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EFET Agreement – Turkey version

EFET Agreement – Turkey version . Değer Boden BODEN LAW OFFICE EFET Turkish Market Coordination Lunch Meeting 24 November 2011 – Lyon, France (EMART Conference). EFET Agreement – Turkey version. Update on training works regarding EFET –TR version

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EFET Agreement – Turkey version

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  1. EFET Agreement – Turkey version Değer Boden BODEN LAW OFFICE EFET Turkish Market Coordination Lunch Meeting 24 November 2011 – Lyon, France(EMART Conference)

  2. 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)

  3. 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

  4. 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 day-ahead price or (iv) the higher price among system marginal price and system day-ahead price

  5. 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

  6. 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

  7. 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.

  8. 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

  9. Outcome of latest contractual meeting • Participation from the Energy Market Regulatory Authority • Increase in the participation ratio • Qualified questions • Comments on the agreement

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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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