On 31 December 2014, BP published the new General Terms & Conditions for Sales and Purchases of Crude Oil and Petroleum Products, 2015 Edition (the 2015 GTCs).
The General Terms & Conditions for Sales and Purchases of Crude Oil 2007 (the 2007 Oil GTCs) and General Terms & Conditions for Sales and Purchases of Petroleum Products 2007 (the 2007 Products GTCs), have been merged into one amalgamated document, the new 2015 GTCs. There have been a number of structural changes in the document with some reordering of the sections. The document therefore refers to crude and products at the same time, but there are a number of sections specifically only dealing with crude (for example Section 23.5, Section 34, Schedule I).
2. New parts
In the 2007 GTCs, the “Ex Ship” section was contained in a number of short paragraphs in part two, which also concerned CFR and CIF deliveries. In the 2015 GTCs, “Ex Ship” deliveries are now governed by separate provisions in a new part three. Although the term “Ex Ship” has been replaced in Incoterms 2010 by “DAP”, the phrase “Ex Ship” is still commonly used in commercial practice. For this reason, the 2015 GTCs continue to refer to “Ex Ship” deliveries, although Section 17.1 does specify that “references to Ex Ship herein shall also refer to DAP”. Separate parts have also been introduced dealing with road tanker and rail tank car deliveries. It is largely because of the introduction of these new parts that the 2015 GTCs are now 116 pages long.
3. Deeming provisions
The FOB sections (but not CFR/CIF sections) of the 2007 Oil GTCs and 2007 Products GTCs both make reference to Section 20A of the Sale of Goods Act 1979 (SGA 1979), which relates to the transfer of property where the relevant goods are part of an unascertained bulk. Section 20A of SGA 1979 provides that property in an unascertained bulk cannot pass until payment has been received. The 2007 GTCs expressly provide that, if the goods form part of an unascertained bulk, for the purposes of Section 20A and solely to enable property to pass to the buyer, payment is deemed to be made as the goods are being loaded. The 2015 GTCs no longer expressly refer to Section 20A, which is consistent with the approach taken in the general terms and conditions of some other oil majors. The effect is that, if the goods form part of an unascertained bulk, property does not pass to the buyer upon loading unless payment has already been made. This has the benefit of relying on statute and common law and not attempting to codify an area of law which is difficult. However, parties should be aware that, as a result of the operation of Section 20A, there are potential risks where the buyer is purchasing part of an unascertained bulk and has not yet paid for the goods. For example, in the event of insolvency of the seller, the goods would remain in the insolvent seller’s estate; on-sales may be invalid; and title may end up passing in the territorial waters of another jurisdiction, which could give rise to licensing or tax issues.
4. Shifting, lightering and vessel-to-vessel transfers
In the 2015 GTCs, shifting and lightering have been split into different subsections. There is also a separate section for floating storage and vessel-to-vessel transfers. The main changes are structural amendments to these provisions. The scope has also been slightly expanded, for example, either party may now request the vessel to be loaded or discharged (as the context of the delivery term requires) from lighters/floating storage.
5. Default events
The 2015 GTCs include a new and expanded set of default events in Section 68. Upon the occurrence of a default event (details of which are listed in Section 68.1) under Section 68.2 the non-defaulting party may terminate the agreement, suspend delivery if it is the seller, terminate an individual cargo in the case of an agreement for multiple cargoes or set-off monies payable by the non-defaulting party against the liabilities of the defaulting party.
6. Time bar
The 2015 GTCs now include a separate time bar provision in Section 67, which in the 2007 GTCs is a sub-section of the Section 32 limitation of liabilities provisions. The wording is substantially the same in the 2015 GTCs. However, it is crucial to note that the relevant time bar has been reduced from two years to one year.
7. Limitation of liabilities
In the 2015 GTCs (Section 66), “hedging or other derivative losses”, which were excluded from the liability of the parties in Section 33.1 of the 2007 GTCs, are no longer expressly excluded. This reflects the fact that hedging is now more commonly used to manage risk in commodities contracts. In the light of recent developments in English law, hedging losses are now in principle recoverable, subject to the usual rules regarding causation, remoteness and mitigation. However, in practice hedging losses can be very difficult to prove.
Section 60, which concerns health, safety and the environment, has been comprehensively updated in the 2015 GTCs to take account of new SDS requirements that have been introduced since the publication of the 2007 GTCs, and in light of REACH and other provisions. Section 60 now covers REACH, CLP and ADN, as well as setting out the seller’s and buyer’s responsibilities with respect to the SDS.
9. Sanctions and boycotts
The 2015 GTCs include an updated and modernised set of provisions dealing with sanctions and boycotts (Section 71). Further provisions are now included excusing the parties from performing any obligation (including to (i) perform, deliver, accept, sell, purchase, pay or receive monies to, from or through a person or entity; or (ii) engage in any other acts) that would violate any EU, UN or US trade sanctions, foreign exchange controls, non-proliferation, anti-terrorism and similar laws.
10. Payment provisions
The 2015 GTCs now include in Section 63.1 a standalone provision requiring payment to be made by the Buyer to the seller without any discount, deduction, withholding, offset or counterclaim on or before the due date. A number of other amendments have been made to the payment provisions, including in Section 63.12 a new section on credit support, in Section 63.15 a new section on advance payment, in Section 63.16 a new section on purchase confirmation, and in Section 63.17 a new section on currency of payment.