Article from: OGEL 2 (2011), in Editorial
This Special Issue is devoted to the comparative analysis of regulatory systems in the oil, gas and electricity sectors. By 'comparative' we mean that kind of research which tries to identify similarities and differences among the regulatory systems of different countries or regions. Several reasons explain why comparative knowledge is of primary importance in the energy regulators' and energy lawyers' toolbox. Today the most significant choices of institutional design are the outcome of a more or less extended comparison with the regulatory options adopted elsewhere. This is mainly due to the presence of a large number of political and economic interdependencies among countries or regions. Legal imitation, diffusion or transplant is also the cheapest way to innovate a regulatory system or to keep pace with leading countries. A large number of transnational regulatory networks decreases the costs of accessing knowledge of foreign solutions. Sometimes, imitation is imposed from external constraints. In all these cases, comparative knowledge helps to understand how the process of legal transfer should be managed.
In addition to the role of comparative legal research in a regulatory context, a comparative approach can also be used as a source of inspiration in national and international litigation in energy matters. This is particularly so in international commercial and investment arbitration where, due to the long-term nature and often strategic character of energy and infrastructure projects, an important number of cases relate to the energy and resources sector. Here, comparative research can also be used as a model of interpretation of the often loose international law concepts such as fair and equitable treatment.
There are two problems, however. Firstly, the type of detailed comparative knowledge which is needed to make sound regulatory choices is rarely available. Language barriers prevent the comparison among a large number of countries and lead to select only those legal materials that are more readily available. Unfortunately, there is no guarantee that they provide the most useful information.
Secondly, the energy literature often focuses on policy issues. Legal issues play a secondary role. But policy implementation is directly dependent on the legal context of a given country or region. Hence, the legal and policy aspects should be dealt with together.
In this Special Issue we try to remedy both shortcomings. The articles collected here cover a broad range of countries and topics. The comparisons involve the European Union, East Europe, the United States, Central and South America and Asia. This geographic coverage should provide the reader with first-hand information on energy regulation in both developed and developing countries. In some cases the comparison is undertaken among countries located in the same region, in other cases among countries belonging to distant regions.
As far as the topics are concerned, we have grouped the articles under three headings: regulation of energy markets, climate change law and policy, and dispute resolution mechanisms. In the section on energy markets regulation the issues dealt with include the judicial review of administrative discretion, the national implementation of EU gas and electricity directives and regulations, corporate takeovers in the electricity sector, regulatory frameworks for foreign investment and regulation of oil imports. In the section on climate change law and policy there are articles discussing support mechanisms for renewable sources, the EU emissions trading mechanism and the climate change acts of Asian countries. In the section on dispute resolution mechanisms there are papers discussing the termination of public service concessions, change of circumstances in long-term contracts and the evolution of dispute resolution in the oil sector. Most contributions do not make a sharp distinction between legal and policy aspects. They are placed on the same plane and the relevance of each factor is carefully assessed. This approach is worthy of further developments.
The Special Issue includes an article on the methodology of comparative energy law. It is meant to provide the reader with a checklist of important aspects to be taken into account when designing comparative research or assessing its quality for regulatory or professional purposes. Issues dealt with include the choice of the countries or regions to compare, the type of legal materials to be compared and the dynamics of change in regulatory systems.
We are aware that these contributions are only the tip of the iceberg. Many problems of energy regulation are left out. Our purpose was simply to start an academic reflection on the advantages of a comparative approach for energy law and policy. Hopefully, this Special Issue will foster a dialogue on how to carry out comparative research and increase its relevance for everyday legal practice in the energy sector. In the coming years OGEL will be eager to host additional contributions which adopt a comparative perspective.