All
 
|
 
 


Legal Aspects of Ensuring the Stability of Energy Projects
 
PIIS0021431-4-1
DOI10.18572/2312-4350-2022-2-66-70
Publication type Article
Status Published
Authors
Andrey G. Lisitsyn-Svetlanov 
Affiliation:
Institute of State and Law, RAS
Musin Research Center for the Development of Energy Law and Modern Legal Science
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 2
Pages66-70
Abstract

The accumulated experience in the implementation of energy projects suggests that conflict situations negatively affecting energy projects can be provoked by the participants to these projects, objective economic processes in the global economy and crises as well as inspired by political differences in the international arena. The mentioned circumstances create serious risks for the stability of projects. They indicate the need to take into account a very long list of factors that should be taken into account, both upon formation of energy projects and their implementation, and upon monitoring changing circumstances that require adjustments to the current regulation.

Keywordsenergy law, international energy projects, stability of energy projects
Received09.08.2022
Publication date09.08.2022
Number of characters14649
Cite     Download pdf
1 The practice of Russian companies provides enough examples of the conclusion and implementation of major energy projects, both in Russia and abroad. A distinctive feature of the vast majority of them is the presence of a foreign element. It can be expressed in different ways: the participation of a foreign entity as a co-founder of a legal entity implementing the project in the Russian Federation; a foreign supplier of key technologies or equipment for the project, or key consumers of energy resources; the energy project may be implemented by the Russian company outside the Russian territory; the participation of foreign individuals in the management of a company is common; and other forms of presence of a foreign element in the Russian energy project are also possible.
2 The legal regulation of an energy project containing a foreign element has threesignificant features. First, emerging private law relations are regulated, and disputes that arise are considered on the basis of international private law in accordance with the international civil procedure. Second, being related to natural resources, the energy projects inevitably fall under the norms of national, both Russian and foreign, public law: laws on subsoil, environmental and environmental law, and, taking into account the strategic importance of the energy industry, antimonopoly as well as laws on export control and foreign investment. Third, these relations can be regulated by norms of international public law. At the same time, it should be noted that recently, along with national and international legal regulation, the regulation of the European Union, which applies to legal relations, the subjects of which are not only companies of EU member states but also their counterparties from other countries, in particular, Russian companies, has acquired significant importance. This was most clearly manifested after the adoption of the Third Energy Package of the European Union in relation to the Nord Stream 2 project.
3 Modern domestic experience of energy projects with foreign participation is already 40 years old. The accumulated experience suggests that conflict situations that negatively affect energy projects can be provoked by the participants to these projects, objective economic processes in the global economy and crises, and also inspired by political disagreements in the international arena. The specified circumstances create serious risks for the stability of projects. They indicate the need to take into account a very long list of factors that should be taken into account, both upon formation of energy projects and their implementation, and upon monitoring changing circumstances that require adjustments to the current regulation. The latter circumstance is very important not only for entities with the right of legislative initiative but also for business associations in the course of their possible participation in the process of rule-making or improving local corporate regulation.
4 The following may be singled out from the extensive list of possible risk factors that can negatively affect the stability of energy projects.
5 The universal factors include: an objective opposition of the interests of companies and countries supplying energy resources with the interests of companies and countries importing energy resources; the period of their validity, and the arbitrary choice of the language of the contracts.
6 Differences in the interests of exporters and importers, customers and contractors, licensors and licensees as the parties to the contract are quite understandable. With regard to international projects, these contradictions, in legal terms, most clearly manifested themselves in cases related to Yukos in the part concerning the problem of the operation of the Energy Charter providing for an arbitration procedure for resolving disputes. The duration of energy projects is a factor that can give rise to destabilizing circumstances in the context of innovative energy development as well as changes in national regulation and the international law and order.
7 The following should be noted with regard to the Russian practice. Russian energy projects were formed simultaneously with the reform of the domestic legal system. The adopted regulations, even including codes and laws, have been repeatedly amended. However, the contractual framework for energy projects with foreign participation could not be modernized at the same pace. In practice, this has repeatedly led to conflict situations between project partners. However, not only the objective need for the development of new Russian laws stretched over time has become a source of destabilization for a number of projects. Recent trends in the development of EU law testify to the breakaway of the Community law from a number of such fundamental institutions of continental law as the territoriality of the operation of legal norms, Lex retro non agit, and an expanded interpretation of the rules on the admissibility of unilateral refusal of the agreement has also been applied.

views: 240

Readers community rating: votes 0 

1. For more detail see: Problem Issues and Trends of Legal Regulation in the Sphere of Nuclear Energy Use. Monograph edited by V.V. Romanova, LL.D. Moscow: Yurist Publishing House. 2017; Viktoria V. Romanova. Legal Regulation of Nuclear Medicine and Modern Goals of the Development of Energy Law Order. Czech yearbook of Public and Private International Law. 2019. P. 313–320; Viktoria V. Romanova. On the Current Trends of International Treaties in the Field of Nuclear Law with the Participation of Russian Federation. Czech yearbook of Public and Private International Law. 2020. P. 370–378; Viktoria V. Romanova. The Decarbonization Process, Nuclear Energetics Potential and the Challenges of Legal Regulation. Czech yearbook of Public and Private International Law. 2021. P. 337–344.
2. For more detail see: V.V. Romanova. The Legal Regulation of the Construction and Modernization of Power Facilities. Moscow: Yurist Publishing House. 2012; V.V. Romanova. International Projects on the Construction of Energy Infrastructure and Energy Law and Order Tasks. Energy Law Forum. 2021. No. 2. P. 22–27.
3. A.G. Lisitsyn-Svetlanov. Ensuring Energy Security: Some Tasks of Domestic and Foreign Legal Policy of the Russian Federation. Energy Law Forum. No. 4. 2021. P. 8–12.
4. For more detail see: A.G. Svetlanov. Trends in Development of the International Civil Process Moscow. 2002, P. 126–176.

Система Orphus

Loading...
Up