Focus – March 2023

Welcome to this edition of Focus, which coincides with some significant progress in the protection and support for island nations, following the recent agreement on 4 March 2023, by over 200 countries, to a legally-binding “United Nations High Seas Treaty”, which provides a legal framework for establishing vast marine protected areas that cover the (almost two-thirds) of ocean that lies outside national boundaries.

The agreement reached in respect of the “High Seas Treaty” (after more than ten years of negotiation) comes on the coat tails of a request issued in December 2022 by the Co-Chairs of the Commission of Small Island States on Climate and International Law, for an advisory opinion from the International Tribunal for the Law of the Sea, in respect of the obligations of State Parties to the United Nations Convention on the Law of the Sea, to help reduce and control marine pollution and to protect and preserve oceans. With the focus now on protecting our ocean environments and mitigating marine pollution, the spotlight is firmly on efforts to address the impact of climate change on both our oceans and developing island nations.

The Trinity team have been very active over the last 18 months in helping to structure renewable energy procurement programs in island nations, so to coincide with this international treaty milestone for those nations vulnerable to the effects of climate change, we are turning our attention in this edition of Focus, to the challenges of island nation renewable energy initiatives.

In addition to considering some of the key challenges and issues when structuring, developing and financing island nation independent power projects, our team have looked at some of the legal and structural issues in the expanding carbon credit markets, as well as provided updates on the current climate change claims being brought in the courts against European lenders and Governments, which are aiming to hold investors and financiers accountable for failing to take into account climate change information when making investment decisions.

Our corporate team have also summarised a recent High Court decision in respect of warranty claim, which was proved invalid, as it did not properly meet the requirements for a warranty claim set out in the underlying Share Purchase Agreement – a potential cautionary tale for managing contractual claims.

Here at Trinity, we are very pleased to welcome Rita Doureradjam, as an associate in our London team. Prior to joining Trinity, Rita trained in the litigation and arbitration departments of leading international law firms in Paris, such as Herbert Smith Freehills and Gide Loyrette Nouel.

Our Paris office is also delighted to announce that Giuliano Lastrucci has joined the team, as senior associate. Before joining Trinity, Giuliano was a senior associate at Herbert Smith Freehills in the Corporate, Mergers & Acquisitions team based in Paris.

We are also very pleased to find out that we have (again) been ranked in Band 1 in Chambers and Partners’ Global Guide 2023 for our Projects & Energy work across Africa. Global Senior Partner, Paul Biggs, Paris office Senior Partner, Stéphane Brabant, Global Managing Partner, Simon Norris, and Global Strategic Partner, Kaushik Ray, are all highly ranked as notable practitioners in the field. The rankings accompany those in Chambers’ UK and European guides with Paris Managing Partner, Pierre Bernheim, also ranked for his international Projects & Energy work.

Combined with a number of successful closings (see below ‘News’ section), it has been a busy start to 2023 for the Trinity team. We thank you for your continued support, and look forward to what will hopefully be an equally busy spring, 2023!

The Trinity Team

Developing and Financing Island Nation IPPs

Trinity’s London team is currently advising on three renewable power programmes in three developing island nations – the Seychelles, the Maldives and Papua New Guinea. In this article, written by Partner, Fiona Gulliford, we consider some of the challenges and considerations for developers, lenders and host governments, in terms of structuring, developing and financing island nation IPPs. Read more.

Carbon Credits and Climate Change

At Trinity, we are increasingly advising clients on regulatory and structural issues across the carbon credits value chain. In this article, written by Partner, Rinku Bhadoria, and Associate, Demilade Banjoko, we will take a brief look at the carbon credits markets (both regulatory and voluntary), discuss the roles of major stakeholders within the voluntary carbon market and analyse the implications of the growth in the voluntary carbon market from a business and legal perspective. Read more.

The Rise of Climate Change Litigation – Part 2

In our December 2022 issue of Focus, we commented on the rapid increase in climate change- related litigation across the globe (the article is available here). Following on from that article, Partners, Natasha Peter and Rinku Bhadoria, report here on two recent cases concerning the role of finance flows in the energy transition, which throw into sharp relief the importance of taking into account climate change information when making investment decisions.

Warranty Claims – A Cautionary Tale

The recent case of Drax Smart Generation Holdco Limited v Scottish Power Retail Holdings Limited [2023] EWHC 412 (Comm), highlights the need to ensure that buyers carefully follow the requirements of the underlying Share Purchase Agreement when making warranty claims. Head of Private Equity, Hugh Naylor, and associate Rita Doureradjam, consider this in detail here.

NEWS

C&I Financing by FEI in Burkina Faso, Mali and Senegal – Trinity has advised Facility for Energy Inclusion (“FEI”), a fund managed by Lion’s Head Global Partners, as lender in relation to a multi-country facility to SolarX, a leading West-African C&I player with a strong focus and expertise in the Sahel region. Read more.

Mini-Grid Financing in Madagascar – Trinity has advised European Investment Bank (EIB), EDFI ElectriFI – The Electrification Financing Initiative and Triodos Investment Management as lenders in relation to a EUR 19 million loan to Welight to finance the development and construction of over 120 solar mini-grids in Madagascar. Read more.

Trinity has advised the lenders – Facility for Energy Inclusion (“FEI”), a fund managed by Lion’s Head Global Partners, Proparco, Norfund and AfricaGoGreen Fund, in relation to an additional EUR28.3 million multi-country facility to AktivCo SAS and its subsidiaries in Burkina Faso, Cameroon, Chad, Côte d’Ivoire and Niger. Read more.