What are the most significant cases, projects, or transactions that you and your legal team have recently been involved in?

During my role as an in-house legal counsel at Nghi Son 2 Power Limited Liability, the most notable cases I handled involve a side agreement for dispatch and handover of electrical interconnection facility (EIF) under Power Purchase Agreement (PPA) with Vietnam Electricity (EVN). These cases were particularly significant as they have resolved issues of operation arising from project documents. I would like to summarise the key details as below:

Firstly, the dispatch agreement. PPA requires EVN to dispatch our project with a certain volume of electricity output every year, which can help us clear up our minimum take liability toward coal suppliers. In case EVN fails to do that, it must compensate us with an amount corresponding to the volume not dispatched. This back-to-back minimum take requirements are common in BOT coal-fire power projects to ensure the project owners are not at risk of coal overflow. Having said that, PPA allows EVN to dispatch with the timeline and volume which are up to EVN’s decision. This scheme results in difficulty for us to purchase coal, which requires at least 40 days to place orders.

Secondly, the EIF transfer. This case is challenging because there were no legal regulations available for the handover at the time it took place. Given that, EVN delayed the handover of electrical interconnection facility – even though PPA requires it to assume the EIF at no cost after commercial operation date of our first unit at the beginning of 2022. This delay exposed us to costs and risks relating to the operation and maintenance of EIF, as well as potential claim of default from lenders under finance documents. We were under huge pressure to hand over the EIF to EVN. We tried to convince EVN to take over the EIF by showing them related regulations and legal frameworks that can ensure the legality of their receipt. Eventually, EVN agreed to sign the handover agreement with us, thereby taking over the EIF from the end of 2023. This successful handover creates a precedent for other BOT power plants to hand over their facilities to EVN accordingly.

How do you approach managing legal aspects during periods of instability or crisis to ensure the organisation’s resilience?

In cases of crisis or instability, I focus on identifying all potential legal risks for an entity and advising suitable resolutions that fit into our actual operation. Among resolutions to be suggested, relevant clauses in contracts such as force majeure and changes in law should be drafted in a way that can safeguard the entity’s interests at most in case of crisis. By doing that, I can manage legal risks from the crisis or instability whether they are immediate or contingent to the entity.

What do you think are the most important attributes for a modern in-house counsel to possess?

In my opinion, the most important attribute is being empathetic. When acting as an in-house consultant in an entity, a lawyer should be empathetic about difficulties the entity or its frontline team is encountering. By having such empathy, in-house counsel become more open-minded in listening to issues the entity faces and less risk-averse when brainstorming from legal perspectives. Empathy can also help in-house counsel communicate more efficiently with colleagues in other fields, ensuring they have enough information to provide advice in a way that best safeguards the entity’s legal interests. These advantages of being an empathetic lawyer might make it the most essential trait for a modern in-house counsel.

Based on your experiences in the past year, are there any trends in the legal or business world that you are keeping an eye on that you think other in-house lawyers should be mindful of?

Artificial Intelligence (AI) should be a trend for any in-house lawyer to keep observing. In situations where technology advances rapidly, most multi-national corporations are using AI in their own business because it appears to be an efficient and affordable tool to support business in various aspects. Legal jobs are not outside this trend, and in-house legal counsel should be ready to encounter new challenges from the widespread use of AI. Having said that, while AI is becoming more intelligent and improving day by day, it cannot replace humans with certain types of work that require logical strategies on a case-by-case basis. In this regard, in-house counsel should focus on improving their problem-solving skills, enabling themselves to control and master AI rather than depend on it.