Performance Assurance: TRADING Disputes |
Guidance Note |
What this document covers
What the Trading Dispute Performance Assurance Technique (PAT) is and what it is intended to achieve;
How and when the technique is applied;
The actions Parties and Party Agents should take when they are involved in raising or resolving a Trading Dispute
What this document does not cover
Detailed governance for raising, investigating, and rectifying Trading Disputes, which can be found in BSCP11
The process by which the BSC Panel will consider appeals against the findings of the Trading Disputes Committee, which is set out in a separate Guidance Note
Your Operational Support Manager (OSM) is your first point of contact for Performance Assurance queries and is available to support you.
If you have a more general question about Performance Assurance, please raise a ticket through the online
Elexon Support portal.
Who should use this Guidance Note?
This Guidance Note can be used by anyone to looking to familiarise themselves with Elexon’s Performance Assurance Framework (PAF).
It is also likely to be of interest to other PAPs and industry participants who may be involved in investigating and rectifying a Trading Dispute, including:
Central Volume Allocation (CVA) Meter Operators (MOAs)
Half Hourly (HH) and Non-Half Hourly (NHH) Data Collectors (DCs)
HH and NHH Data Aggregators (DAs)
Meter Administrators (MAs)
Advanced, Smart, and Unmetered Data Services
Licensed Distribution System Operators (LDSOs)
Supplier Meter Registration Agents (SMRAs)
Unmetered Supplies Operators (UMSOs)
Supplier Volume Allocation (SVA) MOAs
What is the Trading Dispute PAT?
Trading Disputes are a form of Remedial PAT and are used to correct the material impact of Settlement Error, usually in cases where the correction will take place outside of the timetabled Reconciliation Runs.
In most cases, this is because correcting the error requires amending historic data for Settlement Days that have passed the Final Reconciliation Run (“RF”) and involves scheduling an additional (“DF”) Reconciliation Run to process the amendments.
Rarely, the Technique can also be used to make an immediate correction to Parties’ invoices (in the form of an “Extra Settlement Determination” or “ESD”), for example if the financial impact of an error to one or more BSC Parties were so severe that waiting for the next Reconciliation Run to correct it would endanger their ability to continue trading.
Trading Disputes must meet certain criteria to progress. They are reviewed and authorised by the
Trading Disputes Committee (TDC) under the provisions of
BSC Section W and
BSCP11.
The purpose of the process is to correct errors in Settlement. Consequently, it is not designed to assign culpability on any of the Parties involved.
Trading Disputes can be raised to rectify Settlement Errors detected by any of Elexon’s other PATs. Elexon maps the underlying causes of Settlement Errors resolved through Trading Disputes to specific Settlement Risks to provide quantitative data for the annual Risk Evaluation Register (RER).
Market Wide Half Hourly Settlement (MHHS)
Elexon is not planning to make any substantive changes to the Trading Disputes process for MHHS, and the criteria by which we validate Disputes will remain largely the same. However:
Some of the deadlines for raising a Dispute will shorten in line with changes to the overall Settlement Calendar at M16
Trading Disputes requiring the correction of MHHS data only will be subject to an increased Materiality Threshold of £10,000 if they are raised more than 100 Working Days (approximately 6 months) after the RF Run for the Settlement Day(s) and Period(s) to be corrected
Following the start of migration to the MHHS arrangements, Elexon will keep a separate track of any Disputes that may require corrections to Legacy Settlement data (that is, volumes Settled NHH or through the Legacy HH arrangements).
Any corrections to Legacy Settlement data via a DF Run will require Legacy Supplier Agents (principally Data Collectors and Data Aggregators) to submit the changes into Settlement. For this reason, the Performance Assurance Board (PAB) is unlikely to accept any Surrender of such Agents’ Qualification until 28 months after their final de-Appointment.
Ultimately, Suppliers are responsible for ensuring that their Appointed Agents preserve the necessary data, systems and processes to make corrections to Legacy data following migration to MHHS. If Suppliers choose not to make these arrangements with their Appointed Agents, rectification of a Trading Dispute may not be possible even in cases where Elexon and the TDC uphold the Dispute.
Elexon is also developing a new digital platform to automate some of the checks used to determine whether a Trading Dispute is valid. The platform will help Parties in detrmining wheteher a dispute is valid, and shorten the time needed to progress valid Disputes to the Trading Disputes Committee for approval.
How can I raise a Trading Dispute?
Any BSC Party can raise a Trading Dispute by completing a BSCP11/01 form and returning it to the
Disputes Secretary via e-mail to
disputes@elexon.co.uk.
The form must be co-signed by a Category ‘A’ or ‘O’ Authorised Person as set out in
BSCP38.
A completed form should contain enough information to determine whether the Trading Dispute is valid based on the criteria set out in the Code and BSCP 11 and explained in more detail below. If you need help filling out the form or are not sure what information is required, please contact your OSM and/or the Disputes Secretary, who will be happy to help.
Upon receipt of the form Elexon will acknowledge receipt of the form and allocate a reference number to the Trading Dispute, usually within 1 Working Day.
Elexon is also able to raise Trading Disputes and will do so where a Settlement Error of sufficient materiality is discovered or suspected.
For example, Elexon raises precautionary Trading Disputes for all Category 1 Non-compliances recorded by the Technical Assurance Agent (TAA) and where the Annual Demand Ratio (ADR) for a GSP Group is consistently trending above 1.015 or below 0.895.
How does Elexon validate a Trading Dispute?
For a Trading Dispute to be valid, it must be raised within the applicable Dispute Deadline and show that a Settlement Error has result in a material impact above a certain threshold (usually £3,000).
What are the Dispute Deadlines?
Disputes relating to Supplier Volume Allocation (SVA) Volumes must be raised within 70 working days of the RF Run for the Settlement Day(s) and Period(s) to be corrected.
Disputes related to Profile Coefficients must be raised within 3 working days of the affected Settlement Period(s); those related to Market Domain Data (MDD) within 2 working days of the affected Settlement Period(s).
Other (“General”) Disputes must be raised within 20 working days of the affected Settlement Run(s).
Additionally, where a Dispute relates to an error in a DF Run or ESD it must be raised within 2 months of the DF Run or ESD in question.
In some cases, the period covered by a Trading Dispute can be extended because of exceptional circumstances. If you believe these apply to your Dispute, you should include full details when filling out your BSCP11/01.
More information on exceptional circumstances can be found in
BSCP11.2.2, or through speaking to your OSM.
These deadlines with be reviewed and may be updated as part of the transition to MHHS.
What is a Settlement Error?
Not all instances of erroneous data in Settlement constitute a Settlement Error.
For a Dispute to be valid, the error must:
Impact a Party or Parties’ Trading Charges; and
Result from a rule in the Code or a Code Subsidiary Document (CSD) such as a BSC Procedure (BSCP) not having been followed (non-compliances with rules in the Retail Energy Code (REC) can also result in Settlement Errors when those rules have an impact on Settlement).
Notably, any data value that is affected at a Party’s own choice is not considered a Settlement Error.
For this reason, it is best practice for a Party filling out a BSCP11/01 to include which specific Code or CSD obligations have not been followed and to make explicit how these have resulted in Settlement Error.
A more formal definition of
Settlement Error can be found in BSC
Section W 1.3.
What is Material Impact, and how is it Calculated?
For a Dispute to be valid, the impact of the error on Trading Charges must exceed £3,000 (or £5,000 where it is to be corrected via an ESD).
To estimate this impact, we compare current Settlement volumes with what they would have been had the rules been followed. We then multiply the difference by the system prices for the applicable Settlement Period(s).
If you raise a Dispute, you are responsible for providing both sets of Settlement Volumes. Suppliers may need to work with their Agents to obtain this information, and Agents should make sure they provide Suppliers with any assistance they require to do so.
Elexon is unable to consider other potential commercial impacts (such as Distributor Use of System (DUoS) charges or retail prices) when determining the validity of a Dispute.
Requests for Additional Information
If Elexon has raised a Dispute, or if we need more information to determine if a Dispute is valid, we may contact Suppliers, Agents or other participants to ask for relevant data. Depending on the level of detail and/or urgency of the Dispute we may ask for this informally via e-mail or formally via a BSCP11/03 form.
In line with Supplier Hub principle, requests are usually sent to Suppliers in the first instance, although Elexon may go directly to Agents or other Participants if this necessary to investigate and/or resolve the Dispute.
If you receive such a request, please make sure you respond promptly with the required information. You must reply to a formal request with the required information within 5 working days.
If you aren’t sure what information you need to provide, or are having difficulties obtaining it, contact your OSM and the Disputes Secretary straight away. They will be able to assist you in completing the request.
What Happens Once a Dispute has been Validated?
If Elexon determines a Dispute is invalid, we will inform the raising Party and any affected Parties via a BSCP11/04 (BSCCo Findings) form.
If neither the raising Party nor any of the Affected Parties objects to the findings within 14 days, and Elexon will officially close the Dispute and issue a BSCP11/05 (BSCCo Trading Dispute Closure) form.
If an objection is received, or if Elexon determines the Dispute is valid, we will present it for decision at the next meeting of the TDC.
The TDC will then decide whether to uphold the dispute and determine what, if any, corrective action can be taken.
Once the TDC has made its determination, Elexon will send a BSCP11/07 (TDC Trading Dispute Findings) form to the raising Party and any affected Parties. Where appropriate, this form will also include details of how the Dispute will be rectified. You can find more information on the various rectification methods later in this section.
If the raising Party or an affected Party disagrees with the TDC’s findings, they may lodge a formal appeal within 30 days. The Trading Dispute will then be referred to the BSC Panel for a final decision. The process by which the BSC Panel will consider Trading Disputes is set out in Appendix 1, below.
Regardless of the final decision, neither the TDC nor the BSC Panel can direct corrective action to be taken where the estimated impact is less than the Materiality Threshold of £3,000.
What is an Affected Party?
As Settlement is a zero-sum system, changes to one Party’s Trading Charges will necessarily affect other Parties’ Trading Charges as well.
When estimating the Material Impact of a Dispute, Elexon estimates this impact by performing a simplified version of some Settlement Calculations (usually the Imbalance Cashflow, but sometimes GSP Group Correction or, where this is not possible, Residual Cashflow Reallocation).
Where the estimated impact to a Party is £3,000 or greater, they will be copied into all BSCP11/04 and BSCP11/07 forms associated with the Dispute.
If you have any questions about a form you have received as an affected Party, or if you receive a form as an affected Party and wish to object to Elexon or the TDC’s findings, please contact your OSM or the Disputes Secretary as soon as possible and within the deadlines set out above.
Due to the inherent limitations of the estimation process it is possible that in some cases we might not identify all Parties affected by £3,000 or more. If you believe you should be, or have been, notified as an affected Party for a Trading Dispute please contact your OSM or the Disputes Secretary.
How are Trading Disputes Rectified?
When the TDC (or BSC Panel) issue BSCP11/07 form they also specify what action Parties, their Agents, and BSC Agents such as the Central Data Collection Agent (CDCA) or Supplier Volume Allocation Agent (SVAA) must take to rectify the Dispute.
The Suppliers and Agents must take these actions within the timeframes specified. Failure to take the required actions is a non-Compliance with the BSC, as is taking additional actions (for example, changing any data not covered by the Dispute).
Final Reconciliation Run (RF) or Earlier
If the Settlement data that will be corrected is for Settlement Days and Periods that have yet to pass the RF run, the Party should instruct its Agents to make the necessary changes, which will then be made in Settlement at the next Reconciliation Run.
For example, if volume from a HH Supply has been entered into Settlement at twice the actual level, the Supplier can instruct the DC to scale these volumes by a factor of 0.5 and report these to the DA for inclusion in the next Reconciliation Run.
Suppliers and their Agents do not need to obtain the TDC’s permission to make changes to Settlement data prior to RF.
Post-Final Settlement Run (DF)
If the Settlement data that will be corrected is for Settlement Days and Periods that have passed through the RF run but are within approximately 28 months of the TDC meeting in which the Dispute is upheld, the TDC can authorise a DF Run or Runs. This is the most common form of rectification action.
Parties, their Agents and BSC Agents make changes to Settlement data in the same way they would for a correction prior to RF, and Elexon instructs the SVAA to schedule DF Runs for the affected Settlement Days.
Parties and their Agents must take steps to ensure that they do not inadvertently include any changes other than those covered by the Dispute, for example by ensuring that their systems do not automatically make retrospective changes beyond the RF boundary when updating current Settlement data.
Extra Settlement Determination (ESD)
An ESD is used to correct Trading Charges where it is either impossible or inappropriate to correct Settlement data through the Timetabled Reconciliation Runs.
The Settlement Days for which data is to be corrected have already passed the deadline for a DF Run to be scheduled;
An error exists in data introduced to Settlement in a DF Run;
An earlier ESD was carried out incorrectly; or
The financial impact of an error to one or more BSC Parties is so severe that waiting for the next Reconciliation Run to correct it would endanger their ability to continue trading
This final case is exceptionally rare and involves additional steps to ensure a subsequent correction to Settlement data is still made at the next available Reconciliation Run. This process is covered in more detail in BSCP11.5.5.
To carry out an ESD, Elexon uses a bespoke tool to arrive at the most accurate possible estimation of the impact to Trading Charges short of re-running Settlement itself. The TDC then instructs the Funds Allocation Agent (FAA) to make changes to BSC Parties’ invoices directly, without changing the underlying Settlement data.
Unlike rectification through Reconciliation Runs, which are made incrementally as each Settlement Day passes through DF, Trading Charges resulting from an ESD are invoiced in a single lump sum for each affected Party.
Preparing the estimation for an ESD is time-consuming and costly, which is why the materiality threshold for an ESD is £5,000. The TDC may determine that a BSC Party should pay some or all the additional costs involved.
Do you need more information?
Your
OSM is your first point of contact for Performance Assurance queries and is available to support you. If you’re not sure who they are, check the
BSC Signatories and Qualified Persons page of our website.
For any other information please raise a ticket through the online
Elexon Support portal.
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Appendix 1: Procedure for Determination of Trading Disputes by the BSC Panel
In certain circumstances the
Balancing and Settlement Code (BSC) provides that the BSC
Panel may determine
Trading Disputes which have been referred to it.
Section W 3.5.4 of the BSC provides that the BSC
Panel shall adopt such procedures as it sees fit for the purposes of determining such
Trading Disputes.
This Procedure ("the Procedure") has been established by the BSC Panel in connection with its consideration and determination of these Trading Disputes and, if applicable, the Panel’s role in any necessary consequential adjustments to Settlement.
This Procedure sets out procedural matters relating to the making of Referrals and the conduct of
Panel hearings. It does not seek to repeat or replace
Section W of the BSC. It also does not apply to disputes which are not
Trading Disputes.
0.0.2 Definitions and Interpretation
In this procedure unless otherwise stated:
unless otherwise defined in this procedure, words and expressions used in this procedure shall have the meanings attributed to them under the BSC. The BSC definitions of certain terms are, however, included for ease of reference among the definitions contained in paragraph 2.2 of this procedure;
references to Sections are references to the
BSC;
in the event of any conflict between this Procedure, and the BSC or any Code Subsidiary Document, the BSC or, as the case may be, the Code Subsidiary Document shall prevail;
references to the singular shall include references to the plural and vice versa; and
words or expressions importing the masculine shall include the feminine and neuter and, in each case, vice versa.
In this Procedure, unless the context otherwise requires, the following words and expressions will bear the following meanings:
"Referring
Party" shall mean the
Party or as the case may be the
Trading Disputes Committee (TDC) who referred the matter to the
Panel pursuant to BSC
Section W 3.5.1 and shall include where relevant, the
Party’s representative(s);
"Referral" shall mean the referral of the relevant matter to the
Panel in accordance with BSC
Section W 3.5.1;
"Referral hearing" shall mean the Panel hearing (or reconvened hearing) at which the Referral is heard;
"Affected
Party" shall in accordance with BSC
Section W 3.1.1(d) mean any
Party the
Trading Disputes Committee (or, before the
Trading Disputes Committee has considered the matter,
BSCCo or the
Disputes Secretary) considers to be particularly affected by the relevant
Trading Dispute;
"Disputes Secretariat" means the person or persons appointed by BSCCo to present the Referral to the Panel;
"
Trading Dispute" and "
Settlement Error" are defined by reference to BSC
Section W paragraphs 1.3.1 and 1.3.2:
"days" refers to Business Days unless otherwise stated.
For the purposes of a Referral:
the Chair, in all matters relating to the referral, will be the Panel Chair unless there is a conflict of interest arising from the Chair so acting or the Panel Chair is unable to assume the role of Chair. In this case the Panel’s Deputy Chair will assume the role of Chair in all matters relating to the Referral; and
where, for any reason, the
Panel’s Deputy Chair is unable to assume the role of Chair, the provisions of
BSC Section B 4.2.3(b) and B4.2.4 shall apply with the exception that only the following
Panel Members shall be eligible to assume the role of Chair in all matters relating to the Referral:
any independent Panel Member appointed by the Panel Chair; or
any Panel Member appointed by Citizen’s Advice or Consumer Scotland; and
all references to “the Chair” in this document shall refer to the person appointed under paragraph 2.3 (a) or (b) above.
The Chair may from time to time at his discretion vary or supplement this Procedure. Where the Chair considers it is appropriate to vary or supplement this Procedure they shall, wherever practicable, consult with Panel Members in advance of doing so and give sufficient notice to BSC Parties of any change.
A review of this procedure must be carried out from time to time and in any event after each
Panel Referral hearing by the
Panel Secretary and published on the
BSC Website.
Subject to the provisions of the BSC
Section W 1.2.1, all
Trading Disputes shall be dealt with and decided in accordance with Section W.
The
Panel has jurisdiction under
Section W of the BSC to:
determine in accordance with
Section W 1.2.3 that on the application of the
Trading Disputes Committee or (provided such application is made reasonably promptly after the relevant query, dispute or difference arose) a
Party in relation to a
Trading Dispute, that there are disputed matters connected to that dispute which fall outside the scope of a
Trading Dispute. In such a case the
Panel may decide in relation to such disputed matters that
Section W 1.2.1 shall not apply or that
Section W should be varied and if the
Panel so determines, the
Trading Dispute shall not be determined in accordance with
Section W 1.2.1 or the procedures in
Section W shall be varied in relation to the
Trading Dispute;
determine in accordance with
Section W 1.3.4 any question or disagreement as to whether or not a query, difference or dispute is a
Trading Dispute. Any reference to the
Panel pursuant to
Section W 1.3.4 must be made within the time required by
Section W 1.3.4(a). For the avoidance of doubt a
Trading Dispute shall not include those matters referred to in Section W 1.3.2(c) nor shall a
Trading Dispute be raised in respect of the matters set out in
Section W 1.7.2;
determine
Trading Disputes referred to the
Panel by a
Party or the
Trading Disputes Committee where a
Party disagrees with the determination of the
Trading Disputes Committee or where the
Trading Disputes Committee has failed to reach a majority decision in respect of a
Trading Dispute in accordance with
Section W 3.5.1; and
decide in accordance with
Section W 3.5.3, of its own initiative or on application of any
Party, that a
Trading Dispute shall not be referred to the
Panel in which case the
Panel Secretary shall notify such decision to the
Party, each relevant
BSC Agent and the
BSC Auditor in accordance with
Section W 3.5.3, and the
Party may refer the dispute to arbitration in accordance with
Section W 3.6.1.
All communications made pursuant to this Procedure shall be in accordance with BSC
Section H 9.2.
All communications from a Referring Party (or affected Party) shall be addressed to the Panel Secretary.
0.0.6 Referral to the Panel
A Referring
Party shall give notice to the
Panel Secretary that it wishes the
Panel to determine a
Trading Dispute in accordance with BSC
Section W 3.5.1 ("the Referral Notice") no later than 30 calendar days after the notification given by the
Disputes Secretary under BSC
Section W 3.4.A.1 (see
Section W 3.5.2).
The Referral Notice shall include the following information:
the name, address and contact details of the Referring Party;
if the Trading Disputes Committee raised the Referral and considered that there was an affected Party in relation to the dispute, the name, address and contact details of the affected Party;
brief details of the Trading Dispute (including the appropriate reference number where applicable) which is the subject of the Referral; and
confirmation of whether the Referring Party requests an oral hearing.
Within 3 days after receipt of the Referral Notice the Panel Secretary shall acknowledge receipt to the Referring Party and notify any affected Party that the Trading Dispute has been referred to the Panel. This notice to affected Parties shall include brief details of the Trading Dispute (including the appropriate reference number where applicable) which is the subject of the Referral.
Within 10 days after receipt of the acknowledgement referred to in paragraph 6.3 the Referring Party shall send written points of claim to the Panel Secretary stating in sufficient detail the grounds for its Referral (“Points of Claim”). Such Points of Claim may where relevant attach signed written witness statements as to fact. Where the Trading Disputes Committee has raised the Referral, the approved minutes of the TDC shall constitute the Points of Claim.
Following receipt of the Points of Claim, and no later the day following the next scheduled Panel Meeting, the Panel Secretary shall establish the date of the Referral hearing in consultation with the BSC Panel Chair and BSC Panel Members. Consideration shall be given to the complexity of the matters raised and whether an oral hearing has been requested. Unless otherwise determined, Referrals shall be considered at extraordinary meetings rather than at regular, scheduled meetings of the BSC Panel.
Within 3 days after the BSC Panel Chair has confirmed the date of the Referral, the Panel Secretary shall notify the Referring Party and any affected Party of the date of the Referral hearing. For the avoidance of doubt, in the absence of a request for an oral hearing, the Referral hearing shall be considered by the Panel on the documents alone subject to paragraph 9.3 and the provision of any advice from BSCCo or external advisers in accordance with paragraph 7 as directed by the Chair.
The Panel Secretary shall collate a bundle of papers relating to the Trading Dispute ("the Referral Papers") which shall contain:
a summary prepared by the Disputes Secretariat which will provide an overview of the Trading Dispute in issue, the basis of the TDC determination and any relevant documents ("Case Summary");
documents provided to or considered by the Trading Disputes Committee (including any reports prepared by BSCCo);
relevant excerpts from the minutes of the Trading Disputes Committee;
the Trading Disputes Committee finding form;
any response from BSCCo pursuant to a request in accordance with paragraph 7.1, excluding any privileged legal advice as provided for in paragraph (16); and
any further documentation deemed by the Panel Secretary to be appropriate to the Panel’s consideration of the Referral.
No later than 60 days prior to the date of the Referral hearing and where the Referring Party is not the Trading Disputes Committee, the Panel Secretary shall send the Referral Papers to the Referring Party.
No later than 40 days prior to the Referral hearing the Referring Party (where the Referring Party is not the Trading Disputes Committee) may submit written comments on the Referral Papers, to which the Disputes Secretariat will provide a response (if appropriate) no later than 30 days prior to the Referral hearing.
No later than 25 days prior to the Referral hearing, slides and any other presentational documents, shall be provided to the Panel Secretary.
No later than 20 days prior to the Referral hearing the Panel Secretary shall send the Referral Papers, including slides and any other presentational documents to the Panel Members together with any comments provided pursuant to paragraph 6.9. Any requests for an extension of the time periods referred to in this paragraph 6 shall be sent to the Panel Secretary together with reasons for the request. The Panel Secretary shall consider any such request and, unless instructed otherwise by the Chair, shall decide whether to grant the request and, if necessary as a consequence, whether the date of the Referral hearing needs to be postponed.
The Panel Secretary may also decide as a consequence of the comments made in accordance with paragraph 6.9, or by reason of other documentation or information of which they become aware and considers should be submitted to the Panel as part of the Referral Papers, that it is appropriate for the date of the Referral hearing to be postponed.
Where the Panel Secretary decides that a postponement of the Referral hearing is appropriate in accordance with paragraph 6.12 the Panel Secretary may invite the Referring Party to provide further comments. Any such comments shall be made by the Referring Party within 5 days after receipt of the notification and any attached relevant information or documentation in accordance with paragraph 6.12.
In the event that the Panel Secretary decides pursuant to paragraphs 6.10 or 6.11 that the date of the Referral hearing shall be postponed, the Panel Secretary shall notify the Referring Party and any affected Party accordingly.
Without prejudice to the generality of BSC
Section B paragraphs 1.2 and 3.1,
BSCCo shall provide the following services to the
Panel, and notify the Referring
Party:
secretarial and administrative services in connection with the Referral;
subject to a request from the Chair, the provision of advice and expertise during the Referral hearing in connection with technical or other issues and/or processes, from appropriate BSCCo personnel with the relevant technical or other expertise;
subject to paragraph 7.2, the provision of legal advice to the Panel; and
subject to a request from the Chair, procure the services of external firms of advisers (including legal advisers) and consultants and/or the attendance at meetings of such advisers.
Where a Referral includes an allegation that an act or omission by BSCCo has directly contributed to the alleged Settlement Error which is the subject of the Trading Dispute:
BSCCo shall continue to provide administrative and secretarial support to the Panel in connection with the Referral;
BSCCo shall continue to procure the services of external advisers (including legal advisers) and consultants and/or the attendance at meetings of such advisers on behalf of the BSC Panel in accordance with paragraph 7.1(d);
The Panel Chair, where they are also the Chair of the Board of BSCCo, Panel Members who are employees or directors of BSCCo shall absent themselves from the Referral hearing;
Subject to paragraph 7.2(e), representatives of BSCCo shall absent themselves from the Referral hearing. For the avoidance of doubt, the Panel Secretary and an additional minute-taker shall remain and perform their duties throughout the duration of the Referral hearing. Subject to the performance of its duties pursuant to paragraph 9.3, the Disputes Secretariat shall absent itself from the Referral hearing;
Notwithstanding paragraph 7.2(c) and 7.2(d), in the event that the Referring Party:
does request an oral hearing pursuant to paragraph 6.2(d) and the Chair makes a request pursuant to paragraph 7.1(b), the BSCCo representative shall attend the Referral hearing for the purpose of providing the advice or information requested, and shall leave the Referral hearing once the Chair is satisfied that the technical issue or process has been dealt with to the satisfaction of the Panel. The Referring Party shall be entitled to make representations to the Panel in relation to any advice or information received from BSCCo;
does not request an oral hearing in accordance with paragraph 6.2(d) or withdraws such a request, any written request from the Chair pursuant to and any written response from BSCCo shall to the extent possible form part of the Referral papers. In any event the Referring Party shall be given an opportunity to provide written comments on any such response from BSCCo prior to the Referral hearing;
in the circumstances described in paragraph (ii) where a written request by the Chair is not made prior to the Referral hearing, the Chair may adjourn the Referral hearing and in his discretion require whatever arrangements in relation to the obtaining of any written advice on the relevant technical issue or process and any response from the Referring Party as they deem fit and/or they may require an adjournment to an oral hearing dealing with the Referral generally or the specific technical issue or process in relation to which the Panel Secretary will request that the Referring Party attends and addresses the relevant technical issue or process.
For the avoidance of doubt, a Referral which contains allegations that a Settlement Error was caused by the failure of a BSC Agent or BSC Systems shall not be deemed to be a circumstance to which the provisions of paragraph 7.2 apply; and
A Party who proceeds with a Referral to the Panel without raising an objection to BSCCo's involvement in this Procedure shall be deemed to have irrevocably waived its right to object in this respect.
0.0.8 Party Representation
In the event the Referring Party has requested an oral hearing in accordance with paragraph 6.2(d), the Referring Party shall notify the Panel Secretary no later than 10 days prior to the Referral hearing of the names of all representatives of the Referring Party that will be in attendance at the Referral hearing and the capacity in which they will be attending.
A Referring Party may be represented by legal representatives at the Referral hearing.
If the Referring Party is represented at the Referral hearing by a legal representative, an appropriately authorised officer or employee of the Referring Party shall also be present at the Referral hearing.
0.0.9 The Referral Hearing
If the Referring Party has in accordance with paragraph 6.2(d) requested an oral hearing of the Referral and has not withdrawn this request, the Referring Party shall be entitled to make oral representations to the Panel concerning the Referral. This may include slides where the Panel Secretary is notified in advance of the meeting.
At the commencement of the Referral hearing the Chair shall (to the extent they have been raised or they consider appropriate) deal with any procedural matters including without limitation, issues relating to jurisdiction, conflict of interest and the involvement of BSCCo.
The Disputes Secretariat shall then by reference to the Case Summary, summarise the background to the relevant Trading Dispute and the decision of the TDC. The Disputes Secretariat shall not be expected to address questions other than from Panel Members and only in relation to matters of fact or clarification of the Case Summary.
Following the summary from the Disputes Secretariat and subject to paragraphs 9.1 and 9.2, the Referring Party may make oral representations to the Panel in explanation of its case. Such representations may be the subject of questions by Panel Members. In the absence of exceptional circumstances and unless the prior approval of the Chair has been received, the Panel shall not hear oral witness evidence at the Referral hearing.
During the course of the Referral hearing the Panel may seek assistance on technical or other issues from BSCCo or other external advisers in accordance with paragraph 7. The Referring Party is entitled to hear such technical or other assistance and may make representations to the Panel in response but they are not entitled to cross examine the BSCCo representative or external adviser as the case may be.
When the Referring Party has completed its representations and the Panel is ready to commence its deliberations the Referring Party and its representatives will be asked to leave the Referral hearing. Subject to paragraph 9.7, no person who is not a Panel Member may take part in the Panel’s deliberations.
Subject to paragraph 7.2, the Panel may take legal advice from BSCCo or as the case may be its external advisers to assist it in its deliberations.
The Panel shall not consider any alleged Settlement Error which did not form part of the Trading Dispute raised before the Trading Disputes Committee.
Notwithstanding anything else in this Procedure, the Chair may in his discretion regulate the conduct of the Referral hearing as they deem necessary.
The Referral hearing shall be held in closed session in accordance with BSC
Section B 4.5.2.
0.0.10 Conflict of Interest
Without prejudice to the generality of BSC
Section B 2.8, each
Panel Member shall act fairly and impartially and shall not be representative of, and shall act without undue regard to, the interests of any particular person or class of persons (including his employer).
Each Panel Member shall disclose to the Chair at the commencement of the Referral or, as soon as they become aware of, the existence of any interest which in the Panel Member’s reasonable opinion constitutes an actual or potential conflict of interest with their participation in the Referral.
Without limitation such circumstances referred to in paragraph 10.2 may include:
the Referral concerns the Panel Member's employer or any company in the same corporate group as the Panel Member's employer; or
the Referral concerns the Panel Member's future employer, when notice has been given to the existing employer; or
the Referral concerns a company or matter in which the Panel Member has a material or significant commercial interest; or
Following receipt of a disclosure pursuant to paragraph 10.2, or where the Chair otherwise considers it appropriate, the Chair shall consider the circumstances giving rise to an actual or the potential conflict of interest for a Panel Member and either:
decide that no material conflict exists;
should not participate in considering the Referral and that the Panel Member should decide that the actual or potential conflict of interest is such that the Panel Member absent themselves from the Referral hearing; or
draw the conflict of interest to the attention of the Referring Party and ask the Party to state whether or not it objects to the Panel Member participating in the Referral hearing and:
if the Party objects to the Panel Member participating in the Referral hearing the Panel Member shall absent themselves from the hearing; or
if the Party does not object to the Panel Member participating in the Referral hearing the Panel Member shall, remain on the Panel for the purposes of participating in the determination of the Referral. The Referring Party will be deemed to have irrevocably waived its right to object thereafter to the participation of that Panel Member in the determination of the Referral.
Subject to paragraph 11.2, the Chair may adjourn the Referral hearing if:
new evidence or information is raised at or prior to the Referral hearing (and does not form part of Referral Papers sent to the Panel) and which the Chair considers is such that the Panel requires additional technical assistance or other advice; or
the complexity or importance of the Referral is such that the Chair considers that it is necessary to obtain additional legal advice or technical assistance; or
the Chair considers that there is insufficient time available for the Referral to be properly dealt with or otherwise considers it proper and appropriate to adjourn the Referral hearing; or
pursuant to paragraphs 7.1(c) and/or 7.2(e); or
any time periods have been extended in accordance with paragraph 6.10 and the Chair determines that such extension(s) necessitate an adjournment.
The Chair may in his discretion refuse the late admission of evidence or information submitted by the Referring Party or any affected Party where in his view the Referring Party or any affected Party knew or ought to have reasonably known of the existence of such evidence or information prior to the Referral hearing and/or which is unlikely to be of relevance to the determination of the Referral.
The Panel Secretary shall notify the Referring Party and any affected Party of the adjournment.
The Panel Secretary shall notify the Referring Party and any affected Party of the date of any adjourned hearing within 5 days of the date for such an adjourned hearing being set together with any additional directions given by the Chair concerning the conduct of the Referral or the Referral hearing (including in relation to the provision of additional documentation which is to be submitted or representations which may be made to the Panel).
0.0.12 Withdrawal of Referral
At any time after the Referring Party has submitted a Referral Notice but prior to the Panel’s determination the Referring Party may give written notice to the Panel Secretary of the withdrawal of its Referral.
The Panel Secretary will as soon as practicable notify the Panel, the TDC and any affected Parties that notice of withdrawal has been received.
Decisions of the
Panel taken at the Referral hearing shall be made in accordance with BSC
Section B 4.4.
Subject to paragraph 11.1, the Panel Secretary shall notify the Referring Party and any affected Party in writing of the Panel’s decision within 3 days of the Referral hearing.
The Panel will produce a confidential Case Summary, including the rationale supporting the Panel’s decision, and will share this with the TDC within 3 months of the Referral hearing.
A non-confidential Case Summary will be published on the
BSC Website within 3 months of the Referral hearing.
If a matter is referred to the
Panel pursuant to BSC
Section W 3.5.1(a) and the
Panel determines that a
Settlement Error has occurred the matter shall be remitted to the
Trading Disputes Committee in accordance with
Section W 4.1.1A, and the
Trading Disputes Committee shall decide what changes in data, processes or the application of the rules are appropriate to correct the
Settlement Error and determine the materiality of the error in accordance with
Section W 3.4.3(b)(ii) & W3.4.3(b)(iii) and any relevant determination under Section W 4.1.1.
Where the
Panel determines in relation to an affected
Settlement Period that a
Trading Dispute was raised by the Dispute Deadline or the
Panel decides to exercise its discretion in accordance with BSC
Section W 3.2.4, the
Panel Secretary shall notify the decision to the
Disputes Secretary and it may remit the matter back to the
Trading Disputes Committee for a decision under
Section W 3.4.3(b) or it may determine if a
Settlement Error has occurred under
Section W 3.4.3(b)(i), and if a
Settlement Error has occurred it shall remit the matter back to the
Trading Disputes Committee for those determinations outlined in paragraph 14.1.
If a matter is referred to the
Panel because the
Party disagrees with the determination of the
Trading Disputes Committee pursuant to BSC
Section W 3.4.3(b)(ii) or W3.4.3(b)(iii), the
Panel shall determine the matter in accordance with
Section W 3.4.3(b)(ii) and/or W3.4.3(b)(iii) and then remit the matter back to the
Trading Disputes Committee for any relevant determination under
Section W 4.1.1.
Where a matter has been referred to the
Panel pursuant to BSC
Section W 3.5.1(b) because the
Trading Disputes Committee has sought but failed to reach a majority decision in respect of a
Trading Dispute, the
Panel shall make a determination on such
Trading Dispute in accordance with
Section W 3.4.3. The
Panel shall remit the matter back to the
Trading Disputes Committee for any relevant determination under
Section W 4.1.1.
If a matter is referred to the
Panel pursuant to BSC
Section W 3.5.1(c), the
Panel shall determine such matter pursuant to
Section W 4.1.1 and in accordance with
Section W 3.5.5A a decision of the
Panel in this regard shall be final and binding on all Parties.
Documentation or information which forms part of the material produced for or in connection with the Referral shall be deemed to be Confidential Information for the purposes of the BSC.
Notwithstanding 13.4 the contents of the Referral hearing are confidential to Panel Members attending the hearing and shall not be disclosed outside of the Referral hearing.
