Okan Demirkan leads his firm’s dispute resolution, energy and infrastructure, and ethics and compliance practices. He has advised on major pipeline projects, natural gas sale projects and a number of electricity generation facility projects. He has significant experience in the privatisations of energy facilities as well as EPC contracts. In addition to his energy expertise, Okan has significant experience of almost 20 years in international arbitration.
What motivated you to specialise in energy law?
In the years I started practising law (early 2000s), the increasing significance of energy in all aspects of life and the energy sector’s role in all human, commercial and political relations fascinated me. At the time, Turkey’s energy regulator was new, the market was liberalising and the country was on its way to becoming an oil and gas hub for the region. I was a young lawyer perfectly situated to develop myself in an evolving area of law. These factors motivated me to become involved in the field of energy.
How has the market changed since you first started practising?
The market has changed drastically. When I started practising, there was one market player in each of Turkey’s oil, gas and electricity markets. Now there are several players and there is a real market. We are looking at a market that is much more mature, yet still open to substantial development.
What makes Kolcuoglu Demirkan Kocakli stand out from its competitors in the market?
We have a true understanding of the market dynamics, particularly in oil and gas. We have advised extensively on upstream, midstream and downstream projects. Our experience in the TANAP Project was a once in a lifetime opportunity. It is very seldom to have a Turkish law firm draft international agreements and negotiate them with project investors as well as state entities. KDK’s role was incremental in that project, as we were working directly with the decision-making individuals at the very top level in both the private sector as well as the authorised state entities.
Our success in TANAP led to other roles in very large projects such as the then contemplated Sinop Nuclear Power Plant Project. There are several very distinguished law firms in Turkey with experience in energy law, but I believe we have a particular unique strength in handling large projects involving private and state entities.
How do you effectively coordinate multinational dispute resolution matters?
Thanks to our strong experience in cross-border disputes and international arbitration, we are able to accurately assess where the core of the dispute will lie and how best to handle a negotiation for an amicable settlement and, if that is not an option the applicable arbitration or litigation process. If the governing law is non-Turkish, we team up with counsel from the jurisdiction of the governing law and benefit from the know how and experience of our foreign colleagues. I believe our greatest advantage is that we really enjoy advocacy, for protecting the client’s interests.
How does your experience acting as counsel, arbitrator and expert witness enhance your work in each role when handling energy disputes?
I spent many years as counsel, before experiencing my first expert witness role. This was extremely helpful, because I had a good grasp of what the opposing counsel might ask in the cross-examination, so I prepared my expert witness report accordingly. In one arbitration where I was expert witness, I even left a few gaps in my report, practically seeding issues for questions in cross-examination where I thought I would be able to give very good answers for the party that had retained me.
Fortunately for me, my first appointment as arbitrator came after a few times I had sat as expert witness. By that time, I could empathise with almost everybody in the room, which is clearly a great advantage in managing the process, particularly the hearing.
How has covid-19 affected your work and the energy sector in Turkey more broadly?
I think our work in Turkey was affected as much as it was affected everywhere else. Some of our energy projects stopped for a couple of months, but we had one very major infrastructure project that only slowed down for one month and then picked up. As for the legal business, I think the pandemic was a strong alert for us. We must revisit our office structures, we must reinvent our business development practices and we cannot delay technological investment.
How might the Turkish government’s increasing support of the renewables sector impact the nature of work you will receive in the future?
I am not sure if I would describe the state’s current incentives as “increasing support”. From one perspective the incentives appear to be increasing but in reality, considering the Turkish lira’s devaluation against the USD and euro as well as the length and pricing of purchase guarantees, investors may not be too happy with the current incentives.
Along with the renewables sector, I think it is time for Turkey to update its natural gas market legislation. The current Natural Gas Market Law was introduced in 2001 to liberalise the gas market. It surely did help in the market’s liberalisation, but only to a certain extent (which was not bad at all). However, it has been almost two decades since that law was enacted and we still have a not sufficiently liberalised and competitive gas import, wholesale and export market. These need to be addressed in a new law, with good and bad lessons learned from the past 20 years.
Similarly, I think it is time for the government to openly and constructively listen to current as well as potential investors in the renewables sector, to plan the next few decades. Turkey has been quite successful in increasing its renewable energy generation capacity, but with that mission arguably accomplished (and still pending), we must plan the future.
Where, in your opinion, does the future of the practice area lie?
My short answer to this question would be renewables, energy trading and energy storage.
Okan Demirkan is a partner of Turkish independent law firm Kolcuoglu Demirkan Kocakli, Istanbul. He leads the Firm’s Dispute Resolution, Energy & Infrastructure and Ethics & Compliance practices.
For many years, Okan was extensively involved in all legal and regulatory issues surrounding the Baku-Tbilisi-Ceyhan Crude Oil Pipeline Project (BTC). In addition to BTC, Okan has advised clients in connection with the Nabucco Gas Pipeline and the Samsun-Ceyhan Oil Pipeline. In 2011, Okan took an active role in the Shah Deniz Stage 2 Natural Gas Sales Project, advising on the project’s legal structure in Turkey. In that project, Okan and his team provided invaluable analysis on intergovernmental agreements, Turkey’s natural gas market legislation and the Transit Law, and other related commercial and public international law matters. In 2012, Okan and his team played a key role in the multibillion-dollar Trans-Anatolian Natural Gas Pipeline Project (TANAP), drafting both the Host Government Agreement and Intergovernmental Agreement, and negotiating them with the Turkish Government.
Okan has advised clients on a number of electricity generation facility projects, including renewable energy projects. He has significant experience in the privatization of energy facilities as well as EPC contracts.
Being a disputes lawyer (and recognized by Who’s Who Legal as a future leader of the arbitration world), Okan has successfully represented several international clients as well as local entities both in institutional and ad hoc arbitration proceedings concerning major infrastructure projects including build-operate-transfer (BOT) model investments and EPC contracts. In 2017 he was an expert witness in an LCIA arbitration concerning a multibillion-dollar claim arising from a major international energy project.