8 Things You Should Know About Power Regulatory Reform in Myanmar
-
Upload
oliver-massmann -
Category
Law
-
view
2.620 -
download
0
Transcript of 8 Things You Should Know About Power Regulatory Reform in Myanmar
www.duanemorris.com
©2011 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP.
Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Princeton | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership
8 Things You Should Know About
Power Regulatory Reform in Myanmar Oliver Massmann – Partner
DUANE MORRIS SELVAM
www.duanemorris.com
3
What are power regulatory reforms for?
– To protect against monopolistic abuses by natural
monopolies
– To provide power supply assurance
– To ensure coordination of power sector operations
– To increase financing available for investment
– To improve quality of power services
– To introduce and reinforce competitive
market structures
www.duanemorris.com 7
Meet national power needs
Enable safe and broader use of electric power
Establish and impose standards on electricity-related businesses
Protect consumers
Encourage local and foreign investment
Ensure adherence to Myanmar’s international environmental
protection obligations
www.duanemorris.com
10
3. How does licensing work?
Permitting authority divided between :
‒ MOEP and “Other Relevant Ministry”
‒ Relevant Regional or State governments
‒ Leading bodies of relevant self-administrated regions and zones
Applications evaluated on the basis of transparency, fairness, competitiveness and sustainability.
Duration provided by Permitting authority.
At the end of Permit term, the permitted person is to transfer business in its original form or in accordance with conditions agreed to at time of Permit issuance.
www.duanemorris.com
12
4. How does tariff determination work?
MOEP may prescribe an appropriate rate for “consumers” depending upon the region.
The rates may be adjusted from time to time.
Decentralized level may, through coordination with MOEP, prescribe rates under their own arrangements.
www.duanemorris.com
13
Tariff: The grey areas…. MOEP’s authority to regulate tariffs appears to be limited to
retail tariffs.
Only standard specified to govern tariff determinations is that
electricity rates should be ―reflective of modern times‖.
Electricity Law does not yet provide any processes or
procedures for:
‒ processing tariff applications; or
‒ determining tariffs.
www.duanemorris.com 14
– Issues around allocation of regulatory responsibilities and
functions
Further emphasis needed on competition and power
sector structural reforms
– Desired market structure.
– Requirements on competitive power solicitations.
– Revisions of service obligations.
– Greater clarity around encouraging foreign
investments in the power sector
www.duanemorris.com 16
6. What about foreign investors?
In general, foreign energy companies are allowed to act as
Independent Power Producers (IPP) in Myanmar
Few restrictions under FIL Rules:
‒ Electricity generation under 10 megawatts – usually
restricted to local investors
‒ Foreign investors in <10 megawatt projects—
only up to 80 % equity
www.duanemorris.com 17
6. What about foreign investors?
Administration of foreign investors in the power sector:
‒ All power deals by foreign investors have to be through the
relevant government entity under Ministry of Electric Power
(MOEP).
‒ Normally, Myanmar Electric Power Enterprise
(MEPE) submits the MIC proposal as a promoter.
‒ Myanmar Investment Commission (MIC).
www.duanemorris.com 18
6. What about foreign investors?
• Notification 49/2014:
Reduced list of activities prohibited to Foreign Investors (now
only 11): administration of electric power systems, inspection
work related to electric power
Small scale and medium scale electric power generation work
must be done in joint venture with Myanmar nationals
– Formerly, hydro and coal power plants were listed as having
to be in a JV BOT with a government entity –
does not seem to be the case anymore
www.duanemorris.com 19
7. What are the other power development
issues to be aware of?
Access to land – example of
telecoms towers
Community consent
Project financing
Challenges in rural areas
Environmental requirements
www.duanemorris.com 20
Some other major legal issues • Offshore Arbitration
Neutral venue to solve commercial disputes
• New York Convention of 1958
• Choice of Foreign Law
Contract Act of 1872 allows the choice of a foreign law.
• PPA Template
One well-drafted PPA template, and
Roll out same form for each project.
Translates into minimal changes and consistent positions.
• AGO’s Legal Opinion
Opinions provide sponsor and lenders confirmation on relevant laws so assumptions/plans
are confirmed/clear.
Alleviates legal risks.
www.duanemorris.com 21
8. Power sector legal reform : only one
part of the process New Competition Law (2015)
Draft new combined Investment Law (merged FIL and MCIA) – IFC-funded project, consultation process begun
Draft new Companies Act – ADB-funded project, draft under public consultation
Dispute resolution – NYC accession, not fully implemented yet
Employment – new minimum wage and other changes to labor law coming through
Foreign Bank activity – limited licenses now issued to 9 foreign banks
Subsidiary legislation and directives for the new Electricity Law
Further development of Environmental Conservation Law and Rules (issued June 2014), including stakeholder and community consent to projects
www.duanemorris.com 22
Now – how to get the deal done!
To start, every foreign energy company must meet with MOEP.
It is likely that all future power projects will go through a bidding procedure via MEPE.
Negotiation process between the relevant department and the foreign investor for any of the Project Documents.
Submission of the Project Documents to the Union Attorney General's Office, the Ministry of Finance and the Ministry of National Planning and Economic Development for their review and comments.
Application process for the required notifications, permits and approvals.