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CONTRACTS – CONTRACT FOR THE SALE OF GOODS FOB – REMOTENESS OF DAMAGES IN BACK-TO-BACK CONTRACTS – COURT DEFINES LIMITS ON LIABILITY

Summary and Facts

In Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2024] 1 Lloyd’s Rep 639, Mitsui contracted to sell soybeans FOB (free on board) to Asia Potash. However, significant delays and an accident led to the vessel’s removal from berth, disrupting the transaction. Mitsui alleged that Asia Potash failed to re-berth the vessel, resulting in additional costs and a chain of financial losses due to a series of back-to-back contracts. Each party sought recourse up the contractual chain, with Mitsui seeking indemnities and damages in arbitration, which were initially denied on remoteness grounds.

Legal Issues

  • Whether Mitsui’s losses were foreseeable and within the reasonable contemplation of both parties, in line with the principles set out in Hadley v Baxendale.
  • Whether Asia Potash breached its contractual duty by not re-berthing the vessel.
  • The extent to which contractual losses can pass through a chain of contracts structured in a back-to-back manner.

What’s Back-to-Back Contract?

Back-to-back contracts are linked agreements, often with similar or mirrored terms, used in supply chains or projects involving multiple parties. Each contract aligns with the terms of the next, creating a chain of obligations and liabilities. In practice:

  1. If a party defaults, the resulting liability can cascade up or down the chain.
  2. Each party in the chain may claim losses or damages from the next, creating a string of claims, as seen in the Mitsui case.
  3. Terms like delivery schedules or quality requirements are often mirrored in each contract to ensure consistent obligations across the chain.

Court’s Findings

  1. The court found that the arbitrators misapplied the remoteness test by focusing too narrowly on the back-to-back structure instead of assessing if the type of loss was foreseeable. The case was remitted for reassessment under proper remoteness principles.
  2. The court denied Asia Potash’s attempt to invoke a liability-limiting clause as it was not raised in the initial arbitration.

Practical Implications

This case highlights that, even in back-to-back contracts, claims for damages depend on foreseeability and not just on the contractual structure. Businesses engaging in chains of contracts should ensure clarity on liability and indemnity provisions, as courts assess whether losses are within the reasonable contemplation of each party. Additionally, parties must proactively raise all arguments in arbitration to avoid forfeiting defenses. This ruling emphasises the importance of understanding back-to-back obligations in protecting against financial risk in linked transactions.

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