Supporting policies & laws
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Transcript Supporting policies & laws
Clean technology and alternative energy investments, a
brief overview of policy and legal considerations for
investors in China
Christopher Tung, Partner, Hong Kong
September 2010
Copyright © 2010 by K&L Gates Solicitors. All rights reserved.
Overview
What are the key drivers?
Supporting policies and laws
Sustainable development policy & law timeline
Who dares wins (or loses)
Preferred sectors?
Trends
1
What are the key drivers?
Rapid economic growth: no.2 economy
No.1 greenhouse gas (GHG) emitter
Serious environmental degradation
Actual & potential social instability
Desire to be world class in clean tech & alternative
energy – “leap frog” potential
Low carbon economy objectives
Planned and focused policies and law with long term
objectives in line with sustainable development
Institutional control: State Council and the NDRC
2
Supporting policies & laws
China has systematically gone about developing
policies and laws to support:
greater energy efficiency
reduced localised pollution
reduced GHGs
encourage the deployment of renewables and clean
technology solutions
the development & growth of domestic capacity and
know-how
higher value foreign investment to reinforce
domestic action
3
Supporting policies & laws
11th Five Year Plan (FYP) – energy efficiency focus
Cleaner Production Promotion Law 2002
Environmental Impact Assessment Law 2003
Clean Development Mechanism Measures 2004
Renewable Energy Law 2005
China National Climate Change Programme, 2007
Circular Economy Promotion Law 2009
National carbon intensity reduction target, 40-45% by
2020 (base year 2005)
12th FYP and 13th FYP – low carbon economy, clean tech
and alternative energy focuses
New Energy Law 2011?
4
Sustainable development policy & law timeline
1992
Rio Earth Summit
UNFCCC
2004
Introduction of
China CDM
Measures
2012
1st Commitment
Period ends
1993
China ratifies
UNFCCC
2005
Kyoto operational
EU ETS Phase I in
force
COP 13 Montreal
China RE Law
2015
China RE target
15%
Review of
Copenhagen
Accord
End of 12th FYP
1994
China Agenda 21
2007
CNCCP
COP-13 Bali
Bali Action Plan
National Leading
Group on Climate
Change formed
2016
Start of 13th FYP
1997
Kyoto Protocol
2001
Marrakech Accords
2008
China climate
position paper
COP-13 Bali
Bali Action Plan
1st Commitment
Period starts
2020
40-45% national
carbon intensity
reduction target
End of 13th FYP
2002
2003
China ratifies Kyoto
Protocol (KP)
NDRC designated
China DNA
NC4 established
KP extended to
Hong Kong
2010
2009
COP-15
Copenhagen
Accord
China national
carbon intensity
target proposed
China RE target
10%
20% reduction in
energy intensity
of GDP
COP-16 Cancun
2030
Objective for
China peak
emissions (CAS
2009)
2011
Start of 12th FYP
2050
80% emission
cuts by Annex I
countries
5
Who dares wins (or loses)
SAS motto unthinkable for a well advised investor
Access to local RMB markets improving BUT
Constant risks (new, immature, changing M&A rules,
anti-monopoly law, Foreign Invested Partnerships and
tax avoidance policies. Note risk of retroactive effect)
Consolidated and detailed national regulations to
facilitate PE investments still required
Scrutinise critically: “We did it before, so it’s ok”
In clean tech, even in tried & tested technologies
there can be challenges (note wind power: clear feed–
in tariffs and earlier local content requirement,
abolished in 2009)
6
Who dares wins (or loses) – cont’d
A cavalier attitude to environmental liability and risks,
increasingly untenable (developments in disclosure,
enforcement and litigation – class actions)
Advisers with strong local knowledge, a grasp of
commercial and technical, as well as policy and law in
practice heavily preferred but rare
Reliable local partners can also be difficult to identify
or attract but essential in practice
Intellectual property protection patchy
Pioneering domestic carbon trading and finance
7
Preferred sectors?
Industries: FYPs and foreign investment catalogue
foreign participation in clean tech broadly encouraged
http://www.fdi.gov.cn/pub/FDI_EN/Laws/GeneralLawsandRegulations/Ministeri
alRulings/P020071121358108121219.pdf
Locations: clean tech areas and PE friendly –
Beijing, Chongqing, Shanghai, Tianjin, Shenzhen
(Growth Enterprise Board or ChiNext)
Local incentives: vary widely (consistency with
national policies & regulations should be carefully
checked)
8
Preferred sectors?
Clean tech investments with carbon finance:
Compliance carbon market: Kyoto Protocol –
Clean Development Mechanism (CDM) & the EU
Emissions Trading Scheme
Voluntary carbon market: verified emissions
reductions under internationally recognised
certification standards (Voluntary Carbon
Standard, VER+ & the Gold Standard)
China domestic carbon market (Panda Standard)
Since 1 December 2009 HK companies can wholly
own & control Chinese CDM projects (foreign
ownership is otherwise restricted to 49%)
9
Preferred sectors – cont’d
10
Trends
Clean tech & alternative energy investments will
continue to increase (US$700 billion over next 10yrs)
PE investments will accelerate (clear regulations for
foreign invested RMB funds will help significantly)
Other locations in China will compete with Beijing,
Shanghai and Tianjin
Environmental taxes and price on carbon (carbon
tax and domestic emissions trading) will emerge
Opportunities will need to be carefully balanced
against risks
Proper strategy, execution and continued
evaluation/adaptation required to ensure success
11
Contact details and article
Christopher Tung, Partner
K&L Gates
44th Floor, Edinburgh Tower
The Landmark
15 Queen’s Road Central, Hong Kong
[email protected]
China & Hong Kong: Building Low
Carbon Economies
http://www.climatelawreport.com/2010/06/articles/fi
nancing-investing/china-and-hong-kong-buildinglow-carbon-economies/
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