International Arbitration of Renewable Energy Disputes (eBook)

Introduction 7

I. An introduction to renewables projects 11

1. What is renewable energy? 11

2. The key players in renewables projects 13

2.1 The project company or consortium 13

2.2 The contractor(s) 14

2.3 Operation and maintenance provider 14

2.4 The offtaker of energy produced 15

2.5 Other participants 16

II. Renewables projects: international law protection 17

1. International investment protection 18

1.1 Bilateral and multilateral investment treaties 18

1.2 Substantive protections 19

1.3 Reference to arbitration 20

2. The renewables cases against Spain, Italy and the Czech Republic 22

III. Common areas of dispute and contractual protections 25

1. Unique characteristics of renewables projects and the scope for disputes 25

1.1 Multiple players and contracts 25

1.2 New and emerging technology 26

1.3 No standardised contracts and the lack of precedent 27

1.4 Relevance of local law and the importance of stabilisation clauses 28

2. Common disputes in the main phases of a renewables project 30

2.1 Disputes in the development phase 30

2.2 Disputes in the construction phase 31

2.3 Disputes in the operation phase 33

IV. International arbitration 35

1. What is international arbitration? 35

2. A final and binding decision 36

3. A decision that can be enforced outside of the parties’ home jurisdictions 38

4. Arbitration is perceived as a more neutral forum for disputes involving parties from multiple jurisdictions 38

5. Appointing arbitrators with relevant expertise 39

6. Flexibility of process 40

7. Privacy and confidentiality 40

8. The choice of forum is clear 41

9. Types of relief available in arbitration proceedings 41

V. Getting the basics right: drafting an effective arbitration agreement 43

1. The scope of the clause 43

2. Multi-tiered arbitration clauses 44

3. The seat (or legal place) of the arbitration 45

4. The procedural rules that will apply 46

4.1 Ad hoc arbitration 46

4.2 Institutional arbitration 46

5. The tribunal 48

6. The choice of governing law 48

7. The law of the arbitration agreement 48

8. Provision for joinder and consolidation 49

9. Provision for confidentiality 51

10. The need for a quick resolution 52

10.1 Emergency arbitration 52

10.2 Expedited proceedings 52

10.3 Summary disposal of unmeritorious claims 53

VI. Top tips in resolving renewables disputes through arbitration 55

1. Use of experts 55

1.1 Identification of remedies and quantification of losses 56

1.2 The importance of early engagement 58

1.3 Tribunal-appointed experts 59

2. Joinder and consolidation 59

3. Document production 60

4. Case management techniques 62

5. ADR techniques 63

5.1 Mediation 63

5.2 Facilitation, conciliation and expert determination of key issues 65

6. Site visits 65

VII. Looking over the horizon: the future of renewables arbitrations 67

1. Energy transition: more claims 67

2. Modernised investment treaties 68

3. The impact of COVID-19 71

4. Changes to arbitration 73

Notes 74

About the authors 85

About Globe Law and Business 87