Template:Nutshell EUA Annex (d)(xi): Difference between revisions

Latest revision as of 13:36, 5 October 2022

(d)(xi) Failure to Deliver (Alternative Method) - EEP Applicable

(i) Obligation: If “Failure to Deliver (Alternative Method)” and “EEP” applies and Delivering Party’s failure causes Receiving Party to incur an Excess Emissions Penalty other than where Receiving Party did not comply with the Requirements under the Scheme or there was an Illegality, Settlement Disruption Event or Suspension Event (the “EEP Non-delivery” and such EEP the “Indemnifiable EEP”), Delivering Party must pay, in addition to the Receiving Party’s Replacement Cost, the Indemnifiable EEP (the “EEP Payment”), to a maximum of the product of the relevant RPRC Shortfall and the maximum prevailing per-Allowance rate of Excess Emissions Penalty.

(ii) Evidence of liability: Payment of the EEP Payment is conditional up Receiving Party demonstrating to Delivering Party’s reasonable satisfaction:

(a) that it has indeed incurred and paid the EEP Payment due to a shortfall of Allowances on the Reconciliation Deadline following the Delivery Date (the “Deadline Shortfall”);

(b) the extent to which:

(i) Delivering Party’s EEP Non-delivery caused its EEP Payment liability;

(ii) it would have incurred that liability regardless of Delivering Party’s EEP Non-delivery; and

(iii) any third party’s failure to deliver Allowances under another agreement contributed to its EEP Payment liability.

In this regard Receiving Party must provide Delivering Party with information it needs to make a commercially reasonable assessment of how far its EEP Non-delivery contributed to the Deadline Shortfall.

(iii) Third party contributions: If other parties’ failures contributed to the Deadline Shortfall, then Delivering Party is only obliged to pay its proportionate share of the EEP Payment as determined by the parties in a commercially reasonable manner. Receiving Party may not claim any part of an EEP Payment from Delivering Party such that its aggregate of claims against third parties relating to the EEP Payment would result in a windfall.

(iv) Disputes: Delivering Party may in good faith dispute any payment by notice to Receiving Party stating its reasons for the dispute. Pending resolution (which the parties must try to resolve as soon as they can) the EEP Payment obligation will be suspended.

(v) Invoice and payment: Once agreed, Delivering Party must pay the EEP Payment within two Business Days against Receiving Party’s VAT Invoice.

@@ Line 1: / Line 1: @@
 {{euaprov|(d)(xi)}} '''{{euaprov|Failure to Deliver (Alternative Method) - EEP Applicable}}'''<br>
+:(i) '''Obligation''': If “'''{{euaprov|Failure to Deliver (Alternative Method)}}'''” and “'''{{euaprov|EEP}}'''” applies and {{euaprov|Delivering Party}}’s failure causes {{euaprov|Receiving Party}} to incur an {{euaprov|Excess Emissions Penalty}} other than where {{euaprov|Receiving Party}} did not comply with the {{euaprov|Requirements under the Scheme}} or there was an {{isdaprov|Illegality}}, {{euaprov|Settlement Disruption Event}} or {{euaprov|Suspension Event}} (the “'''{{euaprov|EEP Non-delivery}}'''” and such {{euaprov|EEP}} the “'''{{euaprov|Indemnifiable EEP}}'''”), {{euaprov|Delivering Party}} must pay, in addition to the {{euaprov|Receiving Party’s Replacement Cost}}, the {{euaprov|Indemnifiable EEP}} (the “'''{{euaprov|EEP Payment}}'''”), to a maximum of the product of the relevant {{euaprov|RPRC Shortfall}} and the maximum prevailing per-{{euaprov|Allowance}} rate of {{euaprov|Excess Emissions Penalty}}.
-If “'''{{euaprov|Failure to Deliver (Alternative Method)}}'''” and “'''{{euaprov|EEP}}'''” applies and {{euaprov|Delivering Party}}’s failure causes {{euaprov|Receiving Party}} to incur an {{euaprov|Excess Emissions Penalty}} other than where {{euaprov|Receiving Party}} did not comply with the {{euaprov|Requirements under the Scheme}}, there was an {{isdaprov|Illegality}}, {{euaprov|Settlement Disruption Event}} or a {{euaprov|Suspension Event}} (the “'''{{euaprov|EEP Non-delivery}}'''” and such {{euaprov|EEP}} the “'''{{euaprov|Indemnifiable EEP}}'''”), then {{euaprov|Delivering Party}} must pay, in addition to the {{euaprov|Receiving Party’s Replacement Cost}}, the {{euaprov|Indemnifiable EEP}} (the “'''{{euaprov|EEP Payment}}'''”), provided that sit does not exceed the product of the {{euaprov|RPRC Shortfall}} for that {{euaprov|EU Emissions Allowance Transaction}} and the maximum prevailing per-{{euaprov|Allowance}} rate of {{euaprov|Excess Emissions Penalty}}.
+:(ii) '''Evidence of liability''': Payment of the {{euaprov|EEP Payment}} is conditional up {{euaprov|Receiving Party}} demonstrating to {{euaprov|Delivering Party}}’s reasonable satisfaction:
+::(a) that it has indeed incurred and paid the {{euaprov|EEP Payment}} due to a shortfall of {{euaprov|Allowances}} on the {{euaprov|Reconciliation Deadline}} following the {{euaprov|Delivery Date}} (the “'''{{euaprov|Deadline Shortfall}}'''”);
+::(b) the extent to which:
+:::(i)  {{euaprov|Delivering Party}}’s {{euaprov|EEP Non-delivery}} caused its {{euaprov|EEP Payment}} liability;
+:::(ii) it would have incurred that liability regardless of {{euaprov|Delivering Party}}’s {{euaprov|EEP Non-delivery}}; and
+:::(iii) any third party’s failure to deliver {{euaprov|Allowance}}s under another agreement contributed to its {{euaprov|EEP Payment}} liability.
+:In this regard {{euaprov|Receiving Party}} must provide {{euaprov|Delivering Party}} with information it needs to make a [[commercially reasonable]] assessment of how far its {{euaprov|EEP Non-delivery}} contributed to the {{euaprov|Deadline Shortfall}}.
-{{euaprov|Delivering Party}}’s obligation to pay the {{euaprov|EEP Payment}} is conditional up {{euaprov|Receiving Party}} demonstrating to its reasonable satisfaction:
+:(iii) '''Third party contributions''': If other parties’ failures contributed to the {{euaprov|Deadline Shortfall}}, then {{euaprov|Delivering Party}} is only obliged to pay its proportionate share of the {{euaprov|EEP Payment}} as determined by the parties [[in a commercially reasonable manner]]. {{euaprov|Receiving Party}} may not claim any part of an {{euaprov|EEP Payment}} from {{euaprov|Delivering Party}} such that its aggregate of claims against third parties relating to the {{euaprov|EEP Payment}} would result in a windfall.
-:(a) that {{euaprov|Receiving Party}} has incurred and paid the {{euaprov|EEP Payment}} consequent on a shortfall of {{euaprov|Allowances}} as at the {{euaprov|Reconciliation Deadline}} immediately succeeding the {{euaprov|Delivery Date}} (the “'''{{euaprov|Deadline Shortfall}}'''”);
-:(b) the extent to which {{euaprov|Receiving Party}}’s liability to make the {{euaprov|EEP Payment}}:
-::(i) resulted from Delivering Party’s {{euaprov|EEP Non-delivery}};
-::(ii) would have been incurred notwithstanding {{euaprov|Delivering Party}}’s {{euaprov|EEP Non-delivery}}; and
-::(iii) arose due to any third party’s failures to deliver any {{euaprov|Allowance to be Delivered}} to {{euaprov|Receiving Party}} under any agreements between {{euaprov|Receiving Party}} and such third party.
-{{euaprov|Receiving Party}} must provide all other information to {{euaprov|Delivering Party}} in order for {{euaprov|Delivering Party}} to make a [[commercially reasonable]] assessment of how far the {{euaprov|Deadline Shortfall}} was directly caused by its {{euaprov|EEP Non-delivery}}.
+:(iv) '''Disputes''': {{euaprov|Delivering Party}} may [[in good faith]] dispute any payment by notice to {{euaprov|Receiving Party}} stating its reasons for the dispute. Pending resolution (which the parties must try to resolve as soon as they can) the {{euaprov|EEP Payment}} obligation will be suspended.
-If a number of parties’ failures (including {{euaprov|Delivering Party}} and {{euaprov|Receiving Party}}) directly caused the {{euaprov|Deadline Shortfall}}, then {{euaprov|Delivering Party}} must pay its proportionate share of the {{euaprov|EEP Payment}} as determined by the parties [[in a commercially reasonable manner]]. {{euaprov|Receiving Party}} may not claim any part of an {{euaprov|EEP Payment}} from {{euaprov|Delivering Party}} such that its aggregate of claims against third parties relating to the {{euaprov|EEP Payment}} exceeds its own liability to make the {{euaprov|EEP Payment}}.
+:(v) '''Invoice and payment''': Once agreed, {{euaprov|Delivering Party}} must pay the {{euaprov|EEP Payment}} within two {{euaprov|Business Day}}s against {{euaprov|Receiving Party}}’s {{euaprov|VAT Invoice}}.
+<br>
-{{euaprov|Delivering Party}} may in good faith dispute any payment by notice to {{euaprov|Receiving Party}} stating its reasons for the dispute. Pending resolution (which the parties must endeavour to resolve as soon as reasonably possible) the {{euaprov|EEP Payment}} obligation will be suspended.
-Once agreed, {{euaprov|Delivering Party}} must pay the {{euaprov|EEP Payment}} within two {{euaprov|Business Days}} against {{euaprov|Receiving Party}}’s {{euaprov|VAT Invoice}}. <br>