MIR 162 – THE NEW RED BEANS?

Christopher Swart, Partner

T: +44 (0)20 7264 8211

christopher.swart@hfw.com

MIR 162- the new Red Beans?

MIR 162 – what is it ?

- why is it a problem ?

Chinese Regulations

Practical Issues and Solutions

Legal Implications

Managing the risks

Future course and issues

MIR 162

China has rejected/prohibited import of numerous cargoes of US corn/DDGS since mid-November 2013 after testing found a strain of genetically-modified (GMO) not yet approved for import into China. Estimates vary from 600,000 to 1m mt.

China has already approved 14 varieties of genetically-modified corn for imports but ‘Agrisure Viptera’ (coded MIR 162) - a strain of corn developed for insect resistance- is still awaiting approval.

Taken from: Hellenic Shipping News 28 January

2014 and BBC News 20 December 2013

MIR 162 – what is it ?

MIR162 was developed by the company Syngenta AG and has been widely grown in the US.

MIR 162 contains a Bt protein that is toxic to a variety of corn pests, principally corn earworm, armyworm, cutworm and corn borer.

MIR 162 may be present in corn, DDGS and soybeans.

MIR 162 – why is it a problem ?

It is approved in most important markets including the EU, with the exception of China.

In 2010, Syngenta submitted an application for approval of MIR 162 to the Chinese government. However, the application has yet to be endorsed.

In November 2013, Syngenta submitted the application again and it is still under review by the Chinese government.

By end of 2013 Chinese domestic price of corn fell substantially below international price. Domestic oversupply.

Recent report from Reuters 3/3/14 "A fresh outbreak of bird flu and tumbling pork prices are undermining China's demand for animal feed, adding to a glut of corn and potentially prolonging a dispute over GMO material that has curbed U.S. imports."

MIR 162

China is now the third largest importer of corn, most of which comes from the US. During the sale year of 2012/13, the quantity imported was 5.12 million tons, and before crisis it was estimated that for 2013/14, the quantity would reach a historical high of 7.20 million tons.

MIR 162 was planted on about 3% of U.S. acres for the last two seasons and is not confined to any region. It is suggested that this level is too high to ensure that cargoes will not have even trace amounts of MIR 162 when they land in China.

Taken from Shanghai Daily 4 December 2013 and Iowa Corn 2014

The new "red beans"?

Allegations that Chinese users are oversupplied with corn and looking for reason to escape from contracts …

Allegations that rejections are price driven …

Comparisons with the "red beans" which led to rejection of numerous cargoes of soybeans at Chinese ports 10 years ago ..

May 2004 – General Adminitration of Quality Supervision, Inspection and Quarantine (AQSIQ) issued notices banning a number of grain majors outright from selling soybeans into China after apparent discovery of carboxin or "red beans" in a Brazilian cargo, and also banning the import of any beans found to contain carboxin

Chinese Regulations- MIR 162

1. 农业转基因生物安全管理条例：Regulations on Administration

of Agricultural GMO Safety promulgated by the State Council;

2. 农业转基因生物进口安全管理办法：Administrative Measures

for GMO Import Safety promulgated by MOA ;

3. 进出境转基因产品检查检疫管理办法： Administrative

Measures for Import and Export GMOs Quarantine Inspection promulgated by CIQ;

4. 农业转基因生物安全评价管理办法：Administrative Measures

for GMO Safety Appraisal promulgated by the MOA;

5. 农业转基因标识管理办法：Administrative Measures for GMO

Label promulgated by the MOA.

MIR 162- REGULATIONS

Article 33 of Regulations on Administration of Agricultural GMO Safety and Article 12 of Administrative Measures for GMO Import Safety:

Importers of GMO to China shall apply to MOA to obtain GMO Safety Certificate.

Article 34 of Regulations on Administration of Agricultural GMO Safety, by provision GMO Safety Certificate and other relevant approved instruments, importers shall first apply to CIQ for inspection and shall then apply for customs clearance only after passing CIQ inspection.

MIR 162 - REGULATIONS

A GMO certificate for MIR 162 cannot be obtained as the PRC has not approved the import of MIR 162 GMO corn.

Article 18 of Administrative Measures for GMO Import Safety promulgated by MOA states: " Those who import agricultural GMOs for production or as raw materials for processing shall obtain the safety certificate of agricultural GMOs issued by the Ministry of Agriculture before signing the contract."

·进口农业转基因生物用于生产或用作加工原料的，应当在取得农业部颁发的农业转基因生物安全证书后，方能签订合同·

APPLICATION OF REGULATIONS

Article 38 of the Regulations on Administration of Agricultural Genetically Modified Organisms Safety states "Agricultural genetically modified organisms that are imported without a safety certificate of agricultural genetically modified organisms issued by the competent agricultural administrative department of the State Council and the relevant documents of approval, or not conforming to the certificate or the documents of approval, shall be rejected or destroyed. Where agricultural genetically modified organisms to be imported are not labelled as required, the goods cannot enter the territory of China until being relabelled."

These Regulations are supplemented by the Implementation Regulations on the Safety of Import of Agricultural Genetically Modified Organisms. Chapter 5, Article 19 reads "Agricultural GMOs that are imported without a safety certificate of agricultural GMOs issued by the Ministry of Agriculture and the relevant approval documents, or not conforming to the certificate and the relevant approval documents, shall be rejected or destroyed."

WORDING OF GMO CERTIFICATES

我公司拟向中国出口产地为美国的转基因玉米（涉及14种玉米品种：t25,

Bt11, Bt176, NK603, GA21, MON810, MON863, TC1507, 59122, MON88017, MIR604, MON89034, MON87460,3272).

"Our company plans to export genetically modified corn (involving 14 breeds: T25, Bt11, Bt176, NK603, GA21, MON810, MON863, TC1507, 59122, MON88017, MIR604, MON89034, MON87460, 3272) produced in the USA to China."

KEY CHARACTERS: 涉及- involving

Interpreted with the Chinese regulations it is likely to be argued by Chinese buyers that the characters mean that the imported corn only consists of the 14 listed strains of GMO corn.

However, it can also be argued that the character "involving" does not mean exclusively that only the 14 strains listed are present in the corn. The language is not expressly exclusive to the 14 listed strains.

Practical Issues

Consequences if MIR 162 is detected:

Rejection of cargo.

Delays and costs in retesting.

The ship could be arrested or detained.

Shipping costs of demurrage/detention claims.

Delays and costs of resolution.

Cargo likely to have to be transhipped or diverted to another Buyer and country.

Distressed cargo, reduced price

Additional freight costs

Origination country logistics problems

Still possible claims from Buyer.

Practical Solutions

Little point in risking rejection.

Persuade Buyers to take the risk.

Get samples approved first.

Keep ship out of Chinese waters.

Seek to "wash out" contract with Buyers if they won't accept the risk of rejection and delay, on acceptable terms.

Can be done at any stage prior arrival.

Chinese Law

CIETAC arbitration.

Administrative

Views of CIQ great weight as being the law.

Literal interpretation

Sellers' problem

Zero tolerance

English Law - GAFTA

Many contracts are governed by GAFTA terms with quality final at loadport provisions.

Usual CIF and FOB regime that risk passes on shipment (loading). International sellers' responsibilities under FOB or C&F/CIF sales do not extend to import issues.

GAFTA terms confirm this – eg clause 13 of GAFTA 100:

" … All import duties, taxes, levies, etc., present or future, in country of destination, shall be for Buyers' account".

GAFTA prohibition clauses for Sellers' benefit only

GAFTA Force Majeure clauses largely for Sellers' benefit and always re issues at loading

Destination problems and approvals are the Buyers'. Sometimes express clauses to this effect.

English Law – GAFTA (2)

But if Contracts contain quality final at discharge terms or GMO specific terms terms protecting Buyers then the usual position can be reversed.

Some have express responsibility of Sellers to tender GM-free certificates in contract?

Even if contract provides certificate final as to quality at loadport, does MIR 162 fall within contractual quality parameters?

Sale of Goods Act 1979: implied term of satisfactory quality/fitness for common purpose in contract unless excluded? Is corn containing MIR 162 sold on C&F China basis of satisfactory quality or fit for purpose?

Inherent vice ?

English Law – GAFTA (3)

Even if Sellers are in breach of quality terms, Buyers are not necessarily entitled to reject (in absence of express term) … How serious is the MIR 162 issue in the context of the cargo as a whole?

Should a de minimis principle to be applied to presence of MIR 162 in the goods, or should a "zero tolerance" policy be followed?

Does the fact of CIQ rejection override the fact that most countries accept it, or is this a break in the chain of causation such that Buyers are responsible anyway?

Or is MIR 162 simply a matter of Buyers' import risk, absent contractual terms to contrary?

English law – GAFTA (4)

Managing the risks

Theory

Contracts: New clauses

Check the terms of your contracts- in particular the obligations for provision of GMO certificates and/or warranties as to GMO content.

If there are unsuitable terms in your contracts try to re-negotiate them.

GMO certificates

If your GMO certificates do not include MIR 162, if possible amend the wording of your certificates to insert characters such as 包括 ("including") or 不仅仅 ("not only") to indicate that the corn may include more than the

listed strains of corn.

Practice

Can't

Buyers won't take the risk either

Uninsurable now

Managing the risks (2)

Payment Terms

By LC?

Best but still problems

Who pays for vessel and cost of delay?

Is LC establishment time in line with origination logistics?

Future Course and issues (1)

Focus on Syngenta

On 22 January 2014 the National Grain and Feed Association (NGFA) and North American Export Grain Association (NAEGA) sent a letter to Syngenta asking the company to immediately halt commercialisation in the US of its Agrisure Viptera (MIR162) and Agrisure Duracade corn until such time as China and certain other U.S. export markets have granted required regulatory approvals/ authorisations. NGFA-www.ngfa.org- January 2014

Class action ?

Syngenta's position:

“Changing our marketing plan in the U.S. now would have no effect on grain in the system or Chinese acceptance of corn imports,” the company said in a statement.

Syngenta has defended themselves stating that the “real” issue is a lack of synchronised approvals by countries like China…

http://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=yhKkkrZxqztyyM&tbnid=M6qzKDQtPs2LYM:&ved=0CAUQjRw&url=http://www.pinterest.com/pin/346636502540814135/&ei=dN4NU4PiNKWb0QWdwoHIDA&psig=AFQjCNFB_pdwc6dudoSm80QDIwZDuVwSLw&ust=1393504069795798

Future Course and issues(2)

Chinese change of heart ?

Chinese authorities continue to test and reject cargoes of corn and soybeans on the basis of MIR 162. The US government has asked China to approve MIR 162 but the Chinese government has demanded that the US strengthen its transgenic controls first.

Chinese authorities have said they may approve it in 2014. They will have to, if they want to receive US grain in the next season. Owise ukraine, South Am.

Syngenta are said to hope that MIR 162 will be approved by the Chinese authorities by March .... or June 2014 …

But Sygenta are already working on the next GM corn trait …

The Agrisure Duracade trait - engineered to fight rootworms - has been approved for planting in the US this year but has not yet been approved by China or the EU for import.

A number of grain majors have expressly rejected the Duracade trait for export contracts …

Ukraine Situation: Effect on Commodity Contracts

Current political unrest and increased military build up in Crimea

Situation has been described as a “new event risk for commodity markets” (Deutsche Bank’s commodities desk).

Ukraine and Commodities

Ukraine is the world’s fifth-largest exporter of wheat and third-biggest exporter of corn.

Half of natural gas supplied by Russia to Europe flows through Ukraine.

Ukraine: Major Effect of Current Situation

Effect on commodity trade currently uncertain.

Significant concerns amongst trading and shipping companies about potential defaults and delays in performance.

International grain price rises

Some difficulties in obtaining financing from local banks.

However, as yet disruption has not spread to Black Sea ports from where most commodities are exported.

In the longer term, important to see whether there is effect on seed planting which is due to take place soon in case of disruption to harvest.

At present, unlikely that requirements of frustration / FM / Prohibition clauses will be met as performance is not yet impossible or prevented (or delays in performance sufficiently long).

Ukraine: Black Sea Ports

Ukraine: Recent Reports on the Ground

Last week Gard P&I Club's correspondents in Odessa published the following guidance:

"Ports in the Ukraine have fortunately so far not been affected by the unrest in the country and continue to operate as normal. There appear to have been no disruptions to ship loadings in the three largest ports, Odessa, Ilyichevsk and Yuzhny, and the situation in these ports is considered stable. As for the Crimean ports, including Sevastopol, Kerch and Theodosia, our correspondents advise that these ports are also quiet but the situation may change very quickly. However, since military forces are reported to be partly blocking the entrance to the port of Sevastopol, foreign vessels visiting this port may experience delays.

Ukraine: Recent Reports on the Ground (cont)

Although current reports in international media indicate that Russia would use military force in the Ukraine only as a last resort, the situation in the Ukraine may develop and change quickly. Members and clients calling at ports in the Ukraine, and particularly Crimean ports, are therefore recommended to closely monitor the situation through the international media and by remaining in regular contact with their local agents and/or the local authorities. Restrictions on shore leave should be considered for the crew of vessels calling at Crimean ports and as a precautionary measure, it may also be prudent to avoid crew changes in Ukrainian ports in the current situation.

Members and clients should also note that the banking system in the Ukraine has at some instances been experienced as less effective than normal, apparently due to strict limitations on cash withdrawals and hard currency transactions imposed by the National Bank of the Ukraine."

Ukraine - Sanctions ?

If there is a change in the law applying to one or both of the contractual parties making further performance illegal, the contract may be frustrated.

Further, many contracts have express sanctions clauses dealing with effect of NATO / US / UN / EU sanctions. Also War Risks Clauses may be relevant.

Currently only Ukrainian sanctions in place are those against former President Yanukovych and 17 other named individuals who have been "identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine".

Ukraine – Sanctions (cont)

There are also US domestic measures which freeze the funds of individuals (not yet identified) who are determined:

(i) to be responsible for or complicit in, or to have engaged in, directly or indirectly, any of the following: (a) actions or policies that undermine democratic processes or institutions in Ukraine; (b) actions or policies that threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine; or (c) misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine; or

(ii) to have asserted governmental authority over any part or region of Ukraine without the authorization of the Government of Ukraine.

Ukraine - Sanctions (cont)

As indirect payments are prohibited, the bank affects payments via third parties, meaning that detailed due diligence would be required before payments are made to any Ukrainian organisation to check that it is not owned or controlled or acting on behalf of a sanctioned individual.

Ukraine – Sanctions (cont)

Whilst further sanctions may be imposed, it appears that the EU and the US want to support Ukraine's new government and therefore sanctions that affect trade with Ukraine may be unlikely.

Close monitoring of situation is essential.

Lawyers for international commerce hfw.com