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Strengthening the Investment Climate: A Legal Approach - Erkin Sancarbaba

In a general perspective, energy investments inherently require huge resource allocations and envisage long-term targets. It is undeniable that the energy sector has a strategic role in countries' medium and long-term goals. In other words, progression and stability on energy investments are directly associated with countries' national interests. The Turkish Government also understood the importance of the energy sector in time and mobilized all its possibilities for the development of the sector. On the other hand, as a matter of fact, some issues that carry the risk of disrupting Turkey's energy investments still exist. Accordingly, the necessity of eliminating the threats which have the potential to interrupt ongoing projects and planned investments emerges. In order to maintain stability in energy investments, which are allocated resources on a national basis and have strategic importance, the issue needs to be addressed in detail. The existing state and the solution proposals will be discussed from a legal perspective thereinafter.

After the decisions made by the Turkish Government to liberalize and privatize the Turkish energy market, the sector enter into the process of development and expansion. However, with this process, the revision of the legal structure became inevitable. The dispersed and discordant legislative amendments leave market actors in a tight spot in some cases. The unscheduled and impetuous amendments have the potential to trigger distrust and instability in the energy sector. In order to clarify the aforementioned situation, underlining the total number of revisions in the four main statutes that generally regulate the energy markets in Turkey.

· Since 2003, the Natural Gas Market Law (No. 4646) has been revised sixteen times.

· Since 2004, the Petroleum Market Law (No. 5015) has been revised thirty-three times.

· Since 2013, the Electricity Market Law (No. 6446) has been revised twenty-seven times.

· Since 2007, the Law on Utilization of Renewable Energy Sources (No. 5346) has been revised fifteen times.

In line with these data, due to the lack of legal predictability, it seems difficult to promote medium and long-term investments. The existence of the ongoing investments which are affected adversely by the instantaneous revisions is a sort of appetite-suppressant for the investment climate. Consequently, the establishment of legal predictability and certainty shall be an accelerator of the pacesetter energy investments.

Elaboration of the legal structure which aims at instituting legal predictability and legal certainty becomes more of an issue as time progresses. These two terms are directly related to legal security. As it is known, it is not possible to actualize successful investments in countries that don’t have a legal security mechanism. For Turkey, maintaining legal security is an issue that concerns the future of the country and its investment environment. In the initial stage, it is crucial to mention that the main point criticized in this article is the untidiness regulation changes that pose a threat to legal security. The aforementioned revisions have an impact on continuing investment operations. Otherwise, prudential, constructive, and investor-friendly updates on regulations should be supported by all parties. In order to regulate the markets with investment-friendly revisions, it should be ensured that adverse rule changes that will occur after the investment has started will not affect the investment. In addition, sufficient time should be allocated to investors to allow the development of technical infrastructure or competence to adapt to these changes. In this way, additional costs and unforeseen risks for the sector can be eliminated.

Since it is a developing country, it is very important for the Turkish government to intensify the law-making process and to speed up the regulations in areas that are pivotal for the country such as energy. The multi-faceted law-making efforts in these areas clearly demonstrate the adequacy of the Turkish bureaucracy and the will of the Turkish legislature. However, it is necessary to make self-criticism in terms of establishing predictability in the energy market. Future laws, regulations, and secondary legislation should be formed in a complementary manner. Furthermore, the correct analysis of the effects of the changes made at each stage is extremely significant in regards to contributing to predictability.

In the next stage, it will be beneficial to establish a new independent authority to take a stable path in all strategic investment areas, including the energy sector, and to secure the interests of investors. This independent authority should have the characteristics of a supervisory and regulatory agency. The aforementioned authority should comprehensively include both public and private sector representatives. Thus, the rights of the public will be protected and sector representatives will be able to express their opinions with confidence. As a final detail, this authority must be established by a law that will be enacted by the parliament.

As a result, the stable continuation of energy investments is an important step for Turkey to reach its development goals. At this point, it is very important for policymakers to maintain their determined stance. On the other hand, regulations that are made without complying with the principles of legal predictability and legal certainty deflect Turkey from the target. From this point of view, the implementation of the reforms mentioned in this article has vital importance for the continuity of energy investments and the future of the sector.


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