Abstract The Republic of Ghana, its national oil company, Ghana National Petroleum Corporation, and contractor parties signed a Memorandum of Understanding in 2025 to, inter alia, institute a robust payment security under the Master Gas Agreement. Some issues have arisen, inter alia, the lawfulness of a Corporate Income Tax (CIT) offset option to the Contractor parties as security that underpins the Gas Sales Agreements. I posit that in respect of the offsets made against CIT, apart from the fact that it is a violation of both the letter and spirit of the Petroleum Revenue Management Act—the governing legislation for the management of petroleum revenue—it is in essence, a purported attempt to vary the law through an agreement as opposed to an amendment, which simply cannot be done within a legal architectural framework. This article covers arguments for and against the legality of this action and makes reasoned arguments in support of the position that this arrangement is in violation of the law. This Article concludes by noting that the way forward is the articulation of a clear policy, later translated into law, which is applicable to all when it comes to energy and tax swaps.
Abstract The international joint operating agreement (JOA) is the central instrument governing unincorporated upstream oil and gas joint ventures, and the AIEN Model JOA remains the leading international reference form. This article does not address artificial intelligence (AI) in the energy sector generally. It asks a narrower contractual question: how does the operator’s use of AI affect the JOA’s allocation of control over joint operations data and responsibility for operational decisions? The article argues that high-consequence operator AI exposes two connected gaps in the 2023 AIEN Model JOA. The first concerns rights in joint operations data, trained models, learned parameters, AI Outputs, and derived datasets. The second concerns attribution, the prudent-operator standard, and the gross-negligence liability shield where operational decisions are materially generated, shaped, or executed by AI. Operating Committee governance and Joint Account cost rules are analysed as supporting mechanisms through which those two gaps become practically significant. Framed primarily by English law, and using European Union AI and data legislation only as reference points, the article proposes a minimum AI clause-set for the Model JOA: definitions, data and model allocation, attribution, model governance, approval, audit, cost, vendor chain, and transition provisions.
Abstract This article discusses the potential procyclical effects of collateral haircuts in centrally cleared energy derivatives markets and argues that current regulatory frameworks may have to be made more stringent. While the European Market Infrastructure Regulation incorporates explicit tools to mitigate procyclicality in initial margin models, comparable mechanisms for collateral haircuts remain underdeveloped. Yet, haircut procyclicality can be particularly consequential in energy derivatives markets, where non-financial firms often play a dominant role as clearing members often rely extensively on non-cash collateral. The article argues that—even when initial margins are developed in a non-procyclical manner—sudden, sharp haircut increases may still generate acute liquidity pressures for energy firms. Given the central role of derivatives in hedging physical energy exposures, these liquidity strains may extend beyond financial markets and affect hedging activity and even the real economy. The article therefore proposes extending initial margin antiprocyclicality tools—such as buffers, floors, and smoothing mechanisms—to haircut methodologies to further enhance the resilience of energy derivatives markets in case of market stress.
This article reconceptualizes international energy law through a four-layer governance architecture that explains how fragmented legal regimes jointly shape the energy transition in hydrocarbonexporting states. Rather than treating fragmentation merely as a source of legal incoherence, it demonstrates how producer states strategically navigate overlapping climate, trade, investment, and corporate accountability regimes through what the article terms "managed transition through adaptive legalization." The article develops a four-layer analytical model of international energy law, namely sovereign entitlements, cross-border transactions, environmental externalities, and corporate accountability, to explain how legal authority operates across the energy lifecycle. Using Saudi Arabia as a case study, it shows how hydrocarbon-exporting states pursue "managed transition through adaptive legalization," selectively internalizing sustainability norms while preserving policy autonomy over resource development. The analysis demonstrates that fragmentation across international legal regimes expands the range of policy options available to states, allowing states to reconcile competing objectives of energy security, economic stability, and climate commitments. At the same time, fragmentation generates structural tensions, particularly in relation to trade disciplines, investment protection, and emerging due diligence standards. The article concludes that international energy law should be understood as a distributed governance architecture, in which legal pluralism is both inevitable and necessary for managing the energy transition.
Achieving a just and timely energy transition requires countries to strategically advance a wide range of actions compatible with the pace of climate change. Public policies play a central role in this process, particularly in sectors most significantly affected, such as the oil and gas industry in developing economies. This study examines how public policies are advancing decarbonization in Brazil's upstream oil and gas sector, focusing on three key dimensions: reducing operational emissions, promoting portfolio diversification, and managing production. The analysis draws on recent regulations and initiatives introduced since the launch of the Brazilian Energy Transition Policy, assessing their direct and indirect impacts on the sector. Findings reveal that, while meaningful progress has been achieved in recent years, significant regulatory and policy gaps remain. To address these, the study proposes a set of recommendations, including sector-specific greenhouse gas emissions targets, strengthening R&D policies, expanding economic incentives, resolving regulatory gaps for emerging low-carbon activities, and enhancing institutional enforcement capacity. Implementing these measures would not only accelerate decarbonization in Brazil's upstream oil and gas sector but also help advance the country's leadership in the energy transition and position it as a global reference in sustainable oil and gas production.
China's coal transition hinges on whether coal-dependent regions can overcome deeply entrenched barriers. Drawing on carbon lock-in theory, this study examines the historical and institutional foundations of the firm- and market-level constraints facing Inner Mongolia, one of China's most coal-reliant provinces. It identifies a multifaceted ownership landscape in Inner Mongolia's coal sector, marked by the entrenchment of central and local state-owned enterprises alongside hybrid public-private partnerships. Mixed, and at times contradictory, signals from national and provincial institutions have undermined the momentum to sustain a coordinated transition. In particular, the absence of a coherent framework for coal phase-out, structurally distorted price signals, and coal's legally and politically embedded role in national energy supply have led to Inner Mongolia's position as a major energy centre while also continuing to reinforce its coal dependence. This study offers insights for advancing a more coherent and decisive coal transition in Inner Mongolia, with lessons for other coal-intensive regions in China and beyond.
In 2024, Tullow Oil Ghana instituted an action against the Republic of Ghana before the International Chamber of Commerce (ICC), challenging the imposition by the Ghana Revenue Authority (GRA) of a US$320 million Branch Profit Remittance Tax (BPRT) assessment, contending that it was in breach of the tax-stability provisions of the petroleum agreements entered into, that is, the 2004 West Cape Three Points and the 2006 Deepwater Tano Agreements. The dispute centred on whether Tullow was required to pay tax on profits the company transferred to its parent company outside the jurisdiction. The Tribunal ruled that the BPRT did not apply to Tullow's operations under its petroleum agreements and thus that Tullow was not liable to pay the US$320 million BPRT assessment and would not be liable to any such future assessments in respect of its operations under the petroleum agreements. This case offers valuable insights into the approach adopted by arbitral tribunals to the interpretation of petroleum agreements, that is, deeming them to be sacrosanct and placing a premium on the sanctity of contracts and, in the case of freezing stabilization clauses, applying a strict and literal interpretation coupled with a voracious proclivity for the enforcement of the same to the letter.
Carbon capture and storage (CCS) has become a central component of U.S. climate policy, particularly through the federal tax credit provided under Internal Revenue Code & sect; 45Q. Recent legislative developments have strengthened incentives for carbon capture projects by increasing credit values and expanding eligibility, including for projects that utilize captured carbon dioxide for enhanced oil recovery (EOR). At the same time, the European Union has introduced the Carbon Border Adjustment Mechanism (CBAM), which imposes tariffs on certain imported goods based on their embedded carbon emissions. This paper argues that a potential policy mismatch exists between U.S. incentives and EU carbon accounting rules. While U.S. policy increasingly treats EOR as a qualifying form of carbon management eligible for significant tax benefits, EU frameworks emphasize permanence and may not recognize EOR as a permanent carbon removal. If EOR is not treated as a qualifying removal under EU methodologies, U.S. exporters relying on & sect; 45Q credits could face additional carbon costs under CBAM, potentially undermining the competitiveness of U.S. industries despite substantial domestic policy support. By examining the interaction between & sect; 45Q incentives, CBAM embedded emissions calculations, and emerging EU carbon removal standards, this paper highlights the importance of definitional consistency in global climate policy. The analysis demonstrates that differences in how jurisdictions classify carbon management activities may create unintended trade consequences, even where both regimes seek to encourage emissions reductions. Greater alignment between U.S. and EU carbon accounting approaches may be necessary to ensure that climate incentives function as intended without creating hidden trade barriers.
Hydrogen has emerged as a pivotal energy carrier in global decarbonization, attracting growing regulatory attention for its potential to create low-carbon energy, fuel, and gas systems. While carbon-intensive hydrogen production remains dominant onshore, policy focus is shifting offshore towards low-carbon hydrogen, integrating established hydrogen production methods with carbon capture and storage technologies (CCS). The International Energy Agency projects low-carbon hydrogen, produced from non-renewable sources with CCS, could account for 40 per cent of global hydrogen production by 2070 when hydrogen is forecasted to account for 13 per cent of total final energy demand globally. Yet, existing socio-legal research has largely focused on renewable hydrogen production when considering the role of public participation. In response, this article examines the extent to which international law may require public participation in the planning and development of offshore low-carbon hydrogen projects. It further compares the regulatory approaches of Australia, as a prospective exporter, and Germany, as a prospective importer of low-carbon hydrogen. Despite differing legal frameworks and regulatory styles, it finds that both States face potential challenges of community acceptance, leaving uncertainties in planning, permitting, and licensing. Through analysis of international obligations and comparative functions, this article argues that integrating responsive public participation regulation may enhance legitimacy, reduce legal uncertainty, and support effective development of offshore low-carbon hydrogen.
This article examines the European Union's (EU) shift from a cooperative and non-binding model to a sanctions-based enforcement mechanism for Trade and Sustainable Development (TSD) chapters in free trade agreements (FTAs). Since 2011, all EU FTAs have included TSD chapters, traditionally enforced through non-binding panel recommendations and without recourse to sanctions, based on the assumption that reputational pressure and civil society oversight ensure compliance. NGOs, the European Parliament, and the EU Member States have criticized this 'cooperative approach', citing limited compliance incentives. The European Commission's 2022 Trade Policy Action Plan introduced a 'hard approach' that underpins the enforcement of TSD Chapters with sanctions as a last resort. This policy shaped the EU-New Zealand FTA (in force since May 2024), which subjects certain TSD commitments to the general dispute settlement mechanism of the FTAs. This comprises binding rulings, compliance review, and, in cases of recurrent non-compliance, trade retaliation or financial compensation. The article argues that sanctions can strengthen the effectiveness of TSD chapters and mitigate legal uncertainty, especially in the aftermath of Opinion 2/15. It criticizes the cooperative approach, using as case study the EU-Korea Labour Commitments dispute, which is the only TSD case to date under an EU FTA. This article also draws a parallel between the EU-New Zealand FTA and the WTO's sanctions regime, which has yielded over the past decades a high compliance record.
The placement of offshore energy production units and structures (such as pipelines) will invariably come within the scope of any prevailing marine spatial planning (MSP) regime. There is increasing reliance on AI to ensure precision in placement. The data generated in many instances would be adopted by the authorities in implementing any applicable marine spatial plan. However, where there are many competing socio-economic and legal interests in the marine space, the use of AI by offshore energy corporates might well produce bias, whether intentional or not. This work maps out the risks of bias in this offshore energy and MSP context. It asks whether a liability system scheme like the EU AI Law could work. It concludes with thoughts on how, from a legal and regulatory perspective, spatial data sharing and AI used in an MSP context for offshore energy could be improved.
The rollout of smart metering in the European Union (EU) electricity sector highlights a structural tension between, on the one hand, the need for enhanced grid observability under Directive (EU) 2019/944 and, on the other, the safeguards required by the Charter of Fundamental Rights of the European Union (CFR) and the General Data Protection Regulation (GDPR). This tension is intensified by the horizontal regimes introduced by the Data Act and the NIS2 Directive; although designed to promote, respectively, data sharing and cybersecurity resilience, they may fragment the regulatory landscape and weaken sector-specific constraints in EU energy law. The article argues that, when combined with inference techniques such as Non-Intrusive Load Monitoring, metering data can produce a 'Panopticon effect' that demands a careful balancing of the energy system's 'big data' needs against the GDPR's data minimization imperative. It further shows how the Data Act's commodification logic (treating data as an economic asset) poses a risk of 'regulatory bypass', by enabling transfers of metering data outside the eligibility and purpose constraints of electricity law. Finally, it frames cybersecurity as an autonomous pillar: NIS2's integrity and availability objectives, together with the Cyber Resilience Act's security-by-design duties, complement the GDPR's requirements and can, if properly coordinated, reinforce minimization by reducing the attack surface. On that basis, the article proposes an 'inter-regulatory proportionality' framework to reconcile these regimes, in which data protection and privacy set limits, energy law defines functions, and cybersecurity guarantees resilience, all within a coherent governance hierarchy.
This study assesses the implications of the European Union's Carbon Border Adjustment Mechanism (CBAM), a key component of its 'Fit for 55' climate package aimed at reducing emissions by 55 per cent by the year 2030. The research addresses two critical aspects of CBAM: the impact on developing countries and the compliance with the Paris Agreement and World Trade Organization rules. Employing a qualitative analysis, the study reveals that CBAM poses significant economic challenges for developing countries by potentially restricting access to the European Union market and necessitating cost escalations in production processes. Furthermore, the analysis questions CBAM's alignment with international law, highlighting concerns over its potential violation of the principles of non-discrimination and fairness as stipulated in WTO regulations and the Paris Agreement. By 2030, CBAM is projected to generate huge revenue from imports; however, the absence of financial support, out of that revenue, for developing nations in achieving their climate objectives underscores deeper issues of equity and justice in global climate policies. The findings suggest that while CBAM aims to mitigate carbon leakage and encourage global carbon pricing, it also raises critical ethical and legal questions about the equitable distribution of responsibilities in addressing climate change.
Critical minerals are rising in value in terms of how they enable society to have a just and sustainable climate transition. They form a critical part of the circular economy, the energy transition and overall are increasingly diffusing into the everyday life of society. Critical minerals, being part of the mining sector, have a long and dark legacy of environmental damage and unjust financial distributions. This needs to change as they become central to the societal transitions needed to respond to climate change challenges. In order to achieve this, this brief article advances that an International Critical Minerals Treaty is needed and should be advanced and established at the UN COP31 event later in 2026. It would benefit all countries and improve the position of society in achieving its climate and sustainable development goals.
The global energy transition is unfolding amid profound technological, economic, and geopolitical shifts that expose structural gaps in traditional governance mechanisms. While states and international organizations often lack the speed, expertise, and jurisdictional reach to regulate rapidly evolving clean energy sectors, private actors increasingly fill these voids through model contracts, voluntary standards, and transnational commercial norms. This article examines the strategic role of the Association of International Energy Negotiators (AIEN) in shaping the legal architecture of the energy transition. It argues that AIEN's model contracts operate as hybrid governance tools-soft law instruments that harmonize practices across jurisdictions, reduce transaction costs, and embed sustainability objectives into cross-border energy projects. By situating these contracts within broader transformations in global energy governance, including regulatory fragmentation, financial constraints, and the rise of private authority, the article demonstrates how "governance by contract" supports a more coherent, resilient, and equitable energy system. Through an analysis of emerging regulatory challenges, socio-environmental concerns, and transnational legal dynamics, the study highlights the potential of private ordering to complement public frameworks and address the complex demands of a just and effective low-carbon transition.
Recent Intergovernmental Panel on Climate Change reports emphasize that there is no 'silver bullet' to tackle the global climate crisis. In response, several Members of the World Trade Orgnization (WTO) are adopting policy instruments to internalize the environmental costs of greenhouse gas emissions. Yet, when adopting these policy tools, Members may face concerns about the risk of carbon leakage and the resulting loss of competitiveness. In May 2023, the European Union (EU) adopted Regulation 2023/956, establishing the Carbon Border Adjustment Mechanism (CBAM). Shortly thereafter, other WTO Members, including the USA, tabled proposals for national border carbon adjustment (BCA) mechanisms. While BCAs hold potential to advance climate mitigation and incentivize global decarbonization, they also pose complex legal and systemic challenges under the General Agreement on Tariffs and Trade (GATT). If not designed and implemented with sensitivity to global disparities, BCAs may impose disproportionate burdens on developing and least-developed countries, potentially undermining their consistency with GATT non-discrimination obligations and the chapeau of Article XX. To ensure that BCAs are genuinely directed towards climate objectives, interpretations of Article XX chapeau must be informed by the Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC) principle, which must guide States' climate mitigation efforts. Against this backdrop, this contribution critically examines and compares the core implementation challenges of the EU CBAM and four BCA proposals introduced in the 118th US Congress in 2023. With the EU CBAM nearing full implementation and growing momentum for BCAs in other jurisdictions, including the USA, addressing legal and distributive concerns is imperative to avoid adverse impacts on vulnerable economies. This is particularly pressing also in light of the potential emergence of a 'BCA coalition' among politically and economically aligned states. While BCAs can foster international cooperation and make meaningful contributions to climate change mitigation, their legitimacy depends on consistency with the CBDR-RC principle and compliance with the GATT.
The renewable energy quota system in China has progressed through phases of policy exploration and implementation, culminating in refinements to its legal framework, the identification of accountable entities, and the regulatory mechanisms. The expansion of interprovincial power trading has brought about various institutional challenges in implementing a quota system. These challenges include the weak legal enforceability of quota obligations, ambiguity surrounding the attributes of green certificates, disparities in primary market distribution, inadequate supervision of the secondary market, and increased market volatility due to the price transmission mechanism of interprovincial power trading. To stabilize interprovincial power transaction prices, China must clarify the binding nature of quota obligations through legislative measures, enhance the integration of green certificates with the carbon market, and introduce a dynamic adjustment mechanism to enhance the power system's absorption capacity and stability by implementing an energy storage quota deduction policy. Additionally, leveraging advanced technologies such as blockchain can improve the traceability of the 'separation of certificates and electricity' model, while enhancing supervision and coordination of interprovincial power transactions to boost market transparency and compliance.
This Article examines the persistent problem of natural gas flaring in the West Texas Permian Basin and the regulatory failures that allow it to continue. Despite record-breaking oil production, Texas wastes large amounts of natural gas due to inadequate infrastructure and overly broad regulatory exemptions. Tracing the state's historical approach to flaring-from early no-flare orders to modern leniency under Statewide Rule 32-this Article highlights how the Texas Railroad Commission's expansive interpretation of "unavailability" has undermined its duty to prevent waste. At the federal level, the Environmental Protection Agency's Methane Emission Reduction Program and Waste Emissions Charge also fall short by exempting operators lacking pipeline access and excluding existing wells. To address these gaps, the Article proposes narrowing Texas's flaring exemptions, expanding federal methane rules to cover existing facilities, and prioritizing pipeline development in the Permian Basin. It further explores interim solutions such as using mobile energy consumers, including Bitcoin mining operations, to utilize gas at the source. Collectively, these reforms aim to curb waste, reduce emissions, and bring lasting accountability to Texas's energy regulation.
