Associate Professor Ivar Alvik Petroleum law lecture 2 Host government agreements Introduction the relationship between the host state and the oil company Three main aspects: What type of legal arrangement(s)? Specific rights and obligations in the relationship? HC regulatory powers and the applicable law Actors on the Host Country side (HC) The Host Government National Oil Company (NOC) The Oil Company side International Oil Company (IOC) multinational enterprise with foreign parent company IOC is often represented through local subsidiary Often Joint Venture with other IOCs and/or NOC 1
Different constellations: Simple constellation HCG Host government contract IOC Alternative constellation HCG License/concession NOC P S A Joint venture or license group - «Joint Operating Agreement» IOC IOC NOC Different legal instruments: Concession agreement «Modern» concession agreements and licenses Production Sharing Agreements (PSA) and other service agreements (e.g. Risk Service Agreements) State direct participation («participation agreements») 2
«Classical» concession agreements: HCG Concession contract IOC «Proprietary» right to explore and exploit resources in large areas Long duration 50 or hundred years Little or no state involvement No work commitment for the IOC Government take based on royalty (traditionally around 25%) Neutralization of government powers «stabilization» Modern concession agreements and license models HCG Concession agreement IOC 3
Modern concession agreements and license models HCG Joint Venture / License License group Modern concession agreements and license models HCG License Joint Venture / License group Exclusive right to explore and produce in limited area IOC becomes owner of all petroleum produced Initial short duration and obligations to relinquish but with rights to extend Extensive government involvement The IOC undertakes specific work commitment Government take based on royalty and/or taxes Based on extensive regulatory framework few terms in license 4
Production sharing agreements HCG NOC IOC License/concession PSA IOC undertakes commitment to explore and produce in certain area petroleum activities conducted as service to HCG HCG owns the petroleum but IOC receives a certain share of produced petroleum in kind as compensation for its services Production sharing (Royalty i.e. state exclusive share) Cost recovery ( Cost oil ) often limited to certain percentage Profit oil split between IOC and HCG, often progressive HCG share Usually taxation of IOC profits State direct participation NOC HCG License/contract IOC IOC and NOC are joint licensees usually based on Joint Operating Agreement (JOA) Shared costs and production but NOC costs may be carried IOC act as operator but NOC is secured influence and control (sometimes veto) through joint management committee 5
The rights and obligations: some crucial elements Duration Work commitment Cost recovery Development, production and operation Regulatory powers change in law and stabilization Applicable law and dispute settlement Duration Initial duration limited to work commitment but with option to extend Cf. the PA 3-9 Usually combined with duty (or incentive) to relinquish specified parts of the area Drill or drop 6
The Work Commitment The IOC commits to a work program as payment for the award of a contract or license Typically drilling of certain number of defined exploration wells or minimum expenditure Cf. the PA 3-8 work commitment is negotiated when license is awarded Ownership to data and information from HCG perspective important that drilling samples and all other data and information shall be provided to the HCG free of charge Cost recovery Recovery of the IOC expenditures and investments from the production Cost oil (PSA) or tax deduction (license system) Which costs can be recovered or deducted by the IOC? Contractual approval mechanisms NOC (or JMC) may have veto Ring fencing 7
Development, production and operation Development and production plan subject to government approval The PA 4-2 Right to build and operate pipelines and other facilities The PA 4-3 Often subject to regulations on third party access, cf. the PA 4-8 Production schedule The PA 4-4 Government control and approvals The HCG regulatory powers Generally subject to HC sovereign powers But may be subject to contractual «change in law» or stabilization clauses Two main types «freezing» and «equilibrium» clauses 8
Background: the purpose of stabilization Commercial investments are made based on expectations of future earnings; risk and uncertainty is an added cost Host countries with unstable and unreliable legal systems entail political risk the notion of «the obsolescing bargain» In order to compensate for political risks the host state grants very favourable conditions to the foreign investor If the investment is successful the investor reaps exorbitant profits Which again leads to political demand to nationalize or renegotiate Effective stabilization as an alternative offer of predictability Commercial lenders (banks and finance institutions) often require effective stability mechanisms to be in place Examples of classical stabilization clauses of the «freezing» type Intangibility clause The government will not without the agreement of the Contractor exercise its legislative authority to amend or modify the provisions of this Agreement and will not take or permit any of its political subdivisions, agencies and instrumentalities to take any administrative or other action to prevent or hinder the Contractor from enjoying the rights accorded to it hereunder. Freezing clause The Contract shall not be subject to any legislative provision which would give rise to an aggravation, whether directly or indirectly, in the charges and obligations arising from this Contract and from the legislation and regulations in force on the date of signing this Contract, unless as mutually agreed upon by the Parties. 9
Example of a modern «Economic Equilibrium» clause from a PSA If, following the Effective Date, there is any change or series of changes, in the laws or regulations of ( ) which materially reduces the economic benefits derived or to be derived by Licensee hereunder, Licensee may notify the Government accordingly and thereafter the Parties shall meet to negotiate in good faith and agree upon, the necessary modifications to this Agreement to restore Licensee to substantially the same overall position as prevailed hereunder prior to such change(s). In the event that the Parties are unable to agree that Licensee s economic benefits have been materially affected, and/or are unable to agree on the modifications required to restore Licensee to the same economic position as prevailed prior to such change, within ninety (90) days of the receipt of the notice referred to hereinabove, then either Party may refer the matter to arbitration pursuant to ( ) Example of a modern «Economic Equilibrium» clause from a PSA If, following the Effective Date, there is any change or series of changes, in the laws or regulations of ( ) which materially reduces the economic benefits derived or to be derived by Licensee hereunder, Licensee may notify the Government accordingly and thereafter the Parties shall meet to negotiate in good faith and agree upon, the necessary modifications to this Agreement to restore Licensee to substantially the same overall position as prevailed hereunder prior to such change(s). In the event that the Parties are unable to agree that Licensee s economic benefits have been materially affected, and/or are unable to agree on the modifications required to restore Licensee to the same economic position as prevailed prior to such change, within ninety (90) days of the receipt of the notice referred to hereinabove, then either Party may refer the matter to arbitration pursuant to ( ) 10
The applicable law and dispute settlement Ordinarily (i.e. without any other regulation) subject to the host state law and the host state courts E.g. in Norway, licenses and regulations are subject to administrative and constitutional law Even if contractually regulated, most contracts are subject to the host state law (but there are exceptions) This Contract, including any dispute arising therefrom, thereunder or in relation thereto and the agreement to arbitrate in Article 42, shall be governed by English law (except any rule of English law which would refer the matter to another jurisdiction), together with any relevant rules, customs and practices of international law, as well as by principles and practice generally accepted in petroleum producing countries and in the international petroleum industry. (Kurdistan model PSC 2007) But the contract may be subject to international arbitration Typically as alternative to or element of stabilization International arbitration as an alternative to municipal courts Two relevant forms of arbitration Arbitration clause in the contract Investor-state arbitration (ISDS) based on bilateral investment treaties Two main international arbitral regimes The 1958 New York Convention The 1965 ICSID Convention Common feature: awards based (partly) on international law, but enforceable under municipal law 11
ICSID artikkel 42 (1): The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable. ICC rules of arbitration artikkel 17: (1) The parties shall be free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law which it determines to be appropriate. (2) In all cases the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages. 12
International investment law: the BITsystem Global network of BITs (in addition to some multilateral regional or sectoral treaties) Investments in petroleum in extended-europe (Europe and central Asia) is subject to the multilateral Energy Charter Treaty (ECT) All BITs (and the ECT) have same structure and same standards of protection Definition of covered investors and investments Common substantive standards of protection Consent to settle individual claims through international arbitration Also reflective of customary international law that may be relevant in purely contractual arbitrations The main international law and BIT standards Expropriation only for a public purpose and against full compensation Minimum standard of treatment «Fair and equitable treatment» e.g. protection of «legitimate expectations» «Full protection and security» (protection of law, access to courts) Non-discrimination («National» and «Most Favoured Nation» Treatment) Observance of contracts and specific commitments («umbrella clauses») 13
Does international law contain any contractual principles relevant for petroleum agreements? Interpretation of stabilization commitments as an example principle of reserved powers? No presumption against stabilization, but the commitment must be clear and distinct Cf. Radio Corporation of America v China (1936): As a sovereign government, on principle free in its action for the public interest as it sees it, it cannot be presumed to have accepted such restriction of its freedom of action, unless the acceptance can be ascertained distinctly and beyond reasonable doubt. Principle of legitimate expectations as presumed intention? Duke Energy v Peru (2008); breach of commitment to preserve i.a. the continuity of the existing rules interpreted to have following meaning: (a) laws or regulations that form part of the tax regime at the time the LSA is executed will not be amended or modified to the detriment of the investor, (b) a stable interpretation or application that is in place at the time the LSA is executed will not be changed to the detriment of the investor, and (c) even in the absence of (a) and (b),stabilized laws will not be interpreted or applied in a patently unreasonable or arbitrary manner. 14