The English court of first instance has provided important guidance on the close-out provisions under the 2002 ISDA Master Agreement. Particular findings of note which will be of interest to all users of the 2002 form where English law is selected are:
- The determining party must use objectively reasonable processes and must also reach an objectively reasonable result when making close-out calculations under the 2002 ISDA Master. This contrasts with the 1992 ISDA Master, where the English courts have found the more subjective standard of “rationality” applies.
- Although the 2002 ISDA Master permits the use of indicative quotations, it is not commercially reasonable for a determining party to rely on them when it proposes to enter into a replacement transaction shortly afterward.
- Once a party has submitted a calculation following termination, it is not open to that party to withdraw and replace it. However, the court may take into account revised calculations when determining what range of results a calculation in line with the ISDA Master would have arrived at.
- The judge was unwilling to accept mark-to-market valuations or modeled evaluations as evidence for the price at which a replacement transaction would have been available in the market where they differed from actual quotations obtained from leading dealers in the market at the relevant time.
On Jan. 12, the Federal Energy Regulatory Commission (FERC) issued data requests to four interstate pipelines that are proposing incremental recourse rates in pending Natural Gas Act (NGA) Section 7 certificate applications.1 This action was significant because it appears to be FERC’s first step toward responding to tax law changes in the Law to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, also known as the Tax Cuts and Jobs Act of 2017 (2017 Tax Act).
FERC permits pipelines and public utilities to recover their actual or potential tax expenses in their regulated rates. The 2017 Tax Act reduces the corporate tax rate to 21 percent and allows certain investments to receive bonus depreciation treatment. FERC asked each pipeline to 1) explain how the 2017 Tax Act impacts its proposed project cost of service and the resulting initial recourse rate proposal; 2) provide an adjusted cost of service and recalculated initial incremental recourse rates; and 3) provide all supporting work papers and formulas.2 (more…)
On December 20, 2017, the United States Congress passed legislation known as the Tax Cuts and Jobs Act (the Tax Act), the first comprehensive reform of the U.S. tax code since 1986. The legislation is expected to be signed by President Trump and enacted into law. The changes will be effective for taxable years beginning after December 31, 2017, unless otherwise noted below.
The following summary analyzes certain aspects of the Tax Act likely to affect the energy industry, particularly publicly traded partnerships or master limited partnerships (MLPs).
For a complete list of Sidley resources summarizing the major changes to the U.S. tax code generally and with respect to particular industries and subject matters, as well as links to register for upcoming Sidley webinars on tax reform, please click here to access our Tax Reform Developments and Insights webpage.
This Environmental Year in Review summarizes many of the significant court rulings, regulatory changes and policy developments that occurred during 2016. As 2016 was the final year of the Obama administration, change is in the air. The commencement of the Trump administration promises to bring with it shifts in policy focus, rule changes and inevitably litigation. (more…)
On January 30, President Donald Trump issued Executive Order 13771 (EO), requiring executive branch agencies to repeal two rules for every one issued. Entitled “Reducing Regulation and Controlling Regulatory Costs,” the EO also directs that all new agency regulations promulgated during fiscal year 2017 should not impose a net increase in costs.