This document summarizes a panel presentation given at an infrastructure investment and regulation conference in October 2011. The panel discussed two main topics: [1] the key investment criteria for investors in highly regulated infrastructure, including stability, predictability, and confidence in the regulatory regime; and [2] a review of merits review in regulatory decisions, examining questions around favoritism, costs, information disclosure, participation of energy users, and potential modifications to the legislative framework.

1. Infrastructure: Investment & Regulation
Conference
The investment landscape and the regulatory response:
Panel presentation
Catherine Dermody
Partner
October 2011

2. The commercial / regulatory divide
• What are the key investment characteristics and
criteria for investors in respect of highly regulated
infrastructure?
• Areas of key concern / focus for investors:
– stability of the regulatory regime
– ability to understand and interpret the regime
– predictability of likely regulatory outcomes
– confidence in guidance given by regulatory bodies
– access to review of decisions
• Is the framework delivering on these?
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3. Merits review
• “Review of merits review” in the context of:
– has it favoured any particular parties, is there evidence of “gaming”
– cost implications for governments and parties
– effectiveness of information disclosure and evidence restrictions
– extent to which energy users and consumers have been able to participate
– whether the Tribunal has acknowledged the expert knowledge of the
primary decision-makers by remitting appropriate matters
– whether additional modifications are necessary to achieve MCE’s
objectives (accountability, regulatory certainty, conditions for regulator to
make correct initial decision; achieving best decisions possible; ensuring
all stakeholder interests taken into account; minimising risk of gaming; and
time delays and cost)
– whether the legislative framework for merits review could be improved,
whether it should be abolished leaving judicial review
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