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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 the London Court of International Arbitration ( LCIA ) 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 .
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 carry out a specific act or to refrain from carrying out a specific act ( such as commencing proceedings in a foreign court ); ( 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 .
8.4 Is your jurisdiction a party to and has it ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and / or the Convention on the Settlement of Investment Disputes between States and Nationals of Other States and / or any significant regional treaty for the recognition and enforcement of judgments and / or arbitral awards ?
The UK has signed and ratified both the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ( New York Convention ) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ( ICSID Convention ).
Its ratification of the New York Convention is subject to the reciprocity reservation ( meaning it will only recognise and enforce awards made in the territory of another contracting state ).
Following expiry of the Brexit transition period ( on 31 December 2020 ), the Recast Brussels Regulation and the 2007 Lugano Convention ceased to apply to the UK . On 1 January 2021 , the UK acceded to the 2005 Hague Convention on Choice of Court Agreements ( Hague Convention ) in its own right . However , the Hague Convention is narrower in scope than the Recast Brussels Regulation or the 2007 Lugano Convention . The UK has also applied to join the 2007 Lugano Convention in its own right ; a decision on its application is awaited .
8.5 Are there any specific difficulties ( whether as a matter of law or practice ) in litigating , or seeking to enforce judgments or awards , against government authorities or the state ?
Neither the UK government nor UK public bodies are immune to litigation in the UK . Both frequently appear as defendants in UK litigation and are often held to account by the national courts .
8.6 Are there examples where foreign investors in the renewable energy sector have successfully obtained domestic judgments or arbitral awards seated in your jurisdiction against government authorities or the state ?
Various judicial review proceedings have been brought against the government to challenge decisions it has made in relation to renewable energy policy and specific projects . Whilst we have not seen examples of foreign investors successfully utilising this procedure to reverse a government decision , following the commencement of legal action against the Secretary of State for BEIS by Banks Renewable Limited , the UK government announced a policy U-turn that would lift its ban of onshore wind projects from government-backed contracts support , which resulted in Banks Renewable Limited withdrawing its legal challenge . Companies have also succeeded in challenging decisions made by Ofgem regarding renewable energy subsidy schemes ( see question 9.1 below ).
92 Updates and Recent Developments
9.1 Please provide a summary of any recent cases , new legislation and regulations , policy announcements , trends and developments in renewables in your jurisdiction .
The government published its Ten Point Plan and the Energy White Paper in Q4 2020 and the Smart Systems and Flexibility Plan in July 2021 , setting out its plan for the energy transition , including developing a smart system framework to build a flexible grid and allocating further funding for offshore wind , hydrogen and other renewables investments – all to drive its net zero energy system . The Ten Point Plan and the Energy White Paper are discussed in detail in question 1.3 .
The case of R ( on the application of Gravis Solar 1 Ltd ) v Gas and Electricity Markets Authority [ 2021 ] EWHC 490 concerned Ofgem ’ s decision to withdraw a company ’ s RO accreditation . The company in question had provided inaccurate information to obtain the accreditation . The English High Court ruled that , in the circumstances , Ofgem had acted proportionately in deciding to withdraw the accreditation .
In Havant Biogas Ltd & Ors v Gas & Electricity Markets Authority [ 2021 ] EWHC 84 , the claimants succeeded in their judicial review claim to quash a decision by Ofgem not to register them as part of a subsidy scheme promoting renewable energy .
Renewable energy made up 42.9 % of the UK ’ s electricity generation in 2020 , breaking all previous UK annual records . We expect this record to be broken repeatedly in the short term as the UK government continues to promote investment in renewable energy technology . We also expect that electric vehicles , residential solar and battery storage will continue to gain prominence in the UK as a medium for the ongoing transformation of the energy sector .
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