Malibuflyer wrote:
It is not perfectly fine (and I would not suppose you do it at work) that you sign “best reasonable effort” contracts with customer B while you already have a contract with customer A that guarantees them privileged access to the same good.
They have not guaranteed customer A privileged access to the same good.
They have guaranteed customer A privileged access to production run X. They have then signed a best reasonable efforts deal with customer B and intended to fufill the order with production run Y. The fact that production run Y has a reduced yield and means they cannot meet the target for customer B in time does not entitle customer B to a share of production run X.
Malibuflyer wrote:
Absolutely not! If a seller sold the same good two two customers it is not at the sole discretion of the seller but upon the decision off courts to decide which of the two customers actually gets it and which doesn’t. It is common practice in such cases that the good is “frozen” by the authorities until a court has decided.
This might apply, in theory, to a single non-repeatable item, or as I earlier indicated to a piece or batch of stock uniquely identified by serial number or some such (like your plane). I say in theory because as you allude to PROB90 the item/batch has gone to the favoured customer and is not retrievable in any practical manner long before the matter gets anywhere near a court.
To loop it back to @Cobalt’s example, the Jaguar factory can in practical terms send the next car off the production line to whichever dealer it likes, regardless of whether any other dealer (or their customer) claims it as belonging rightfully to them. There is no real redress for the dealer because they wish to remain a dealer. The customer can of course walk with his money…
gallois wrote:
For me what is unforgiveable is to keep promising and never delivering.That goes for any business. AZ is not winning friends in Europe and that could well come back to bite them in the butt in years to come. Whatever the rights or wrongs of business and contracts. People in the EU may well need to be much more careful in any contracts they make with UK suppliers in the future.
Certainly true for the business. The AstraZeneca vaccine is either the number one or number two vaccine by production numbers in the world, the EU secured a small part of that and for whatever reason they get hit with the full impact of a delay in the EU-based facilities while others who were lucky with their facilities don’t have to share.
But what is silly by all parties – both on the EU and the UK side – is to characterise AstraZeneca as a “UK Company”.
It is a company which is
I have to say in my experience Graham’s interpretation is my experience of the commercial reality.
However, I think some of the discussion is adrift of the mark, because the contract is between AZ and the EU, NOT the EU and the UK.
If the EU have a contractual issue, the right way is to resolve the issue between the parties, you might try and find a mechanism for dragging a third party into the proceedings, but I cant imagine you would succeed because the UK has no direct relationship with the contract between AZ and the EU.
If the EU are really serious about their position they should issue a claim for breach of contract against AZ. Of course they wont for a raft of reasons, and they know it, hence trying to find every back door way of getting their way.
I do recognise it is a difficult line however. In times of crisis most countries consider they have the right to impose export bans on commodities vital to their crisis efforts. However, what they cant do is muddle this with a contractual dispute. Either you pure and simply ban the exports or you follow a legal course to establish whether or not there is a contractual breach. The UK has banned the export of 100 drugs considered vital to the UK’s Covid effort. The UK hasnt disputed what contracts the manufacturers may or may not have outside the UK. However, I dont think the EU would find even this an attractive solution because when the contracts were entered into the crisis was already well underway, so the contracts were in the full knowledge and with eyes wide open, whereas the drugs on the UK lists were nothing new and already subject to pre-existing contracts, and, in the majority of cases, not exclusively Covid related.
Malibuflyer wrote:
They just “blocked” (I don’t know the correct English legal term) them by preventing export and therefore keeping them under access of EU legislation until it is decided where they be delivered to. They did not become owner yet.
This is the equivalent of you parking your old car across the access road to the Jaguar dealer to prevent delivery to others.
The EU anger at AZ for not giving them more of the worldwide production may be justified. The action they are threatening is outrageous.
The contract says “[The parties] submit to the exclusive jurisdiction of the courts located in Brussels, Belgium to settle any dispute…..”, not “In the event of a disupte, the Commission will use any means necessary to force AstraZeneca to comply with its interpretation of the contract”.
Cobalt wrote:
The contract says “[The parties] submit to the exclusive jurisdiction of the courts located in Brussels, Belgium to settle any dispute…..”, not “In the event of a disupte, the Commission will use any means necessary to force AstraZeneca to comply with its interpretation of the contract”.
but as I said (above) in times of national crisis, states have done this in the past, and will do so in the future. An interesting debate is whether the current circumstances meet the criteria (as I also mentioned above), and if it does, why they would wish to defer to arguments of either contractual breach or undue influence from the UK?
I think the bottom line is that Brussels doesn’t have its own police force or army, so any action to e.g. raid a factory (like Italy did the other day) or blockade a factory, would need to be done with the approval of the EU member country where the factory is located, and by the looks of the news in the last 2 days, the countries that would be needed to do that (basically Belgium and Germany, I think) are not willing to do it, presumably due to the precedent it would create, not to mention massive reputational damage to the EU project, in the eyes of the rest of the world, plus the UK has a lot of control over a component of the Pfizer vaccine which is the one vaccine which Brussels is carefully avoiding slagging off because everyone (the UK included) needs it and is using it and that vaccine is also under-delivering but nobody talks about that 
Italy would clearly happily turn over any factory in Italy, but AFAIK neither Pfizer nor AZ have any production going on in Italy which is relevant to EU destinations and which those destinations are not getting.
Fuji_Abound wrote:
but as I said (above) in times of national crisis, states have done this in the past, and will do so in the future. An interesting debate is whether the current circumstances meet the criteria (as I also mentioned above),
Yes, but that is not what the EU is doing. They are specifically targeting the one exporter they have a dispute with (not all exports), and explicitly on the basis of an import / export imbalance with the UK. So the EU itself is explicitly NOT invoking an emergency at this point.
why they would wish to defer to arguments of either contractual breach or undue influence from the UK?
They wouldn’t, the UK got involved because the EU is threatening to park their Volkswagen across the driveway of the Jaguar dealer, when the UK was apparently expecting a Jaguar to be delivered…
But the water is really muddy here, as at the moment AZ claims there were no planned Jaguar deliveries to the UK, and of the two Jags currently being prepped in Italy one is for the EU, and the other one for Covax… So why on earth did Boris get involved? Clearly there is no shortage of hip-shooting ill-informed or disingenuous politicians on either side of the channel.
If I were conspiracy-minded, I would suspect AZ quietly shifted their supplies around, diverted the UK’s doses to Covax (which the EU explicitly allows) and quietly sourced the UK doses elsewhere. Which also illustrates that export bans in global supply and production chains are not very workable.
Some bad but interesting news from Germany, in an interview with a hospital doctor there. Their average age is going down and patients are in the 20-50 year range, with an average stay of 40-60 days (!), and with mortality having increased by 1.6x (he didn’t say from what previous figure). The long average stay will fill up the beds fairly fast.
A comparison with the UK is probably not directly possible because here the NHS sends you home as soon as you can be moved into a wheelchair! However, here, 10% of ex CV19 hospital patients die within 6 months of being sent home. And if you have been lying on your back in bed for a month, you will likely not be able to walk anyway afterwards…
This is a really bad disease, but imagine if it was 10x worse like e.g. SARS was in 2003.
Cobalt wrote:
Yes, but that is not what the EU is doing. They are specifically targeting the one exporter they have a dispute with (not all exports), and explicitly on the basis of an import / export imbalance with the UK. So the EU itself is explicitly NOT invoking an emergency at this point.
I agree.
So you think it is good business practice or best endeavours to agree to supply xx doses by January and fail to do so? Then agree to meet the order by the 2nd quarter and fail. Then after further discussion promise to supply by June, but this week declare that they would probably not be able to meet that deadline.
This might now be okay in the UK, it seems that “my word is my bond” is long gone ,but for many in Europe there is a huge loss of trust.
What started as an argument between customer and supplier has been escalated by the English press to one of the EU v UK.
On this forum people are lining up on National lines and the same arguments used as proof of each sides point of view. But no-one is listening. So I find myself in a position where no-one will convince me that AZ has acted in a reputable or trustworthy manner. So whatever action the EU council needs to do to protect it’s citizens, so be it.
