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Emne: Spain comments |
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Fra: Hernández Gutiérrez José Francisco |
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Dato: Mon, 17 Sep 2007 |
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Til: "Erik Rosag" |
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Dear
P. Erik Rosaeg,
We
would like to thank you for the draft of the summary of the work carried out in
the Correspondence Group. We have carefully perused the document in order to
provide you on time our comments and suggestions.
Despite
the more detailed comments that will follow in this document, we would like to make
note that the discussions have exclusively been developed from a legal point of
view. Therefore we consider necessary that security of gas supply, commercial,
technical and financial matters are still to be analyzed before being able to
come up with an agreed and widely satisfactory position. In our view, any
proposed legal development has to take into account the underlying LNG business
and its importance for all the parties involved, as it is the case of
Comments
to the Draft Summary Of The Fisrt
Round Of Discussions:
–
Preamble and paragraph 1.3: we agreed with the wording
suggested by Canada and dated 17/08/07 regarding the new wording of the
preamble of the paper in the first draft (version 17aug07): "The views expressed in this paper should not
be taken as representing the formal position of the delegations or their
governments who contributed to the work of the correspondence group".
We agree with the point 1.3 as now it is in the report (version 10sep07). .
–
Paragraph 2.6: as we have already expressed, our view
is that a detailed study about “Option A”
is still pending, and not having done it during this discussion round does not
imply by any means that there is not a “need for such criteria” as the wording
of the paragraph 2.3 of the paper in the first draft (version 17aug07). In
fact, we consider that in order to avoid future problems within different
National Legislations, including standardization and execution issues, it is
urgent to carry out and discuss the proposed studies. We prefer with the
paragraph 2.6 as it’s drafted in the report (version 10sep07).
–
Paragraph 2.8: securities are to be calculated based
on the previous year data and therefore the amounts will be well know (HNS
Convention - Article 20). We understand that all products included in the
Convention, and not only LNG, will have to deal with misalignment between past
and current years (i.e. bankruptcy issue raised by
–
Paragraph 2.9: this technical matter could be
considered in future analysis all together with the rest of the potential
securities features such as: feasibility, standardization, cost, etc. In
addition, contribution extensions of any kind are not referred in the HNS
Convention.
–
Paragraph 2.10: still, we consider that a ground and
comprehensive study on the matter is needed before being able to reach any
conclusion. Partial and aprioristic technical conclusions should not be
included in the paper.
–
Paragraphs 2.11 and 2.12: it has been argued that
being against “the spirit of the
Convention” is not an allegation to refuse appointing the receiver as
surety. Accepting that “the spirit of the
Convention” could have more than a single interpretation, we understand
that the only not possible interpretation is to consider the exception as a
general case. Therefore we would like to emphasize the idea that there is an
exception for LNG cargos that has to be considered and accomplished. Otherwise,
as several Correspondents have alleged, we might be incurring in fraud.
Comments
to the first draft (version 17aug07), “Other points” (Paragraphs 2.10-12:
We
are pleased with last version (10sep07) where some
paragraphs have been deleted in respect to the first version (17aug07).
Nevertheless, hereafter we express our comments to those deleted paragraphs:
–
Paragraph 2.10: we would like to note that this will
only be possible under certain commercial structures (i.e. new contracts or
spot contracts), but modifying current long-term contracts does not seem to be
a feasible option. Furthermore, changing the Incoterm
from DES to DAF as a solution to the problem as
suggested will certainly generate different commercial problems that are not to
be neglected (i.e. maritime transportation cost sharing, risk transfer, port
costs, maritime insurance costs and contractual structures, etc.)
–
Paragraph 2.11: we would like to see stated as well
under this point that the Convention declares the State Party as the only
liable party for reporting. However, an standardized
procedure in collaboration with companies located in the Contributing States
could be agreed (i.e. implementation of the proposed HNS CCCC)
–
Paragraph 2.12: please note that conditions precedent to the discharge of a cargo are an extreme measure
that seems to be unacceptable due to its huge impact all through the LNG and
natural gas value chain. As we mentioned to the Correspondence Group on the
20/07/07: “We support all initiatives
that could be implemented as long as they do not interfere with normal business
operations […]”.
Comments
to the Draft Resolution:
Based
on our previous comments we kindly ask you to:
–
DELETE
in Point 1 “making
the receiver of a cargo of LNG the surety of the obligation to pay the contribution”
–
REPLACE
in Point 1 “requiring
security” by “evaluating the feasibility of requiring different types of securities”
–
ADD
a Point 4 stating “that all States Parties are encouraged to collaborate in the
elaboration of harmonized national legislations.”
–
ADD
a Point 5 stating “that any measure to be implemented in order to guarantee the
contribution to the HNS Fund will not interfere with or undermine normal LNG
business operations.”
Finally,
please note that for the sake of good order and in the benefit of the discussion,
we would suggest not to include in the draft summaries
and resolution papers new contributions or ideas before sharing them in advance
within the Correspondence Group.
Very
best regards,
Jose
Hernandez
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