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Legal Issues in India's Energy Sector

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Legal Issues in India's Energy Sector LEGAL ISSUES IN INDIA'S ENERGY SECTOR Table of Contents Preface .................................................................................................................................................................... 3 Power Sector in India: An Overview .................................................................................................................. 4 Introduction ........................................................................................................................................................ 4 Relevant Laws Governing the Power Sector in India .......................................................................................... 5 Key Reforms brought in by the Electricity Act to boost generation ................................................................. 10 Relevant Bodies Governing the Generation, Transmission, and Distribution of Power ................................... 15 Tariffs ................................................................................................................................................................ 18 Key Challenges faced by the Power Sector in India .......................................................................................... 23 Case Laws .......................................................................................................................................................... 25 CUTS Debate: Sanctity of Contract v Sustainability of Business ....................................................................... 29 Policy Changes in the Near Future .................................................................................................................... 30 Guidelines on Cross Border Trade in Electricity, 2016 ...................................................................................... 32 Maintaining the Sanctity of PPAs ...................................................................................................................... 34 Tariff Determination and Re-negotiation of Tariff ............................................................................................ 36 An Overview of the Renewable Purchase Obligations in India ..................................................................... 43 Commitments and Policy Directives ................................................................................................................. 43 National Action Plan for Climate Change .......................................................................................................... 45 Current SERC RPO Framework: Snapshot of selected states ............................................................................ 47 Key Challenges & Actions Taken ....................................................................................................................... 53 Regulation of Group Captive Arrangements in India ..................................................................................... 55 Legislative Framework ...................................................................................................................................... 55 Regulation of Nuclear Power ............................................................................................................................. 61 Regulatory Framework in India ......................................................................................................................... 63 Solar Power and India ........................................................................................................................................ 66 The Jawaharlal Nehru National Solar Mission .................................................................................................. 66 Customs Duties ................................................................................................................................................. 67 Mapping the Solar Sector from a WTO and International Trade Law Perspective ........................................... 68 Foreign Direct Investment in the Solar Power sector ....................................................................................... 70 India’s Power Sector: Legal & Regulatory Developments 1 | P a g e © Economic Laws Practice 2018 Competitive Bidding in Solar and Wind Power .............................................................................................. 73 The competitive bidding guidelines for procurement of solar and wind power .............................................. 74 Future of Coal Fired Plants in India ................................................................................................................. 80 Policy Drivers ..................................................................................................................................................... 80 Financing of the Power Sector ........................................................................................................................... 84 Land: Due Diligence .......................................................................................................................................... 88 Stressed Assets: A rocky road ahead ................................................................................................................ 91 Loans and Bad Debts ......................................................................................................................................... 91 The RBI adding to the pressure ......................................................................................................................... 92 The Samadhan Scheme (Scheme of Asset Management & Debt Change Structure) ....................................... 94 Shakti Scheme ................................................................................................................................................... 94 The Road Ahead ................................................................................................................................................ 95 Grant of loans to the Electricity sector: Modifying the process ....................................................................... 96 Trading of electricity and pricing of RECs ......................................................................................................... 96 Auctioning of Power Purchase Pacts ................................................................................................................ 96 A Due Diligence Legal Checklist ...................................................................................................................... 98 Power Sector: GST ........................................................................................................................................... 100 Key issues and aspects specific to the power sector ...................................................................................... 103 Competition Law Issues ................................................................................................................................... 106 Anti-competitive conduct in the power sector ............................................................................................... 106 Combinations in the Power Sector ................................................................................................................. 110 Electric Vehicles: Regulatory Impact .............................................................................................................. 112 Policy Issues: Power Sector ............................................................................................................................. 114 Power sector & Insurance ................................................................................................................................ 117 Abbreviations ..................................................................................................................................................... 120 Annexure ........................................................................................................................................................... 124 India’s Power Sector: Legal & Regulatory Developments 2 | P a g e © Economic Laws Practice 2018 Preface ‘If it weren't for electricity, we'd all be watching television by candlelight ‘- George Gobel When you enter a dark room, you dispel the darkness by a flip of a switch. A small reflex action-which comes as second nature to us. One fails to realise how much electricity is taken for granted. As a nation, we are witness to a conflicting situation in our energy sector today- we might be the third largest producer of electricity in the world and indeed even a net power exporter- yet, this sector bears the weight of several stressed assets. With payable loans to the tune of USD 78 billion, about 66 GW of conventional energy is under various degrees of financial stress today. A number of reasons including primarily the lack of coal supply, lack of long-term power purchase agreements, inability of promoters to infuse the equity and inordinate delays in regulatory orders and receivables from distribution companies added to the woes of the energy market in the country. The silver lining though is the tide seems to be slowly changing for the better. The power developers are starting to look beyond the perils with the focus is shifting away from contracts with government-owned
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