EFET Agreement – Turkey version – 24 November

Report
EFET Agreement – Turkey version
Değer Boden
BODEN LAW OFFICE
EFET Turkish Market Coordination
Lunch Meeting
24 November 2011 – Lyon, France
(EMART Conference)
1
EFET Agreement – Turkey version
• Update on training works regarding EFET –TR version
• Executing first EFET master agreement: progress report on
further market uptake
• Outcome of latest contractual meeting
• Memorandum Update Turkey 2011 in view of legislative changes
(the electricity regulations: import-export, balancing regulations)
2
Update on training works
regarding EFET –TR version
• Article 2.4 Determination of the time zone in the Election
Sheet
• Article 3.1 Inserting the phrase “unless otherwise specified in
the Election Sheet” into the General Agreement and inserting
the optional right to the Election Sheet regarding Article 3.1
that Individual Contracts shall be concluded in written form
(additionally, specifying that the exchange of written
Confirmations will be also considered as written agreement)
• Article 4 Delivery Point definition in the Individual Contract
• Broadening the definition of Network Operator in General
Agreement to cover Market Operator in Annex 1
3
Update on training works regarding EFET –TR
version
• Article 4 Specifying in the Individual Contract that the Seller is
responsible for notifying the electricity quantity to PMUM and
in case of a conflict between the amount in the notification
made to PMUM and the Contract Quantity, the latter will
prevail
• Article 8 Determination of a reference price as the market
price: (i) system marginal price; (ii) system day-ahead price;
(iii) the average of system marginal price and system dayahead price or (iv) the higher price among system marginal
price and system day-ahead price
4
Update on training works regarding EFET –TR
version
• Article 13.1: Inserting a standard invoicing date to Part Two of
the Election Sheet (last day of the month)
• Article 13.2 and 13.3: Changing the currency as TL in the
General Agreement; providing the option to choose Euro in
the Election Sheet
• Article 14.4, 14.5 and 14.6 to be removed
• Article 17: references to the German Law to be removed
• Paragraphs (g) and (l) of Article 21.1 to be removed
• Article 22: Selection of the Turkish law and arbitration
mechanism in Turkey in the Election Sheet
5
Update on training works regarding EFET –TR
version
• Article 23: Inserting a provision in Part Two of the Election
Sheet stating that notices and notifications will be made in
accordance with the Article 20(3) of the Turkish Commercial
Code or Article 18/3 of the new Turkish Commercial Code
• Article 23: Inserting a provision in the Part Two of the Election
Sheet stating that the «Turkish version shall prevail» in
contracts between Turkish companies
6
Update on training works regarding EFET –TR
version
• Can we change and replace a provision of the General
Agreement in the Election Sheet even if there is no «unless
otherwise specified in the Election Sheet» wording in the
General Agreement?
• Why there is a Settlement/Termination Amount in case of a
Force Majeure?
• Clause 14.4 of the General Agreement: Why the counter party
cannot be an end-user?
• Is there a stamp duty in cross-border transactions?
• Clause 10(5)(d) of the EFET Agreement is designed for
situations where there would only be one delivery per day
which may be amended in the Election Sheet if there would
be more than one delivery per day.
7
Executing first EFET master agreement:
progress report on further market uptake
•
•
•
•
RWE-Ak Enerji EFET Agreement
Negotiations between market players
Wilingness to use EFET Agreement
Increase in awareness
8
Outcome of latest contractual meeting
•
•
•
•
Participation from the Energy Market Regulatory Authority
Increase in the participation ratio
Qualified questions
Comments on the agreement
9
Memorandum Update Turkey 2011 in
view of legislative changes
•
•
•
•
•
Language of the Agreement
Applicable Law
Jurisdiction and Arbitration
Formation of Individual Contracts
Notices and Notifications
10
Language of the Agreement
• Turkish Language Requirement under the Law No. 805
- An agreement between two Turkish companies (internal
trade/bilateral agreement): All Turkish companies are obliged to
execute the agreements that they conclude in Turkey with other
Turkish parties in Turkish language
- An agreement between a Turkish company and a foreign company
(cross – border trade): Foreign companies are required to use
Turkish language in their «correspondence, transactions and
communications» with Turkish parties and in «documents to be
submitted to governmental authorities» in Turkey
• Mandatory nature of the provisions of the Law No. 805
• Non-compliance with such provisions --- monetary fine
11
Applicable Law
- Freedom to chose a foreign law as applicable law
- Court of Cassation Decision No. 1008/325: The mere fact that the
parties choose a foreign applicable law constitutes a foreign element
- An agreement between two Turkish companies (internal
trade/bilateral agreements): Turkish law
- An agreement between a Turkish company and a foreign company
(cross – border trade): Foreign or Turkish law
12
Jurisdiction and Arbitration
- No restriction regarding selection of foreign courts or arbitration
- Enforcement of foreign arbitral awards subject to the New York
Convention
- Arbitration taking place in Turkey– local arbitral award – no
enforcement procedure
- Local arbitral award (with a foreign element in dispute) – IAL --- setting
aside procedure and waiver
- Local arbitral award (without a foreign element in dispute) – Civil
Procedure Code– appeal
- An agreement between two Turkish companies (internal
trade/bilateral agreement): Turkish courts/ arbitration in Turkey
- An agreement between a Turkish company and a foreign company
(cross – border trade): Foreign courts, arbitration or Turkish courts
13
Formation of Indivudial
Contracts
-
-
No written contract requirement for validity
Evidence with written document (deed) for transactions above
circa Euro 295 (under the new Civil Procedure Code which will be
effective on 1 October 2011 circa Euro 1250)
Electronic signature
Evidence agreement
Lex fori evaluation (by the authorized courts) of evidence
14
Notices and Notifications
• Law to apply to the form of legal transactions (Such as notices,
notifications) to be determined by the competent court as per
conflict of laws rules
• Turkish conflict of law rules: (i) law of the country where the
transaction is made, (ii) applicable law to the legal transaction
• Turkish Commercial Code: Notices and notifications between
merchants for putting the other party in default, terminating
the contract or revoking the contract have to be made via
notary public or return receipt requested mail
• New TCC (effective as of 1 July 2012) Art. electronically signed
and sent documents
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Meşrutiyet Cad. No. 98/10
Beyoğlu/İstanbul
www.boden-law.com
T (90) (212) 251 15 00
F (90) (212) 251 15 01
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