Reed Smith Client Alerts

This alert focuses on clauses in commercial contracts which require a party to use ‘all reasonable endeavours’ and their relationship with the limited implied duty of good faith under English law. We look in particular at the recent judgment in Astor Management AG & Another v Atalaya Mining Plc & Others [2017] EWHC 425 (Comm).

Authors: Richard G. Swinburn Alexander Sandiforth Elizabeth Farrell Claire E. Don

Astor Management AG & Another v Atalaya Mining Plc & Others [2017] EWHC 425 (Comm)

Atalaya purchased Astor’s interest in a dormant copper mine. Most of the consideration was deferred and payable only when Atalaya obtained a senior debt facility to fund the restart of mining operations. Atalaya subsequently raised equity finance. Astor argued that this was a breach of Atalaya’s undertaking to use “all reasonable endeavours” to obtain a senior debt facility and was contrary to an implied duty to act in good faith. Astor claimed that it was entitled to the deferred consideration as a result of these breaches.