Emma Johnson & Lucy McKenzie 
International Arbitration of Renewable Energy Disputes [EPUB ebook] 
Second Edition

Decarbonisation of the energy industry is critical to achieving the deep and necessary cuts to emissions required to achieve the Paris Agreement climate change goals. However, the industry must balance increasing energy demand with the need to achieve sustainability of energy supply, the importance of which has recently been accentuated by disruption to supply chains caused by the Covid-19 pandemic and the Russia-Ukraine war. Traditional dependence on fossil-fuels will need to be replaced with new technologies that generate electricity in a low, or even no, carbon way. Renewable energy sources are central to the transition.

The increase in renewable energy capacity globally and the complex and relatively untested nature of various renewable energy technologies and the contracts underlying the projects pursuant to which they are being developed, installed and operated, give rise to a wide range of potential disputes. International arbitration has long been the preferred dispute resolution forum for the energy sector and is well placed to be the preferred process for resolving the many and varied disputes that can arise in the lifetime of a renewables project.

The second edition of this Special Report considers:

the defining characteristics of renewables projects;
the scope for disputes to arise in the implementation of these projects, including an expanded discussion of the particular elements of renewable energy projects that give rise to disputes between investors and states and commercial parties and a new explanation of some of the common contractual protections that can be used to address disputes risk;
the suitability of arbitration to resolve these disputes, the key considerations for parties negotiating arbitration agreements, and how the arbitral procedure might be adapted to resolve disputes in the most efficient and effective way; and
possible trends as regards future renewable energy disputes, including as a consequence of the recent spate of EU Member State withdrawals from the Energy Charter Treaty, and as the effects of various geopolitical events including the Russia-Ukraine war continue to be felt.
Written for both a legal and non-legal audience, this Special Report is relevant to those interested in learning about the scope for disputes in the renewables sector, how they can be avoided, and how arbitration can best be deployed to prevent delay, resolve disputes which might otherwise jeopardise project completion and operation and help push the energy transition forward.

Cuprins

Introduction

I. An introduction to renewables projects

1. What is renewable energy?

2. The key players in renewables projects
2.1 The project company or consortium
2.2 The contractor(s)
2.3 Operation and maintenance provider
2.4 The offtaker of energy produced
2.5 The state
2.6 Funders
2.7 Insurers

II. Renewables projects: international law protection

1. International investment protection
1.1 Bilateral and multilateral investment treaties
1.2 The Energy Charter Treaty
1.3 Substantive protections
1.4 Reference to arbitration

2. The renewables cases against Spain, Italy, Czechia and Romania

3. A word of warning: ECT withdrawals

III. Common areas of disputes

1. Unique characteristics of renewables projects and the scope for disputes
1.1 Multiple players and contracts
1.2 New and emerging technology
1.3 No standardised contracts and the lack of precedent
1.4 New industry players
1.5 Regulatory landscape in flux
1.6 Unpredictability of the weather
1.7 Vulnerability to supply chain disruption
1.8 Relevance of local law

2. Common disputes in the main phases of a renewables project
2.1 Disputes in the development phase
2.2 Disputes in the construction phase
2.3 Disputes in the operation phase

3. Other areas of dispute
3.1 Price adjustment disputes
3.2 Joint venture disputes
3.3 Bribery and corruption
3.4 Greenwashing
3.5 Carbon credits and trading disputes
3.6 Financing disputes

4. Contractual protections aimed at mitigating disputes risk
4.1 Stabilisation clauses
4.2 Performance guarantees and minimum standards of performance
4.3 Representations and warranties
4.4 Design life obligations
4.5 Liquidated damages
4.6 Price review clauses
4.7 Variations, extensions of time and extra cost
4.8 Force majeure clauses
4.9 Defect rectification clauses
4.10 Limitation of liability clauses
4.11 Dispute resolution provisions

IV. International arbitration

1. What is international arbitration?

2. A final and binding decision

3. A decision that can be enforced outside of the parties’ home jurisdictions

4. Arbitration is perceived as a more neutral forum for disputes involving parties from multiple jurisdictions

5. Appointing arbitrators with relevant expertise

6. Flexibility of process

7. Privacy and confidentiality

8. The choice of forum is clear

9. Types of relief available in arbitration proceedings

V. Getting the basics right: drafting an effective arbitration agreement

1. The scope of the clause

2. Multi-tiered arbitration clauses

3. The seat (or legal place) of the arbitration

4. The procedural rules that will apply
4.1 Ad hoc arbitration
4.2 Institutional arbitration

5. The tribunal

6. The choice of law governing the contract

7. The law of the arbitration agreement

8. Civil law vs common law

9. Provision for joinder and consolidation

10. Provision for confidentiality

11. The need for a quick resolution
11.1 Emergency arbitration
11.2 Expedited proceedings
11.3 Summary disposal of unmeritorious claims

VI.Top tips for resolving renewables disputes through arbitration

1. Selecting the right arbitrator

2. The importance of the first Procedural Order
2.1 Document production
2.2 Confidentiality
2.3 Case management techniques

3. Educating the tribunal
3.1 Use of experts
3.2 Tribunal-appointed experts
3.3 Ringfencing relevant documents and witness evidence
3.4 Electronic exhibits and demonstratives
3.5 Site visits

4. Quantification of losses

5. Identification of remedies and defects rectification

6. Third party funding

7. ADR techniques
7.1 Mediation
7.2 Facilitation, conciliation and expert determination of key issues

8. Virtual hearings

VII. Looking over the horizon: the future of renewables arbitrations

1. Energy transition: more claims
1.1 Technology disputes
1.2 Regulatory change
1.3 Decommissioning disputes

2. Geopolitical factors

3. Intra-European investor-State arbitration

4. Changes to arbitration

Despre autor

Ashurst