Template:M summ EUA Annex Settlement Disruption

Oft mentioned in a similar breath to a Suspension Event and a Failure to Deliver, a Settlement Disruption Event is one of the external events which leads to a suspension of obligations, pending the lifting of the disruption, that are set out in the Settlement Disruption provisions of Paragraph (d)(i)(4) of the ISDA EU Emissions Annex.

For the avoidance of doubt, this is intended to avoid doubt

There is a wonderful nested uncertainty avoidance device buried in the redundant second paragraph, which effectively says, for the avoidance of doubt, this avoidance of doubt paragraph is intended to avoid doubt, and not actually change anything. Here Ourobos reaches around and eats its own tail: a clause which appears to do something — for why else in a competently-composed passage would it be there? — appears to be there simply to deny its own raison d’etre.

The odd thing is, however that this passage does not avoid doubt so much as create it, for what is

“... the low or non-allocation of Allowances by a Member State or ... the delay or failure of a Member State or Central Administrator to replace Allowances of the Third Compliance Period with Allowances for the Fourth Compliance Period...”

if it is not “an event or circumstance beyond the control of the party affected that cannot, after the use of all reasonable efforts, be overcome and which makes it impossible for that party to perform its obligations”?

Why should that not be a Settlement Disruption?

Settlement Disruption and Suspension

While there is overlap between Settlement Disruption Events and Suspension Events (in that both are things beyond the parties’ control) Suspension Event, being narrower and related to the failure of official infrastructure, trumps Settlement Disruption Event where they both apply to the same event. Generalia specialibus non derogant, I suppose.

Note the Long-Stop Date concept, which references 1 June in a year following a set of seemingly arbitrary two-year spells in the Fourth Compliance Period and relates only to Suspension Events, not Settlement Disruption Events, and also appears to bear no relation at all to the Reconciliation Deadline at the end of April in each year.

We have compared Settlement Disruption Events and Suspension Events here.

Some rather magical (in the sense of being quite impenetrable) thinking from ISDA’s crack drafting squad™ here, in the name of seeking a long-stop to a Settlement Disruption Event. Since there is this Reconciliation Deadline concept — 30 April each year — by which time, certain EUAs have to be surrendered, an ongoing settlement disruption can be a rather fraught thing. Emissions Allowances can suddenly, by government fiat, become worthless in a way that most other financial instruments cannot.

What happens? Well, after 9 delivery Business Days (or such shorter period as may be dictated by Reconciliation Deadlines) the disruption is deemed to be an Illegality — I know, I know: it isn’t even close to being an Illegality — and depending on whether Payment on Termination for Settlement Disruption applies, the parties either have to perform their obligations after all — odd, since the Settlement Disruption Event is ongoing, and Q.E.D. they can’t — or the transaction is basically voided ab initio and both parties walk away, refunding any put or call premiums they may previously have received.