“Part 2A
“Force majeure provisions relating to ancillary service agents

“53A Meaning of force majeure event in regulations 53A to 53C

• In regulations 53A to 53C, force majeure event —

  • “(a) means an event or circumstance beyond the reasonable control of an ancillary service agent that results in, or causes, an inability by that ancillary service agent to perform any of its obligations under these regulations or the rules; and

  • “(b) includes (without limitation)—

    • “(i) fire, flood, storm, earthquake, landslide, volcanic eruption, or other act of God:

    • “(ii) explosion or nuclear, biological, or chemical contamination:

    • “(iii) sabotage, terrorism, or act of war (whether declared or not); and

  • “(c) includes an act or omission by a party under an agreement with an ancillary service agent only if—

    • “(i) that act or omission is a breach of an obligation under that agreement; and

    • “(ii) that obligation is in all material respects the same as an obligation in the ancillary service agent's agreement with the system operator; and

    • “(iii) that act or omission would have been a force majeure event if it had been done by the ancillary service agent and not by the third party; and

  • “(d) does not include the fact that an ancillary service agent or any other person—

    • “(i) is unable or unwilling to pay any amount necessary to meet the obligations under these regulations or the rules; or

    • “(ii) is unable to pay its debts; or

    • “(iii) calls a meeting for the purpose of Part 14 of the Companies Act 1993; or

    • “(iv) has been adjudicated bankrupt; or

    • “(v) in the case of a company, society, or partnership, has a receiver or statutory manager or similar person appointed in respect of it or of all or any of its assets; or

    • “(vi) is put into liquidation; and

  • “(e) does not include any event that could have been prevented by the ancillary service agent by the exercise of a reasonable standard of care.

“53B Relief of obligation because of force majeure

• “(1) An ancillary service agent is relieved of an obligation under these regulations and the rules to the extent that, and for so long as, it is unable to perform the obligation as a result of a force majeure event.

  “(2) However, subclause (1) applies only—

  • “(a) if the ancillary service agent notifies the system operator, immediately after becoming aware of the existence of the force majeure event,—

    • “(i) that the obligation cannot be performed; and

    • “(ii) of the likely duration of the inability to perform the obligation; and

  • “(b) if, and for so long as, the ancillary service agent uses its reasonable endeavours to overcome the inability to perform the obligation and to remove or mitigate the effect of the force majeure event; and

  • “(c) if the ancillary service agent, as soon as practicable, notifies the system operator and the Board in writing of the full details of the force majeure event.

  “(3) To avoid doubt, the relief in subclause (1) applies only if an ancillary service agent is acting in its capacity as an ancillary service agent under an ancillary service arrangement.

“53C Effect of relief

• If an ancillary service agent is relieved of an obligation under regulation 53B,—

  • “(a) the ancillary service agent is not liable for breach of these regulations or the rules in respect of that obligation during the period for which the relief applies under that regulation; and

  • “(b) any costs arising from the relief from the obligation lie where they fall, except that the system operator and the ancillary service agent may agree to adjust the remuneration of the ancillary service agent.”

“Liability of ancillary service agents

“115A Limit of liability of ancillary service agents

• “(1) This regulation sets a limit on the liability of an ancillary service agent in respect of each type of ancillary service (as those types are defined in the rules) provided under an ancillary service arrangement.

  “(2) This regulation applies to any breach by an ancillary service agent, in its capacity as an ancillary service agent, of—

  • “(a) Part G of the rules; or

  • “(b) rule 8 of technical code B of Schedule C3 of Part C of the rules.

  “(3) An ancillary service agent is not liable under this Part in respect of the breach for a sum in excess of,—

  • “(a) in respect of any 1 event or series of closely related events arising from the same cause or circumstance, the lesser of $100,000 or 5% of the expected annual fees for the relevant type of ancillary service; and

  • “(b) in respect of all events occurring in the period of 12 months ending with the breach, the lesser of $300,000 or 20% of the expected annual fees for the relevant type of ancillary service.

  “(4) In this regulation, expected annual fees means an amount calculated by the Rulings Panel as follows:

  • “(a) the fees, including any constrained on amounts, paid or payable by the system operator to the ancillary service agent in respect of the relevant type of ancillary service during the 12 months before the date of the relevant breach of the rules; or

  • “(b) those fees calculated on a pro-rata basis, if the ancillary service agent has provided the relevant type of ancillary service for less than 12 months; or

  • “(c) if calculation under paragraph (a) or paragraph (b), in the opinion of the Rulings Panel, is impracticable (for example, because too little historical data is available) or produces an unreasonable amount, an amount that, in the opinion of the Rulings Panel, is a reasonable amount, taking into account historical data from similar ancillary service agents providing similar ancillary services.

  “(5) Any amount for which an ancillary service agent is not liable under this regulation is treated as written off for the purpose of calculating the limit of liability in any period of 12 months ending with a subsequent breach of the rules.

  “(6) The reference in subclause (3) to ‘liable under this Part’ includes a reference to liability imposed under section 172KE of the Act.”