Divyam Agarwal, Partner at JSA Advocates & Solicitors, recently participated in a panel discussion titled “The Green Investment Playbook: De-risking Indian renewable energy investments, and cross-border opportunities in clean energy, energy storage and transmission assets,” held as part of Singapore Convention Week 2026.

The discussion examined the legal and dispute-resolution challenges accompanying the rapid expansion of India’s renewable energy sector, including the risks faced by foreign investors, structuring of cross-border investments, choice of arbitral seat, and the importance of planning for potential disputes at the investment stage.

In this Beyond the Panel conversation with The Bar Bulletin, Divyam Agarwal reflects on some of the issues underlying the panel discussion and offers a closer look at how investors can approach risk, dispute prevention and investment structuring in India’s evolving clean-energy landscape.

Q1. Renewable energy projects often look straightforward on paper but sit at the intersection of land, regulation, tariffs, financing, government policy, and long-term commercial commitments. From your experience, where does the first real dispute usually begin and are investors looking at the wrong risk when they focus primarily on the arbitration clause?

Investors spend months negotiating tariff structures but comparatively little time on dispute-resolution architecture. In my experience, most Indian energy disputes begin not with a dramatic breach of contract but with something mundane: a state distribution company quietly curtailing offtake because cheaper power is available on the exchange; a regulator reinterpreting policy or issuing a circular that changes the project’s economics overnight; or a new government seeking to renegotiate competitively bid, legally binding power purchase agreements. Andhra Pradesh in 2019 is the textbook example: the incoming government constituted a High Level Negotiations Committee to renegotiate solar and wind PPA tariffs, and interim tariffs were slashed to approximately ₹2.43 per unit a dispute still languishing in the courts.

That is where the threshold question arises. Before reaching the merits, an investor often must fight over whether the dispute is arbitrable or falls within the Electricity Act, 2003’s exclusive jurisdiction. I have seen parties spend months arguing whether they are allowed to arbitrate at all. So, are investors looking at the wrong risk? Not exactly. The arbitration clause matters, but it is insufficient on its own: even a beautifully drafted PPA is an expensive piece of paper if its arbitration clause is poor or fails to account for India’s electricity-regulatory complexity. The real risk is the gap between what the contract promises and what the institutional environment actually delivers. Investors should stress-test their project documents not against the policy roadmap, but against the version of India that shows up at the state electricity regulatory commission on a difficult Tuesday morning.

Q2. A renewable energy investment can be structured today for a project that may operate for 20–25 years, while the regulatory and political environment around it can change dramatically. How should investors future-proof their dispute-resolution strategy against changes that neither party can realistically anticipate at the time of contracting?

The core tension is simple: you are drafting today for a project that must survive 20–25 years of elections, regulatory regimes, and potentially fundamental shifts in technology and markets. No contract can anticipate every scenario; the goal is to preserve a credible pathway to a remedy when something goes wrong. I focus on three things: a tiered clause, a carefully chosen seat, and rigorous project records.

First, build a multi-tier dispute-resolution clause around the disputes you are likely to face. Energy disputes often begin with a technical question was the curtailment justified? before becoming legal or contractual questions. Route technical issues to mandatory expert determination, reserving arbitration as the final binding mechanism for legal and interpretive issues. It is faster and cheaper, and puts factual questions before experts rather than lawyers arguing about grid engineering.

Second, choose the seat based on where you will ultimately enforce the award not where the project is located or your legal team is most comfortable. The seat determines the supervisory court, procedural law, interim-relief framework, and enforcement pathway. Singapore, notified by India as a reciprocating territory under the Arbitration Act, offers a streamlined enforcement route in India; the UAE, which has not been notified, presents a significant hurdle for UAE-seated awards. Ask not “where will the hearing take place?” but “where will I have to collect my money?”

Third, document the project rigorously. Poor record-keeping is the most common self-inflicted wound: project teams often run construction phases on WhatsApp and informal emails, leaving years later a jumble of screenshots with broken timestamps. Notice provisions typically impose strict deadlines and formalities, and missing a 30-day window can extinguish an otherwise valid claim. No dispute-resolution clause can save a claim that was not documented as it arose.

Q3. There is growing discussion around structuring foreign investments to preserve treaty protection, choosing jurisdictions carefully, and thinking about BITs before a dispute arises. How far should an investor go in designing its investment structure around potential future disputes without making the structure commercially artificial and where do you draw that line?

This is perhaps the most nuanced question in cross-border investment planning today, and the short answer is: further than most investors currently go, but not so far that the structure becomes a house of cards.

The starting point is sobering: since 2016, India has terminated bilateral investment treaties with 77 countries, including major capital-exporting nations such as the UK, Netherlands, Germany, France, Australia, and Canada. Most foreign investors entering India’s renewable energy sector today therefore lack treaty-level recourse to international arbitration if the state changes the rules a structural vulnerability that commercial contract protections must address. Investors should consider jurisdictions that still offer treaty protection: Singapore, through the India-Singapore CECA’s investment chapter and arbitration provisions, and the UAE, through the India-UAE BIT, in force since August 2024. But the structure must have genuine commercial substance. Following the Supreme Court’s January 2026 ruling in Tiger Global, holding structures in jurisdictions like Mauritius or Singapore without real commercial operations are effectively dead for tax purposes, and a shell is equally vulnerable to a denial-of-benefits challenge under a BIT.

The practical line I draw with clients is simple: every entity in the chain must have a genuine commercial reason to exist, independent of any future dispute. A Singapore holding company with real employees, decision-making authority, and a real commercial function can serve double duty as the vehicle through which treaty protection flows. If it exists only on paper, it is both a tax risk and a treaty risk.

Treaty-based investor-state arbitration and commercial arbitration under the PPA or shareholders’ agreement are separate tracks. The treaty may specify ICSID or UNCITRAL rules and a seat such as The Hague or Singapore, while the commercial contract may use a different seat, institution, or governing law; the two must be coordinated so they do not conflict and the commercial clause does not undermine the treaty claim. The Cairn Energy case shows why: Cairn’s credible threat to enforce in the US, UK, France, the Netherlands, and Singapore including an attempt to seize Air India assets brought India to the table and led to the repeal of the retrospective tax legislation in 2021.