First and foremost we are regulatory specialists – our clients use us to help design and create effective regulatory systems as well as to advise on how they apply in specific cases. The combined experience of our dedicated regulatory team means we are market leaders in economic regulation, frequently advising on price control decisions and the use of market systems to deliver public services.
We’ve been closely involved in most of the major energy and water industry reform since privatisation of the energy industry and know what works and what doesn’t when it comes to market liberalisation. Our clients throughout the UK and abroad have come to value our ability to cut through complicated systems of economic regulation and see the bigger picture, both from public policy and commercial perspectives.
Our team draws litigation and EC/Competition law expertise together with its core regulation and public/administrative competencies, which allows us to provide a full range of legal and advisory services, including: managing market and regulatory investigations; prosecuting, defending and helping to avoid, judicial reviews; giving vires and other opinions; drafting legislation, licences and industry codes; and handling concurrent competition investigations or dawn raids.
Northern Ireland Authority for Utility Regulation
We act as general counsel to NIAUR, providing advice on various strategic, interpretative and drafting matters. In particular we support its scrutiny and regulation of NI Water, its interactions with other regulators and Ministerial Departments and advise on the application of competition and EU law.
We have advised ScottishPower on various regulatory matters for a number of years including in relation to Competition Act investigations and price controls. We also advised ScottishPower in relation to an Ofgem investigation into the energy wholesale market. In January 2009 Ofgem closed the investigation without any infringement decision being made against either party.
Single Electricity Market Committee
We have acted for the Single Electricity Market Committee since 2008, providing it with advice and support as its role and the new market are developed and tested. In particular we support it in relation to the judicial review of its prevention of pass through of the carbon levy costs by generators in the Republic of Ireland.
The following is a selection of our clients:
- Bord Gais
- Northern Ireland Authority for Utility Regulation
- Single Electricity Market Committee
- Water Industry Commission for Scotland
Case Study 1: Single Electricity Market Committee – Carbon Revenue Levy Judicial Review
Between 2010 and 2012 we acted for the SEM Committee in its defence of the judicial review of its decision to prevent electricity generators from passing through the costs of a carbon levy to customers. JRs are something of an occupational hazard for economic regulators but cases like this one are still rare. It was the first test of the joint regulatory arrangements between Ireland and Northern Ireland (we acted for the regulators in both jurisdictions) and is a special example of Supreme Court consideration of the terms of economic regulatory instruments. This case highlights the real challenges that economic regulators can have in helping law courts understand the purpose and meaning of their carefully designed systems and has helped to push the frontiers of this emerging area of law. The SEM Committee has recognised the value of our ability to combine leading administrative law advice with a deep understanding of the economic concepts in dispute. It also drew heavily on our project and people management skills – helping to make a complicated, challenging situation run smoothly and allowing them to get on with their day-jobs.
Case Study 2: Water Industry Commission for Scotland
We have advised the Water Industry Commission for Scotland for over 10 years, providing valued advice and support as it and the industry developed. In particular we helped design and project manage the industry reform project that introduced retail competition for non-domestic customers in the water and wastewater markets for the first time. This support allowed the Commission to draw on our experiences of other market reform projects and deliver change on time and budget.
Together with the Water Industry Commission for Scotland, we have recently produced a paper distilling our experiences of successfully introducing retail competition into the Scottish water and wastewater markets. The resulting 'lessons learnt' paper is available here and we hope this provides useful food for thought for any others considering or embarking on industry reform projects.
When launching this paper, Alan Sutherland, Chief Executive of the Water Industry Commission for Scotland said that the reform project ".. involved an awful lot of hard work. I should like to pay tribute to the team in the Commission and to Gordon Downie and his team at Shepherd and Wedderburn for their efforts in ensuring that everything worked as well as it did."
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