A legal perspective of "take or pay" clauses in the long term supply contracts in the natural delivery industry

The article deals with the Take or Pay Clauses which are often present within Long Term Supply Contracts in Gas Delivery Industry. It gives a description of the sense and the purposes of the afore-said clauses in the whole economy of Gas Sale and Purchase Agreements. The article also describes other peculiar clauses, such as the Make Up Clauses: which entitle the Buyer to take the Gas not off-taken in the previous contract period. As well as the Carry Forward Clauses which – on the contrary – entitle the Buyer to take more Gas compared with the quantities fixed in the Contract and to off-set those quantities with the next Gas purchases. But the main issue considered in the paper concerns the analysis of the events that could grant to each Party the right to ask for a change to the contract price at certain times and under certain circumstances. In this field, above all nowadays, the most careful operators try to insert in the Contracts with Take or Pay clauses a specific Market Economically Clause, with the aim to allow – by means of a revised price – even the Buyer (and not only the Seller) to earn a sustenible margin over the whole duration of the contractual relation. The article highlights that the burden proof is allocated on the Party (usually the Buyer) who is interested to an adjustment of the base price. Anyways the chances to succeed are linked to the possibility to demonstrate not only significant charges during the reference period, but also the fact that the afore said changes have been occurred beyond the control of either Party and have in reality affected the mechanism of the formation of the Gas price. The article terminates underlining that along an operating perspective the more delicate profile regards the determination of the new price. In case of disagreement and dispute is frequent the filing of International Arbitration Proceedings.