In the Footsteps of the Giant ‘Lex Petrolea’, The Birth of ‘Lex Renewables’ Jurisprudence: Co-existence Probabilities or Possibilities?

Katherine Ramo

Student thesis: Doctoral Thesis › Doctor of Philosophy

Abstract

The Renewables International Dispute Resolution (RIDR) has been quietly emerging with its own jurisprudence providing a fertile source for self-drawn customary international law. The diverse body of procedural and substantive law issues are steadily on the rise leading us to a point in between two worlds: Lex Ferenda and Lex Lata yet undoubtedly giving birth to a vibrant ‘Lex Renewables’.

Whilst the renewables industry is no longer novel, it has been grappling to assert itself alongside its oldest sibling the fossil fuels’ industry. Going back to the early 1970s as the “New International Economic Order” facilitated the birth of Lex Petrolea, for the past five plus decades, Lex Petrolea has gathered significant momentum and continues to thrive as an autonomous transnational legal order. At its heart, it has taken the path of Lex Mercatoria, ‘transcending the nation-state’ and has been solidly endorsed by academics, practitioners, jurists, and industry think-tanks.

For ‘Lex Renewables’, as the renewables industry currently rides above the tumultuous waves of recent cases and arbitral awards resulting from a paradoxical web of international legal frameworks for example under the ECT, the old NAFTA , and BITs, to note a few, Can this industry, too, sustain itself by fostering its own legal rules and norms i.e. a ‘Lex Renewables’ jurisprudence? And assuming Lex Renewables is in its initial ‘jurisgenerative stage’, can it exist on its own or could the behemoth establishment of the fossil fuels’ Lex Petrolea’ be the overarching standard for its co-existence?

Against the above backdrop, this thesis aims to pronounce the birth of a new jurisprudence: ‘Lex Renewables’, akin to its giant sibling fossil fuels’ ‘Lex Petrolea.’ It will purport to answer the above questions adopting the view of the original ‘New Haven School’ by examining international law in the arbitral jurisprudence from both a legal pluralist and comparative transnational legal process perspectives. In summary, this thesis asserts the reality of ‘Lex Petrolea’ and takes it a small step further to investigate the emergence of ‘Lex Renewables’. It argues that the renewables industry is ripe in charting a path following the footsteps of its giant sibling and forming a branch of International Energy Law in its own right.

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1. The term ‘Lex Renewables’ is coined by the author and defined here to mean: international commercial, trade and investment usages in the renewables industry that can be treated as part of the governing law. It is akin to ‘Lex Petrolea’ or ‘Lex Sportiva’ which are defined as legal rules adapted to an industry’s specific characteristics and/or a transnational autonomous legal order.
2. The scope of this thesis does not extend to the newly renegotiated North America, the United States-Mexico-Canada Agreement (USMCA), which entered into force on July 1, 2020. It only covers its predecessor the old North American Free Trade Agreement (NAFTA).