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2007 EFET General Agreement
Version 2.1(a) (Power)
A Jolly Contrarian owner’s manual™
6 in a Nutshell™
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6 Delivery, Measurement, Transfer and Risk
For purposes of Allowance Transactions, § 6 of the General Agreement is hereby amended by the deletion in their entirety of § 6.1 (Current/Frequency/Voltages), § 6.3 (Transfer of Rights of Title), and § 6.7 (Seller and Buyer Risks) and their replacement with the new § 6.1 (Compliance Period/Contract Quantity/Holding Account), the new §6.3 (No Encumbrances) and the new § 6.7 (Seller and Buyer Risks) below:
- § 6.1 Compliance Period/Contract Quantity/Holding Account: Allowances shall be Transferred in the Compliance Period and Contract Quantity and to the relevant Delivery Point in accordance with the Delivery Schedule agreed in the Allowance Transaction and in accordance with the Applicable Rule(s), including, without limitation, the standards of the relevant Emissions Trading Scheme and Registry responsible for the Delivery Point on the relevant Delivery Date. A Transfer shall be considered to be completed for the purposes of this Allowances Appendix when the Allowances are received at the relevant Delivery Point, whereupon risk of loss related to the Allowances or any portion of them passes from the Seller to the Buyer.
- § 6.2 as for EFET General Agreement
- § 6.3 No Encumbrances. In respect of each Allowance Transaction and at each Delivery Date, the Seller shall Transfer to the Buyer at the Delivery Point, Allowances free and clear of any liens, security interests, encumbrances or similar adverse claims by any person (the “No Encumbrance Obligation”). Where a Party is in breach of the No Encumbrance Obligation, the following shall apply:
- (a) The General Agreement and all other Individual Contracts agreed by the Parties under this General Agreement shall continue unaffected; and
- (b) Without prejudice to any defences available to the Seller (including, but not limited to, any defences of statutes of limitation or similar), following written notice of that breach from the Buyer to the Seller (irrespective of how long after the relevant Delivery Date such notice is provided) and subject to §6.3(d) below:
- (i) the Buyer shall determine the Encumbrance Loss arising from that breach (the “Encumbrance Loss Amount”) either on the date such notice is deemed to be received or as soon as reasonably practicable thereafter; and
- (ii) shall notify the Seller of such Encumbrance Loss Amount due, including detailed support for its calculation.
- The Buyer is not required to enter into replacement Individual Contracts in order to determine the Encumbrance Loss Amount.
- (c) By no later than the third (3rd) Business Day after the later of (i) receipt of a valid invoice in connection with such Encumbrance Loss Amount and (ii) receipt of the above-mentioned notice of detailed support of the Buyer's calculation of the Encumbrance Loss Amount, the Seller shall pay the Encumbrance Loss Amount to the Buyer, which amount shall bear interest in accordance with § 13.5 (Default Interest). Upon payment of the Encumbrance Loss Amount by the Seller, the Parties shall have no further obligations in respect of that Individual Contract and that breach. The Buyer acknowledges that its exclusive remedies in respect of such breach are those set out in this § 6.3.
- (d) Where a breach of the No Encumbrances Obligation is caused by the Transfer of an Affected Allowance, the Seller shall be liable for the Encumbrance Loss Amount if, at the date it first acquired, received or purchased such Affected Allowance, it was not acting in good faith; otherwise, the Seller shall only be liable for the Encumbrance Loss Amount (without prejudice to any other defences available to the Seller including, but not limited to, any defences of statutes of limitation or similar), if:
- (i) the Buyer, whether or not the holder of such Affected Allowance, who is subject to a claim of the Original Affected Party, has, in order to resist or avoid any Encumbrance Loss Amount from arising, used its best endeavours to defend such a claim in respect of that Affected Allowance (including, if available, by relying on Article 40 of the Registries Regulation or any equivalent legal principle under applicable national law) and was unsuccessful (other than for reasons of its own lack of good faith); or
- (ii) the Buyer, whether or not the holder of such Affected Allowance, who acted in good faith in respect of its purchase of such Affected Allowance and who is subject to a claim of a third party (other than the Original Affected Party) in respect of that Affected Allowance, has used all reasonable endeavours to mitigate the Encumbrance Loss Amount.
- § 6.4 as for EFET General Agreement
- § 6.5 as for EFET General Agreement
- § 6.6 as for EFET General Agreement
- § 6.7 Seller and Buyer Risks. Subject to § 8 (Remedies for Failure to Transfer or Accept), in respect of each Individual Contract, the Buyer and Seller shall, unless otherwise expressly agreed between them, each bear all risks associated with and shall be responsible for its own respective costs in performing its obligations under § 4 (Primary Obligations For Delivery and Acceptance of Allowances). Further, absent express agreement to the contrary between Buyer and Seller, all costs, fees and charges assessed or imposed by Relevant Authorities shall be the responsibility of the Party upon whom such cost, fee or charge is allocated by the Relevant Authority.
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Comparison
Resources and Navigation
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Overview
Template:M comp disc EFET Allowance Annex 6
Summary
6.1 Compliance Period/Contract Quantity/Holding Account
Transfer from a specified Holding Account
Curious conditionality, across all three versions, where the Buyer specifies a Holding Account from which Allowances must be delivered, and not just the account to which they must be delivered. Quite why it should matter whence the Allowances come we cannot say — a vague fretfulness about theft perhaps? — but ok; let’s run with it.
Note, in any case, its moderation in IETA (5.2) whereby one has an obligation to make sure there are sufficient allowances in your account to satisfy your delivery obligation. So even though you can’t be forced to deliver from anywhere else, you can be sued for losses arising from your failure to ensure there was something to deliver in your Holding Account. All rather cack-handed, but in “fundamental upshot” terms, this does get to the right place.
The transfer is done once the Allowances hit the Seller’s account (I know, I know: you don’t say.) But wait: there is an interesting use of the word “whereupon” here, upon which we dwell in a bit more detail in the premium section.
6.3 No Encumbrances
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.
6.7 Seller and Buyer Risks
The usual winsome statement of the bleeding obvious: costs and risks lie where they fall.
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- The JC’s famous Nutshell™ summary of this clause
- What to make of that curious “whereupon”? Causative, or descriptive?
See also
Template:M sa EFET Allowance Annex 6
References