– the definition of `other contract amounts`, which relates to the amounts to be calculated for the early termination of the party who is offsetting for the performance of an amount due by that party, and which is defined as `all amounts which`. Payable (whether on that date or in the future or in case of emergency) by the beneficiary [the party entitled to pay the early termination amount] to the payer (regardless of the currency, place of payment or accounting body of the commitment). under other agreements between the beneficiary and the payer or instruments or undertakings issued or exported by one Party to or for the benefit of the other Party`; and Cooke J acknowledged that for the purposes of the Framework Agreement, “set-off and set-off are two different concepts”. Set-off relates to amounts due under the framework agreement (before or after early cessation of operations), while set-off (in certain circumstances) allows amounts to be paid under another agreement to reduce the amount of early termination, which in itself is the result of a close-out set-off after early termination. Consequently, while this is a reasonable and reasonable decision which is largely consistent with what we consider to be the general market conception of the relevant provisions of the 1992 ISDA Framework Agreement, it is above all a careful and reasonable application of known principles to a number of facts. These are not new avenues (and it is doubtful that Cooke J considers this) and, therefore, the judgment may not be of particular importance as a precedent. However, it may be useful to prevent future parties to the trial from holding on to some of the desperate arguments put forward by Shanpark in this case. However, Section 6(e), which expressly permits “any set-off”, was in contradiction with the Loan Agreement, which contained a provision excluding the possibility for Shanpark to make a deduction or set-off for amounts due under the Loan Agreement or Framework Agreement, without prejudice to the set-off provided for in Section 2(c) and Section 6(e) of the Framework Agreement. Cooke J considered that the exclusion of set-off from the loan agreement prevailed over section 6(f) of the framework contract, the first being dated to the second. The provision of the loan agreement must be read in such a way as to record the final agreement between the parties regarding the availability of compensation for Shanpark. This means that, even if Shanpark were available elsewhere, shanpark would under no circumstances be allowed to exercise a right of set-off under Article 6(f). – In part of the judgment, Cooke J considers the first method to compare it, for the purposes of his analysis, with the second method actually used in the present case.
While he does so only marginally, it is interesting that he makes no reference to a proposal that the first method would not be applicable under English law. While this is hardly a resounding judicial endorsement of the First Method, it can bring some comfort to all parties who opted for the First Method in their 1992 ISDA Framework Agreement (which would be a relatively rare case today) given the relative rarity of other judicial considerations on this subject. . . .