New Energy Law ‘to generate manifold crisis’

The Bangladesh Energy Regulatory Commission's (BERC) move to implement a new law to settle the disputes in energy and power issues will create serious havoc as it will make "null and void" all the previous settlement orders by the BERC, Appellate Division and the High Court Division of the Supreme Court.
The abrogation of the existing regulations will also create a state of anarchy in the energy sector as it would lead to numerous financial claims and counter claims against many government agencies and would certainly violate the orders of the High Court Division and Appellate Division of the Supreme Court, legal experts said.
According to the sources, the BERC is going to promulgate a regulation titled "Bangladesh Energy Regulatory Commission Dispute Settlement Regulations 2021" through gazette notification cancelling the BERC Dispute Settlement Regulations     2014 with some amendment.   
"The domestic and foreign investors will not accept the dispute settlement mechanism by way of arbitration directly by BERC without involvement of the legal and technical experts which was required under the directive of the Ministry of Law, Justice and Parliamentary Affairs," said an official preferring anonymity.
The interest of the investors will not be protected under the mechanism to be laid down in the proposed BERC Dispute Settlement Regulations 2021 and consequently it would degrade the credit rating of Bangladesh and its rating in the investment scenario in the international arena, the official added.
The present initiative of BERC violating the above mentioned legal opinion from the Law Ministry will frustrate the dispute settlement mechanism under Section 40 of the Bangladesh Energy Regulatory Commission Act 2003. Industry insiders claimed that this act is a clear violation of the article 48 (3) of the Constitution.
"Many parties will be aggrieved by the action of the BERC which will be trigger for numerous litigations and writ petitions. Finally, the present initiative of BERC will violate the specific orders of the highest court which will amount to contempt of court," Dr. Salim Mahmud, former Chairman of the BERC (Arbitration) told the Daily Observer on Saturday.
He said the present initiative of the BERC, if implemented, will clearly tarnish the image of Prime Minister Sheikh Hasina as she officially announced that the existing dispute settlement mechanism is a successful programme of her government and the present initiative of BERC is intended to abrogate the method which Prime Minister declared as a success of her government.
"The act of the BERC amounts to defying the order of the Prime Minister and the initiative of BERC, if implemented, will be used legally and politically against the image the Prime Minister. This kind of initiative clearly abrogates a decision of the Prime Minister and so, it cannot be approved without any official order from the Prime Minister's Office (PMO) or other ministries or agencies that explicitly manifests the desire of the Prime Minister to do so," he said.  
It may be mentioned here that many disputes were resolved by way of arbitration under the Regulations 2014. Many disputes were brought before the High Court Division as part of writ jurisdictions and subsequently before the Appellate Division, and were resolved by the highest court under the BERC Regulations 2014. Many arbitral awards are pending before the higher judiciary under writ jurisdiction. And many disputes are pending before the BERC arbitration process under the directives of the higher courts.
"Huge amounts of money have been realized in the meantime as part of compensation, penalty, payment of tariff, fees, rents and other expenses under the Regulations of 2014 at the directives of the highest court. What will happen with them," a senior official of the BERC posed a question.
The present initiative of BERC is going to violate Rules of Business 1996 by way of violating the opinion of the Law and Justice Division, Ministry of Law, Justice and Parliamentary Affairs given on 24/1/2016 under the Memo number 10?00?0000?129?04?555?15-494 and under memo number 10?00?0000?129?04?32?17 Issued on 25/4/2017.
In the latter memo, the Ministry of Law, Justice and Parliamentary Affairs opined that it is mandatory to act in line with the legal opinion given by the Law and Justice Division of the Law Ministry on matters relating to arbitration and administration of justice under the Rules of Business 1996.