Africa's economic growth has historically been linked to the fluctuation of commodity prices and it supplies significant amounts of minerals in global demand. Against this background, some states and state-owned counterparts of mining investors in Africa have taken a series of measures perceived by investors as an attempt to force them to renegotiate their long-term agreements. This has led to an increase in disputes concerning legislative changes, joint venture agreements and environmental issues.
Biomethane is an emerging source of renewable energy which may be a suitable substitute for fossil fuels. The prospects for biomethane as an energy source in Italy are promising; it has the potential to become one of the main protagonists in Italy's future energy sector and would facilitate the transition to a circular economy model. This article considers recent developments under Italian law to incentivise biomethane production.
The US Supreme Court has unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not prohibit US courts from applying the domestic law doctrine of equitable estoppel when determining whether an international arbitration clause can be enforced by a non-signatory to compel arbitration. In doing so, the court effectively extended the holding in Arthur Andersen LLP to international arbitrations under Chapter 2 of the Federal Arbitration Act.
Existing dispute resolution proceedings are inevitably experiencing the impact of the COVID-19 outbreak. Where possible, hearings have been delayed or relocated. However, with many lockdowns extended for the foreseeable future, some hearings will still need to be held. Notably, the American Arbitration Association acknowledges that these are appropriate times to permit (and indeed require) the use of viable alternatives to in-person hearings.
Floating solar and wind farms are power production installations mounted on structures or platforms that float on a body of water. In a country such as Italy, where the targets to produce electricity from green sources are ambitious and must coexist with the need to safeguard agriculture and the landscape, floating solar and wind installations present a new but challenging opportunity.
According to a recent Lazio Regional Administrative Court ruling, before reaching a decision on the revocation of incentives, the Energy Services Operator must confirm whether the renewables exception set out in Article 42(3) of Legislative Decree 28/2011 applies (ie, the plant in question must have received incentives when the violation was verified) and assess the size of the reduction with regard to the extent of the violation detected.
The use of corporate renewable power purchase agreements (PPAs) looks set to increase in Italy. Corporate PPAs are contracts between buyers and power producers to purchase electricity at a pre-agreed price for a pre-agreed period. As the market for the development of subsidy-free renewable energy projects grows, corporate PPAs are expected to become a common part of the energy and sustainability strategies of Italian corporates.
The New York Appellate Division has reaffirmed that the manifest disregard doctrine is a "severely limited… doctrine of last resort" that requires more than a mere error of law to warrant vacating an arbitral award. This case involved the acquisition contracts between Daesang and NutraSweet, under which NutraSweet could rescind the deal if it was sued for antitrust law violations. After NutraSweet exercised this right, Daesang commenced an arbitration proceeding for breach of contract.
Unbeknown to many, Section 1782 of Title 28 of the US Code permits parties to obtain discovery in the United States in aid of non-US legal proceedings, including – in some instances – international arbitrations. Such discovery can include documents and sworn testimony (eg, depositions). In conducting an arbitration seated outside the United States (or other non-US legal proceedings), it is useful to understand the mechanics, requirements and key issues of Section 1782 discovery.
The Regional Administrative Court of Sardinia recently annulled the regional authority's decision to revoke authorisation for the construction and operation of a photovoltaic (PV) plant on the rooftops of agricultural greenhouses following its alleged loss of status as an agricultural company. The decision confirms that the lack of qualification as a professional agricultural entrepreneur should not jeopardise the right to operate PV plants and receive incentive tariffs on the production of renewable energy.
California Governor Jerry Brown recently signed into law Senate Bill (SB) 766, Representation by Foreign and Out-of-State Attorneys. The bill, which was passed 69-to-zero by the legislature, clarifies that foreign (ie, not licensed in the United States) and out-of-state (ie, licensed in a US jurisdiction, but not in California) attorneys can represent parties in international arbitrations in California, subject to certain conditions. SB 766 will take effect on 1 January 2019.
Repowering is the process of replacing an energy plant's original components with new ones and reconfiguring the layout in order to boost the plant's yield. Given that the regulatory framework in this regard is ambiguous, repowering works are innovative and the case law on such matters contains gaps, energy producers seeking to repower their plants are advised not to start the simplified deemed-consent procedure without obtaining prior clearance from the competent authorities.
Even after the retrospective cut in renewable energy incentives in Italy, the acquisition of operating solar photovoltaic (PV) plants under the right conditions still provides strong financial returns to investors. Nonetheless, irrespective of a project's financing structure or size, there are risks associated with such transactions which buyers should be aware of during the due diligence process.
In a recent case before the Johannesburg High Court, the applicant sought to make an order of court of an arbitration award granting absolution from the instance. The court found that it had been the arbitrator’s duty to give effect to the agreement between the parties so that its award should be final. The award therefore did not achieve the intended finality.
Various standard-form building contracts contain an option or a requirement for disputes to be determined by arbitration. Such contracts are often altered by the parties, resulting in uncertainty as to what amounts to a ‘referral’ to arbitration. Although the building contract may prescribe the applicable rules, this does not necessarily address the issue.
The Supreme Court of Appeal has confirmed that where parties have agreed that an arbitrator's decision is final, no appeal against such a decision can be entertained. A legitimate challenge may be made only by invoking the statutory review provisions contained in the Arbitration Act 1965.
The assimilation of the United Nations Commission on International Trade Law Model Law into South Africa's international arbitration legislation would address the uneasiness created by its failure to enact legislation effecting the New York Convention and thus international concern regarding the courts' broad discretion whether to enforce an arbitration agreement.
There is no industry-preferred arbitration regime or any detailed policy formulation dealing with arbitration. However, insurers are increasingly using arbitration to resolve insurance disputes, but subject to an arbitration regime which is expeditious and which avoids the pitfalls of privatized litigation.