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be a requirement to comply with import licensing requirements and common customs tariffs that apply across the EU .
Aside from general restrictions applicable to materials that are harmful to health and safety and to the environment , there are no other legal restrictions that apply to equipment or materials required to construct or operate renewable energy projects .
72 Competition and Antitrust
7.1 Which governmental authority or regulator is responsible for the regulation of competition and antitrust in the renewable energy sector ?
The relevant authorities are :
■ the European Commission ( at least until the end of the Brexit transition period on 31 December 2020 );
■ the UK Competition and Markets Authority ( CMA ); and
■ Ofgem .
Under the Enterprise and Regulatory Reform Act 2013 , both the CMA and Ofgem have concurrent powers to apply competition law in the renewable energy sector .
7.2 What power or authority does the relevant governmental authority or regulator have to prohibit or take action in relation to anti-competitive practices ?
The CMA and Ofgem have a broad range of powers in respect of actual or suspected anti-competitive behaviour . These include the ability to :
■ conduct market studies and , if appropriate , make a market investigation reference under which the CMA conducts an in-depth investigation into any feature , or combination of features , of a market in the UK ;
■ investigate suspected infringements ( including by conducting “ dawn raids ”);
■ give specific directions to end anti-competitive behaviour ;
■ impose financial penalties of up to 10 % of an undertaking ’ s annual group worldwide turnover ; and
■ apply to the court for an order to disqualify an individual from acting as a director for up to 15 years .
In addition , the CMA has the power under the Enterprise Act 2002 to prosecute for criminal cartel offences ( which covers agreements relating to price-fixing , market / customer sharing , output limitation or bid-rigging ).
7.3 What are the key criteria applied by the relevant governmental authority or regulator to determine whether a practice is anti-competitive ? is available in certain circumstances where it can be demonstrated that the anti-competitive effects of a particular agreement or conduct are outweighed by the pro-competitive benefits for consumers .
Abuse of a dominant position An undertaking will be considered to hold a dominant position where it has the ability to behave independently of competitive pressures . Factors such as market share , size and number of competitors , barriers to market entry and customer buyer power are all relevant to assessing dominance .
Examples of abuse of a dominant position include charging unfair prices ( either excessively high for consumers , or excessively low to drive out competitors ), imposing other unfair trading conditions or refusing to supply existing customers without justification .
82 Dispute Resolution
8.1 Provide a short summary of the dispute resolution framework ( statutory or contractual ) that typically applies in the renewable energy sector , including procedures applying in the context of disputes between any applicable government authority / regulator and the private sector .
Judicial review in the national courts may be available to challenge decisions made by the government or other public bodies ( including Ofgem ). An application for judicial review must be made promptly and in any event within three months of the decision being challenged ( subject to a few exceptions , where a shorter time limit applies ). A number of such challenges have been brought in relation to renewables .
Where the rights and obligations of the participants in a renewables project are governed by contract , the agreed dispute resolution mechanism will apply . For example , the CfD standard terms and conditions provide for disputes to be finally resolved via LCIA arbitration or , for certain types of dispute , expert determination .
8.2 Are alternative dispute resolution or tiered dispute resolution clauses common in the renewable energy sector ?
Yes . For example , the CfD standard terms and conditions provide for most types of dispute between the LCCC and the generator to be referred first to their senior representatives . If no amicable resolution can be achieved within a minimum period of 30 days , the dispute can then be referred to expert determination or LCIA arbitration as appropriate .
Both UK and EU competition law ( which remains applicable in the UK until 31 December 2020 ) prohibit anti-competitive agreements and conduct which amounts to an abuse of a dominant position .
Anti-competitive agreements Agreements and concerted practices which , by object or effect , appreciably prevent , restrict or distort competition are prohibited . This captures formal written agreements as well as informal oral agreements and even tacit understandings between businesses .
Some agreements , such as price-fixing or market-sharing cartels , are considered to be anti-competitive by nature , regardless of their actual effect . Other arrangements , such as exclusive purchasing or supply obligations , will only be prohibited where there is an actual anti-competitive effect . An exemption
8.3 What interim or emergency relief can the courts grant ?
The English courts have a broad discretion to grant interim or emergency relief . Such relief may take the form of : ( i ) interim injunctions ordering a party to refrain from doing a specific act ( such as commencing proceedings in a foreign court ) or to do a specific act ; ( ii ) freezing orders preventing the dissipation of assets ; ( iii ) orders for the preservation of evidence ; ( iv ) orders for the disclosure of documents ; and ( v ) orders in support of arbitral proceedings .
Some contracts related to the development of renewables projects provide for disputes to be resolved by arbitration . Where that is the case , the possibility of interim or emergency relief under the applicable institutional rules ( if any ) should be considered .
© Published and reproduced with kind permission by Global Legal Group Ltd , London
Renewable Energy 2021