Bunge SA v Nidera BV [2015]

Bunge SA v Nidera BV [2015] UKSC 43 stands as a landmark decision by the United Kingdom Supreme Court, particularly in the realm of commercial law. The case provides crucial guidance on the evaluation of damages arising from the wrongful repudiation of a contract for the sale of goods.

The factual backdrop involves a contract between the parties for the supply of 25,000 metric tonnes of Russian milling wheat, scheduled for shipment in late August 2010. The contract incorporated GAFTA (Grain and Feed Trade Association) Form 49, outlining procedures for termination and default damages. A legislative embargo on wheat exports from Russia prompted the seller, Bunge, to notify the buyer, Nidera, of the embargo and declare the contract canceled. Nidera considered this a repudiation, accepted it, and commenced arbitration for damages of US$3,062,500.

Despite the lower tribunals, including the GAFTA panels, and the Commercial Court and the Court of Appeal of England and Wales upholding Nidera's claim, the Supreme Court ruled in favour of Bunge. The court, led by Lord Sumption, emphasised the importance of commercial certainty but awarded Nidera only nominal damages of US$5.

Lord Sumption clarified that damages clauses, such as GAFTA 49, are not exhaustive codes for assessing damage. Such clauses do not exclude other considerations relevant to determining the innocent party's actual loss. While recognising the significance of commercial certainty, Lord Sumption held that substantial damages should not be awarded when the claimant has suffered no real loss.

The ruling underscored that damages clauses, even if prescribing a fixed measure of loss different from common law principles, should not operate arbitrarily unless expressly intended. The court rejected an interpretation that would disproportionately favour the buyer financially. The decision drew parallels with the Golden Victory case, emphasising the compensatory nature of damages in various contract scenarios.

The significance of Bunge extends to its impact on GAFTA 49, a widely used standard form in commodities transactions. The case clarified that clear and express language is necessary to override common law principles, adding complexity to such contract clauses. While the decision stirred debates and concerns, it ultimately resolved uncertainties arising from previous rulings and reaffirmed the risk allocation function of contracts.
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