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On September 25th, the Beijing Arbitration Commission attempted to give an observation of energy reform from another perspective—the “legal system†– the agency issued the “China Energy Dispute Resolution Annual Observations (2015)†report.
“The current contradiction is still very sharp and outstanding.†Zhang Libin, a report writer and partner of Beijing Shize Law Firm, said that the country needs to propose reforms as soon as possible.
After referring to a large number of litigation cases involving energy markets, the report pointed out that the barriers faced by private enterprises in terms of industry access, price formation mechanism, and government regulation seem to have become the "fire" for most disputes. After discovering the "firewire", how to dismantle it safely becomes another key to the success of energy reform.
Breaking the monopoly
In January 2014, Yunnan Yingding Bioenergy Co., Ltd. (hereinafter referred to as “Yunnan Yingdingâ€) sued Sinopec [microblogging] and Sinopec sales company Yunnan Petroleum Branch for a monopoly on a monopoly. The biodiesel produced by Yunnan Yingding was included in the fuel sales system. The lawsuit was called by the media as “the first case of China Petroleum (8.52, 0.08, 0.95%) monopolyâ€.
It is understood that Yunnan Yingding is a bioenergy company with an annual output of 15,000 tons of biodiesel.
However, since biodiesel producers do not have the qualification to sell, they must cooperate with the refined oil sales company. Sinopec Yunnan Branch has occupied more than 80% of the sales terminals in Kunming, so Yunnan Yingding hopes to cooperate with Sinopec to sell the biodiesel produced by the company, but it has not been approved by Sinopec. Therefore, Yunnan Yingding took the Sinopec Yunnan Branch to court on the grounds of monopoly. It is hoped that Sinopec will incorporate the biodiesel of Yingding Company in line with national standards into its sales system in accordance with the provisions of the Renewable Energy Law. In the end, the Kunming Intermediate People's Court of Yunnan Province made a first-instance judgment on December 16, 2014, judging that Sinopec Yunnan Branch violated the Anti-Monopoly Law.
Zhang Libin told the China Times reporter that the oil and gas industry is a highly monopolized state-owned enterprise, which is in conflict with the current provisions of China's Anti-Monopoly Law. The "China Petroleum Monopoly First Case" has a certain typicality, and such cases will occur in the future. How to solve the case also indicates the direction in which energy reform will develop in the future.
Forced to be false
In December 2006, the Ministry of Commerce issued the "Measures for the Administration of Refined Oil Markets", and enterprises that meet certain conditions may apply for wholesale qualifications for refined oil products. "Although the regulations give private enterprises the possibility of engaging in the retail and wholesale business of refined oil products, The threshold set is too high, so that private enterprises can not really engage in the sales of refined oil products." Zhang Libin said. Forced by helplessness, many private enterprises can only deliberately write goods that require qualifications to operate in commodities that can be operated without qualifications, but this also increases the risk of the legality of the transaction contract.
The example of “Huaxin Petroleum (Guangdong) Co., Ltd. v. Guangdong Zhongyu Energy Development Co., Ltd. applied for revoking the arbitral award†occurred in 2014 is a typical example.
It is understood that Guangdong Zhongyu Energy Development Co., Ltd. (hereinafter referred to as “Zhongyu Energyâ€) has a diesel supply market. They cooperate with Huaxin Petroleum (Guangdong) Co., Ltd. (hereinafter referred to as “Huaxin Petroleumâ€) and are sought by Huaxin Petroleum. For the supply of diesel oil, the two parties signed the "oil product purchase and sale contract." Since Huaxin Petroleum does not have the qualification to operate the diesel business, the subject matter agreed in the contract is “marine fuel oilâ€, but in fact it is the national II diesel fuel that the state has implemented the franchise license. The agreed price of the two parties is 5,000 tons per boat, 7570 yuan per ton. However, in actual performance, Zhongyu Energy changed to 6,000 tons per ship in the delivery notice, 7,370 yuan per ton. Due to the disagreement with the price adjustment, Huaxin Oil did not ship. Zhongyu Energy subsequently filed an arbitration with the Guangzhou Arbitration Commission and asked the other party to perform the contract. After hearing the case, the arbitral tribunal recognized the validity of the contract and required Huaxin Petroleum to perform the contract between the parties. Huaxin Petroleum filed a lawsuit with the Guangzhou Intermediate People's Court to apply for revocation of the arbitral award. The court held that the oil product purchase and sale contract signed by the two parties was “covering the illegal purpose in a legal form†and circumventing the state's compulsory supervision. Its behavior seriously disrupted the normal operation order of the refined oil market, and it was difficult to guarantee the quality of refined oil in violation of regulations. In the end, the court ruled that the arbitral award of the Guangzhou Arbitration Commission was revoked.
Zhang Libin believes that the reason why the court made the above judgment was mainly because of the consideration of maintaining market order, but it was too conservative. From the perspective of future oil and gas reform, the qualification threshold stipulated in the “Management Measures for Refined Oil Markets†is too high, which is not conducive to full competition in the downstream of the oil and gas industry. Future reforms should further lower the requirements for qualifications and remove unreasonable restrictions.
Legal protection reform
Although the curtain of energy reform has been opened, due to the lag of relevant laws and regulations, enterprises will face the embarrassing situation that legal rights are not protected after they enter the energy industry.
For example, in 2010, the State Council issued “Several Opinions on Encouraging and Guiding the Healthy Development of Private Investment†and proposed “encouraging private capital to participate in oil and natural gas constructionâ€. However, China has not yet formulated legal norms for private capital to enter the upstream oil and gas field, resulting in related Although the partners reached an agreement on the proportion of investment shares, the lack of corresponding qualifications of the private enterprises participating in the investment faced the fatal risk that the cooperative business activities were deemed to be invalid.
On February 28, 2014, the National Development and Reform Commission issued the “Measures for the Management of Natural Gas Infrastructure Construction and Operationâ€, encouraging and supporting all types of capital to participate in investment and construction into a unified planning of natural gas infrastructure, which opened the social capital investment in the construction and operation of natural gas pipelines. A door. However, since the upstream gas source is basically monopolized by the three major oil companies, the pipelines invested by private enterprises may face the uncertainty of upstream gas supply, which is easily affected by state-owned enterprises.
“The direction has been clear, that is, the energy industry market is liberalized. But the liberalization of the market does not mean that there is no regulation. If the anti-monopoly is not regulated, the market will be disorderly after the release of the market. The result is a new round of plundering of resources and a large number of "The power of money transactions." Zhang Libin said, "the market must be carried out with supervision, otherwise the reform will not succeed."
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Biodiesel News: Although various agencies have frequently sent out signals about energy reform in the golden autumn season, they may still be in the early spring stage for this topic involving a wide range of interests, complex interest chains and high sensitivity.