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The Role Of Expropriation Clauses In Protection And Promotion Of Foreign Investments In Renewable Energy: An Essential But Overlooked Legal Consideration Ghaziani, Moosa Akefi; Ghaziani, Mohammad Akefi
Indonesia Law Review Vol. 11, No. 2
Publisher : UI Scholars Hub

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Today the world is tackling climate change. The global threat of energy poverty along with the growing need for energy has escalated this crisis. The promotion of renewable energy sources is widely known as the main solution to this challenge. Many International and regional agreements address various aspects of renewable energy development such as trade, transit, security, and investment. Foreign investment is recognised as a crucial prerequisite for the global deployment of renewable energy, since not all States have the financial and technological potentials to develop this sector. Various investment agreements are signed to facilitate and promote investments. These instruments contain a mixture of obligations that have direct or indirect effects. Expropriation provisions which are often crystallised in the form of ‘a duty not to expropriate’ are among these obligations. This article analytically describes the legal aspects of this standard and proposes the trends that can better protect the foreign investments in this sector; a factor without which the foreign investors would normally be reluctant to invest. It concludes that restricted police power, guarantees of transfer, and a full compensation standard that entails the payment of compound interest are the prominent legal features that can best perform this task.

The Role Of Expropriation Clauses In Protection And Promotion Of Foreign Investments In Renewable Energy: An Essential But Overlooked Legal Consideration Ghaziani, Moosa Akefi; Ghaziani, Mohammad Akefi
Indonesia Law Review Vol. 11, No. 2
Publisher : UI Scholars Hub

Show Abstract | Download Original | Original Source | Check in Google Scholar

Today the world is tackling climate change. The global threat of energy poverty along with the growing need for energy has escalated this crisis. The promotion of renewable energy sources is widely known as the main solution to this challenge. Many International and regional agreements address various aspects of renewable energy development such as trade, transit, security, and investment. Since not all states have the financial and technological abilities to develop this sector, foreign investment is recognised as a crucial prerequisite for the global deployment of renewable energies. Various investment agreements are signed to facilitate and promote investments. These instruments contain a mixture of obligations that have direct or indirect effects. Expropriation provisions which are often crystallised in the form of ‘a duty not to expropriate’ are among these obligations. This article analytically describes the legal aspects of this criterion and proposes trends that can better protect the foreign investments inter alia in this sector; a factor without which the foreign investors are normally reluctant to invest. It is concluded that restricted police power, guarantees of transfer, and a full compensation standard that entails the payment of compound interest are the prominent legal features that can best perform this task.

Most Favoured Nation Clause: Unleashing its Legal Potential in Favour of Foreign Investors in Renewable Energy Sector Ghaziani, Mohammad Akefi; Ghaziani, Vahid Akefi; Ghaziani, Moosa Akefi, Dr.
Indonesia Law Review Vol. 12, No. 2
Publisher : UI Scholars Hub

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International Investment Law and other international legal systems, such as trade law and environmental law have interactions and dynamic interrelationships in meeting global challenges including energy security, climate change, and the need for the renewable energy transition. They help in delivering the principles of justice in the context of changing global values and legal practices. Accordingly, they have a potential share in the global climate change mitigation agenda through innovative policies and regulations, inter alia, to facilitate and promote foreign investment and trade in the renewable energy sector. Similarly, these systems have common principles in their respective agreements. The Most-Favoured Nation Treatment (MFN) is among these. Hence to analyse the potential role of MFN in the context of the renewable energy transition is significant. This article sheds light on this dilemma by expounding on the concept of MFN, analysing the MFN clauses under IIAs, and its relevance in terms of renewable energy investment protection. It concludes that the application of MFN has been especially problematic since it is incorporated somewhat differently in the international investment and trade regimes. While it is one of the basic principles of WTO, it remains among the least successful provisions in investor-State arbitration. Despite its nearly ubiquitous usage, the interpretation of the MFN clause and its scope of application has been disputable so far. IIAs contain different MFN clauses with various exemptions, and the arbitral practice has demonstrated several divergent decisions that other tribunals and legal scholars feel should be subject to a more focused review.

Market Access Obligations and Foreign Investments in Renewable Energy: an Analysis of International Trade and Investment Law Instruments Ghaziani, Mohammad Akefi; Fazaeli, Mostafa; Ghaziani, Moosa Akefi; Amin, Huma
Indonesian Journal of International Law
Publisher : UI Scholars Hub

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Today's development of renewable energy technologies is perceived as an essential ingredient of the world’s response to emerging challenges of energy security, global warming, and climate change. However, the global deployment of renewables needs huge financial and technological contributions that many States cannot afford. Therefore the promotion of foreign investments in this sector is at the stake. However, the global flow of investment and technology in this sector is not free from the regulations of international trade and investment law instruments. Among the prominent provisions common to these instruments are Market Access obligations. WTO agreements and IIAs provide for different levels of market access. Moreover, the possible contribution of these provisions in each case depends on the approach of the applicable agreements to the renewable energy sector in particular. Therefore it is also important to collaterally understand the overall approach of international trade and investment agreements to this sector since it appears to be a two-dimensional matrix. Therefore to clarify the possible contribution of market access provisions to the promotion of foreign investments in the renewable energy sector, this article, after providing an introduction, expounds on the status of the applicable market access obligations to this sector under trade law. Consequently, it deals with the approach of IIAs in this regard. Finally, it concludes that so far both the legal systems have to a great extent overlooked the importance of establishing robust pro-renewable energy market access obligations.

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