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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 ). The Judicial Review and Courts Act 2022 has made changes to the judicial review procedure ; however , 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 judicial review 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 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 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 . In 2020 , the UK applied to join the 2007 Lugano Convention in its own right , however , accession is conditional on the consent of all other signatories . The EU has indicated that it is not prepared to consent to invite the UK to accede to the Lugano Convention . Therefore , for now , the UK is unable to benefit from the Lugano Convention . The UK government is currently considering the responses to a consultation on whether the UK should sign and ratify the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters . Although this would not be a replacement to the Lugano Convention , it would provide a framework for enforcement of judgments in other contracting states , following the gap left by Brexit .
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 , the devolved Welsh government nor other UK public bodies are immune to litigation . Both frequently appear as defendants in 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 . These have included challenges to the government ’ s Net Zero Strategy and challenges to decisions to reject applications to participate in the RHI scheme . We have not , however , seen examples of foreign investors in the renewable energy sector obtaining domestic judgments or awards against government authorities or the state in civil actions .
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