No Encumbrances - Emissions Annex Provision
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EU Emissions Allowance Transaction Annex to the 2005 ISDA Commodity Definitions A Jolly Contrarian owner’s manual™
No Encumbrances in all its glory
Comparison See our natty emissions comparison table between the IETA, EFET and ISDA versions of emissions trading docs
Resources and Navigation
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Overview
The absence of encumbrances — which was a matter of concern, in the early days of the emissions trading world, while birth pangs nascent fraud still ricocheted and lapped across the carbon soup of the primordial EU Emissions Trading Scheme — is covered fulsomely, consistently — if not a little defensively — in all the emissions master trading documents.
See:
- “No Encumbrances” (para (d)(vii) in the ISDA EU Emissions Annex
- “No Encumbrances” (cl 5.3) in the IETA Master Agreement and, of all things
- “No Encumbrances” (cl 6.3) in the EFET Allowances Appendix.
Here is a comparison of ISDA vs IETA and, while you’re at it, comparison IETA v EFET. Oh, go on, here is the comparison of ISDA v EFET too. Don’t say I don’t spoil you.
We also have a special section about Unauthorised Transfers (being ISDA Section (d)(vii)(4), IETA Clause 5.4(d) and EFET Clause 6.3(d)) which goes into all the wailing and gnashing of teeth that goes with breaches of the No Encumbrances Obligation brought about specifically by theft.
Summary
There are times when you wonder whether the crack drafting squad™ for first conceived of this — we think it was IETA’s, but you never know — didn’t fall through some wormhole into a parallel, more paranoid, universe, when drafting their hypotheticals. What, honestly, is going on here? Take a crumb comfort from the fact that the drafting is more or less the same which ever master agreement form you are using.
What a shower. There will seldom come a time where a nutshell version of a clause would come in more handy, readers. If only you subscribed to the premium version of the JC you would have one. It is partly a case of shambolic conceptual organisation, partly ropey drafting, but this clause makes an omnishambles of a fairly straightforward concept.
You might struggle to believe it from reading the clause, but what happens is this: if Delivering Party delivers Allowances in fragrant disregard of the fact that some random has a claim on them, and Receiving Party finds out — presumably by means of an angry letter from said random — Receiving Party can send Delivering Party a notice, calculate its loss (which we suppose would be the market value of any Allowances it has to account to said angry, letter-writing random) and send an invoice. Delivering Party has three Banking Days to pay, with interest. Once paid, that’s it, everyone moves on. Though there is an odd caveat that this procedure is without prejudice to any defences Delivering Party might have, including ones based on limitation periods — which makes us think the responsible crack drafting squad™ had some morbid fear of calumnies buried deep in ancient history coming back to bite them.
Note: contractual limitation periods run from the point where the cause of action arises, not when you reasonably could know you have suffered a loss.
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- The JC’s famous Nutshell™ summary of this clause