Turkey: Hergüner Newsletter Winter/Spring Edition 2015

EDITOR'S NOTE

Turkey has long held a strategic position in the world, and as a fast-growing country, Turkey's energy demand is on the rise and energy consumption will likely continue to grow rapidly in the near future. The U.S. Energy Information Administration (EIA) has described Turkey as experiencing some of the fastest growth over the past three years in energy demand of the countries in the Organization for Economic Cooperation and Development (OECD). To meet this continued level of energy demand will likely require significant investments in the energy sector. It is believed that although Turkey is planning large investments in natural gas and electricity infrastructure, the Turkish government is looking to reduce the country's dependence on imported natural gas by diversifying its energy mix. With limited reserves, Turkey imports nearly all of its oil supplies.

Turkey's location plays an increasingly important role in the transit of oil since it is located at the cross-roads between Russia and the Middle East countries and the European demand centers. Turkey also holds a strategic position in the transit of natural gas through its borders between continental Europe, considered the world's second-largest natural gas market, and the reserves of the Caspian Basin and the Middle East. In Turkey, natural gas is being increasingly used in the energy mix to generate electricity. The Turkish electricity market is said to be one of the fastest growing in the world.

Since Turkey's importance in world energy markets is growing, both as a regional energy transit hub and as a growing consumer, this edition of the Hergüner Newsletter examines select issues within the Turkish Energy Sector. We first look at Turkey's prime location and how that offers a stable legal regime through which the lifeblood of oil and gas flows to reach other respective economies. We examine how this can be achieved through the use of such legal frameworks as an IGA/HGA, which can also be a basis for other investments in Turkey.

We delve into the specifics of issuing bonds in regulated sectors, and how companies operating in such sectors are subject to the Energy Market Regulatory Authority (EMRA) and other legal authorities. Later, we examine how EMRA regulates and sets pricing principles for the sale of electricity to consumers and what happens to electricity "loss." Our Newsletter contains articles by guest contributors which ask us to consider such critical questions as the fracturing issue, and what negative impacts it may have on human and environmental health; and where Turkey's energy market should be headed.

We look at energy investments as a means to develop a country's infrastructure, and how strong electricity demands in Turkey have placed great pressures on the country's existing infrastructure. As the recent blackouts in Turkey have starkly demonstrated while folks sat in the dark for hours, Turkey must have a secure and continuous energy supply. The increasing demand for energy elevates energy security as one of the most significant problems common to energy-importing countries.

It seems that the new legislation and policy changes that we see in the Energy sector may enable Turkey to diversify its energy portfolio into renewables, and act as a means to encourage solar generation, and the development in other renewable resources, such as environmentally-minded sources such as wind power, hydro, geothermal, and waste-based generation. We then turn to Privatization in Turkey and what that means and how it may create a more competitive economic environment allowing for new investments in energy.

THE INTERNATIONALIZATION OF LEGAL REGIMES GOVERNING TRANSNATIONAL ENERGY PROJECTS

By Ümit Hergüner; Baran Alptürk

Executing an IGA is critical to demonstrate that the government stands behind the project in question and thereby to ensure that local authorities fall in line with the central government.

Turkish schoolchildren are taught from a very early age that Turkey sits at a strategically important location in the world. This has been true for various reasons throughout history; in modern times, when access to energy resources has become the most important geopolitical consideration, Turkey's location again is critically important as it occupies a key position for the distribution of vast Russian and Caspian natural gas resources to the rest of the world. In order to be able to capitalize on its prime location, Turkey has had to offer both the source countries and their customers a stable legal regime through which to deliver the lifeblood of their respective economies.

While Turkey has been relatively stable politically in recent decades, its track history is less than promising for countries wishing to make a multi-generational bet on the reliability of their energy routes. It is therefore critical for Turkey to be able to offer stability through other means. One such means generally employed in multi-national energy projects is to make a binding commitment to leave unchanged the legal regime that will govern the project at hand. Such regimes have been created by way of signing intergovernmental agreements ("IGA"s) with partner governments; IGAs generally tend to build project-specific legal structures, and contain commitments not to change the applicable legal regime in the future. Such commitments of course do not prevent legislators from changing the applicable legal regime in the future -for otherwise this would amount to an abdication of national sovereigntybut are guaranteed by reputational capital and damages clauses enforceable in arbitration. Article 90 of the Turkish Constitution also puts properly ratified international agreements beyond constitutional challenge, which adds credibility to the promise of a stable legal regime.

One of the main purposes of signing IGAs is to help to facilitate the implementation of multinational projects without being hindered by the operation of laws that were designed for a smaller scale. Such projects by nature include at the very least the acquisition of vast amounts of land; obtaining changes to the zoning plans in all areas where the project's footprint will be felt; applying for construction permits; acquiring immigration permits for expatriate workers; and securing clearance from environmental impact analyses. These clearances are ordinarily reviewed at the local level, and without a single framework within which to assess each individual piece, some localities may find that the project's costs do not outweigh its benefits in that particular location. Assembling such a large-scale effort bit by independent bit would thus clearly be an insurmountable organizational challenge, and would subject the project to the threat of failure where each critical element is at risk of independent review.

Executing an IGA is critical to demonstrate that the government stands behind the project in question and thereby to ensure that local authorities fall in line with the central government. This structure helps eliminate pseudo-holdout problems by ensuring that local authorities do not subject the project to their individual whims, and that the project is guided under the unifying hand of the central government. It also gives project companies invaluable comfort by ensuring that commitments that are made to them are enshrined in Turkish law by way of a properly ratified international treaty. While ratification does not set the terms of the applicable law in stone, as subsequent legislation may override the terms of an IGA, the presumed desire to maintain the country's prestige on the international scene (as well as promises made in ancillary agreements to indemnify damages caused by adverse changes in law) is generally sufficient to lend the terms an air of permanence.

It is crucial to understand the means through which this legal regime is put into place. IGAs are bona fide international agreements which go through the standard international treaty ratification procedure; by virtue of Article 90 of the Turkish Constitution, at the time that they are duly ratified IGAs carry the force of law. The principles of last in time and lex specialis instruct that IGAs should govern the specific area to which they are addressed over earlier laws of general applicability.

But ordinarily IGAs, by their very nature as government-level agreements, tend to install macro-level structures, and leave minutiae to be sorted out at a lower level. Therefore, the specific exemptions to be granted to the project at hand cannot all be listed in the IGA itself, but need to be detailed elsewhere. This is ordinarily accomplished in a host government agreement ("HGA") to be signed by and between the relevant state authority and the project company undertaking the project. The terms of HGAs would be given shielding effect from laws of general applicability to the extent that they become part of the international agreement between the governments concerned, and as long as they stay within the confines of the structure installed by their parent IGAs.

This alignment is often ensured by integrating the HGA and the IGA into a single document, by way of appending the unsigned text of the HGA to the text of the IGA. The IGA is then signed and ratified along with the HGA in appendix; this makes the HGA to be signed by and between the relevant state authority and the project company a part of the understanding between the signatory nations. In other words, the HGA to be awarded to the project company will become part of the signatory governments' commitment to their respective counterparties, which they will be bound to honor. To be clear, ratifying the terms of the HGA in such fashion only creates a shielding effect for the project company, and the mere fact of being appended to an international treaty will not clothe the terms of an HGA with the force of law. But, as per the principle of comity in international relations, Turkey will be bound to stand by its international commitments and to adjust the enforcement of local laws so as to stand by its commitments in the HGA.

To support the preemptive effect of the IGA/ HGA structure in the specific case of the transit passage of hydrocarbons, the Turkish Parliament has enacted a law, Law No. 5486 on the Transit of Petroleum via Pipelines, which explicitly limits the application of certain land rights, environmental, foreign trade, petroleum and forestry laws when the same are regulated under intergovernmental agreements. This law therefore acts as a blanket enabling law for transit pipeline projects that are governed by IGAs. While this law may have solidified the legal grounds for enforcing IGAs in respect of transit pipelines, the IGA/HGA structure is more malleable than that: partner nations have sought to sign combined IGA/HGAs for nuclear power plants in recent years, and there is no reason why the same structure should not be applied in similar large-scale multinational projects. It is therefore as important now as ever to understand the theoretical framework underlying the IGA/HGA structure, and to understand its promises and limitations.

While the facilitating function of the IGA/ HGA structure is therefore apparent, a potential problem with this framework is that the privilege of reduced bureaucracy and exemption from the application of certain laws is granted only to the project company in charge of the specific project. It may be beyond question that the scale of projects warranting a special IGA/HGA regime cannot be accomplished without such incentives, but this alone may not absolve the projects from abiding by generally applicable legal principles. Such principles include the obligation, elucidated under Article 10 of the Turkish Constitution, not to grant privileges to specific persons. There is a strain of scholarship arguing that the IGA/HGA structure grants just that sort of impermissible privilege on project companies developing multinational energy projects.1 However, a review of recent precedent suggests that this objection may be unenforceable.

The very question of whether IGA/HGAs can be reviewed for compliance with constitutional standards was litigated in 2010 before Turkey's Constitutional Court. The main opposition in Parliament challenged the IGA signed in respect of the construction and operation of a nuclear plant in Akkuyu on various grounds, among which were that the IGA purported to award the construction contract to the project company without going through the tender process. The challenge was mounted not against the IGA itself, but rather against the law proposing its ratification. This was owing to the protection granted to international treaties under Article 90 of the Constitution noted above; that provision renders properly ratified international treaties immune from challenge on constitutional grounds.

The Constitutional Court recognized the challenge against the law recommending ratification as a challenge against the underlying international treaty, and refused to entertain the merits of the challenge.2 The Court rehashed the argument that permitting internal substantive review of international treaties would leave Turkey unable to follow through on commitments made on the international level, and noted that this has been a well-established principle of Turkish constitutional law since 1961. The Constitutional Court has reaffirmed this holding in a number of other decisions, so long as the treaty in question was ratified with no reservations.3

The holdings of the Constitutional Court just discussed reaffirm that the IGA/HGA framework helps to shield projects protected by such structures from interference with domestic laws. However, the challenges against the agreements also serve to demonstrate the fact that they can be highly politicized and therefore serve as lightning rods for opponents of the government. We believe that as long as the structure is carefully set up, and all parties concerned stay faithful to the original scheme, the IGA/ HGA framework can offer partner nations and multinational consortia a reliable legal regime under which to undertake significant investments in Turkey.

Footnotes

1. See, e.g., Dr. Sedat Çal, Bakü-Tiflis-Ceyhan Boru Hattı Projesi Kapsamındaki Anlaşmaları, 63-4 Ankara Üniversitesi SBF Dergisi 90, 121 (2008).

2. Decision of the Constitutional Court dated 31 May 2012; E: 2010/92; K: 2012/86, published in the Official Gazette No. 28829 dated 22 November 2013.

3. See, e.g., Decision of the Constitutional Court dated 31 May 2012; E: 2011/48; K: 2012/88, published in the Official Gazette No. 28829 dated 22 November 2013; Decision of the Constitutional Court dated 27 February 1997; E: 1996/55; K: 1997/33, published in the Official Gazette No. 24352 dated 24 March 2001.

BOND ISSUANCE AND ITS SPECIFICATIONS IN REGULATED SECTORS

By Dr. Meltem Küçükayhan Aşcıoğlu; Gizem Erbaş

The CML, which regulates capital market instruments, including the bonds, is the main piece of legislation governing the legal framework of a bond issuance.

The international appetite for Turkish risk continues to rise during the past 4-5 years, and seems to keep focus on Turkish bonds issued in the Turkish market and for Turkish bonds issued in the European and/or US securities markets. Accordingly, last year has been a record year for bond issuance by Turkish banks and other private companies. Pursuant to the reports of Turkish Central Bank pertaining to the year 2014, the borrowings through bond issuance of Turkish banks within and outside of Turkey have been around USD 10 billion, while the bond issuance for the whole Turkish private sector was a little bit more than USD 27 billion.1 Other than banks, companies in regulated sectors, e.g. energy, telecommunication, aviation and health, preferred bond offerings instead of selecting other methods of raising money, such as bank loans or stock issues, in recent years, to gain the flexibility to refinance their debts. Therefore, as a recent and high-valued topic, this article will focus on the bond offering and its specifications in regulated sectors. To this end we will examine the following: (i) the legal framework for bond offerings regulated under the Capital Markets Law2 (the "CML") and the secondary legislation issued by the Capital Markets Board (the "CMB"); (ii) the different types of bond offerings; (iii) procedures for bond offerings, and (iv) the specifications of bond offerings in regulated sectors.

Legal Context for Bond Issuance

Bonds -as capital market instruments- are a type of debt securities issued by public or private sector companies to provide medium or long term funding through borrowing. In other words, a bond functions like a loan between the investors and the corporation. The CML, which regulates capital market instruments, including bonds, is the main piece of legislation governing the legal framework of a bond issuance. As per Article 4 of the CML, approval by the CMB is compulsory for the issuance of capital market instruments, including the bonds, which necessitates an application to the CMB and fulfillment of the requirements regulated under capital markets legislation. Yet, under Turkish Law, in addition to the CML, the bond offering process is detailed by the secondary legislation issued by the CMB, namely: (i) Communiqué on Debt Securities3 numbered II-31.1 ("Communiqué on Debt Securities") regulating the principles for the issuance of bonds and the qualities/types of bonds; (ii) Communiqué on Sales of Capital Market Instruments4 ("Communiqué on Sales of Instruments") numbered II-5.2, regulating the sales types and methods, distribution and delivery of the bonds; and (iii) Communiqué on Prospectus and Issuance Certificate5 ("Communiqué on Prospectus") numbered II-5.1, regulating the preparation, approval and promulgation of the prospectus (izahname) and issuance certificates (ihraç belgesi) for the issuance, sale or trading of the bonds.

Different Types of Bond Offering

The Communiqué on Debt Securities defines a bond as a debt security issued by a corporation (i.e. public or private companies) that the obligor undertakes the repayment of the nominal value to the investor on its maturity date which shall be with a maturity equal to at least 365 days or longer. The corporation may issue bonds up until the issue ceiling approved by the CMB. In principle, the issue ceiling is determined as five (5) times the equity for public corporations and as three (3) times the equity for non-public corporations. The issue ceiling may vary for the regulated sectors pursuant to special legislation.

The bonds issued may be sold/offered in Turkey in two different ways: through a public offering or not involving a public offering. The main differences between these two types is that: (i) if through a public offering, a prospectus6 shall be prepared by the issuer and approved by the CMB, while (ii) if not involving a public offering (or offering outside Turkey), instead of a prospectus, an issuance certificate7 shall be prepared by the issuer and approved by the CMB.

Sales without a public offering may be in the form of (i) a private placement or (ii) a sale to qualified investors.8 In addition, bonds may also be issued to be sold/offered abroad, such as through US or European stock exchange markets e.g. Irish Stock exchange which is usually preferred by Turkish companies due to its reputation, tax advantages and guaranteed/fast timing.

Offering of the Bonds: Main Steps

The main steps of the offering to be followed by the issuers may be summarized as follows:

Decision of the authorized body:The authorized body of the corporation shall render a decision in order to issue the bonds. In principle, the authorized body is the general assembly; however, the board of directors may also render this decision if duly authorized by the general assembly or by the articles of association of the corporation, in advance. Following such decision, the corporation starts preparing the relevant offering documentation together with its financial and legal advisors.9

Application to the CMB10 and CRA record:The corporation shall apply to the CMB for the approval of the prospectus/issuance certificate together with the final draft of the prospectus or the issuance certificate, as appropriate, and other documents listed in the Annexes of Communiqué on Debt Securities.11 In principle, bonds issued within Turkey or abroad are required to be issued as dematerialized via the Central Registry Agency ("CRA") in electronic media. Yet, the CMB may, upon demand of the issuer, grant an exemption to the obligation of dematerialized issuance via CRA of the bonds to be issued abroad.

Payment of the fees and announcement of the issuance: CMB fee shall be paid prior to the approval of the CMB.12 The approved prospectus/issuance certificate received from the CMB will be published and announced via the Public Disclosure Platform ("PDP") and the website of the issuer within 15 business days following the receipt of the document by the issuer from the CMB.

Sales and recording:The Issuer shall initiate the sale/offering at least 3 days from the publication of the prospectus (for public offerings) or within 10 business days from the publication of the issuance certificate (for non-public offerings). The period for sale/offering may be decided by the issuer: (i) if through public offering, between 2 to 20 business days following the announcement of the prospectus, and (ii) if not by a public offering, within maximum 10 business days following the announcement of the issuance certificate. If the issuer is exempted from the CRA registration, then a declaration to CRA regarding the sale shall be made within 3 business days following its completion. If the issuer is a publicly traded company other disclosures, such as decision(s) of the authorized body, application(s) to the CMB regarding the approval, issuance of series issuance certificates, and the start and end of the sale shall also be announced through the PDP and the issuer's website.

Specifications of Bond Offerings in Regulated Sectors

The companies operating in regulated sectors are subject to supervision and surveillance of an independent administrative authority according to their sector and special legislation during their activities and also during the bond issuance process. The companies operating in the energy sector which are under the authority of the Energy Market Regulatory Authority ("EMRA"), banks under the oversight of the Banking Regulation and Supervision Agency ("BRSA") and companies in the communication sector under the authority of the Information and Communication Technologies Authority ("ICTA") may be set as examples for regulated sector companies. Pursuant to the Communiqué on Debt Securities, before the application to CMB, the opinion of the relevant independent administrative authority must be taken. Even though, the opinion of the relevant authority is listed among the documents for application to CMB, in practice, we have seen some deviations from this rule, e.g. with regard to the communication sector, CMB applies to the ICTA for its opinion following the application of the issuer to CMB. Since the procedure and timing of such process are not specified in the legislation in detail, the communications between the authorities and between the issuer and the authorities may lengthen the issuance process and cause delays in the planned agenda of the issuer where a slight deviation may have extreme effects depending on the changes in the situation of global, regional and national markets.

The Communiqué on Debt Securities sets forth a specific provision with respect to the issue limits for the regulated sector companies. As per the Article 9 of this Communiqué, in cases where the set issue limits determined by the relevant authority (e.g. EMRA) for such issuers (i) are higher than the limits calculated according to this Communiqué, then provisions of the Communiqué must be taken as the basis for the determination; (ii) are lower than the issue limits calculated according to the Communiqué, then the issuer will be -at its risk- free to choose the higher issue limit. The CMB will notify the authority of the ceiling issue applied by the issuer.

Conclusion

In light of the above and as seen by the international appetite and high demand for Turkish bonds in the Turkish, European and U.S. markets, bond issuance in the private sector -including the regulated sector companies- is expected to continue to increase in the following years under the regulatory framework of the CMB. In order to keep encouraging such a rise in the Turkish bond market, certain regulatory amendments should be implemented. Among the necessary changes, one should consider an elaboration of the offering process and timing for each step, e.g. regulatory authority's opinion and announcements; and a decrease the overall transaction costs, including the tax burden of the issuer and the investors in relation to the sale-purchase of the bonds and payments made under the bonds.

Footnotes

1. For more details please see Payment Balance Reports (Ödemeler Dengesi Raporu) of Turkish Central Bank for the year 2014, http://www.tcmb.gov.tr/wps/wcm/connect/TCMB+TR/TCMB+TR/Main+Menu/Yayinlar.

2. Capital Markets Law numbered 6362 is published in the Official Gazette dated 30 December 2012 and numbered 28513, has gone into effect on 30 December 2012.

3. Published in the Official Gazette dated 7 June 2013 and numbered 28670.

4. Published in the Official Gazette dated 28 June 2013 and numbered 28691.

5. Published in the Official Gazette dated 22 June 2013 and numbered 28685.

6. As per the Communiqué on Prospectus, the prospectus is a public disclosure document containing all information required for a conscious assessment and choice of investors, with respect to the issuer's or if any, the guarantor's financial situation and performance, prospects and activities, and characteristics of, and rights and risks associated to bonds to be issued or admitted to trading on the exchange.

7. As per the Communiqué on Prospectus, the issuance certificate contains information about description and sales conditions of bonds issued to be offered without public offering, or to be offered abroad, or for all types of capital market instruments without a prospectus.

8. Bonds issued for sale to qualified investors may be listed and quoted in the stock exchange only for trading among qualified investors within the framework of the relevant regulations of the stock exchange. As per the Communiqué on Sales, the qualified investor refers to professional customers such as investment firms, also including those who are accepted as professional on demand basis. Yet, the bonds issued for sales through private placement are basically not listed and traded in the stock exchange and total number of investors holding those bonds at a certain point of time shall not exceed one hundred and fifty.

9. The issuer shall apply to the CMB within 1 year starting from the date of the issuance decision of the authorized body.

10. The issuer shall apply and register to CRA before its application to CMB. The CMB has 10 business days to proceed with and complete its assessment following full-fledged application of the issuer.

11. Following the approval of the issuance certificates, for each series of issuance, in principle, separate series issuance certificates will be prepared and approved.

12. Amount of the CMB Fee depends on the maturity date of the instrument: (i) up to 179 days, 0.05% of issuance value; (ii) 180 – 364 days, 0.07% of issuance value; (iii) 365 – 730 days, 0.1% of issuance value; (iv) 730 days and longer, 0.2% of issuance value.

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