The Court of Appeal has considered the extent to which an arbitrator may, without the parties' knowledge, accept appointments in several matters in relation to the same or overlapping subject matters with only one common party without giving rise to an appearance of bias. As disputes in the oil and gas industry can reverberate through the value chain, and associated insurance, the decision is of particular interest to the sector.
A recent Court of Appeal decision has confirmed that a claim against an English-domiciled parent of a foreign oil and gas company may not proceed in the English courts if the claimants are unable to prove that the parent owed them a duty of care. The decision highlights that the court will look closely at the influence of group policies and the extent of practical or shared control that the parent has over the operations that are the subject of a claim.
National Grid recently published the provisional auction results for the 2017 T-4 Capacity Market Auction, with successful bidders having been provisionally awarded capacity agreements for delivery in 2021/22 at a price of £8.40 per kilowatt (kW) per year. The clearing price is significantly lower than that awarded in the 2016 Capacity Market Auction, where successful bidders were awarded capacity agreements at £22.50 per kW per year.
The Court of Appeal has provided guidance as to what the words "fully operational and enforceable" in an agreement might mean in the context of a production sharing agreement in Kurdistan – in particular, whether such an agreement may be considered fully operational and enforceable without ratification by the Federal Government of Iraq. In doing so, the Court of Appeal ventured into an area that is hotly contested in Iraq.
The government Department of Business, Energy and Industrial Strategy recently published a consultation proposing amendments to its guidance for developers and operators of offshore renewable generating stations and transmission assets in respect of decommissioning programmes. The focus of the amendments is on providing greater clarity around the decommissioning cost estimates that developers must provide in their programmes and the financial security that they must provide.
The House of Lords European Committee has published its report on energy security in the United Kingdom following its withdrawal from the European Union. Key among the report's conclusions is that investors require certainty as to the future of UK energy policy. The report also recommends that any change in arrangements should be accompanied by a transition period that ensures consumers are protected while businesses adjust their working practices, contracts and systems.
The Department for Business, Energy and Industrial Strategy recently issued a consultation on the siting criteria and process for a new national policy statement (NPS) on nuclear power. The NPS will apply to nuclear power stations expected to deploy after 2025 but before 2035, which have over one gigawatt of single reactor electricity generation capacity. It will establish the framework for development consent decisions on applications for new nuclear power stations expected to deploy post 2025.
A recent Technology and Construction Court decision considers the difference between prospective and retrospective approaches to delay analysis. The decision found that the two approaches will not necessarily lead to the same answer and may provide support for the use of prospective approaches in the assessment of extension of time claims. The court's comments are likely to encourage further debate over the use of the approaches in English law.
The Oil and Gas Authority (OGA) has published guidance on the development of supply chain action plans (SCAPs) in respect of all new projects, including decommissioning. In introducing SCAPs into the offshore oil and gas industry, the OGA is highlighting the importance of relationships with the supply chain in maximising the economic recovery of the UK Continental Shelf and unlocking the full potential of the basin.
The government has released its consultation on amendments to the Contracts for Difference (CfD) regime. The consultation confirms the government's intention to allow remote island onshore wind to compete in future Pot 2 allocation rounds. It also proposes changes to the CfD contract to lower the risk to consumers from conservative load factor estimates and to restrict reliefs awarded to generators in the case of force majeure or grid connection delays.
Ofgem recently published its Draft Guidance for generators: Co-location of electricity storage facilities with renewable generation supported under the Renewables Obligation or Feed-in Tariff schemes, which is open for stakeholder comment. The guidance does not introduce new policy; rather, it is intended to provide further detail on and clarification of how the installation of storage on existing accredited sites will be treated under the Renewables Obligation and Feed-in Tariff schemes.
In November 2017 Ofgem published updates on its target charging review (TCR) and reform of electricity network access and forward-looking charges. It recently held stakeholder workshops in this regard and further engagement is envisaged in early 2018, before a consultation on the TCR's proposed policy outcomes. In addition, Ofgem has announced that it has been served with a judicial review claim in respect of its recent decision concerning the reduction of the benefits available to embedded generators.
The Oil and Gas Authority (OGA) recently opened a consultation seeking views from the oil and gas industry on its proposal to increase the levy (which is payable by all offshore petroleum licensees and is its primary source of funding) to support the creation and then maintenance of a UK National Data Repository. The OGA proposes that the increased levy will be balanced through the removal of the corresponding common data access limited membership fees, resulting in an overall neutral cost to the industry.
The Court of Appeal recently upheld a High Court decision in which an oil company was found in contempt of court for holding an operating committee meeting in the absence of an alleged defaulting party. In doing so, the English courts have confirmed a willingness to intervene on an interim basis to preserve the status quo and prevent remedies available under a joint operating agreement from being exercised, pending the resolution of the issue in dispute by means of arbitration.
The Department for Business, Energy and Industrial Strategy recently published its long-awaited Clean Growth Strategy. The strategy was produced to comply with the Climate Change Act 2008, which requires a report setting out proposals and policies for meeting carbon budgets. Notable policies include the return to favour of carbon capture, usage and storage and confirmation that solar panels installed with a battery will attract a reduced value added tax rate.
The National Infrastructure Commission recently published its draft National Infrastructure Assessment (NIA) for 2018 for public consultation. The report is wide ranging, addressing systemic deficiencies in areas including housing, transport, telecoms and flood provisions. The draft NIA's central question in respect of energy infrastructure is how a low-cost, low-carbon energy future can be achieved, as well as potential funding models for a post-Brexit future.
The government recently published the Draft Domestic and Electricity (Tariff Cap) Bill. The bill's purpose is to provide for a temporary price cap for domestic consumers on standard variable tariffs and default tariffs. The cap will be set by the independent energy regulator, the Office of Gas and Electricity Markets, and is temporary in nature, lasting until the end of 2020, with the potential to extend it for a further three years if needed.
To date, there has been a lack of clarity on the role that distribution network operators can play in the development, ownership and operation of electricity storage. As part of the commitment to remove regulatory barriers in relation to the storage market contained in the Smart Systems and Flexibility Plan, the Office of Gas and Electricity Markets is consulting on changes to the electricity distribution licence.