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Enron Mail |
David - as to your point 2, we have used the "Deemed ISDA" appraoch for
weather derivatives. I see no reason we can't do something similar in Australia for power. I've atached an example (but I'm not sure it is thefinal version). Mark David Minns@ENRON_DEVELOPMENT 11/17/99 02:53 AM To: Edmund Cooper/LON/ECT@ECT, Justin Boyd@ECT cc: Mark Taylor@ECT Subject: Enron Online Edmund/Justin, I would appreciate your advice on a few points. I am correct in understanding there can be different versions of the Password Agreement and Electronic Trading Agreement? I have seen Password Agreement NA Version 1and an Electronic Trading Agreement Version 1 that both have Enron North America Corp and/or its affiliates as the Enron contracting party. In Australia we will have to enter into electricity derivatives through the Enron Australia Finance Pty. Ltd.(EAF) which is the only Enron entity authorised trade in these products. Would EAF also be a party to a Password Agreement and ETA with its potential counterparties? If I was starting with a clean sheet in drafting GTCs for Australian financial power trades I would incorporate into it the 1992 ISDA Master Agreement (Multicurrency-Cross Border)and as well as the 1993 Commodity Definitions. This is what Australian counterparties would expect to see. However, I notice this approach has not been followed with any of the GTCs I have seen. The closest is the incorporation EFA terms for the UK power contracts. I suppose this raises a general question are there any established protocols for drafting GTCs? Small point - I notice the limitation of liability clauses in all the documentation follows the US form. I notice even for contracts interpreted under English law there is an exclusion of "special damages". In Australia and I thought England special damages were defined money damages that must be specially damages as opposed to general damages such as pain and suffering that cannot be quantified and are assessed by the court. This is completely different to the meaning of this term in US. Has this issue been considered and for whatever reason a decision has been made to go with the US wording? How much work have we done on issues such as those relating to formation of contracts? I note it was excluded from the scope of your surveys of the various European jurisdictions. I am taking my brief to include those issues relevant which are material to ensure that Enron is complying with the law and will also have enforceable agreement. This may go wider than just regulatory compliance issues. If you prefer give me a call to discuss 612 9229 2310.
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