Morris is a useful reminder that when it comes to agreements, the courts distinguish between: there is no concept of “one size fits all” that can be invoked, since the courts will make their decision on enforceable force on the basis of their interpretation of the agreement as a whole. However, if a clause gives the parties the opportunity to accept or object at a later date, whether reasonable or not, the parties should consider that the courts will apply such a clause only slowly. Following previous case law that implemented agreements, the Tribunal found that the sub-contract contained a clear agreement to participate in the sharing of pain and profit in a way that was appropriate to participate in one way or another. The inability of the parties to agree on this point was a “difference” that the court found. The measure that was to guide the court was fairness and adequacy between the parties. In deciding what is right and reasonable, the court should be fully informed of the context and/or evolution of the “difference.” It should be able to take into account the arguments put forward by the parties themselves during their negotiations, the reasons for the non-procedural or non-continuation of negotiations, the reasons why the arguments are left in account and cannot be invoked, and all the other potentially relevant issues raised during the proceedings. The use of the word “option,” that is, a right contrary to the obligation to provide, did not help the applicant, who was still too uncertain to apply. The Court of Appeal also found that the word “reasonable” had been used to dictate how the parties should reach an agreement and not to compel them to a reasonable period of time. In addition, the factors identified by the applicant to assist the Tribunal in assessing the period were all economic factors that the parties, not the Tribunal, had to consider in their hearings. Therefore, even if the deadline had required the parties to agree on an appropriate extension, this would not have been applicable in the absence of an objective reference criterion in the GSO (or in the completion of the initial period) until the extension period would be set.
Traditionally, contracts with an agreement to agree on certain contractual terms in the future were considered too uncertain. In the renegotiation clause, it said: “… In the event of a major physical or financial change in the circumstances affecting the operation of [Tatas` steelworks] or the operation [of the port] by ABP on September 15, 2007 or at any time after September 15, 2007, any party may notify the other party a notification requiring a renegotiation of the terms of that licence… the parties immediately attempt to adopt amended conditions reflecting such a change in circumstances and, in the absence of an agreement within six months… the case is referred to an arbitrator… Tata had the right to terminate in writing, also after 15 September 2007, the termination of the licence for twelve months if it closed the two local steel mills. In 2015, Tata set up one of its sites, but its other plants remained operational. In February 2016, as part of the renegotiation clause, Tata announced that amended licensing conditions had been requested, including a 50% reduction in fixed royalties.