In November 2015, the Supreme Court took the opportunity to review and recast the English law on penalties, in Cavendish Square Holding BV v Talal El Makdessi  UKSC 67. The decision has been of particular interest to the oil and gas community, where the enforceability of JOA forfeiture provisions has long been the subject of debate.
The Cavendish ruling was welcomed by English lawyers, coming as it did some 100 years after the previous leading authority, Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd  AC 79. In the intervening period, English case law had sought to refine the penalties test, with results that were sometimes helpful and at other times confusing. The result was, according to the Supreme Court, “an ancient, haphazardly constructed edifice which has not weathered well“.
Before Cavendish, any analysis of whether a clause was a penalty would likely have started with Lord Dunedin’s four “tests” from the Dunlop case and his focus on whether the sums payable amounted to a genuine pre-estimate of loss or a deterrent. Post-Cavendish, the test is now clearer. The key question is whether the relevant clause is a secondary obligation and, if it is, whether it is out of all proportion to any legitimate interest of the innocent party in its enforcement.
So, the first task is to establish if the obligation is a primary obligation or a secondary obligation. A primary obligation would, for example, be an obligation to pay for services (even if a part of that payment is contingent on future behaviour, as it was in Cavendish) provided under a contract; a secondary obligation would be an obligation to pay liquidated damages on breach. Only if the clause is a secondary obligation can it be a penalty, as the English courts will not interfere in the parties’ original commercial bargain.
The second task is then to investigate the legitimate interest of the innocent party in the enforcement of the clause. In Cavendish, for example, this focused on the interest of the buyer in ensuring that the seller adhered to certain restrictive covenants to ensure that the goodwill in the value of the company’s shares was preserved.
JOA forfeiture provisions take many forms. However, most operate on the basis of certain key principles. First, they apply to circumstances where a contractor has failed to pay its share of costs when due. Second, they require the other contractors to pay the defaulting contractor’s share of costs, pro rata to their participating interests. Third, where the default remains unremedied, the defaulting contractor is required to assign (or “forfeit”) some or all of its participating interest to the non-defaulting contractors.
Whether such provisions amount to primary obligations under the JOA will be determined by the wording used. Generally, those we have seen more naturally fall within the category of secondary obligations. However, the legitimate interest of the non-defaulting contractors will be similar across most JOAs; the continuity of the operations and compliance with their obligations to the Government that has granted them rights in the given contract area. The non-defaulting parties will argue with some force that these legitimate interests justify the partial or complete exclusion of a party that is unwilling to bear its share of costs, particularly where the innocent contractors have had to bear those costs themselves.
Whether the forfeiture provisions are proportionate to these legitimate interests will depend on their precise terms and, importantly, the commercial context. Some commentators have suggested that it may be easier to argue that forfeiture is proportionate where costs incurred are relatively low and the prospects for the contract area uncertain, for instance during the exploration phase of operations. This is one reason for the range of remedies often to be found in JOAs, where mandatory assignment and withdrawal provisions may be accompanied by buy-out and withering interest options.
It remains to be seen to what extent Cavendish has affected the enforceability of JOA forfeiture provisions. Whilst the Supreme Court’s focus on legitimate interests over genuine pre-estimate of loss or deterrence is undoubtedly helpful for parties seeking to enforce such provisions, it may be argued that English case law had already been moving in that direction. More recent case law had, for example, tended to focus on the commercial justification for the sums payable; the legitimate interests test is arguably an extension of this. Non-defaulting contractors would likely have deployed the same (persuasive) arguments in support of a commercial justification test as they now would in support of their legitimate interests.
Further, two English law principles that are key to analysing JOA forfeiture provisions were established long before Cavendish. The first is that, where a contract has been negotiated by properly advised parties of comparable bargaining power, there is a strong presumption that they are the best judges of what is legitimate and that the court should therefore not interfere (Philips Hong Kong Ltd v Attorney General of Hong Kong (1993) 61 BLR). In the sophisticated world of oil and gas exploration and production, the vast majority of contracts will meet this description.
Second, Lord Dunedin made clear in Dunlop that the analysis of whether or not a clause is a penalty must be carried out at the time the contract was entered into, not at the time of breach. In addition, he emphasised that the fact that it may be difficult to estimate what the true loss would be is no obstacle to enforceability (and may, indeed, be a reason to uphold the parties’ original bargain). In JOAs, the loss suffered by the non-defaulting contractors as against the value of the interests to be forfeited by the defaulting party may well be difficult (if not impossible) to estimate at the time the JOA is entered into, which may help persuade a court to uphold the terms agreed.