document sets out some of the main paradigms of environmental obligations
expected by the EIB. It is inescapable that any green shipping finance instrument
backed by the EIB would require compliance with this prevailing obligation as set
out in clause 1(a):
An EIB borrower that receives financing from the EIB for a project undertakes to
(i) implement and operate the project in compliance with Environmental Law, (ii) obtain
and maintain requisite Environmental Approvals for the project, and (iii) comply with any
such Environmental Approvals.
In the main, clause 1(g) defines “Environmental Law” as:
(a) EU law, including principles and standards;
(b) [the host state]/[national] laws and regulations; and
(c) applicable international treaties
of which a principal objective is the preservation, protection or improvement of the
Environment.
“Environmental Approval” on the other hand means any authorisation required
by “Environmental Law”. What is especially noteworthy is that the term “Environment” is to be defined contractually and it is intended by the EIB for the term and its
definition in the proforma template to be incorporated in the EIB’s green financing
instruments. Clause 1(g) defines “Environment” to “the following, in so far as they
affect human health and social well-being:
(a) fauna and flora;
(b) soil, water, air, climate and the landscape; and
(c) cultural heritage and the built environment,
and includes, without limitation, occupational and community health and
safety.”
Recalling that this is not law but a contractual term, its construction would largely
be subject to the relevant national law and EU law.
16 There is emphasis on the
context of interpretation being the effects on human health and social well-being. It
might surely be contended that that is too wide and nebulous. That is perhaps the
challenging matter when trying to incorporate environmentalism into commercial
contracts. There does not seem to be a right way of construing the concept—because
trying to contain the concept defies policy. A better and certainly more pragmatic
way of looking at the concept, contractually, might be to consider what is not
enveloped by the notion rather than what is.
It is also worth noting that although any contractual term can be modified, omitted
or extended, this is essentially a commercial template. In this author’s opinion, it is
unlikely that commercially minded institutions like the EIB and its partner financial
institutions to be swift to query and re-create a different formulation.
16 This principle stems from the public international law principles on the subject; see for example
Colin and Sinkondo (1992), Schneider (1993), Mann (1959), Delaume (1962), Jenks (1962). See
also Sauter and Schepel (2009).
Legal Aspects of Green Shipping Finance: Insights from the European. . .
137
expected by the EIB. It is inescapable that any green shipping finance instrument
backed by the EIB would require compliance with this prevailing obligation as set
out in clause 1(a):
An EIB borrower that receives financing from the EIB for a project undertakes to
(i) implement and operate the project in compliance with Environmental Law, (ii) obtain
and maintain requisite Environmental Approvals for the project, and (iii) comply with any
such Environmental Approvals.
In the main, clause 1(g) defines “Environmental Law” as:
(a) EU law, including principles and standards;
(b) [the host state]/[national] laws and regulations; and
(c) applicable international treaties
of which a principal objective is the preservation, protection or improvement of the
Environment.
“Environmental Approval” on the other hand means any authorisation required
by “Environmental Law”. What is especially noteworthy is that the term “Environment” is to be defined contractually and it is intended by the EIB for the term and its
definition in the proforma template to be incorporated in the EIB’s green financing
instruments. Clause 1(g) defines “Environment” to “the following, in so far as they
affect human health and social well-being:
(a) fauna and flora;
(b) soil, water, air, climate and the landscape; and
(c) cultural heritage and the built environment,
and includes, without limitation, occupational and community health and
safety.”
Recalling that this is not law but a contractual term, its construction would largely
be subject to the relevant national law and EU law.
16 There is emphasis on the
context of interpretation being the effects on human health and social well-being. It
might surely be contended that that is too wide and nebulous. That is perhaps the
challenging matter when trying to incorporate environmentalism into commercial
contracts. There does not seem to be a right way of construing the concept—because
trying to contain the concept defies policy. A better and certainly more pragmatic
way of looking at the concept, contractually, might be to consider what is not
enveloped by the notion rather than what is.
It is also worth noting that although any contractual term can be modified, omitted
or extended, this is essentially a commercial template. In this author’s opinion, it is
unlikely that commercially minded institutions like the EIB and its partner financial
institutions to be swift to query and re-create a different formulation.
16 This principle stems from the public international law principles on the subject; see for example
Colin and Sinkondo (1992), Schneider (1993), Mann (1959), Delaume (1962), Jenks (1962). See
also Sauter and Schepel (2009).
Legal Aspects of Green Shipping Finance: Insights from the European. . .
137