As of September 2022, 52 countries had approved their low-carbon development strategies. European Union and the United States of America set carbon neutral targets by 2050 and China by 2060.
In December 2020, at the Climate Change Ambition Summit (organised by the UN, the UK, France in partnership with Chile and Italy), President Tokayev K.K. announced a new goal for Kazakhstan to achieve carbon neutrality by 2060, confirming Kazakhstan’s commitments under the Paris Agreement on Climate Change (Paris, 12 December 2015).
The Strategy for achieving carbon neutrality of the Republic of Kazakhstan until 2060 was developed taking into account global climate trends and in compliance with relevant international obligations. According to the Strategy. The development of RES will act as a key condition for successful decarbonisation. Therefore, wind, given its quality and availability in the country, will be a key resource for development in the earlier stages, while solar energy will be a key technology at a later stage, when the cost of investment in solar power plants will decrease significantly. In the long term, the use of RES will be accompanied by electricity storage systems, which will allow the regulation of electricity supply and better integration of RES in the energy system.
In accordance with the data provided by Financial Settlement Center of Renewable Energy LLP (FSC), Kazakhstan power generation from Renewable Energy (RE) facilities in Kazakhstan increased by 21% to 3.9 billion kWh in the first nine months of 2022. The share of electricity generated by RE facilities was 4.6% of total generation in the Republic of Kazakhstan, compared to 3.9% a year earlier. While as of 2021, there were 134 RE facilities operating at 2010 MW, 12 RE projects with a total installed capacity of 385 MW were completed in 2022.
Based on the statistics above, it is fair to say that the RE market continues to make remarkable progress and represents a fast-growing industry in Kazakhstan. This is due to the well-established legal and institutional framework that complies with international standards as well as international best practice. RE facilities are regulated by Kazakhstan Law “On supporting the use of renewable energy sources” dated July 4, 2009 (hereinafter the “RE law”), as well as the Order of the Minister of Energy of the Republic of Kazakhstan dated March 2, 2015 No. 164 “On approval of the Rules for the centralised purchase and sale by the Financial Settlement Center of Electrical Energy produced by facilities for the use of renewable energy sources” (hereinafter the “Rules”).
The RE projects are appealing to investors due to the following:
- a long-term (20-year) Power Purchase Agreement (PPA) is concluded at a fixed price;
- in 2018 Kazakhstan moved from a system of supporting feed-in-tariffs to a mechanism of auctions for RE projects that provides for fair competition, transparency, and the investment climate improvement (auctions are conducted annually and information on capacity and zones is published on websites of the Ministry of Energy and KOREM);
- guaranteed purchase of all electricity produced and supplied to the grid (creation of a reserve fund at the FSC for these purposes);
- preferential fixed tariffs for electricity generated by RE facilities with annual indexation;
- exemption from payment for the transmission of electric energy.
In addition, investment preferences are provided depending on the type of investment projects. RE facilities fall under the category of investment and priority investment projects implementation. Investments preferences include tax preferences, state in-kind grants and exemption from custom duties.
This article sets out some of the key energy sector specific issues for consideration by a buyer in a legal due diligence process for a potential RE project M&A deal in the Republic of Kazakhstan.
WHAT QUALIFIES AS A RE PROJECT?
Pursuant to paragraph 1-4 of Article 1 of the RE law renewable energy sources are energy sources that are continuously renewable through naturally occurring processes and defined in the law as:
- Solar power.
- Wind energy.
- Hydrodynamic energy of water.
- Geothermal energy: heat of ground, groundwater, rivers, water bodies.
- Anthropogenic sources of primary energy resources: consumption waste, biomass, biogas and other fuel from consumption waste used to produce electrical and/or thermal energy.
AT WHAT STAGES CAN A RE PROJECT BE ACQUIRED?
Investing at each stage will attract a different type of investor due to its different emphasis, consideration and risks. In order to acquire a RE project, there are three distinct stages.
Generally, in Kazakhstan, when a company wins a PPA auction, it sells a RE project. This is usually the first stage at which a buyer acquires a RE project. The RE auction mechanism has a special regulation.
According to the RE law auctions are a process organised and conducted by the auction organiser (the Kazakhstan Electricity and Power Market Operator JSC) using an electronic platform. The purpose of auctions is to determine the most efficient auction price for electricity from renewable energy sources, taking into account the location plan for renewable energy facilities.
After the auction, a winner concludes a PPA. The winner will usually sell the RE project at this stage. In other words, the project is sold from scratch but with a concluded PPA.
At the second stage, it is common for a RE project to have:
- PPA;
- Design documentation;
- Architectural planning specifications;
- Technical specifications for connection to the sources of engineering and utility provision;
- Some consents and permits.
As a rule, construction can already be started at this stage. The RE project will require significant capital investment to complete construction.
At the third stage a RE facility has been constructed and is generating electricity and revenue. Such a RE project is sold at full price to cover all costs to the seller and make a profit. Obviously, this project will be the most expensive for a potential buyer.
KEY CONTRACTUAL COMPONENTS OF THE LEGAL DUE DILIGENCE OF A RE FACILITY
The key contractual components of the Legal Due Diligence of a target company to be acquired are:
- Corporate structure;
- Corporate law, corporate finance and corporate governance;
- Competition and antitrust;
- Land plots;
- Grid connections arrangements;
- PPA;
- Consents and permits;
- Financing documents;
- Construction contracts.
CORPORATE STRUCTURE
Corporate structure research withing the framework of legal due diligence covers the history of the legal entity, from its initial registration until the DD date, including the identities of the participants, charter capital, participatory interest disposal, tax indebtedness, etc. In examining the corporate structure of a company, one must pay attention to the previous shares transfers, as well as the documents confirming such transfers (i.e. Sale-Purchase Agreement).
In general, as of practice, foreign investors usually apply for the legal form of the legal entity that is simpler. And instead of a joint stock company (JSC), investors establish a limited liability partnership (LLP).
COMPETITION AND ANTITRUST
A possible risk arising during the DD exercise is the absence of the antimonopoly authority consent. Under Kazakhstan law, transactions constituting economic concentration require prior consent or notification of the antimonopoly authority when certain thresholds are met.
This requirement is equally applicable to transactions made outside of Kazakhstan when, as a result, one of the following conditions is satisfied:
- The main asset, intangible assets located in Kazakhstan or shares (participating interest in the charter capital) of market participants (including Kazakhstan and foreign legal entities, their branches and representative offices, and non-profit organisations), property or non-property rights in relation to Kazakhstan legal entities are affected; or
- Competition in Kazakhstan is restricted.
The Agency for Protection and Development of Competition of the Republic of Kazakhstan can initiate an investigation upon receipt of a complaint or at its own initiative. It can also request the information necessary for conducting the investigation from any entity operating on the market or from State bodies. Upon completion of proceedings, the Antimonopoly Agency may impose fines or remedial measures or terminate contracts, for instance, on the sale and purchase of an interest in a Kazakh legal entity which violate the competition legislation.
LAND PLOTS
In accordance with the RE Law and the Auction Rules approved by the Order of the Minister of Energy of the Republic of Kazakhstan No. 466 of 21 December 2017, the local executive authorities of regions (Akimat) shall reserve land plots for the construction of RE facilities until the auction winners are given the land title, according to the Land Code of the Republic of Kazakhstan dated June 20, 2003, and shall send the relevant information to the Ministry of Energy of the Republic of Kazakhstan.
The procedure for reserving land is determined by the Rules for the Reservation of Land approved by the Order of the Minister of National Economy of the RK dated February 28, 2015, No. 178. It is worth noting however, that if land plot reserved for the RE facility construction not used within 3 years, it may be subject to expropriation in accordance with the established procedure.
Generally, the procedure of obtaining a land plot consists of four stages:
- Land selection;
- Obtaining a permit from Akimat to use the land plot for design and survey work;
- Design and survey work; and
- Obtaining the land plot right.
Moreover, it is recommended to ensure the presence of any property located on the land plot belonging to the legal entity in order to reduce possible risks, such as a pledge on such property. A violation may lead to the termination of PPA.
It is recommended to pay attention to the fact that the RE facilities should enter into a standard grid connection agreement with the energy transmission organisation that directly connects RE facilities to its power grids. This usually happens after technical specifications for connection to the grid from the regional energy transmission organisation received.
GRID CONNECTION ARRANGEMENTS
Under the RE law, transmission companies are obliged to provide grid connections points with a appropriate voltage class and to ensure that RE facilities are connected to the grid.
In accordance with the Order “On the Approval of the Electricity Grid Rules” Grid Connection arrangements rely on the availability of 3 documents: the Power Delivery Scheme, the Technical conditions and the Agreement on connection of the RE facilities.
Usually, a buyer hires a specialised design company to develop the Power Delivery Scheme. This document shall be approved by the system operator – Kazakhstan Electricity Grid Operating Company (KEGOC) JSC with the relevant organisation (transmission and/or generation) to the planned connection grids within. The requirements for the contents of the scheme and the application form are given in Appendix 3 of the Order “On the Approval of the Electricity Grid Rules”.
Pursuant to paragraph 4 of the Order “On the Approval of the Electricity Grid Rules” a buyer files an application to obtain Technical Specifications (TS) for grid connection which are based on the approved Power Delivery Scheme. It is issued by the connecting grid company and contains TS for the connection to the network.
It is important to remember that the investor finances all activities required to obtain the TS. Its validity period is no less than the time needed for preliminary project studies, design and construction of the renewable energy facilities, as identified by current design and construction norms, and should not exceed 3 years.
Agreement on connection of the RE facility stipulates that the transmission company shall provide the RE facility with access to the network by providing the connection point specified in the TS. This agreement is valid between the date of the technical specifications and the signing of the grid connection act. However, it will have a deadline for the latter, linked to the commissioning deadlines agreed in the PPA.
POWER PURCHASE AGREEMENT
Under the RE law, an energy-producing organisation that uses renewable energy sources has the right to sell its produced electric energy at its discretion using one of the following options:
- To the FSC at rate of the feed-in tariff that is valid at the PPA execution date, or at an auction price determined based on the auction results, considering indexation;
- To consumers through signed bilateral agreements in accordance with the power industry regulations of the Republic of Kazakhstan.
A buyer must therefore ensure that the legal entity is a winner of the auction and that the Ministry of Energy has accordingly included it into the RE facilities siting plan within thirty calendar days from the date of receipt of the register of the auction winners from the organiser.
It is highly advised to make sure that the developer (energy producing company) follows the monthly electricity supply schedule as agreed in the PPA with the FSC (subparagraph 6 of paragraph 6 of the model PPA which is provided by the Rules). In particular, the energy producing company must ensure timely submission of the following documents to the FSC:
- A copy of the notice on the commencement of construction and installation works of the RE facility, in respect of which the PPA is concluded, sent to the state authorities for national architectural and construction control – within twelve months from the date of signing the PPA for solar power plants, within eighteen months from the date of signing the PPA for wind and biogas power plants, within twenty-four months from the date of signing the PPA for hydroelectric power plants;
- A copy of the commissioning act of acceptance of the RE facility, approved in accordance with the architectural, urban planning and construction regulations of the Republic of Kazakhstan, in respect of which the PPA is concluded:
- within 24 (twenty-four) months from the date of signing the PPA for solar power plants,
- within 36 (thirty-six) months from the date of signing the PPA for wind and biogas power plants,
- within 60 (sixty) months from the date of signing the PPA for hydroelectric power plants. The developer is entitled to request a 6-month extension.
It is essential to stress that based on the paragraph 107-1 of the Rules, the countdown of the twenty-year purchase period begins on the day following the expiration date for the provision of an approved Act of facility acceptance, excluding the extension in accordance with part two of subparagraph 2 of paragraph 106 (1-year extension upon 70% construction completion) and/or paragraph 106-2 of the Rules. Therefore, the construction is extended by a year, but unfortunately, the same cannot be said for the countdown to the twenty-year purchase period.
To avoid the risk of losing one year out of 20 years of electricity sales, it is recommended to obtain an act of facility acceptance or start commencement of a comprehensive test of the electrical installations of the RE facility soon as possible.
The FSC shall index auction prices annually and conclude the respective amendments to the concluded agreements. The annual indexation of auction prices starts after one year of RE facility operation.
The auction prices are indexed once during the construction period and once each year. Moreover, yearly indexation of auction prices is held not later than within one calendar year following the use of the one-time indexation during construction period.
Financial guarantees for the auction bids shall be provided by the applicants to the FSC. To participate in the auction, a financial guarantee must be issued in favour of the FSC not less than two working days before the auction date.
As a recommendation, in order to participate in auctions, the financial guarantee should be issued in accordance with the form published on the official FSC website.
The applicant choose a bank guarantee or a standby letter of credit.
In an auction without documentation, the amount of financial security for the bid is 2,000 (two thousand) tenge per 1 (one) kilowatt of installed capacity multiplied by the installed capacity of the RE facility specified in the application for the auction. In an auction with documentation, the amount of financial security required for the bid is 5000 (five thousand) tenge per 1 (one) kilowatt of installed capacity, multiplied by the installed capacity of the RES facility.
Financial guarantees deposited by applicants in the form of bank guarantees or standby letters of credit are returned (released) by the FSC to the bank within three working days after the auction date as follows:
- the participant did not win the auction;
- the auction winner signed a PPA and submitted a PPA performance bond.
The FSC will issue a claim for payment under the relevant bank guarantee or standby letter of credit if the auction winner refuses to sign the PPA and (or) does not provide the PPA performance bond.
CONSENTS AND PERMITS
- Strategic object approval
A strategic object is a property that has socio-economic significance for the sustainable development of Kazakhstan’s society, the possession and (or) use and (or) disposal of which will have an impact on the state of national security of the Republic of Kazakhstan (for example, Nuclear Technology Park JSC, Shymkent JSC, Kazakhstan – Chine gas pipeline and etc.). The energy object may also be considered as a strategic object. The list of strategic objects is approved by the Resolution of the government of the Republic of Kazakhstan No. 651 dated 30 June 2008.
Encumbrance of strategic objects by third parties’ rights or alienation is possible only based on the decision of the Government of the Republic of Kazakhstan. If an entity intends to make a transaction for the alienation of a strategic object, the Republic of Kazakhstan has a priority right to acquire it. If the abovementioned requirements are violated when making transaction with the strategic objects such transactions shall be recognised as void.
From the buyer’s point of view, it is recommended to clarify whether the potential RE project is included in the list of strategic objects.
- Currency control
Currency transaction is subject to registration with National Bank in the following cases: receipt of property (money) in Kazakhstan and (or) occurrence of obligations of a resident to return property (money) to a non-resident in the amount exceeding US $500,000; transfer of property (money transfer) from Kazakhstan and (or) occurrence of the resident’s requirements to return the property (money) by non-resident in the amount exceeding US $500,000.
In accordance with paragraph 14 of the Rules for Monitoring currency transactions the Kazakh National Bank shall assign the record number to a currency contract within 5 working days from the day when full package of documents is duly submitted by the resident party to a currency contract.
The repatriation of national and (or) foreign currency is ensured within the time frame stipulated by the currency export or import contract. Repatriation of national and (or) foreign currency on export or import consists of crediting to bank accounts in authorised banks: proceeds in national and (or) foreign currency from exports; national and (or) foreign currency, transferred by a resident in favour of a non-resident to make settlements on import, in cases of non-fulfillment or incomplete fulfilment of obligations by a non-resident.
- Corporate approvals
A potential transaction might be subject to corporate approvals both from buyer and seller side in accordance with the legislation of the countries where the buyer and seller companies are incorporated. Therefore, it is advisable to ensure duly issuance of the relevant corporate approvals for the potential transaction in compliance with the regulations of the countries of registration of the buyer and seller companies.
Moreover, after completion of the prior acquisitions, the corporate documents (the Charter and the Foundation Agreement) of the target company(ies) may be amended to include certain requirements to obtain the approval of the target companies’ participant(s) for the disposal of the interest pursuant to the potential transaction. To mitigate the risk of the buyer it is recommended to review such corporate documents as well once they are available.
- Metering
The volume of delivered electricity is metered based on the readings of the seller’s commercial metering devices installed at the delivery point.
In the event that the buyer ensures the Automated Commercial Energy Metering System (ACEMS) is operating at his facility, he can use ACEMS data for metering and determining the volume of electricity delivered by the seller, as well as for mutual settlements.
It is not the buyer’s responsibility to pay for and account for the electric energy produced by the power plant and delivered by the power transmission organisation during periods during which the commercial metering devices at the delivery point are unavailable or malfunctioning. In this case a statement from the energy transmission organisation on the grids which the power plant is connected must confirm the absence or malfunction of the seller’s commercial metering devices.
As a recommendation, the parties shall agree on the metering method of the electricity delivered to the grid access points of each project under different PPAs, and such method shall have been approved by KEGOC.
FINANCING DOCUMENTS
Any existing financing arrangement (loans, lines of credit, mortgages) entered into by a project company will need to be reviewed carefully by a buyer where the acquisition is via a share sale. The key project agreements will also be reviewed thoroughly by any new lender being approached for project financing. Key areas of consideration will include:
- Does the corporate structure include any shareholder loans that need to be assigned to the lenders along with the shares of the project company and any intervening companies?
- Any outstanding obligations or financial commitments under any of the project agreements or any licences or approvals.
- Does the RE project company have any restrictions on giving security over all or part of the project or assigning rights under the project agreements as security to its lenders?
- What security interests have been created over the power station, the project agreements and other relevant assets?
- How will a default under the financing arrangements affect the power station’s operation? Do lenders have “step in” rights? If so, under what circumstances?
CONSTRUCTION CONTRACTS
According to the Law “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”, before construction and installation work begins, the customer must notify the local executive authorities of the State Architectural and Construction Supervision Authority (GASK) about the commencement of the activity. The notification is made only in electronic form using the state information system of permits and notifications and the state electronic register of permits and notifications.
For the implementation of construction and installation works, the customer must conclude an agreement with a specialised organisation that has a state license for implementing these works. The construction process is accompanied by architectural and construction supervision and control.
According to Chapter 11 of the Law on Architectural, Urban Planning and Construction Activities, a completed construction facility is subject to commissioning. Acceptance and commissioning of the constructed facility are carried out by the customer after its ready in accordance with the approved project and availability of the declaration of conformity, conclusions on the quality of construction and installation works, and compliance of executed works with the approved project.
The acceptance of the constructed facility into operation is formalised by an Act. The act of accepting the constructed facility is subject to approval. The approval of the acceptance certificate is made by the customer. The date of signing and the act of acceptance of the facility into operation are considered to be the date of its approval and the date of commissioning of the facility.
LITIGATION
Litigation is an obvious red flag when it comes to due diligence. The buyer may inherit liability and an obligation for legal fees, even if the target company is the plaintiff. It’s crucial to analyse the total amount of potential liability and the likelihood of prevailing in each lawsuit in order to determine whether there are any patterns that show recurring problems with the target company.
The legal entity must be examined for any involvement in court proceedings on the date of the report preparation. The verification takes place in public searches and open databases of the Supreme Court. However, the public searches in the database of the Supreme Court may not contain the entire list of the judicial proceedings involving the target company, since it does not always contain the exhaustive information.
It is recommended to ask a target company to provide any documents on the company’s involvement in litigation and/or arbitration.
CONCLUSION
Following a Legal Due Diligence, the buyer and the seller have the right to negotiate terms to reduce the price of the asset depending on how quickly the risks existing at the end of the Due Diligence are eliminated. It is recommended to secure this price split by including appropriate preconditions in the contract of purchase and sale of the asset. The buyer is advised to pay attention to the importance of the Due Diligence, as its main purpose is to identify and assess potential risks for an M&A transaction in respect of an existing RE facility.
In this article, we do not pretend to disclose an exhaustive list of risks when acquiring renewable energy projects in Kazakhstan. In any case, in order to analyse and evaluate a RE project before purchasing it, the buyer should seek full and appropriate legal advice (including cost benefit analysis) before making a decision.
