UNEP Collaborating Centre on Energy and Environment Capacity

UNEP Collaborating Centre on Energy and Environment Capacity Development for CDM Egypt, Second National Workshop The Legal and Regulatory issues in relation with the implementation of the CDM Samir Amous, APEX, Tunisia Regional Centre for North Africa and Middle-East Tel : +216 71 848 094 --- Fax : +216 71 843 453 amous. apex@gnet. tn Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 1

UNEP Collaborating Centre on Energy and Environment Status 1. A specific background paper on Legal/Regulatory issues has been commissioned by UNEP RISO 2. 3. Draft to be available by April 2004 This presentation presenting some thoughts and indications on the issues that should be considered when studying L&R issues in the countries Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 2

UNEP Collaborating Centre on Energy and Environment Foundation for Regulatory and Legal Framework in the host countries ü ü Compatible with International Treaties and Laws ü ü ü Compatible with national Laws and Regulations Compatible with International Treaties and Laws where the country is a Party Enforçability in the country context Attractive enough for CDM investors Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 3

UNEP Collaborating Centre on Energy and Environment The CDM and the international treaties and Laws: Interactions/coherence/major issues Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 4

UNEP Collaborating Centre on Energy and Environment International Public Law applies between States/Int. organisations…but… v Rapid globalisation of the World v Proliferation of international treaties v Establishment of the World Trade Organization Emergence of rules regulating international trade and relations between individuals/entities Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 5

UNEP Collaborating Centre on Energy and Environment Two classes of rules v Rules originating from international Treaties, aimed at regulating transactions between individuals (e. g. Vienna Convention on International Sale of Goods) v Norms to regulate transactions that are adopted by the Parties involved (e. g. UNIDROIT) v Agreements should stipulate to which National or international trade rules the Parties should refer to in case of dispute Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 6

UNEP Collaborating Centre on Energy and Environment CDM is : 1. Subject to international law, as it emanates from an international Treaty (KP) 1. Might be regulated both through International Public Law (two nations involved), Standard international set of rules, and National law (e. g. a multinational organisation established in the host country, etc. ), agreed by Parties Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 7

UNEP Collaborating Centre on Energy and Environment CDM becoming effective: ü ü PK should enter into force ü While cornestones are decided by the EB, COP/MOP, CDM practicalities will be specific to each country CDM should be ratified by officiall act of the country it operationalize CDM as a National law Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 8

UNEP Collaborating Centre on Energy and Environment However, CDM practicalities: ü Might be in conflict with the World Trade Organisation regime might affect Local laws (possibility to any WTO member to challenge any local law as a contravention to WTO rules): ü e. g. a Party that would tax carbon-intensive goods ü e. g. A Party that would only buy cogenerator from the investor country, or from a Party to the Kyoto Protocol. Discrimination…. Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 9

UNEP Collaborating Centre on Energy and Environment However, CDM practicalities might be affected if: ü The WTO includes an agreement on investment ü Other International (bilateral, multilateral, regional) Investment laws governing foreign direct investments might be inconsistent with national CDM rules: affect CDM should be evaluated Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 10

UNEP Collaborating Centre on Energy and Environment Legal and regulatory implications of the CDM at national level Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 11

UNEP Collaborating Centre on Energy and Environment Need to: v Establish attractive CDM regulations v Limit incompatibilities between CDM and the nationals laws ü Investigate on interaction and compatibiliy of the current country laws with the CDM rules Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 12

UNEP Collaborating Centre on Energy and Environment Major National Regulations to which CDM should be coherent with ü Environmental, Energy Conservation Laws/Regulations ü Investment Laws/Regulations ü Sustainable Development Rules ü Legitimacy of the DNA decisions Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 13

UNEP Collaborating Centre on Energy and Environmental/energy conservation Laws 1. 2. 3. 4. What environmental criteria should a CDM project apply ? 1. 2. National norms ? Environmental Impact Assessement ? How to involve Public participation in the decision? Case of dispute between the CDM project holder and a third Party on unexpected Environmental impacts Should th project benefit from the Environment Protection/Cleaner Production/Energy Conservetion incentives ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 14

UNEP Collaborating Centre on Energy and Environment Investment Laws/Regulations 1. Does a foreign investor benefit from the subsidies/tax removal targeting environment Protection/Energy Agency ? 2. Does a foreign investor benefit from the loan facilities in the host countries ? 3. Should the cashflows generated by CERs be considered in the turnover ? 4. What are the general regulations to apply for income taxes ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 15

UNEP Collaborating Centre on Energy and Environment Investment Laws/Regulations ü Does a project-separate accounting system applies or the project is integrated to the entities involved ? (e. g. should we allow that a private foreign investor merging its existing Combined Cycle utility and its ongoing Wind power plant ? ) Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 16

UNEP Collaborating Centre on Energy and Environment Investment Laws/Regulations ü What are the appropriate regulations to adopt foreign exchange control for rapatriation of profits ? ü ü How to treat currency exchange risks ? How to treat cases of insolvency ? How to treat cases of Leakage ? How to treat the risks linked to confidential information ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 17

UNEP Collaborating Centre on Energy and Environment Investment Laws/Regulations ü For instance how to treat cases where a third Party action has fully or partially affected the CERs results ü ü ü (e. g. a court decision that would have closed an industrial unit benefiting from a CDM project) What kind of Land property laws to apply in the CDM context? What kind of insurance laws to apply ? What labour regulations to apply ? What are the possible cases of « force-majeure » ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 18

UNEP Collaborating Centre on Energy and Environment CDM and Sustainable Development: v The host country must certify that a CDM project assists in achieving SD v v Prerogative of the host country How the concept of SD should be legally operationalized in the host countries ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 19

UNEP Collaborating Centre on Energy and Environment CDM and Sustainable Development: v How to develop SD criteria that appropriately reflect country circumstances v How to resolve cases of dispute among national stakeholders on the SD related decisions? v What actions to undertake during the course of a project (and after) in relation with the achievement of SD goals ? v What are the possible rights of the project proponent in relation with the actions taken as regards to SD ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 20

UNEP Collaborating Centre on Energy and Environment Legitimacy of the DNA decisions 1. Highest Political Decision ? (Presidential Decree, Parlianment Clearance ? ) 2. What laws regulate the interactions between DNA and: 1. 2. 3. National Actors; International actors Is the DNA decision definitely binding and not subject to appeal in any jurisdiction ? What are the enforcement procedures ? Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 21

UNEP Collaborating Centre on Energy and Environment Next steps in Egypt in relation with Legal/Regulatory set up Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 22

UNEP Collaborating Centre on Energy and Environment Address properly Legal/Regulatory issues 1. Status of the current investment/business laws in the host countries that would be impacted by the CDM 2. Integration of the CDM into the national Legal and regulatory investment/business framework 3. Interaction/coherence with other International laws and Treaties 4. Preparation of Legal and regulatory Guidelines for CDM 5. Consultations/training Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 23

UNEP Collaborating Centre on Energy and Environment Capacity Development for CDM - Egypt, Second Nationa Workshop - Phase II Cairo, 12 -13 January 2004 24