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Renewable Energy 2021 Renewable Energy 2021 A practical cross-border insight into renewable energy law First Edition Featuring contributions from: Bracewell (UK) LLP Gómez-Acebo & Pombo Abogados POSSER SPIETH WOLFERS & PARTNERS Cliffe Dekker Hofmeyr Inc (CDH) Gonzalez Calvillo The Law Firm of Wael A. Alissa in Dentons & Co. Jones Day association with Dentons & Co. Doulah & Doulah Mazghouny & Co UMBRA – Strategic Legal Solutions DS Avocats Nishimura & Asahi Wintertons European Investment Bank Pillsbury Winthrop Shaw Pittman LLP ISBN 978-1-83918-069-9 ISSN 2634-4300 Published by 59 Tanner Street London SE1 3PL United Kingdom Renewable Energy 2021 +44 207 367 0720 [email protected] www.iclg.com First Edition Consulting Group Publisher Rory Smith Publisher Blanca Alza Reguera Sub Editor Contributing Editor: Matthew Day Mhairi Main Garcia Senior Editor Sam Friend Dentons & Co. Head of Production Suzie Levy Chief Media Officer Fraser Allan CEO Jason Byles Printed by Ashford Colour Press Ltd. Cover image www.istockphoto.com ©2020 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, Strategic Partners digital or analogue, in whole or in part, is strictly forbidden. Disclaimer This publication is for general information purposes only. It does not purport to provide comprehen- sive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents Expert Chapters Renewable Energy Fuelling a Green Recovery 1 Mhairi Main Garcia, Dentons & Co. Trends and Developments in the European Renewable Energy Sector 5 from a Public Promotional Banking Perspective Roland Schulze & Matthias Löwenbourg-Brzezinski, European Investment Bank Q&A Chapters Australia Saudi Arabia 11 Jones Day: Darren Murphy, Adam Conway & 76 The Law Firm of Wael A. Alissa in association with Prudence Smith Dentons & Co.: Mahmoud Abdel-Baky & Mhairi Main Garcia Bangladesh 19 Doulah & Doulah: A.B.M. Nasirud Doulah & South Africa Dr. Amina Khatoon 83 Cliffe Dekker Hofmeyr Inc (CDH): Jay Govender, Emma Dempster, Tessa Brewis & Alecia Pienaar Egypt 26 Mazghouny & Co: Donia El-Mazghouny Spain 91 Gómez-Acebo & Pombo Abogados: Luis Gil Bueno & Ignacio Soria Petit France 33 DS Avocats: Véronique Fröding & Stéphane Gasne United Arab Emirates 99 Dentons & Co.: Mhairi Main Garcia & Germany Stephanie Hawes 41 POSSER SPIETH WOLFERS & PARTNERS: Dr. Wolf Friedrich Spieth, Niclas Hellermann, Sebastian Lutz-Bachmann & Jakob von Nordheim United Kingdom 109 Bracewell (UK) LLP: Oliver Irwin, Kirsty Delaney, Nicholas Neuberger & Robert Meade Indonesia 48 UMBRA – Strategic Legal Solutions: Kirana D. Sastrawijaya, Amelia Rohana Sonang, USA Melati Siregar & Junianto James Losari 117 Pillsbury Winthrop Shaw Pittman LLP: Mona E. Dajani Japan 56 Nishimura & Asahi: Sadayuki Matsudaira Zimbabwe 121 Wintertons: Nikita Madya Mexico 62 Gonzalez Calvillo: Jorge Cervantes, Hernando Becerra & Pedro Lladó Camarillo Oman 70 Dentons & Co., Oman Branch: Mhairi Main Garcia & Yasser Taqi Welcome From the Publisher Dear Reader, Welcome to the first edition of ICLG – Renewable Energ y, published by Global Legal Group. This publication provides corporate counsel and international practitioners with comprehensive jurisdiction-by-jurisdiction guidance to renewable energy laws and regulations around the world, and is also available at www.iclg.com. This year, two expert chapters cover renewable energy fuelling a green recovery, as well as trends and developments in the European renewable energy sector from a public promotional banking perspective. The question and answer chapters, which in this edition cover 16 jurisdictions, provide detailed answers to common questions raised by professionals dealing with renewable energy laws and regulations. As always, this publication has been written by leading renewable energy lawyers and industry specialists, for whose invaluable contributions the editors and publishers are extremely grateful. Global Legal Group would also like to extend special thanks to contributing editor Mhairi Main Garcia of Dentons & Co. for her leadership, support and expertise in bringing this project to fruition. Rory Smith Consulting Group Publisher Global Legal Group Welcome Chapter 1 1 Renewable Energy Fuelling a Green Recovery Dentons & Co. Mhairi Main Garcia Introduction supply problems coupled with, in some cases, issues around payment and debt restructuring, operational projects may benefit At the beginning of 2020, renewable energy contributed to just from fixed or guaranteed tariffs or revenue support schemes. over a quarter of total global electricity generation. There is Therefore, to some degree, operational renewable energy projects clearly the potential to increase this contribution and to diver- have been less impacted by the COVID-19 pandemic. sify further the different types of renewable energy. That poten- tial has been exemplified by the novel coronavirus or COVID-19 Contractual and Statutory Protections pandemic, which has led to a new energy paradigm, with energy demand declining by unparalleled levels and, at the same time, In the short-term, for future and existing renewable energy many countries reaching new highs in terms of consumption of projects, in the absence of performance relief, the impact of electricity generated from renewable energy sources. COVID-19 restrictions may lead to suspension or termination As part of the response to the COVID-19 pandemic, govern- of contracts. Contracting parties must understand what relief is ments have the opportunity to adopt economic stimulus plans available; for example, relief in the form of contractual or stat- and long-term policies to encourage the growth of renewable utory force majeure protection. The scope of such relief is crit- energy and support the energy transition. ical too. Does it provide for relief from performance only? Or is there cost relief? If there is no cost relief, can the project Impact of COVID-19 benefit from any protection through insurance or government assistance? The COVID-19 pandemic has resulted in an unprecedented Another area which contracting parties need to consider is global economic crisis with an impact on all economic sectors, whether there are any stabilisation or change in law provisions including the energy sector, with production, output and employ- which may apply, especially when considering the impact of ment levels all being (and continuing to be) negatively impacted. movement restrictions, local lockdowns and measures curbing As economies locked down in the face of the COVID-19 supply chains. Contracting parties may have the benefit of pandemic and have entered subsequent phases of lockdowns, contractual stabilisation or change in law protection, which there was a dramatic fall in energy demand that has still not could restore the economic balance of the contract or provide returned to pre-COVID-19 levels. cost and/or time relief to the affected party where a new or The renewable energy sector has suffered a decline, both in amended law (in the jurisdiction of the relevant project) has terms of existing and new investments. Movement restrictions been issued after the date of the contract. The extent of any such have been imposed in an effort to stem the tide of COVID-19, relief will depend on the scope of the contractual stabilisation or impinging on day-to-day business practices, limiting availa- change in law provision in the contract and the specific factual bility of personnel and disrupting supply chains. Even coun- circumstances. Unfortunately, the COVID-19 restrictions may tries which have eased restrictions are continuing to see a lasting not always rise to the level of an amendment to, or change in, law impact of the measures. benefiting from contractual protection. In the renewable energy sector, projects under development In addition, even where the contracting parties can rely on have been particularly impacted, given the global nature of supply force majeure, stabilisation or change in law protection, there are a chains, for example, when considering availability of solar panels number of procedural conditions, which have to be met before and wind turbines. Delays in the completion and/or connec- relief can be claimed, including detailed requirements in relation tion of new projects may lead to projects being in distress or even to causation, notification, mitigation and resumption of perfor- terminated, in the absence of extensions of time. The disruption mance. Future restrictions being imposed by governments due of supply chains and potential for further lockdowns may addi- to COVID-19 may run the risk of failing to satisfy contractual tionally have an impact on the cost of projects. Developers and requirements that the circumstances for which relief is being contractors may have to factor in supply-chain issues, increased claimed are unforeseeable, given that continued measures to site risk (with limitations regarding site inspections) and limited combat COVID-19 and in particular lockdowns, even if on a availability of personnel, which may drive up costs. Nonetheless, local rather than countrywide basis, appear foreseeable. new renewable energy projects are still coming to the market and are continuing to attract investors
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