Balance of Power between Local and International Partners in Infrastructure and Energy Projects in Latin America

Latin America continues to be a primary target for investment in energy and infrastructure projects. Latin America contains approximately 20 per cent of the world's oil reserves and approximately 4 per cent of the world's natural gas reserves.² Venezuela, Mexico, Brazil, Colombia, Argentina and Ecuador are among the nations in Latin America with the largest oil reserves, while Venezuela, Brazil, Bolivia, Peru and Argentina are among those with the largest gas reserves.³ These considerable oil and gas reserves make Latin America an attractive target for foreign investment, particularly from China and India.⁴ Moreover, Latin America's growing population and demand for electricity makes the region attractive for foreign investment.⁵

In recent years, Latin America has become a hotbed for renewable energy investment.⁶ Chile, Mexico, Argentina, Brazil and Peru are in the top 40 on Ernst & Young's Renewable Energy Country Attractiveness Index (RECAI), which measures market attractiveness in the renewable energy sector.⁷ Chile's growth in this sector is, in part, because of the government's plan to decrease the country's reliance on traditional sources of energy and to have a larger percentage of the country's energy supplied by renewables.⁸ In this regard, in 2017, Chile introduced South America's first carbon tax, which is expected to further reduce the competitiveness of new fossil fuel-fired plants and incentivise the development of new renewables projects.⁹ In view of this success, other countries in the region, such as Panama and the Dominican Republic, have also started encouraging the development of renewable energy projects.¹⁰

The development of the renewable energy market in Latin America has led to a significant increase in foreign investment in energy and infrastructure projects in the region. By way of example, Mexico held its first renewables energy auction in March 2016, which attracted an estimated US$2.5 billion in investment.¹¹ Chile's power auction in August 2016 was also a success, with renewables projects winning contracts to supply over half of the total 12,430GWh sought.¹² More recently, Brazil contracted 1.4GW of wind capacity in December 2017, and its development bank secured financing from the Inter-American Development Bank to fund renewable energy projects in the country.¹³

The development of any large, complex infrastructure project requires the negotiation and execution of complex agreements between multiple parties. In Latin America, the relevant host state often enters into a concession agreement with an investor for the development of these projects.¹⁴ An investor typically need funds to develop the project and the technical expertise to build it, and therefore will enter into lending agreements with financial institutions and construction agreements with contractors, respectively. Those contractors, in turn, will execute supply agreements with suppliers for the provision of the equipment and parts necessary to build the project.

When an energy project is at issue, an investor may desire to enter into a long-term power purchase agreement (PPA) with an offtaker to ensure a steady revenue stream. Also, the attributes of the relevant project may require the investor to enter into a fuel supply agreement with a fuel supplier, so that fuel can be obtained reliably and cost-effectively (or, in the case of a tolling arrangement, the same counterparty will take the power and supply the fuel). Without these agreements, the investor will find it more difficult to obtain financing for the project. Further, the investor will need to enter into operating and maintenance agreements with the parties that will operate and service the project, and potentially numerous other contracts relating to the project.

In all of these agreements, the dispute resolution clause is one of the most important provisions. In essence, this clause defines the parties' respective rights when a dispute arises, and establishes the legal framework for the resolution of that dispute. As with any other contract provision, each of the parties involved in the development of an energy project will seek to shape the dispute resolution clause in a way that advances their own interests.

As the Latin American energy and infrastructure markets continue to be the target of significant investment, it is important to understand the interaction between each of the parties involved and the bargaining power that each possesses. This article will examine the key players involved in energy and infrastructure projects, the key agreements that are negotiated and the often conflicting interests and uneven bargaining power of each of these parties, particularly relating to the negotiation of dispute resolution clauses. Finally, this article will examine how the dispute resolution provision may be used to establish a level playing field for each of the parties in relation to the resolution of disputes.

Key players and key agreements

As discussed above, the development of any large, complex energy or infrastructure project requires the interaction of a number of key players. The main parties advancing the projects are primarily the state, the investors and developers, and the lenders.

Undoubtedly, the state is a central player in any project. The state controls the legal and regulatory framework within which the project must be carried out. In Latin America, most states own the subsoil resources found within their respective territories¹⁵ and can control the manner in which those resources are used. Accordingly, most states must grant foreign investors permission to use and exploit natural resources.

States may grant investors access to the states' natural resources pursuant to a concession agreement. A concession agreement grants an investor the legal right to explore and exploit a state's natural resources. It is important to recognise that just as governments can grant foreign investors the right to use and develop natural resources, they may attempt to revoke those rights at a later date.

The investor will also need to enter into an agreement with a contractor to build the project. A common form of contract executed with contractors is an engineering, procurement and construction (EPC) contract. In an EPC contract, a contractor promises to deliver a fully completed and operational project by a specific date and for a fixed price. An EPC contract is attractive to an investor because one person – the contractor – is fully responsible to the investor for the construction of the project. The EPC contract will detail, among other things, the performance metrics for the project, when the project must be completed, the contract price and the circumstances under which a contractor may seek extensions of time or additional compensation. The EPC contract will also define the liability of the contractor for an underperforming or late project, and the potential liability of the contractor to other project partners.

Another key player in the case of an energy project is the energy offtaker. When projects are developed at the request of the sovereign, the energy offtaker may be a state-owned company or some other government instrumentality authorised to purchase power. To this end, the government and the investor may enter into a mid- or long-term PPA, in which the government agrees to purchase a certain amount of electricity to be generated by the project. A PPA will help ensure a steady cash flow for the project.

Lenders and financial institutions are also instrumental in the development of infrastructure projects. Without financing to fund the exploration and exploitation of natural resources, and to build the infrastructure for the generation and selling of power, there can be no project. The most common form of financing for large energy projects is known as project financing, where the financing is secured by the assets of the project itself.¹⁶ Project financing may be provided by commercial lenders, but also by governments through export credit agencies, or multinational organisations such as the World Bank, the Inter-American Development Bank and the Central American Bank for Economic Integration. Investors with EPC contracts and PPAs may have an easier time obtaining financing if the contract counter­parties are known players in the market and financially sound.

Lenders will typically require investors and contractors to accept certain terms in their agreements in order to ensure they are repaid after the project is completed. For example, lenders may insist that contractors complete the work by a specified date and may limit the ability of the contractor to request extensions of time, to ensure that the project begins to generate revenue as quickly as possible. Lenders may also require the project to achieve certain performance guarantees, so that the project is profitable and that the investor is able to repay the loan.

The development of an energy project may also require consultations with local indigenous populations, given that in Latin America, it is not uncommon for natural resources to be located in protected indigenous reservations.¹⁷ In this regard, most Latin American countries have ratified the 1989 Indigenous and Tribal Peoples Convention of the International Labour Organization, which urges contracting states to safeguard the rights of indigenous populations to the natural resources located within their lands.¹⁸ Article 15 of the Convention establishes that the 'rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.'¹⁹ Article 15 also states that '[i]n cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.'²⁰ The requirement to consult local communities can present a challenge for international investors, who may face social opposition to the proposed project.

Ideally, all the project documents will provide a consistent package of rights and obligations for the investor. Construction and development milestones should be consistent and the completion dates in the EPC contract should enable the investor to meet its payment obligations under the financing agreement. Also, force majeure clauses in the EPC contract and the PPA should match as much as possible, and the investor's rights under the EPC contract and PPA should facilitate the investor's compliance with its obligations under the financing agreement.

As discussed, the development of an energy or infrastructure project involves numerous players who often have diverging interests. Governments are interested in ensuring that foreign investors comply with the local legal and regulatory framework. Lenders want to ensure that they are repaid as quickly as possible. Investors want to finish the project as quickly and efficiently as possible, and protection against wrongful regulatory actions during operations, so that they can recover their development costs and make a reasonable return on their investment. These competing interests will shape a contract's dispute resolution provision.

The importance of the dispute resolution clause

The dispute resolution clause is a critical component of any agreement. This clause defines the parties' rights in the event that a dispute arises concerning the contract, and typically places limits on what legal actions a party may take.

The clause will also establish whether the parties are required to file legal actions in the local courts or whether a dispute may be resolved through a form of alternative dispute resolution, such as arbitration. Resolving disputes in the local courts is not a preferred option for investors, as the local courts may be unfamiliar with sophisticated commercial arrangements or, perhaps more troubling, partial to the interests of the state or local parties. Therefore, arbitration has become the preferred method of resolving disputes for international energy and infrastructure projects.²¹

If the parties choose to resolve their disputes through arbitration, the dispute resolution clause should define the scope of the clause itself. Often parties will opt for a dispute resolution clause that will require arbitration not only for disputes based on the contract at issue, but for any and all disputes arising out of the contract, whether based on the contract itself, a statute, a tort or some other basis. Otherwise, there is a risk that arbitration will be limited solely to contract disputes, and that all other disputes will be subject to resolution by the local courts, which can lead to parallel actions and inconsistent decisions.

The dispute resolution clause will likely specify whether an arbitral institution will administer the dispute, such as the International Chamber of Commerce (ICC), the London Court of International Arbitration, or the Singapore International Arbitration Centre. The centre administering the dispute will apply the procedural rules governing the selection of arbitrators, the issuance of the award, and other administrative matters.

The dispute resolution clause will also determine the applicable law. The applicable law will govern how the provisions of the contract are interpreted and will define the parties' substantive legal rights. When a contract is entered into with a sovereign involving a project that will be developed and operated within the sovereign's territory, the sovereign will almost certainly insist that its law should govern the contract. Whatever law is chosen, the investor should be aware of whether there are any principles of applicable law that may trump aspects of the parties' bargain.

Perhaps more important than the governing law, the dispute resolution clause will designate the seat of the arbitration. The seat of arbitration is often a heavily negotiated provision, given that courts of the seat are in an ideal position to enforce both the agreement to arbitrate and the arbitral award. In addition, only the courts of the seat of arbitration are empowered to vacate or annul the arbitral award.²² As far as an investor is concerned, it will want to choose a seat that is pro-arbitration – one that will let the arbitration process run its course without judicial (or other governmental) interference, and that will impartially consider requests to enforce or vacate the arbitral award, without bias in favour of the state.

In 2011, for example, Mexico's Eleventh Collegiate Court annulled an ICC award issued by a three-member panel of arbitrators in Mexico City (the seat of the arbitration) worth approximately US$300 million in favour of Corporación Mexicana de Mantenimiento Integral, S De RL de CV.²³ The Mexican court held that matters brought against state agencies, like the respondent Pemex-Exploración y Producción, a Mexican state-owned oil and gas company, should be filed exclusively with Mexico's Tax and Administrative Court, and not resolved through arbitration.²⁴ On 2 August 2016, however, the US Court of Appeals for the Second Circuit affirmed the US district court's judgment confirming the arbitration award in the United States, even though a Mexican court had nullified the award. The court held that a judgment vacating an arbitral award is unenforceable as against public policy to the extent that it is repugnant to fundamental notions of what is decent and just in the state where enforcement is sought. Although the arbitral award was ultimately confirmed by the US Court of Appeals, the annulment of the award by the Mexican court led to significant delay in enforcing the developer's rights. Had the dispute been arbitrated in a seat outside of Mexico, the developer may have been able to enforce the arbitral award (i.e., collect damages) much sooner.

In the Thai-Lao Lignite case, the US Court of Appeals for the Second Circuit affirmed a district court decision that vacated a previous judgment by the same court in favour of the recognition and enforcement of an award rendered in Malaysia, after the Malaysian High Court decided to set aside the award on remand.²⁵ The decision of the Court of Appeals in Thai-Lao reinforces the view that US courts will look to the integrity of the annulment proceedings conducted by the courts of the seat when considering vacatur, making the selection of the seat of arbitration an important consideration for the effectiveness of the arbitration process.

The dispute resolution clause may also include a number of other aspects governing the arbitration process, including, for example, the number of arbitrators who will resolve the dispute, the background and nationalities of the arbitrators, the language of the arbitration, and the deadline to issue an arbitral award.

In addition, a dispute resolution clause may limit the remedies and damages that a party may obtain. For example, an EPC contract may limit a contractor's liability to a fraction of the total contract price. The contract may also preclude a party from seeking consequential or punitive damages or may prohibit the arbitrators from awarding injunctive or other equitable relief.

Finally, if one of the parties to the agreement is a state or an instrumentality of a state, it is advisable that the dispute resolution provision include an express waiver of sovereign immunity covering the agreement to arbitrate and all of its terms, as well as the recognition and enforcement of arbitral awards against sovereign assets. Otherwise, a sovereign may attempt to evade its agreement to arbitrate if a dispute has arisen or may assert that its assets are immune from attachment if it has lost an arbitration.

The different components of a dispute resolution clause can have a significant impact on each party's legal rights and remedies. It is no surprise that such clauses are heavily negotiated.

Balance of power in the negotiation of dispute resolution clauses

Each of the key players discussed above exercises its bargaining power to shape the dispute resolution clause in a way that best suits its interests. States, arguably, have the greatest power to exert– they control the legal and regulatory framework of the country in which investors seek to develop their projects. Moreover, as discussed above, most Latin American states own the natural resources found within their territories, meaning that foreign investors need the state's permission to explore, extract and exploit any resources.²⁶

Typically, states prefer to have foreign investors submit disputes to the jurisdiction of the local courts and require the application of local law. States fully understand the local judicial system and typically have stronger relationships with the relevant players, and consequently can exert great influence over the process. In light of these advantages, a state may be reluctant to submit itself to the jurisdiction of an international tribunal, which is impartial and often outside of the state's influence and control.

Given the neutrality of arbitration, some states in Latin America have conditioned or even eliminated an investor's ability to arbitrate disputes. For example, in 2009, Bolivia amended its Constitution to require foreign investors to submit to the jurisdiction of Bolivian courts and apply Bolivian law if they wish to do business in the country. In particular, Bolivia enacted Article 320 of its Constitution, which provides that:

Every foreign investment shall submit to Bolivian jurisdiction, laws and authorities, and no one may cite an exceptional situation, nor appeal to diplomatic claims to obtain a more favourable treatment.²⁷

Moreover, Article 366, which applies to foreign investors seeking to invest in the production of hydrocarbons, requires all foreign investors to submit to the jurisdiction and laws of Bolivia and prohibits foreign investors from resorting to international arbitration to enforce rights. Article 366 states:

Every foreign enterprise that carries out activities in the chain of production of hydrocarbons in name and representation of the state shall submit to the sovereignty of the state, and to the laws and authority of the state. No foreign court case or foreign jurisdiction shall be recognised, and they may not invoke any exceptional situation for international arbitration, nor appeal to diplomatic claims.²⁸

A less extreme example is Mexico's law on the dispute resolution mechanisms that may be used by foreign investors in the production of hydrocarbons. Article 21 of the law provides that:

controversies related to the Exploration and Extraction Contracts ... may be resolved through alternative mechanisms, including arbitration agreements in accordance with the provisions of [Mexico's Commercial Code], international treaties on arbitration, and dispute resolution to which Mexico is a party.²⁹

However, the law specifies that any arbitration must be governed by 'Federal Mexican Laws', the arbitration must be 'conducted in Spanish', and the award 'shall be in strict law and shall be binding on both parties'.³⁰ Thus, while an investor will not be subjected to home-court advantage in the Mexican courts, it may be less familiar with Mexican law and practitioners of that law than its Mexican counterpart.

Notably, however, the incoming director for Pemex, the Mexican state-owned petroleum company, has indicated that the incoming Mexican administration will pursue legislation amending Article 21 to prevent foreign investors from invoking the protection of investment treaties.³¹ If such legislation is passed, investors in Mexico may be prohibited from availing themselves of investor-state arbitration.

Under investment treaties, states, in order to attract investment, offer foreign investors a number of protections and agree to submit any disputes that may arise between the state and the foreign investor to a neutral international arbitration tribunal. Many states, for example, have submitted to such arbitration under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) by signing the ICSID Convention.³² In Latin America, Argentina, Chile, Colombia, Costa Rica, El Salvador, Honduras, Nicaragua, Panama, Paraguay, Uruguay and, most recently, Mexico³³ have joined the ICSID Convention. However, other states – specifically Bolivia, Ecuador and Venezuela – have withdrawn from it.³⁴

While Ecuador denounced the ICSID Convention in 2009, it now allows investors to arbitrate disputes for investments exceeding US$10 million under the rules of specific arbitral institutions. On 21 August 2018, Ecuador passed a new investment protection law that approves the use of both domestic and international arbitration for settling disputes arising under investment agreements.³⁵ Specifically, for investments exceeding US$10 million, investors will now be able to invoke arbitration under the rules of the ICC, UNCITRAL or the InterAmerican Commission for Commercial Arbitration, without needing approval from the state's attorney general.³⁶ However, ICSID arbitration is still not an option.³⁷

In addition, a state's model contracts with foreign investors may contain express waivers prohibiting the investors from invoking investment treaty arbitration.³⁸ The Colombian model concession agreement originally contained a provision stating:

The parties agree not to resort to investment arbitration contemplated in any bilateral investment treaty or other international treaty that may contain the aforementioned protection and that may come to be applicable, when a controversy has arisen between the parties relating to the initiation, execution or termination of the present contract, in which case the parties should resort to the dispute resolution mechanisms referred to in the present contract to resolve such controversies.³⁹

Thus, under the Colombian model concession agreement, the foreign investor must waive the right to seek redress pursuant to an investment treaty and may only pursue the remedies expressly stated in the contract, which may include commercial arbitration pursuant to the contract's terms.

Venezuela's model contract relating to the exploration and exploitation of hydrocarbons, however, prohibits resort to any alternative dispute resolution mechanism and requires the parties to submit to the jurisdiction of Venezuelan courts.⁴⁰ The model contract states that:

disputes and controversies arising out of a breach of the conditions, terms, procedures and actions that constitute the object of the contract or derive from it, shall be resolved in accordance with the legislation of the Bolivarian Republic of Venezuela and before its jurisdictional organs.⁴¹

In addition to states, lenders also exercise significant influence in shaping dispute resolution clauses, including clauses in the arbitration agreement between the investor and a third party. As discussed above, investors usually cannot develop large, complex infrastructure and energy projects without financing. Knowing this, lenders tend to prefer to resolve disputes in jurisdictions with predictable, well-established laws regarding lender rights, such as New York. The lender's primary concern is being repaid; resolving a dispute in a forum that has the capacity to quickly and effectively make that happen is a lender's central interest.

Finally, the ability of foreign investors to shape dispute resolution clauses may be impacted by forces largely outside their control. As noted, most states in Latin America own the natural resources within their territory and some of these states require investors to submit to local law and the local court system. Most investors, however, do not prefer to submit to local jurisdictions, which they may perceive as biased in favour of the state. Also, foreign investors likely lack familiarity with local laws and the local judicial process. Even if a state accepts arbitration, it may later attempt to litigate disputes in its local courts, so protection against that should be built into the dispute resolution clause, if possible (such as, for example, by including an express bar against circumvention, which may assist the investor in obtaining an anti-suit injunction). Investors will likely be able to exercise greater leverage when states are experiencing an economic downturn and are in need of significant foreign capital to spur economic development. Energy demand may also affect an investor's bargaining power, with foreign investors having greater leverage when demand is high but supply is low.

Achieving equilibrium among differing interests

While each of the key players will try to shape dispute resolution clauses to meet their interests, these clauses can be drafted to ensure that no one party has an unfair advantage. For example, the investor may insist that any dispute concerning the contract be seated outside of the host state. The parties can also agree on the application of a well-known neutral law, rather than local law. Many parties accept New York law for this purpose, as it offers a clear legal framework for the resolution of international disputes, has well-developed and relatively predictable commercial law, and neutral courts with extensive experience in enforcing arbitration agreements and awards.

The parties can achieve greater neutrality by agreeing to have the dispute heard by three independent arbitrators, with each party selecting an arbitrator and the two party-appointed arbitrators selecting the chairperson. The parties may even define the attributes of acceptable arbitrators in the dispute resolution clause – the clause may require the arbitrators to have expertise in resolving commercial disputes or to be nationals of states other than those involved in the dispute, to minimise potential bias and influence.

Conclusion

The balance of power between the key players involved in the development of large, complex energy and infrastructure projects is a constantly shifting paradigm, especially with respect to the negotiation of the terms of a contract's dispute resolution provision. While states tend to have great influence over the negotiation of project documents, given their control of, and access to, natural resources and the legal and regulatory framework under which the investment is made, lenders and investors may also exert significant influence, especially when investment in the relevant sector is needed to meet demand. The dispute resolution clause may be drafted to ensure a balanced and neutral forum to resolve disputes.