Compare countries by -

 (c) Regulator

Angola

(i) Overview of regulators and their powers

The Regulatory Office of the Power Sector (Instituto Regulador do Sector Electrico - "IRSE") is the entity that regulates the power sector in Angola, which is integrated with MEW. Its powers and competences derive from the General Law of Electricity and are defined in the Decree Law 4/2002, of March 12. MEW regulates the production, transportation, distribution and marketing of power in the Public Electric System (Sistema Electrico Publico). MEW also regulates the commercial relationship between this system and the agents not subject to it and exercises the functions related to the settlement of interests of the various interveners on the activities of the electric sector.

The granting of concessions and/or licences is the responsibility of the Council of Ministers and the local authorities, respectively.

(ii) Does the regulator typically enter into project documents relevant to the Project?

The IRSE has essentially regulatory powers, so that it does not typically enter into project documents relevant to the Project.

The licensing entities are empowered to enter into project documents relevant to the Project, namely concession or licensing contracts.

(iii) What is the form of licence issued and can it be amended?

IRSE typically does not issue any licence; these are issued by the licensing entities. The licences are granted for production, transportation or distribution of power and have a limited duration, which usually is of 50 years for concessions and between 30 days and 15 years for licences, extendable.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The IRSE is an entity incorporated in the structure of the MEW, which has legal personality and administrative and financial autonomy. Insofar it is responsible for combining the interests of the various interveners in the production, transportation and distribution of power, promoting the national arbitration and overseeing the actions of those interveners. IRSE should always be independent from both the stakeholders and the government.

Guinea

(i) Is there a regulator: please advise whether there are any regulators (independent or otherwise) in the jurisdiction with powers/rights in respect of the power project or Project Company. If so, how are their powers derived (under statute) and what are their powers vis-a-vis the power project and a project company?

The National Electric Energy Board (CNEE : Conseil National de l'Energie Electrique ) is the regulator of power projects in Guinea. Its powers are set out in the Law n*L/93/039/CTRN of 13th September 1993 (see above).

(ii) Power to contract: does the regulator typically enter into project documents relevant to the Project? If so, does it have power to do so?

The CNEE does not contract directly with the project company. Its powers are stipulated on the Law n*L/93/039/CTRN of 13th September 1993 (see above).

(iii) Licence: what is the form of licence or licences (if any) that the regulator (or relevant entity) typically issues? Is it possible to amend the proposed form of licence?

The basic form of licences used is under the form of BOT, BOO, or BOOT. Each document is adapted in a case by case basis.

(iv) Independence: is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The regulator is funded by industry participation.

Ivory Coast

(i) Overview of regulators and their powers

There are various stakeholders that play a part in the regulation of the power sector:

(A) The "Autorite Nationale de Regulation du secteur electricite" (ANARE) is responsible for the control of the players in the sector, the arbitration of disputes and the protection of consumer interests.

(B) The "Societe de Gestion du Patrimoine du Secteur Electricite" (SOGEPE) is responsible for the management of state property, management of financial flows and the consolidated accounts of the sector.

(C) The "Societe d'Operation Ivoirienne d'Electricite" (SOPIE) is in charge of the monitoring of the use of energy, study and planning, as well as the management of investment on behalf of the state for renewal and expansion of transportation networks and rural electrification.

The regulators are independent from the Government.

(ii) Does the regulator typically enter into project documents relevant to the Project?

The regulators do not enter directly into the project documents relevant to the Project.

(iii) What is the form of licence issued and can it be amended?

The Government issues a concession for the life of the project. The main commercial terms are negotiated prior to entering in to the concession.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

Each regulator is independent from the Government. The funding of the regulators is set out in the laws below:

(A) Decree n*98-726 dated on 16th December 1998 related to the creation of the State's company "Autorite Nationale de Regulation du secteur electricite" (ANARE);

(B) Decree n*98-726 dated on 16th December 1998 related to the creation of the State's company "Societe de Gestion du Patrimoine du secteur de l'Electricite" (SOGEPE); and

(C) Decree n*98-726 dated on 16th December 1998 related to the creation of the State's company "Societe d'Operation Ivoirienne d'Electricite" (SOPIE).

Kenya

(i) Overview of regulators and their powers

The Energy Act consolidated the regulation of the petroleum and electricity industries; and established the ERC which has oversight over the Act's broad applicability. The Act stipulates that a licence is required to conduct the following activities: importing, exporting, generating, transmitting, distributing, supplying or using electrical energy; importing, exporting, transporting, refining, storing and selling petroleum or petroleum products; producing, transporting, distributing and supplying of any other form of energy, and to all works or apparatus for any or all of these purposes. The procedure for applying for the relevant licence is prescribed by the Act.

(ii) Does the regulator typically enter into project documents relevant to the Projects?

Although the ERC is a corporate body, it can enter into commercial contracts. In respect of IPPs, the ERC would be required to approve the form of the PPA and issue the generation licence. On recent IPPs, it has also been the case that a letter of comfort has been issued by ERC to assist in project financing requirements.

(iii) What is the form of license issued and can it be amended?

There is a standard form of licence issued that is not open to substantial negotiation. The Act gives the ERC the discretion to grant the licence with or without conditions.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The overriding legislation would be the EMCA in that most of the other licences will only be granted after the Environmental Impact Assessment ("EIA") study and approval for an Environmental Impact Assessment Licence ("EIAL") has been obtained pursuant to the provisions of EMCA.

Madagascar

(i) Overview of regulators and their powers

The Regulator is called the "Office de Regulation de l'Electricite" (The Bureau of Electricity Regulation) (ORE), which is a public administrative body subject to Malagasy law. The regulatory body is a technical, advisory, and executive organ of the state.

Its power is defined by the Electricity Code and the Decree 2003-194, related to the bureau of Electricity regulation.

The ORE has general powers vis- a- vis the power project and a project company, especially relating to control, investigation, injunction and sanction for breach of licence.

(ii) Does the regulator typically enter into project documents relevant to the Project?

The regulator does not contract directly with the project. It has the power to affect the project by fixing and publishing the electricity prices and tariffs, the amount of transit royalties, and to supervise the application of the price and the royalties.

(iii) What is the form of license issued and can it be amended?

The Ministry of Energy and Mines issues the authorization or the concession. The licences are different for each activity: generation, distribution, reticulation of electricity, as well as hydraulic or small-scale thermal production.

It is not possible to amend the form of Concession once issued.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The regulatory body is in theory independent from the Government. The regulator is funded by industry participants.

Mali

(i) Overview of regulators and their powers

The CREE is the regulator with rights in respect of the power project or Project Company. Created by the Decree n*00-185/P-RM dated on 14th April 2000, the CREE has economic and financial oversight of the private operator in power generation. It is also responsible of all decisions taken related to the regulation, arbitration and enforcement as provided by laws and regulations concerning the sector of electricity. The CREE enforces the application of the tariff policy and regulates the public service of electricity.

(ii) Does the regulator typically enter into project documents relevant to the Project?

The CREE does not contract directly with the Project Company. However, the CREE sets up the guidelines for the tender of the award of the concession for generation, transmission, and distribution of electricity. It gives its approval in the pricing schedule and the terms of the purchasing agreement proposed by the private operator.

(iii) What is the form of licence issued and can it be amended?

The contractual regime between the Project Company and the Malian Government depends on the power generated by the relevant project:

An authorisation is applicable for a power project generating a minimum power of 50kW[2] and a maximum of 250kW of thermal production.

A concession is applicable for a project generating power in excess of 250kW of thermal production and all hydroelectric power generators.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The regulator is not independent from the Ministry of Energy and Water or the Ministry of Finance. It is funded by a budget fixed by the Council of Ministers with the approval of the Ministry of Finance and the Prime Minister.

Mauritius

(i) Is there a regulator: please advise whether there are any regulators (independent or otherwise) in the jurisdiction with powers/rights in respect of the power project or project company. If so, how are their powers derived (under statute) and what are their powers vis-a-vis the power project and a project company?

Please refer to the response provided in paragraph 1.2 (d) (i) above.

(ii) Power to contract: does the regulator typically enter into project documents relevant to the Project? If so, does it have power to do so?

The CEB has the capacity to enter into contracts as mentioned in paragraph 1.1.

The URA will have the power to examine and make recommendations to a licensee in respect of any power purchase agreement that a licensee proposes to enter into.

(iii) Licence: what is the form of licence or licences (if any) that the regulator (or relevant entity) typically issues? Is it possible to amend the proposed form of licence?

Pursuant to the EA 1939, a permit is issued by CEB for a period not exceeding 20 years which has to be, inter alia, certified by the CEB and approved by the President of the Republic of Mauritius by proclamation. The EA 1939 does not make provision for the amendment of the permit.

(iv) Independence: is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

As mentioned above, the current regulator which is the CEB is wholly owned by the Government of Mauritius and reports to the Ministry of Public Utilities. Being a parastatal body, any change in its tariff structure needs formal approval of the Government.

In addition to the prices charged for electricity supplied, the CEB has the possibility of raising capital by way of loans or debentures and has powers of investment subject to the Central Electricity Board Act 1963.

The URA will be the new independent regulatory authority which will oversee the regulation of electricity including the CEB.

Morocco

(i) Overview of regulators and their powers

There is no specific energy regulator in the KoM. The Ministry in charge of energy and mining could be considered as an indirect regulator of the industry.

(ii) Does the regulator typically enter into project documents relevant to the Project?

N/A

(iii) What is the form of licence issued and can it be amended?

N/A

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

N/A

Mozambique

(i) Is there a regulator: please advise whether there are any regulators (independent or otherwise) in the jurisdiction with powers/rights in respect of the power project or project company.  If so, how are their powers derived (under statute) and what are their powers vis-à-vis the power project and a project company? 

Currently, there is no independent regulator for the energy sector in Mozambique. The regulation and the supervision of the electricity sector is assigned to the Ministry of Energy through the Electrical Energy National Directorate (Direcção Nacional de Energia Eléctrica - “DNEE”).

On the other hand, the renewable energy sector is also dependent of the Ministry of Energy through the Renewable Energy National Directorate (Direcção Nacional de Energias Renováveis - “DNER”).

Notwithstanding the aforesaid, CLENEC was created under the Electricity Law as a consultative body with the aim of serving as a conciliation, mediation and arbitration authority as regards disputes between concessionaires and between concessionaires and consumers.

The Government is now in the process of endorsing CNELEC as the National Regulator. The relevant status, powers, and responsibilities of the regulator are not yet defined though.

(ii) Power to contract: does the regulator typically enter into project documents relevant to the Project? If so, does it have power to do so?

As previously mentioned in (i) above, there is no independent regulator of the power sector in Mozambique. Project documents are entered into between the concessionaire and the relevant authority (ME, Council of Ministers, Provincial Governors).

(iii) Licence: what is the form of licence or licences (if any) that the regulator (or relevant entity) typically issues? Is it possible to amend the proposed form of licence?

As previously mentioned in (i) above, as a rule, power projects allocated by means of a Concession. The terms and conditions of the Concession are defined in the Concession Contract which shall deal with a number of matters, including, but not limited to, (i) scope of the concession, (ii) duration, (iii) rights and duties of the parties, (iv) tariffs, fees and taxes, (v) dispute resolution, (vi) liability and insurance, (vii) land use and exploitation, (viii) guarantees, (ix) environmental protection measures, (x) governing law, (xi) State’s redemption right and (xii) agreements to be entered into with the NPTN manager. So as to be valid and enforceable, Concession Contracts require the approval of the Administrative Court Visa and are subject to publication in Mozambique’s Official Gazette.

As a rule, Concession Contract clauses may be amended by means of agreement of the parties, provided that the amendments do not breach the provisions set forth in the Electricity Law and/or in any other regulations or ancillary statutes applicable, including approved governmental relevant policies and/or strategies. When the Concession is granted by the Council of Ministers the amendments will only be enforceable if approved by the same entity.

(iv) Independence: is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

N/a. Please refer to our response to (i) above.

Niger

(i) Is there a regulator: please advise whether there are any regulators (independent or otherwise) in the jurisdiction with powers/rights in respect of the power project or Project Company.  If so, how are their powers derived (under statute) and what are their powers vis-à-vis the power project and a project company? 

The regulator of the energy sector in Niger is the ARM (see above). The ARM was created by Ordinance n°99-044 dated on 26th October 1999. Its powers related to the electricity sector are set out in the Chapter 2 of the Electricity Code (see above).

(ii) Power to contract: does the regulator typically enter into project documents relevant to the Project? If so, does it have power to do so?

The ARM does not contract directly with the Project Company. However, the ARM approves the terms of the Convention of concession, prepares and conducts the tender of process for the award of the concession of generation, transmission, and distribution of electricity.

The ARM also has the jurisdiction to resolve disputes among stakeholders of the electricity sector.

(iii) Licence: what is the form of licence or licences (if any) that the regulator (or relevant entity) typically issues? Is it possible to amend the proposed form of licence?

The regulator issues the Concession. The State and the concessionaire may change at any time by mutual agreement, after consultation with the ARM, the terms of the concession agreement or its annexes. 

(iv) Independence: is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The ARM is a public body, independent with financial autonomy and management. It is created by the ordinance n° 99-044 dated on 26th October 1999. The funding of the ARM is set out in the Chapter III of its Ordinance of creation (see above).

Nigeria

(i) Overview of regulators and their powers

The NERC is the regulator of the Electric power sector in Nigeria, and derives its authority from the EPSRA. Please see our response above.

(ii) Does the regulator typically enter into project documents relevant to the Project?

NERC has contractual capacity being a corporate body with perpetual succession, capacity to sue and be sued, and to perform all such acts as corporate bodies may perform. However, the role of the NERC in projects is strictly regulatory and primarily to balance and protect the interests of investors and consumers in the power sector; it therefore does not enter into contracts on a commercial basis.

(iii) What is the form of licence issued and can it be amended?

The EPSRA vests the NERC with the power to grant the following categories of licences:

  • electricity generation license;
  • electricity transmission license;
  • system operation license;
  • electricity distribution license; and
  • electricity trading license.

Any of the above licenses may be amended where the licensee so requests, or the NERC so decides.
(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

Although pursuant to the EPSRA, NERC is vested with a separate legal and corporate personality, it is under the supervision and policy directions of the Minister of the Federal Government in charge of power. In addition, the appointment of the officials (i.e., commissioners) of the NERC is made by the President of Nigeria subject to confirmation by the Senate.

NERC is funded through a combination of fees charged for licenses and permits issued by it and penalties imposed by it, and allocations from the Nigerian National Assembly (i.e. the Government).

South Africa

(i) Overview of regulators and their powers

NERSA regulates the power sector in South Africa. NERSA is an independent body, with the power to grant and withdraw export, import, generation, transmission and distribution licences in the power sector, as well as to amend and vary the terms of such licences. NERSA is established under the National Energy Regulator Act and has the powers granted to it under that act as well as the powers granted to it (in respect of the power sector) by ERA. NERSA has wide powers to monitor and enforce compliance with the terms of the licences it grants, and to undertake investigations to check whether there is compliance with such terms. In addition, it has the power to develop policy and rules to implement such policy.

(ii) Does the regulator typically enter into project documents relevant to the Project?

NERSA does not typically enter into project documents relevant to the Project with the counterparties to the Project.

(iii) What is the form of licence issued and can it be amended?

NERSA has and is developing precedents as to the form of licences it issues. ERA sets out a number of categories of conditions that NERSA can impose on a licence, such as: the form and content of the agreements entered into by the licensee; the energy source or fuel; the setting and monitoring of performance standards, as well as any other conditions that NERSA may decide to impose. These licences have been negotiated and agreed with NERSA in the past.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

NERSA is regarded as being genuinely independent from government and from Eskom. Certainly, the legislation that creates it and from which it derives its power requires it to be independent. NERSA is funded out of the National Revenue Fund by National Treasury. Despite this, NERSA has taken decisions in the past that are contrary to the decisions that DPE and Eskom wanted it to take, thus demonstrating its independence.

Tanzania

(i) Overview of regulators and their powers

EWURA is an autonomous multi-sectoral regulatory authority responsible for technical and economic regulation of the electricity, petroleum, natural gas and water sectors in Tanzania.

The functions of EWURA include among others, licensing, tariff review, monitoring performance and standards with regards to quality, safety, health and environment. EWURA is also responsible for promoting effective competition and economic efficiency, protecting the interests of consumers and promoting the availability of regulated services to all consumers including low income, rural and disadvantaged consumers in the regulated sectors.

(ii) Does the regulator typically enter into project documents relevant to the Projects?

EWURA has the power to issue certain licences required by projects in the energy sector.

(iii) What is the form of license issued and can it be amended?

The project may require generation, transmission and/or distribution licences from EWURA.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

EWURA is regarded as being genuinely independent from government and Tanesco.

Uganda

(i) Overview of regulators and their powers

The power sector in Uganda is regulated by the Electricity Regulatory Authority ("ERA") which is a body corporate established by the Electricity Act, 1999, Cap. 145.

(ii) Does the regulator typically enter into project documents relevant to the Project?

The ERA has the power to enter into and grant a generation licence pursuant to the Electricity Act, 1999.

(iii) What is the form of licence issued and can it be amended?

ERA is empowered to issue licences for generation, transmission and distribution. A licence once issued may be amended and modified following the set procedure.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The ERA is established as a corporate entity and is intended to be an independent body. It receives its funding in part from the Government consolidated fund, as well as grants and donations from the Government and in part from levies charged on electricity generated.

Zambia

(i) Overview of regulators and their powers

The Energy Regulation Board whose powers are derived under the Energy Regulation Act Chapter 436. Its functions are to monitor the efficiency and performance of undertakings in the energy sector, to provide for the licensing of undertakings for the production of energy or the production or handling of certain fuels.

(ii) Does the regulator typically enter into project documents relevant to the Project?

The regulator will usually not enter into such agreements.

(iii) What is the form of licence issued and can it be amended?

Licences for energy generation, transmission, supply and distribution.

(iv) Is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

Regulator is not absolutely independent as its BOARD is appointed by the Minister in charge of MOEWD. It is funded by money appropriated by parliament.

Legal and Disclaimer    |    Copyright Trinity International LLP 2010