, saying "with all the
commission
to be paid (presently 10.5%) can you please inform Anaje that we cannot go below 130K per day for the units". The figure of 10.5% included 3% in respect of Forum.
commission
fee agreement with DRJ, which provided for the payment of a 7.5%
commission
"regarding the SMU Tender/Market Inquiry sent by Petrobras to OOS".
commercial
proposals for the "Halani 1" and the "Toisa Proteus".
commission)".
Mr Overdulve responded, "Let us stick to the original 30/70, there are more parties involved within OOS, … The original idea is very attractive to both parties".
commission"
giving two figures, 1.5% and 7.5%. There was no reference to a 3%
commission
for Forum. However Mr Duhen responded to Mr Overdulve, "presentation excellent …we can start preparing Halani upon letter of award… Where do the figures come from? capex charter: I need upgrade plan, schedule…will you add a sheet for JV [i.e. joint venture] split?".
commercial
proposals and requested OOS to extend the validity of its proposal to 7 October 2011. On that extended date Mr Mauriac informed Mr Overdulve that "another offer has retained their [Petrobras'] preference and may be presented to Petrobras board for approval".
commission
agreement with Aspen. Mr Duhen provided feedback. On 6 December 2011 Mr Overdulve emailed Aspen with his
comments.
He forwarded this email to Mr Duhen, saying "forgot to copy the best horse in the stable".
The 2012 Market Inquiry
commission.
Mr Overdulve requested Aspen to sign off a draft agreement and proceed to "jointly finalize a contract with Petrobras".
commercial
agent, not as partner". Mr Duhen suggested that OOS respond to Aspen clarifying that "we would like Aspen to act as
commercial
agent only". On 25 October 2012 Mr Overdulve again requested Aspen to send a signed agreement between Aspen and OOS. Mr Eduardo Veiga returned a signed version.
commission
agreement with Aspen on 6 November 2012. Aspen requested OOS to provide two "credential letters" in Aspen's favour, which Mr Overdulve did on 6 November 2012. On the same day, OOS informed Petrobras that OOS had appointed Aspen to act on its behalf.
commercial
proposal for the "ex-SEDCO 700" and invited "OOS/Forum Services" for negotiation meetings in respect of that vessel on 13 December 2012. Mr Duhen confirmed that he would attend. On 5 December 2012 Mr Duhen confirmed that Mr Overdulve would also attend. Petrobras also requested analyses for "Toisa Proteus" and "OOS TBN".
commercial
proposal for the "DP3 SSCV" at a meeting due to take place on the same day.
committee
verbally confirmed that, if OOS accepted a daily rate of US$
170,000
for the "DP3 SSCV" then the bid
committee
would recommend to the Petrobras board the charter from OOS of "ex SEDCO 700" and the "DP3 SSCV" and would also provide a letter of intent subject to Board approval.
comments
on the draft proposal for the "DP3 SSCV". Mr Overdulve submitted to Petrobras a "best revised"
commercial
proposal for the "DP3 SSCV", on behalf of "We (OOS-International BV and Forum Services Brazil, FOROOS)". The revised offer read "This offer is only applicable and valid if both the DP3 SSCV and the Sedco 700 will be contracted and for both vessels an official signed LOI (subject Petrobras' Board approval) will be issued closing Friday January 18th 2013".
commercial
and contractual correspondence to Mr Oakley, the CEO. In relation to all technical matters relating to the Sedco 700, please
communicate
with Mr Duhen ensuring that OOS is kept in copy."
communications
from Petrobras in relation to docking system documents and technical information, which he addressed. He liaised with Mr Overdulve in respect of negotiations with Transocean for the financing and purchase of the "ex-SEDCO 700".
commitments
to Petrobras in respect of vessel visits, and to make no offers or "
commitments
or implied
commitments
on behalf of OOS international BV in respect of the Sedco 700 – either to owners or shipments …". He added "Forum is not authorised to act on behalf of OOS International BV".
From mid-March 2013
Forum's claim for rectification or that the Representation Agreement was varied
common
intention and outward expression of accord that "Asset" in the Representation Agreement "would include all those marine assets that Forum and OOS agreed from time to time that Forum would market and promote to potential oil and gas companies for the chartering out of those assets by OOS".
common
intention and outward expression of accord was no more than that the Representation Agreement would extend to assets that were identified in Exhibit A from time to time.
commission
is sought in these proceedings.
commission
to other projects, a level of
commission
which was derived from clause 3.1 of the draft. It says Mr Overdulve's request, "how do we handle the 3% agency fee to Forum on this one?" is only consistent with Mr Overdulve's belief, as at 28 September 2010, that the draft Representation Agreement applied to "all marine assets and all projects between OOS and Forum". Forum argues that the only credible explanation for OOS' reference to a 3%
commission
in reply is that both Forum and OOS understood that they had agreed upon 3% as a
commission
that would apply to "all projects between Forum and OOS".
common
intention was evinced in a wealth of correspondence and actions between them. The documentary record is, in itself, argues Forum, sufficient to demonstrate the
common
intention, and to show an outward expression of accord.
commission
was indicated in exchanges of 10 July 2011 and 20 September 2011.
common
intention or the outward expression of accord alleged by Forum.
common
intention and outward expression of accord to the effect that the parties might agree to apply the terms of the Representation Agreement in respect of other vessels. The difference between this and Forum's case is that the mere fact that Forum and OOS engaged together with a vessel would not be sufficient to engage the Representation Agreement. The Representation Agreement would only apply if the parties agreed to its terms applying in relation to the vessel.
common
ground that the Representation Agreement concerned at least "Halani 1". It may be that there was sufficient conduct to imply an agreement that the terms of the Representation Agreement applied in relation to the "HOS Achiever" and the "Toisa Proteus". Then even in 2010 it was clear that the parties did not agree that the terms of the Representation Agreement would apply to the "AHTS 12,000 BHTS" vessel.
commission
in the exchanges of 10 July 2011 and 20 September 2011? These showed that the Representation Agreement could still be applied if the parties agreed it should apply to a particular vessel. They do not, in my judgment, show more than that.
commission
being payable to Forum.
commissions
is consistent with that possibility.
commission
was firmly in the parties' minds from the outset of their discussions about a joint venture, and that explains Mr Duhen's reference to the "3%
commission"
in his discussions with Mr Overdulve about a prospective joint venture on 20 September 2011. Here however it is important to note that reference to 3%
commission
did not continue. I can accept that
commission
for Forum was still in the parties' minds in 2011, but not that it was the basis on which they were still working when they tackled, in the way they did, the 2012 Market Inquiry and specifically the "ex SEDCO 700" and the "DP3 SSCV" vessels.
commission".
I agree that this does contemplate a world in which a joint venture or a partnership co-exists with a
commission,
but only at that date and not in relation to the 2012 Market Inquiry and the two vessels the subject of these proceedings. It is also significant that financial statements or budgets subsequently prepared do not refer to any
commission
being payable to Forum.
Forum's claim in restitution
commercial
risk and the risk did not pay off. Forum and OOS knew where they stood. There was no default position: the parties had not agreed to apply the terms of the Representation Agreement in respect of the "ex SEDCO 700" and the "DP3 SSCV".
commission.
Payment for local services
Conclusions
commission (or equivalent) fails. It is entitled to the claimed payment for local services, less unpaid loan monies.