Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 227
Offshore Wind Worldwide 2023
immediate effect unless a grace period
is given. Thus, foreigners may have to
divest or restructure to continue to
engage in the partly nationalized activity. It is likely that a reasonable period
will be given for the foreign investor to
effect the restructuring or divestment.
2.2. Other nationality restrictions
In the exploration, development, and
utilization of OSW energy, the wind facility
may be permanently fixed to the seabed
or made as a floating structure, 23 and the
wind facility may possibly be built within
the internal waters and territorial sea of
the Philippines (collectively, Philippine waters) or the exclusive economic zone (EEZ)
of the Philippines.
227
developer will need to acquire rights or
conduct activities that are subject to
nationality restrictions to develop the RE
project, the RE developer may consider
having an entity whose capital structure
is compliant with the relevant nationality
restrictions who will acquire the relevant
rights over the land (e.g., lease of public
land) and will enter into a service agreement (or similar contract) with one for the
provision of certain services, to the extent
allowed under applicable law.
In OSW projects, portions of the project
may still have to be located onshore (e.g.,
onshore substations). Thus, one may need
possessory rights over land for the development of such onshore infrastructure,
including foreshore areas for those assets
that connect to the offshore infrastructure (please see discussion on Section 6
below).
However, certain kinds of possessory
rights over land are covered by nationality
restrictions. Although the DOE has taken
steps to liberalize the nationality restrictions for certain RE projects through the
DOE Amendment, limitations relating to
the ownership and lease of public and
private land to be used for RE projects
remain. Thus, to the extent that the RE
23 By floating, we assume that the facility floats and is anchored similar to a ship; that is, it can be readily moved from one place to another.
