Direct Power Purchase Agreement in Vietnam – The basics

In the newly issued Power Development Plan VIII (PDP VIII), the direct power purchase agreement (DPPA) mechanism is said to be implemented on a pilot basis. The DPPA mechanism could offer an alternative for renewable energy projects to sell electric energy. However, PDP VIII stops short of providing broad strokes of what the DPPA mechanism will look like. That said, before the PDP VIII was issued, in 2022, a draft decision of the Prime Minister (Draft Decision) on a pilot scheme (Pilot Scheme) for the DPPA mechanism was circulated for public opinion collection. Such a scheme offers a look into the possible structure of the DPPA mechanism under PDP VIII. In this article, we will discuss the basic structure of the DPPA mechanism and some key points in a DPPA.

Under the Pilot Scheme, the DPPA mechanism is financial/synthetic DPPA and works as follows:

1.         the renewable energy generator will enter into a DPPA in the form of a forward contract (hợp đồng kỳ hạn) with a customer, under which the customer will guarantee a fixed price for the energy produced by the renewable energy project (see 3) and in return, the generator will transfer the “environmental attributes” created by the project to the customer;

2.         though the name DPPA suggests there is a sale of electric energy between the generator and the customer, under the DPPA mechanism, the generator won’t physically deliver electric energy to the customer; that is why it is called financial/synthetic DPPA. Instead, the generator will sell all of the generated electric energy to EVN in the wholesale electricity market under a template power purchase agreement provided in the Draft Decision. The power companies of EVN will then sell electric energy to the customer at retail prices. Such electric energy may not necessarily come from the project.

Mechanism for Calculation of Electricity Generation Price Bracket and Its Implication for Transitory Solar/Wind Energy Investors

On 3 October 2022, the Ministry of Industry and Trade (MOIT) issued Circular 15 on the mechanism for setting up an electricity generation price (EGP) bracket applicable to transitory (chuyển tiếp) solar and wind power plants (Circular 15/2022), which took effect from 25 November 2022.

Determining EGP bracket under Circular 15/2022 will cause significant impact to the selling price of the transitory solar and wind energy projects in Vietnam. To be specific:

  • Circular 15/2022 only applies to solar and wind power plant developers (Developers) who have entered into PPAs with Vietnam Electricity (EVN) before 1 January 2021 (for solar power Developers) or 1 November 2021 (for wind power Developers) but failed to meet the requirements to apply the preferential EGP administered by the Prime Minister under Decision 13/2020 (for solar powers) and Decision 39/2018 (for wind powers) (Transitory Projects);

  • Circular 15/2022 requires the Developers of the Transitory Projects to provide Feasibility Study Reports or Engineering Designs of their power projects to EVN.

  • Based on data submitted by the relevant power plants, EVN will calculate and build up an EGP bracket of a standard solar and wind power plant (Maximum EGP Bracket), and obtain an approval from the MOIT for such Maximum EGP Bracket. The approved Maximum EGP bracket will be published on the website of the MOIT and the Electricity Regulatory Authority. The mechanism for calculation of the Maximum EGP Bracket is illustrated in the diagrams at the end of this post. Details on this mechanism are discussed in this document.

  • The price for selling generated power by the Developers of Transitory Projects to EVN cannot exceed the approved Maximum EGP Bracket. Accordingly, the data provided by the Developers may affect their profit in the future.

On 7 January 2023, the MOIT already issued Decision 21 which approves the Maximum EGP Bracket calculated in accordance with the mechanism specified in Circular 15/2022 (see the bar chart below) which will serve as a basis for EVN to agree on the selling price with the Developers of Transitory Projects:

The case for a new law for offshore wind development in Vietnam

To realize the potential of offshore wind development in Vietnam, the National Assembly of Vietnam will likely need to issue a new law which provides for a more comprehensive and consistent legal framework supporting an offshore wind project. This is because (1) the existing legal framework is not adequate for an offshore wind development, and (2) the issues under the existing legal framework need to be addressed by the National Assembly being the highest law-making authority in Vietnam. In particular,

· The existing legal framework does not confer any property right relating the sea area required for an offshore wind development. Decree 11/2021 deals with the allocation of sea areas to investors to implement offshore investment projects including offshore wind development. However, under Decree 11/2021, the investor is not allowed to transfer the allocated sea area, and does not have exclusive right to use the sea area. In other words, the Government may allocate the same sea area to other investors to develop other projects as long as such projects do not “conflict” with the offshore wind projects. The allocation of sea area is made via an administrative decision which could technically be revoked by the Government.

· Investors will likely be extremely reluctant to invest significant sum of money in a sea area which they cannot transfer, mortgage, or prevent others from using. To address this issue, the National Assembly will need to issue a law establishing property right over sea area granted to investors in an offshore wind development. The new law could follow the provisions of Land Law which confer “land use right” to investors of onshore investment projects. Under the Land Law, investors of onshore investor projects could lease land from the relevant provincial People’s Committee. The investors will then have land use right over the relevant land area which, in many cases, can be transferred or mortgaged.