Ghana. Oxford and Beaumont. Introduction. Key Legislation and Regulatory Structure

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1 Oxford and Beaumont Introduction Key Legislation and Regulatory Structure The 2007 discovery of the Jubilee Field in the Deepwater Tano and West Cape Three Points blocks gave significant impetus to the upstream sector in. s recoverable reserves are currently estimated to be between approximately 800 m and 1.25 bn barrels and its gas reserves to be approximately bn cubic meters. Key legislation relating to the sector includes the Petroleum (Exploration and Production) Act, 1984 (the Petroleum Law), the National Petroleum Corporation Act 1983 (Act 64), the Petroleum Income Tax Act 1987 (Act 188) (the Petroleum Income Tax Act) and the Petroleum Commission Act, 2011(Act 821). Following the discovery of commercial reserves of hydrocarbons has been involved in a process of updating its legislation. At the time of writing a new Petroleum (Exploration and Production) Bill remains before Parliament for consideration which will, when passed replace the existing Petroleum Law. Commercial production from the Jubilee Field started in December 2010 and is currently reported as between 70,000 and 90,000 bbl/day, with the field partners anticipating an increase to 120,000 bbl/day by mid In addition to ongoing development work on the Jubilee field by the Jubilee partners, Eni has announced that it is planning to proceed with the Sankofa Oil and Gas field development and Hess has also had exploration successes. Companies now active in blocks offshore include Eni, Hess, Afren, Saltpond Offshore Production, Vitol, Gasop Oil, Oranto Petroleum, Vanco Limited, Lukoil, Kosmos, Tullow, Tap Oil and Anadarko. In relation to natural gas, the National Gas Company (GNGC) has been set up to implement the Gas Infrastructure Project. The objective of the project is to ensure that natural gas, associated gas and NGLs produced in are effectively and efficiently processed into clean fuels and feedstock for the domestic, and export market; promote the development of petrochemical industries; substantially reduce and/or eliminate flaring of gas; and develop the Western Region of as a new economic growth pole for the country in the long term. The key institutions involved in regulating the upstream petroleum sector include the Government (through the Ministry of Energy), the Parliament of, and the Petroleum Commission. According to the Constitution of, petroleum in its natural state is vested in the President of (on behalf of and in trust for the people of ). Only the state can grant rights for exploitation of petroleum resources pursuant to a petroleum agreement. Under article 268(1) of the Constitution, the entry into petroleum agreements for the exploration, development and production of petroleum is subject to the ratification by parliament. 1

2 The Ministry of Energy is mandated to formulate, implement and evaluate policies for the energy sector as a whole. In line with this mandate, the Fundamental Petroleum Policy for was published in June Under the Petroleum Law, the Minister of Energy is also responsible for, among other things: granting rights to explore for, develop and produce petroleum; and granting consents to the transfer of rights to explore for, develop and produce petroleum. The Petroleum Commission was created by the Petroleum Commission Act, 2011 (Act 821) with the objective of regulating and managing the use of petroleum resources and co-ordinating policies relating to them. The Petroleum Commission is designed to take over regulatory responsibilities relating to the upstream petroleum sector which were previously the preserve of GNPC, on behalf of the Ministry of Energy. The commission s functions include: ensuring compliance with health and safety and environmental standards; regulating petroleum operations; receiving applications and issuing permits for specific petroleum activities; promoting local content and local participation in petroleum activities; and assessing and approving appraisal plans. The Petroleum Commission is under the authority of the Minister of Energy and advises on policy. The Minister of Energy is also the arbiter in any disagreement between an Operator and the Commission (before any arbitration or court process is initiated). 2 The GNPC was established by the National Petroleum Act 1983 (Act 64) with a mandate to, amongst other things, undertake the exploration, development, production and disposal of petroleum. GNPC is also granted certain rights under the Petroleum Law in respect of petroleum operations, including: the right to conduct exploration, development and production activities over all blocks for which a petroleum agreement does not exist and to enter into petroleum agreements with third parties to conduct such activities with them; the right in any petroleum agreement to an option, following a declaration of commercial discovery, to acquire a percentage interest in the rights and obligations under the petroleum agreement on terms to be agreed with the applicable contractors (see Licensing regime section below); and ownership of all data and information obtained from petroleum operations. With the establishment of the Petroleum Commission GNPC is now freed to focus on its commercial role rather than having regulatory responsibilities. Licensing regime Under the Petroleum Law, the Minister of Energy has the power to divide into a number of blocks and enter into petroleum agreements in respect of these blocks. Apart from the GNPC, no person is allowed to engage in petroleum exploration, development and production without entering into a petroleum agreement with GNPC and the Government of (represented by the Minster of Energy). The minister may establish a competitive bidding procedure for the award of petroleum agreements but awards of petroleum rights have, to date, been via the open door policy rather than through competitive licensing bid rounds.

3 Any person who wishes to enter into a petroleum agreement for a particular block must submit an application to the minister. The Petroleum Commission is now technically responsible for administering the application process, which involves reviewing, evaluating and making recommendations for the award of petroleum agreements. However, as a matter of practice, GNPC continues to be involved in the review and negotiation of the terms of draft Petroleum Agreements. Criteria considered in any application include the financial capability and technical track record of the applicant, the proposed work programme, budget and fiscal terms proposed by the applicant. When the Petroleum Commission s recommendations are accepted and the terms of the petroleum agreement are negotiated, the draft agreement is sent to the cabinet for approval. After cabinet approval, the agreement is executed by the parties and sent to parliament for ratification. There is no mandated timetable for approvals. The Petroleum Law prescribes a number of matters that must be included in any petroleum agreement. A Model Petroleum Agreement has been created incorporating, among other things, the matters prescribed by the Petroleum Law, and this forms the basis of negotiations with contractors. One of the basic requirements is that a contractor must incorporate or register a company in under the Companies Act, 1963 (Act 179) to carry out petroleum operations in. This entity must be the signatory to the petroleum agreement and must maintain an office in. The Model Petroleum Agreement prescribes an initial exploration period that may be extended two times, the total period not to exceed seven years. Following notice of a discovery and declaration of commerciality after appraisal, a development plan has to be submitted for approval by the Minister of Energy. The term of the Model Petroleum Agreement is not to exceed 30 years from the effective date. National Oil Company/State Participation The Model Petroleum Agreement grants GNPC an initial carried interest in all petroleum operations under the agreement. The percentage interest is negotiable. This initial interest is carried for exploration and development operations, but is a paying interest for production operations. Under section 17 of the Petroleum Law, any petroleum agreement must give GNPC an option, within 90 days of a commercial discovery being declared, to acquire from the contractor a further percentage interest in the discovery. Under the Model Petroleum Agreement, the percentage to be acquired is a biddable item and subject to negotiation. GNPC is required to fund its share of costs relating to its additional interest. Fiscal regime Pursuant to the terms of the Model Petroleum Agreement: the state is entitled to a percentage of the of the volume of crude oil (including condensates and distillates from natural gas) produced during development and production operations (excluding crude oil used for petroleum operations) as a royalty. The percentage is negotiable and depends on a number of factors: oil or gas resource, water depth, existing infrastructure, etc. The state can decide whether to take the royalty in kind or in cash. the state is entitled to an additional oil entitlement (AOE) in respect of each separate development and production area on the basis of the after-tax, inflation-adjusted rate of return (ROR) achieved by the contractor. This is calculated monthly and liability to provide the AOE starts once net cash flow for a month (revenues for the month, less one-twelfth of income tax due for the calendar year in question less petroleum costs) turns positive. The AOE escalates as the ROR increases and is subject to an 3

4 inflation adjustment based on the United States Industrial Goods Wholesale Price Index; after deductions of volumes for royalty (if taken in kind) and AOE, the contractor and GNPC share volumes of petroleum in accordance with their participating interests; the contractor is required to pay Income Tax as required by the Petroleum Income Tax Act. The prevailing rate is currently 35 per cent. Older forms of the Model Petroleum Agreement stated that no tax, duty, fee or other impost shall be imposed by the state or any political subdivision in respect of petroleum operations and the sale and export of petroleum, save as set out in Article 12. However, this provision has not been offered in more recent forms of petroleum agreement; exports of petroleum from are not subject to any tax or other duty; and the contractor may import all plant, equipment and materials required for petroleum operations free of any customs or other duties or tax. Local content requirements The Petroleum Law and the Model Petroleum Agreement contain provisions on local content requirements. Under the Petroleum Law, contractors and subcontractors must, as provided in regulations and a petroleum agreement or sub-contract so far as is possible: ensure that opportunities are given for the employment of ians with the requisite expertise or qualifications in the various levels of the operations; use goods and services produced or provided in for their operations in preference to foreign goods and services; and 4 prepare and implement plans for the transfer to GNPC of advanced technological know-how and skills relating to petroleum operations provided that this does not prevent them from protecting their competitive position. The Government of has also been preparing a Local Content Policy, which will go much further than the current legislation. This could require, among other things: up to 90 per cent of particular parts of petroleum operations to be provided by local companies; for ians to hold at least a 5 per cent equity interest in any oil and gas block; and for specified percentages of management positions and employees to be filled by ians. Unless this policy is enacted into law, it will not have a binding effect, but could determine the grants of required permits since government agencies may be influenced by the policy in decision-making. However, a draft Legislative Instrument setting out regulations relating to the provisions of the local content and participation policy framework on the petroleum sector, was laid before parliament on 1 October Domestic Supply Obligations Under the Model Petroleum Agreement a contractor may be required to supply the state with a volume of oil based on a ratio of its entitlement to the entitlement of all other producers. The price is a weighted average of the market price for the month of delivery.

5 Transfer of interests Consents Section 8 of the Petroleum Law requires any direct or indirect assignment (in whole or in part) of a petroleum agreement to have the prior written consent of the Minister for Energy. Further, under article 25.1 of the Model Petroleum Agreement, any such assignment also requires the prior written consent of GNPC. The consents of both GNPC and the Minister of Energy are not to be unreasonably withheld or delayed. Article 25.1 provides that both GNPC and the minister may impose such reasonable conditions for giving their consents as are deemed by them to be appropriate in the circumstances. Under Section 23(16) of the Petroleum Law, a contractor or sub-contractor may not transfer any share or shares in its incorporated company to a third party, whether directly or indirectly, without the written approval of the Minister of Energy, if the effect of the transfer would be to give a third party control of the company or to take over the interests of a shareholder that holds 5 per cent or more of the shares in the company. Taxation Capital gains from the sale of an asset are treated as income and thus included in the income tax of 35 per cent discussed above. On a change of control, the buyer only claims tax credits accrued to the seller at the time of purchase. Stabilisation/equilibrium and dispute resolution Older forms of the Model Petroleum Agreement contains stabilisation provisions to the effect that the state guarantees the terms of the agreement and the fiscal and contractual framework, including specifically the Petroleum Law and its income tax law. To the extent that any legislative or administrative act of the state purports to vary any of the contractor s rights or obligations under a petroleum agreement, it will constitute a breach of the petroleum agreement. However, in more recent petroleum agreements these stabilisation provisions have been replaced with equilibrium provisions that require the parties to to re-negotiate the terms of the petroleum agreement to put them back in the same economic position that they were in when the petroleum agreement was signed. The Model Petroleum Agreement provides for disputes to be settled by international arbitration under the auspices of the Arbitration Institute of the Stockholm Chamber of Commerce, Sweden using the UNCITRAL Rules. We believe that ratification of a petroleum agreement by parliament binds the government to the terms of the agreement. Under the terms of the Model Petroleum Agreement, no VAT or stamp duty should be payable for any transfer. freshfields.com is a limited liability partnership registered in England and Wales with registered number OC It is authorised and regulated by the Solicitors Regulation Authority. For regulatory information please refer to Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of or any of its affiliated firms or entities. This material is for general information only and is not intended to provide legal advice.,, 35653