In an ideal world, people who enter into contracts would choose to enter the contract, and agree to its terms, because they have accurate and comprehensive information on which to base their decision. This chapter will first explain when a contract may be invalid, because one or both parties entered into the contract under some sort of misapprehension, or on the basis of misinformation. We will look at mistake (mutual mistake, unilateral mistake and common mistake) and misrepresentation. We will also briefly explain the old action ‘non est factum’ (‘not my deed’) and the remedy of rectification. Second, the chapter will explore when a contract may be invalid because of ‘unfair’ conduct by one of the parties – for example, where one party (Party A) enters an agreement because another party (Party B) subjected A to undue pressure (duress or undue influence); or because the conduct of B is so ‘unconscientious’ or the contract is able to be set aside in equity for unconscionable conduct.

This chapter focuses on what occurs when a contract is performed and brought to an end. It discusses the rules regarding performance, termination, and the resulting remedies available in the event of a breach of contract. The concepts covered in this chapter are of vital importance to contracting parties. For instance, parties may wish to know how to fulfil their contractual obligations in order to bring a contract to a natural end. Conversely, they may want to know how to get out of a contract altogether, potentially ending it early, resulting in a breach. Assessing the various remedies that are available in the event of a breach of contract will therefore assist parties in shaping their interactions with one another, as well as protect them where they are the subject of a breach.

I Introduction

Adrian Bradbrook has been a leading international academic in the field of energy law for many years, in particular in the fields of renewable energy and energy conservation. Not only did he write pioneering legal works in this area, but he instituted the key law course on Mining and Energy Law at the University of Adelaide at a time when most other Australian universities did not teach energy or resources law as a mainstream legal subject.

In 1996, Bradbrook wrote a seminal paper on teaching Energy Law as an academic discipline. While ‘Energy Law’ as conceived of in his paper largely focused on Australian national and state issues, he identified the fact that energy law is increasingly acquiring an international law dimension as one of the most significant developments of the time. This ‘international law dimension’ of energy law includes both the increasing internationalisation and standardisation of national laws, where, for example, ‘traditionally national subjects such as taxation laws now have an international dimension’, and the growth and influence of public international law in the context of energy, an area which, he argued, had ‘evolved and continues to evolve very rapidly and … represents the real cutting edge of energy law at the present time’.

The increasing recognition of the ‘international law dimension’ of energy law among legal scholars, legal practitioners and those working in any role with energy markets has led to the growing recognition and development of ‘international energy law’ as a separate academic discipline.

INTRODUCTION

The production and use of electricity generated by fossil fuels is one of the most environmentally damaging human activities on this planet. It is generally acknowledged that increasing the share of electricity generated by renewable energy is vital for reducing the environmental impacts of electricity generated by fossil fuels and achieving sustainable development. Protection of the environment is a key reason for the introduction of government policies encouraging the development of renewable energy through mechanisms such as tax and other financial incentives and the mandatory purchasing by electric utilities of electricity generated from renewable energy sources in developed countries since the 1970s.

More recently, the deregulation and/or privatization of energy markets in many countries, including the United States, United Kingdom, Canada, Australia, various European countries, and the countries of Latin America, has led to concerns about the future of renewable energy resources in the generation of electricity. As utilities in competitive electricity markets become more efficient, reduce costs, and charge lower electricity prices, it is feared that renewable energy sources, which are generally higher cost options for producing electricity, will find it increasingly difficult to penetrate electric power markets.

While proponents of renewable energy have pressed for government support of renewable energy to continue in competitive electricity markets, the suitability of applying policies for promoting renewables in regulated electricity markets to deregulated markets has been questioned.