开放水域，开放问题——霍尔木兹危机后的分配和优先事项

Allocation and Priority after the Hormuz Crisis Much of the market’s attention has understandably been fixed on the closure of the Strait of The next phase, however, may prove no less contentious.When operations resume, the question will not simply bewhether LNG can move again, but which cargoes move first,for whom, and on what contractual basis. In that sense, the Contractual Provisions Will Shape the Answer The starting point is the structure of the contract in question.In practical terms, the answer may differ materially dependingon whether the contract and the corresponding volumesare tied to a specific train or source, or whether they areframed as broader multitrain, portfolio or multisource supply Reopening Does Not Restore the The reopening of a disrupted shipping route does not restorethe pre-disruption contractual position. Rather, it may trigger adifficult operational and legal exercise in which annual deliveryprogrammes (ADPs), quarterly scheduling arrangements,vessel availability, short-term and spot cargo loading windows, Where an LNG supply contract is train-dedicated, thelegal and commercial consequences of infrastructuredamage at a specific facility may fall more heavily on thebuyers contractually linked to the affected trains. Thosebuyers may have a strongerforce majeuredefence against In practical terms, slot availability and vessel positioning maybe uneven, scheduling assumptions may need reworking, andcargo timing may no longer map neatly onto existing ADPs.What follows may therefore be less a matter of restoring thepreexisting delivery pattern and more a matter of deciding By contrast, portfolio-based SPAs may allow the sellerto source LNG from a broader pool of supply, across thesame supply source, as well as from multiple export andloading facilities and third-party purchases. This potentially widens the seller’s ability to perform. However, it may alsocomplicate any argument thatforce majeureaffecting specific The answer will depend first and foremost on the contractualstructure of the relevant sale and purchase agreement(SPA), master sales agreement (MSA) or confirmation notice(CN) (considered in detail below). However, alongside theformal contractual analysis, there is likely to be a parallel The Central Issue Will Be the Order of A related issue here is whether any available alternativesupply must be used to support performance under long-term SPAs. In other words, if the seller can source LNGelsewhere, is it contractually obliged to do so? In a recentpiece, the authors actively consider the scope, meaningand effect of the reasonable endeavours duty to mitigateobligation. Since then, events in the market have provokedan attention shift from Ras Laffan to the US. Many in themarket are currently speculating about the role of the Exxon Once reduced or ceased production is resumed, and shippingchannels are reopened, the central issue will be allocation– essentially, who gets what volume, in what amount andwhen? This is a critical issue in the current market wherenumerous contracts are colliding in their allocation of capacity to a broad spectrum of long- and short-term buyers. As such,how will available LNG be allocated among competing buyers The answer will depend on the wording of the relevant SPA/MSA/CN, including any provisions dealing with reducedproduction, allocation of supply, pro rata sharing, club rules,fair and equitable allocation, and any obligations to source A Shadow Cast Over Next Year’s ADPs The uncertainty does not stop with the current cycle. It isagainst this same background that sellers will shortly berequired to set their ADPs for next year, with many contractualnegotiation windows scheduled to open at the end ofthe summer. The lack of clarity over which quantities aregenuinely available – and which are not – is likely to engender from alternative sources. Some contracts may require theeffects offorce majeureto be allocated rateably among all However, what happens where the contract in questionis unclear or ambiguous in handling this issue? Where thecontract leaves room for seller discretion, will commercial andrelational considerations materially influence how volumesare allocated? Will the contracts of larger scale and value be The Reopening of the Strait May A further question is how volumes are ranked within thecontractual relationship itself once deliveries resume. Doesthe seller first restore current base volumes under the ADP, or Needless to say, it is unlikely that all parties will accept theallocation and scheduling decisions made by sellers without Potential disputes may concern the validity and duration offorce majeuredeclarations, failures to comply with ADPs and rescheduling obligations, contested allocation decisions,disputed attribution of quantities, failures to deliver and As a matter of commercial logic, one might expect theimmediate focus on reopening to be the reinstatementof current scheduled deliveries and the stabi