Przegląd Ustawodawstwa Gospodarczego Nr 09/2009

W numerze:

Leszek Karski

Międzynarodowy handel uprawnieniami do emisji, czyli międzynarodowy transfer jednostek kyotowskich - wybrane elementy

International Emission Units Trading, i.e. International Transfer of Kyoto Units - key elements
In December 1997 Parties to the UN Climate Convention adopted the Kyoto Protocol. Every Annex I Party to the Protocol has a binding commitment to limit or reduce greenhouse gas emissions. The Kyoto Protocol allows committed Parties to add or subtract units from their initial assigned amount, thus raising or lowering the level of their allowed emissions by trading Kyoto units with other Parties. This created International Emission Units Trading as a market-based measure of climate change law. The International Emission Units Trading is based on flexibility mechanisms. They include Joint Implementation Mechanism, Clean Development Mechanism, 'clean' Emission Trading Mechanism and the Green Investment Scheme. These Kyoto mechanisms enhance the flexibility of Annex I Parties to meet their commitments, by allowing these Parties to take advantage of lower cost emission reductions outside their territories. These mechanisms are designed to allow committed States to choose the most cost-effective strategy to meet environmental goals. The main objective of this paper is to present some legal aspects of the International Emission Units Trading as a measure of climate change law. Article 17 of the Kyoto Protocol establishes a basis for what became known as the International Emission Trading. The study focuses on the market-based system in the context of international climate change law. It sets borders of climate change law and describes the nature of the International Emission Units Trading. The purpose of this paper is to systematize some key issues connected with the transfer of Kyoto units. A special focus is given to analysis of legal status of participants, eligibility to participate, compliance, reserve and consequences of non-compliance.

Jakub Pokrzywniak

Wokół rozstrzygania przez Prezesa URE spraw spornych dotyczących odmowy zawarcia umowy

Powers of President of Energy Regulatory Office to resolve disputes concerning refusal to deal
The Energy Law Act of 10 April 1997 (ELA) requires energy undertakings to conclude several types of contracts (e.g. connection or transmission contracts) on customer's demand. This obligation is not however unconditional, and therefore it may be sometimes controversial whether a customer may request a contract in a given situation or what terms of contract he may expect. In the case of a refusal to deal or a dispute over the terms of a contract, the President of Energy Regulatory Office (ERO) is empowered to resolve disputes between energy undertakings and (potential) customers. Both courts and legal scholars generally accept that the regulator's decision itself creates a legal relationship which substitutes for the parties' consent. This approach seems to be justified, even thought it does not stem directly from the wording of ELA. Since the obligation to contract is imposed by ELA only on energy undertakings, I would argue that energy undertakings will not be entitled to seek a decision creating a legal relationship with a customer (which they might be prone to do, especially in the case of disputes over contractual terms). Only the party entitled to enforce the obligation to contract may apply for a decision that would substitute for the contract. This issue is however controversial in practice and a different approach is often adopted. In my view, the President of ERO can either issue a decision exactly as sought or reject the application in full. The regulator is not empowered to modify the legal relationship sought in the application. In other words, he must not impose an unwanted legal relationship on the party entitled to enforce the obligation to contract. This would be against the objectives of the ELA. Nevertheless, the President of ERO and courts very often steer a different course here.

Konsultacje

Krzysztof Wąsowski

Realizacja przedsięwzięć inwestycyjnych sektora publicznego w formule partnerstwa publiczno-prywatnego w Polsce w ramach nowej ustawy

Realization of investment undertakings of public sector in a public and private partnership formula in Poland in a scope of new act
On 27th of February a new act on public and private partnership entered into force. It repeals the regulations of an act dated 28th of July 2005 about the public and private partnership in total. The main reason for so radical modification were the weaknesses of the previous act , appeared mainly in lack of realization the projects in a public and private formula in the range of procedures and regulations provided in the previous act. In the article it was presented essence and potential scope of using the partnership formula in realization of investment undertakings of public sector and there was also described new act, considering the perspectives of both public and private sectors.
Recenzja

Prawna regulacja procesu inwestycyjno-budowlanegoOmówienie książki: Prawna regulacja procesu inwestycyjno-budowlanego. Uwarunkowania. Bariery. Perspektywy, LexisNexis Warszawa 2009. Praca zbiorowa pod red. Zygmunta Niewiadomskiego.

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Problematyka równoległego stosowania prawa autorskiego i prawa antymonopolowego wobec organizacji zbiorowego zarządzania prawami autorskimi - spojrzenie krytyczne