In Copape Produtos de Pétroleo Ltda v Glencore Ltd., (S.D.N.Y. Feb. 8, 2012), Copape, a Brazilian company, entered into a contract with Glencore, a Swiss chemical producer, to purchase reformate, a substance used in blending gasoline. Glencore made an offer to Copape in an email setting out the principal proposed terms for quality, price, and volume and ended with the line "other terms and conditions as per Glencore standard DES contract." Copape responded with a counteroffer on the principal proposed terms and altered the line to require Copape approval of the "other terms and conditions."

After several rounds of back-and-forth negotiation, Glencore sent Copape its standard DES contract including a section which incorporated by reference a set of general terms and conditions (GTC). The GTC included an arbitration clause. Glencore never provided Copape with a copy of the GTC and Copape never asked for it. Copape objected to some terms in the DES contract, but it did not raise any issues with respect to the GTC or the arbitration clause included in the GTC. After Copape's final changes had been incorporated into the DES contract, Copape agreed to the contract.

Following an alleged breach of contract, Copape sued Glencore in a Brazilian court while Glencore commenced arbitration in the US. Copape then brought an action in the Southern District of New York to stay arbitration, claiming that it did not agree to the arbitration clause in the GTC.

The district court found that, while Copape reserved the right to approve additional terms in the DES contract, it had approved the arbitration clause in the GTC by accepting the DES contract. Although Copape never actually reviewed the GTC, parties are presumed to know the contents of contracts they agree to, regardless of whether they are actually aware of their particular terms. Copape's failure to read the GTC could not preclude incorporation of the GTC's arbitration clause.

This case demonstrates that parties may be bound by arbitration clauses that are incorporated by reference to an external set of terms and conditions. The case highlights the importance of thorough contract review, particularly for clauses that reference incorporation terms in external documents.