Oil and Gas Oil and Gas Contract LawContract Law

Eleni, Nina, Thelys, Nathan

TopicTopic

Oil and gas exploration and production contracts represent a balancing act between national oil Companies and Private International partners. Critically discuss, providing examples of the experience of one country, or several in comparison.

ContentContent

1) Introduction

2) Types of Contracts and the Change of Balance between NOCs and IOCs

3) Examples of countries (Indonesia, Venezuela, Nigeria and Canada)

4) Conclusion

1) Introduction1) Introduction

The history of oil business began in 1859 in Pennsylvania, when Edwin

L. Drake devised a way to drill a practical oil well. Since then many

things have changed and developed, including the international oil

agreements and the roles and powers of the oil market players.

A.The Concession Regime:

B.Concessions are the 'original' or oldest form of petroleum contract.

C.The rationale was to attract foreign investment as the States were unable

to exploit their natural resources due to the lack of adequate information,

skills and technology.

D.The classical CAs, however, did not produce a mutually beneficial

relationship. This is because: The NOC used to sign a long-term contract/

the foreign company had full control /the host country had no rights .

E.The modern form of concession, grants an oil company, through a

bidding process, exclusive rights to explore, develop, sell and export oil

extracted from a specified area for a fixed period of time.

IntroductionIntroductionStates wanted greater control over the natural resources=> creation of NOCs

The First NOC was created in Austria in 1908

•There were information asymmetries between the Host Governments and

International Oil Companies. The scale and the technological complexity of the

industry combined with the State's lack of information and expertise was

undermining its bargaining strength.

•Access to this information would be easier if a NOC was set up and would

provide greater control and power to the Government.

•Through the NOC, the State would participate in the oil industry and would

enhance the government's role from a mere tax collector to also participating in the

accumulation of capital.

2) Types of Contracts and the change of balance between NOCs and IOCs2) Types of Contracts and the change of balance between NOCs and IOCs

In 1933, the Saudi Government granted a concession to Standard Oil of California,

which secured the first contract to drill oil in Saudi Arabia.

Each country's socioeconomic objectives and characteristics, the need for access to

advanced technology as well as other variables, affect the interplaying roles between Host

Governments and IOCs, thus the type of contract they choose. Although concessions are

still being used, they are not a popular choice for NOCs because of the development of

other types of contracts.

A) Production Sharing Contract (PSC)

•The oil is owned by the State and the IOC is only brought in to explore the field => the State now has the power to regulate and decide on how to use its share of the production.

•The IOC operates at its sole risk and expense => shift of risk, thus the NOC does not lose capital on exploration investments in case no commercial discovery occurs.

•Usually there is the establishment of a partnership organisation between the NOC and IOC for monitoring and decision-making process => both sides bring different strengths to the relationship and utilize sources in the most economical and effective way; the government's role in the management of oil operations and activities is enhanced to the NOC's participation in different aspects of the exploration and development process.

Production Sharing Contracts (PSCs)Production Sharing Contracts (PSCs)

• Requirement by the State that the Contractor must train a certain percentage of local people => The NOC through the years has better access to important information that strengthens its power and position in negotiations with major IOCs, because by working with these companies, technical, environmental, financial, commercial and legal expertise become accessible to the NOC.

• Through PSCs the government can offer incentives to the IOCs => useful during the renegotiation process, where both parties will try to improve their positions or one partner will try to improve its own without the other one losing anything; neither party will be worse off.

B) Joint Ventures (JVs)B) Joint Ventures (JVs)

• This agreement involves the State, through a NOC, entering a partnership and working together with one or more oil companies, or private companies working together. It is the joint venture itself that is awarded rights to explore, develop, produce and sell petroleum.

• Management of the undertaking is divided: Operator : designated person as an agent of the participants responsible for the performance of specified activities.Operating Committee: it has the power to determine certain matters and upon this committee the participants are represented and entitled to vote in accordance with their interests in the venture.

Joint Ventures (JVs)Joint Ventures (JVs)

• Under the Contractual JV Host States and IOCs own both the equipment and the facilities of the project => direct ownership of the project and the production.

• Both parties, Host States and IOCs, are jointly and severally liable for the obligations of the ventures => Incentive for both parties to act responsible in order to promote and maintain their interests at a satisfactory level.

C) Service ContractsC) Service Contracts

• This contractual agreement came about at the same time as many petroleum producing countries were bargaining their independence and was part of the so called 'resource nationalism'.

• The IOC is engaged by the regulatory authority or the NOC, as the government's representative, to conduct petroleum exploration for a fee or a share in the production.

• The IOC provides the State with technical services and information related to the development of petroleum resources => the NOC gains important information that gives the ability to the NOC to have sufficient knowledge and depend less on the IOC, thus, its bargaining power is strengthened.

C. Service Contracts (SCs)C. Service Contracts (SCs)

• Under the Pure Service Contract, a pre-agreed fee is paid to the IOC for performing a specified service => the State bears all the risk and the IOC acquires an interest in the extracted source.

• In the case of a Risk Service Contract the IOC bears all the risk of exploration and if commercially exploitable resources are found, the IOC receives cash remuneration, in addition to a possible stake in the subsequent enterprise.

From a developmental perspective, they offer the most independence to the State. The Government exerts greater control over the exploration and exploitation of its resources as the IOCs are brought in to accomplish carefully delimited tasks/services, therefore the State's bargaining power is enhanced.

Risk and Reward TableRisk and Reward Table

3. Examples from Different Countries3. Examples from Different Countries

A) Indonesia

• Indonesia introduced the PSCs in 1966 with the main aim for the State to retain ownership of the petroleum produced. => Focus on attracting foreign investors, on the balance between between State's revenue and the company's profit, while strengthening the role of State management in oil and gas activities.

• Indonesia is one of the countries where the NOC (Pertamina) has a say in determining the commerciality of a petroleum finding.

• Pertamina and the IOCs that is working with, have representatives in an operating committee and both sides participate in management and decision-making.

IndonesiaIndonesia

•The Government focuses not only on the take, but on how the latter is extracted as well.

•With the PSCs, the Indonesia Government has a high participating interest, normally 60-85% and the right to assign its own staff to the joint operating company. The IOC's profits after tax and cost recovery are about 15-35%.

•The PSC includes terms related with the organisational and legal structure of a complex relationship between Pertamina and its foreign partners. The influences observed in these contracts came from the political and commercial tensions that led Pertamina and its international contractors to modify the PSC, mostly in its fiscal terms.

IndonesiaIndonesia

•At some point there was severe imbalance in the relationship of Pertamina and its foreign partners => expansion of the NOC and financial mismanagement, resulted in a model where bureaucrats without adequate expertise or exposure to risk prescribed specific management actions to IOCs.

•Evidence from Indonesia has indicated that the PSC needs additional provisions that define the operating relationship between the two parties and bring more balance. Governance mechanisms are among these provisions.

B)VenezuelaB)Venezuela

• Venezuela has some of the largest oil and natural gas reserves in the world and was the world’s sixth-largest net oil exporters. Oil industry is the country’s foundation of economy.

• Petróleos de Venezuela S.A (PDVSA), established in 1975 by the Organic Law that Reserves the Industry and Commerce in Hydrocarbons to the State.

• Venezuela nationalized its oil industry in 1975-1976.

• Along with new production comes from reservoirs under development and mature fields through water and natural gas injections, as well as average 111 rigs annually in operation.

VenezuelaVenezuela

• According to PDVSA, phase one of the plan includes the following axes:

-Magna Reserve: As Venezuela has 77 billion barrels of petrol and the Orinoco Oil Belt has a registered 235 million barrels, the company will work to quantify and certify all oil reserves in the Orinoco Oil Belt.

-Orinoco Project: Along with the help of IOC 27 blocks will be developed under this hydrocarbon reserve.

-Delta-Caribbean Project: The goal of this project is to develop offshore gas in the Deltana Platform, located off of the eastern coast of Venezuela. Additional development sites are located in the country’s northwestern Paraguaná Peninsula.

• However PDVSA is one example on how exploration and production agreements could be affected by the deficient legal stability and security for private foreign investors. Unfortunately, the government strategy to nationalized or expropriated companies is considered an issue of IOCs to invest or operate in Venezuela.

VenezuelaVenezuela

• The Ministry of Energy which formulates policies and acts as the regulator, requests PDVSA to have at least 60 % of participating interest in each joint venture with IOCs => excessive regulatory framework; high levels of price control => reduced the competitiveness of the Oil and gas Industry.

• As a result, currently foreign investors are involved in 49% JVs involved in extraction and productions activities; however, these agreements have derivate in 21 mixed companies where Venezuela has between 60% to 75% of shares with NOCs from Russia, China, France, Iran, Vietnam, Argentina and Brazil.

C) NigeriaC) Nigeria

• Oil and Gas operations effectively commenced in 1956.

• Prior to 1956, the whole country was almost covered by concessions granted to companies to explore for petroleum resources.

• Nigeria gained OPEC membership in 1971 and then began firmer control of its oil and gas resources in line with the practice of other members of OPEC.

• The setting up of National Oil Company with the sole objective of monitoring the stake in the exploitation of the resource.

NigeriaNigeria

• Multi-National Oil Companies allowed to continue operations under Joint Operating Agreements (JOA).

• The JOA’s made clear provisions for the respective stakes of the companies and the Nigerian Government in the venture.

• Complexity of operations in offshore terrain.

• Inadequate funds from the Nigeria Government to continue to fund JOA’s.

• Intention to increase the oil and gas reserves and production capacity with no capital to back it up.

NigeriaNigeria

• The need to have a funding arrangement that will achieve Government objectives and without having a negative impact on the scarce resources available for investment in other sectors of the economy.

• The Nigerian Government does not want to be alone in the decision-making and responsibility for the project.

• The Nigerian Government has not got the expertise required for the work so they want to count on the expertise of a major oil company.

• The Government wanted to share the profits of the IOC’s on top of any other remuneration like taxes or royalties.

D) CanadaD) Canada

• Canada is specific in that it does not have a NOC.

• Federal state with divided jurisdiction from federal to provincial level and territorial level.

• O&G production is regulated by legislation specific to each jurisdiction.

• O&G reserves are owned by the provinces in which they are located.

CanadaCanada• The instruments used to govern O&G exploration and extraction:

1) PERMITS

- confer the right to explore, drill or test for O&G, but not to extract oil and gas from specific land;

-the rights are not always exclusive;

-the term of permit can vary from 180 days to 5 years;

-can often be extended.

2) EXPLORATION AGREEMENTS

- confer the exclusive right to explore for O&G in a specified area;

-shorter terms that leases;

-can often be extended.

3) CROWN LEASES

-the Crown leases its O&G to companies with expertise, experience and the willingness to assume the risk of production;

-the length of a primary term varies from 5 to 15 years with the extension period from 1 to 10 years;

-the consent of the designated government minister is required to assign a Crown lease.

 

CanadaCanada

• Strong and well developed regulatory system on the federal and the provincial level; all O&G projects must first be approved by the regulatory body.

• Canada’s example has shown that country without NOC can still exercise management control and have balanced negotiations with IOCs and be just as effective at shaping their petroleum sector by having the skills, knowledge and laws to effect these goals.

4) Conclusion4) Conclusion

• When the oil industry began there were not provisions that allowed the state to participate in the decision-making process in agreements. IOCs enjoyed almost complete operational control.

• States began to assert their right to ownership and control of their natural resources and contracts began to include clauses stipulating joint decision making processes.

• With oil prices rising from the mid 2000s onwards, NOCs benefitted from improved access to capital which presented opportunities not only to build financial strength, but also to develop in-house technical expertise. => renegotiation of contract terms and conditions for many projects which signalled a shift in the balance of the relationship between NOCs and IOCs. Contracts between NOCs and services companies grew in size and importance over the same period.

ConclusionConclusion

• Countries without NOCs or management committees can exercise management control and have discussions with IOCs and be just as effective at shaping their petroleum sector by having the skills, knowledge and laws to effect these goals.

• NOCs going international:

  -NOCs have developed their competence to compete abroad;

- rapid increase in domestic energy consumption;

-competitive advantages of NOCs;

-new ‘category’ of INOCs will pose a serious challenge to IOCs.

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