国际石油和天然气公司合同的风险管理论文

国际石油和天然气公司合同风险管理

 

国际石油和天然气公司（“IOGCs”）将重点着手于司法管辖，这样做是为了确定它们所从事工作的合同风险管理机制。

 

发达国家的预期低风险体现在由IOGCs调用的在这些司法管辖区的合同风险管理机制。例如，关于稳定条款的需要以及国际条约使用，下文展开的更详细的讨论，这将会受到质疑。

 

在比较这样的机制将会调用发展中国家的资料，发展中国家在开发中被认为是高风险的国家。因为IOGCs在发展中国家运行是缺乏稳定性的，与此同时IOGC也可以尝试分散风险或试图确保不会发生这样的事情。 [1]

 

反之也不能保证这样的机制将会得到IOGC在其中投资的国家政府的承认，同时IOGCs可能要在其他方面管理风险，如寻求强大的国内或本土的支持，或者是政治援助。

 

International Oil and Gas Companies (“IOGCs”) will look to the jurisdiction in which they are operating in order to determine the contractual risk management mechanisms that they will engage.

 

The envisaged low risk of developed countries is reflected in the contractual risk management mechanisms invoked by the IOGCs, in these jurisdictions. For example, the need for stabilisation clauses and the use of international treaties dealt with in more detail below will be questioned.

 

In comparison such mechanisms may be invoked in developing countries that are deemed to be high risk. Where there is a lack of stability in the countries in which the IOGCs are operating, the IOGC may also try to spread the risk or attempt to insure against it. [1]

 

Conversely there is no guarantee that such mechanisms will be recognised by the Government of the state in which the IOGC is investing and IOGCs may have to manage their risk in other ways such as seeking out powerful domestic or home state support, or political assistance. However, there is always a danger that such political assistance could veer into the realm of corruption and IOGCs must ensure that they do not fall foul of any applicable bribery legislation or NGO requirements. [1] 6

 

The type of project will also have a significant bearing on the risk management. Value extraction is significantly difficult for IOGCs to achieve in upstream projects where the host state invariably dicates the structure and terms for exploration and production activities.

 

Contractual provisions often fail to provide as much comfort as IOGCs may hope for, particularly if it is a previous administration or regime entered into the contract.

 

The contractual risk management tools themselves can be considered under the remit of two headings, the terms of the contract itself and international law.

 

1.Contractual Terms

 

Many risks are difficult to control by contract such as geological matters, technical issues [2] and a concern that the host country may expropriate or nationalize the company’s operation [3] either directly through legislation or indirectly through interference with the investor’s freedom to control the enterprise and make a profit. [4] Despite these obstacles an IOGC will attempt to minimize its risks as best it can through its choice of contract provisions.

 

2.Stabilisation Clauses

 

A prime example of how IOGC’s have modified their contractual provisions in an effort to manage their risk and copperfasten their commercial expectation is in the development of the use of stabilisation clauses.

 

A stabilisation clause has been described as:

 

“contract language which freezes the provision of a national system of law chosen as the law of the contract as of the date of the contract in order to prevent the application of the contract of any future alterations of this system.” [2]

 

Stabilisation clauses attempt to address political risk and represent specific commitment by a host state not to alter the terms of the agreement by legislation or otherwise without the consent of the IOGC. [5]

 

“Traditional” stabilisation clauses took the form of an “intangibility clause” which provided that a Government could not “unilaterally” modify or terminate the contract or a “stabilisation clause stricto senso” which provided that the governing law of the contract would be that of the contracting state at the time the contract was executed.

 

Widely regarded as the more contemporary form of stabilsation clause the “good will” or “good faith” clause endeavours to preclude unilateral modification or termination of the contract terms and also ensure that an IOGC will be compensated if a Government carries out an action that has a detrimental effect of the contract thereby protecting to a greater extent its commercial expectation. The basic premise of such a clause is that the terms of contract will be readjusted to maintain the IOGC in the same financial position by means of compensation as it was when the contract was signed.

 

A conflict between the recognition of a stabilisation clause and the recognition of national law can sometimes arise. Courts have on occasion made it clear that while stabilisation clauses will be recognised, they are not intended to prevent the host State from carrying out lawful nationalisations having regard to international law. This was the finding of the court of arbitration in the ICSID award of March 31 1986 in Liberian Eastern Timber Corporation (LETCO) v Liberia [8] which stated:

 

“this clause commonly referred to as a “Stabilization Clause” is commonly found in long term development contracts and as in the case with notification procedures of the Concession Agreement, is meant to avoid the arbitrary actions of the contracting Government. This clause must be respected, especially in this type of agreement. Otherwise, the contracting state may easily avoid its contractual obligations by legislation. Such legislative action could be justified by nationalization which means the criteria described above…”

 

Another issue that the Courts must consider is whether a stabilisation clause in a contract prevents a state from exercising its normal power to expropriate. Governments have argued that such an outcome would violate the state’s sovereignty over natural resources. [1] 3

 

In the case of Texaco Overseas Petroleum Co and California Asiatic Oil Co v Government of the Libyan Arab Republic (“TOPCO”) [6] , the arbitral tribunal held that “the right of a State to nationalize could not prevail over the stabilisation clause” of a concession contract.

 

In the case of Kuwait v American Independent Oil Co (“Aminoil”) [7] the time period referred to in the stabilisation clause had expired thereby rendering it inapplicable however the tribunal held that Kuwaiti law applied and that Kuwaiti law incorporated international law which in turn compelled the tribunal to consider the effect of the stabilisation clause on the plane of international law.

 

It must however be noted that in both these cases expropriation had already been established. Where a State’s acts or interference with the contract do not amount to expropriation but violate certain standards of treatment i.e. fair and equitable treatment an international arbitral tribunal can still award compensation in the event of the breach of the stabilisation clause [8] .

 

More recent application of the principle of fair and equitable treatment was shown by the court of arbitration in the case of LG&E v Argentina [9] . The investor criticized Argentina for its failure to respect the provisions of the US Argentina BIT relating to fair and equitable treatment relating to the passing of the emergency laws in 2001 by the Government of Argentina to deal with the economic crisis and their effect on the Argentinean gas sector.

 

The court referred to the earlier decision of Tecmed v Mexico [9] on legitimate expectations on the part of a normal investor and found that the Argentina State had terminated guarantees provided for in law in the gas sector, violated legitimate expectations of the investor and consequently the fair and equitable treatment that it had a legitimate right to expect, the court going so far as to rule that the host State had gone too far in using its sovereign perogatives.

 

However, a Government could argue that certain enforcements such as amendments to tax and environmental legislation falls short of expropriation and the Governments failure to honour a stabilisation clause would thereby merely constitute a breach of contract and as such remain a municipal as opposed to an international law issue.

 

IOGCs utilise umbrella clause in an effort to transform a breach by the State of a contractual obligation into a breach of the applicable investment treaty and by extension making such it a breach of an international obligation.

 

In the case of LESI—Dipenta v Algeria [9] umbrella clauses were described as having “the effect of transforming violations of contractual commitments of the State into violations of this treaty clause and accordingly of giving jurisdiction to the court of arbitration set up pursuant to the treaty to hear the case”

 

While IOGCs utilise such provisions in an effort to minimize their risk by ensuring the applicability of international law and dispute resolution this does not necessarily tally with common’s laws perception of the intention of such clauses.

 

Recent rulings have not given investors the full security they expect to protect their investment and to arise on incorporation of such clauses.

 

In the El Paso [9] ruling, an umbrella clause was rendered inapplicable in contractual disputes except to the extent it was based on a violation of the standards of protection as set out in the Bilateral Investment Treaty (“BIT”). Any other contractual claim based on the breach of umbrella clauses was not found to lead to the jurisdiction of the court of arbitration set up in respect of BIT.

 

Pre-emption Provisions & Restriction of Liability Clauses

 

While the IOGCs endeavour to modify their contractual provisions to protect commercial expectation, there is always a risk that the terms they utilise in doing so may fall foul of the law applicable to that contract and by extension the legislator’s view of how the risks arising under contract should be allocated. This can be clearly illustrated in the case of pre-emption provisions and restriction of liability clauses.

 

Particularly in the case of upstream oil and gas projects, contracting parties to Joint Operating Agreements (“JOAs”) endeavour to ensure that they do not find themselves with an unsuitable potential buyer acquiring an interest in a project. The buyer’s unsuitability may arise because it does not have the financial or technical capabilities to fulfil its role in the project, the buyer may have an adverse impact on the decision making process of the Joint Venture or it is deemed unsuitable for political reasons.

 

Pre-emption and first refusal provisions are used by the parties to the JOA to ensure that they can veto against the inclusion of such unsuitable buyers in the JOA, however the legislature in certain jurisdictions have begun to prohibit their use, for example the UK Government has decreed that joint operating agreements entered into for UK North Sea Projects with effect after June 30 2002 may no longer contain “pre-emption agreements”. [10]

 

Similarly, restriction of liability clauses have long formed the backbone of risk management in oil and gas contracts. However again in certain jurisdictions the use of such terms is subject to judicial scrutiny.

 

Section 2 of the UK Unfair Contract Terms Act 1977 restricts the ability of a party to a contract to exempt itself from liability for negligence.

 

Pursuant to Section 2(1) [11] a contract term excluding or restricting liability for death or personal injury resulting in negligence will be wholly ineffective while liability for other loss or damage resulting from negligence may be excluded only insofar as the contracts terms are fair and reasonable.

 

In order to rely on this test of reasonableness, a party to an restriction/exemption of liability clause in a JOA would need to show that the parties in question are experienced companies engaged in the oil and gas business, are not of unequal bargaining power and that at the time the contract was made ought to have known that the insertion of the exemption clause was common practice in upstream project contracts of this type.

 

While there may be some joint ventures where the operator and the non-operator are of very unequal bargaining power in most cases it is likely that the clause is likely to be effective. [12]

 

Mutual indemnity clauses have also been found to be upheld, despite the apparent strictness of the section 2 [1] 0, notably in the London Bridge case [13] . This may be because the clauses in London Bridge were not construed as exclusions of liability for death and personal injury but rather exclusions of liability for claims by third parties in respect of same and therefore not covered by the strict prohibition in section 2(1).

 

Renegotiation Clauses

 

A further example of attempts by IOGCs to minimize their risk through the use of certain contractual provisions that is not always recognised by the Courts is in the use of renegotiation clauses [8] .

 

Certain contracts will state the amount to be paid by the public party to the investor on breach of such a clause, however the validity of the clause will be considered having regard to the law applicable to the contract. In the case of National Oil v Libyan Sun Oil Co. [9] , the clause stated that the sum of US$100 million would be paid by Libya in the event that an American investor could not carry out the operations envisaged in the contract. The court held that the sum was “grossly exaggerated” and reduced it pursuant to Art 227 of the Libyan Civil Code to US$20 million.

 

Forfeiture Clauses

 

Risk is often managed in JOAs through the use of forfeiture clauses. These provisions allow the joint venture partners to forfeit the interest of a defaulting party under the JOA and the licence to which it relates.

 

The fact that under common law such forfeiture should represent a penalty or that equitable relief against such forfeiture has been well established although the general trend seems to be that courts are reluctant to interfere in the contractual arrangements entered into between commercial parties on this basis. [14]

 

However a further challenge to forfeiture provisions can be seen in the form of the Anti deprivation rule.

 

The rule essentially provides that there cannot be a valid contract that a person’s property will remain his until bankruptcy but then transferred to another party on his insolvency and therefore be taken away from his creditors. In a JOA context if a party has defaulted on their share of the payment of operating costs, the non-defaulting members of the JOA will have to make up the shortfall pro rata. If the defaulting party fails to remedy this, then in the case of a total forfeiture clause, each of the non-defaulting parties typically has the right to have the defaulting party’s interest under the licence and JOA forfeited to them in proportion to their existing interest. Following the principles on anti deprivation clauses set out in Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd [15] if the forfeiture provision was applied before the licensee goes into any formal insolvency procedure (even if technically insolvent or unable to pay its debts) then the rule will not be applicable.

 

However if the forfeiture provision is applied after a defaulting party goes into administration, it may be invalidated by the anti deprivation rule.

 

Clauses of Force Majeure

 

Clauses of force majeure stipulated in investment contracts are generally drawn up and provide a list of events which if they occur are to be considered to be a case of force majeure having the effect of suspending the obligations of the affected party.

 

IOGCs have endeavoured to extend the classic common law definition of Force Majeure to allow for legislative change, rejection or revocation of administrative authorisations or permits necessary for the operation of a project to be covered for the sole benefit of the private investor. [16]

 

Contractual Regime

 

A further way in which an IOGC will endeavour to protect its commercial expectation is through its choice of contractual regime.

 

Under a Production Sharing Agreement (“PSA”), an IOGC will generally bear the costs, risks and expenses involved in the exploration, production and management of the reserves and in return will receive payment by way of a share of the resource that is produced. The benefit of this arrangement for the IOGC is that it has a closely defined equity/ownership interest in its share of the resource produced from the outset. [17] The disadvantage is that if no oil is produced, the IOGC will not be able to recover its costs. [18]

 

In comparison under a Service Contract Development Regime, the IOGC is remunerated for its services by way of a fee and does not take any proprietary interest whatsoever in the resources exploited and produced. The service fee will cover the costs incurred by the IOGC together with an agreed additional fee as compensation for the risks and liabilities borne by the IOGC.

 

The crucial distinction from an IOGC’s perspective is the level of risk involved in the project. Projects in producing fields typically carry risks that an IOGC could regard as justifying equity returns and therefore they can be more flexible about the contractual regime adopted. However, common law can also dictate the contractual regime adopted. In Iraq for example, the Hydrocarbons law allows for either of the contractual regimes to be considered. [3]#p#分页标题#e#

 

International Law

 

Investment treaties provide another level protection to the IOGC investor who may not be feeling comfortable relying on national and possibly easily changeable legislation and contract clauses that may not always be recognised in local legislation.

 

A Bilateral Investment Treaty (BIT) is entered into between two states to protect investments made by a national of either state and aims to provide a level of legal protection to the investor.

 

Protections commonly found in BITs include the right to fair and equitable treatment, protection against expropriation and nationalization and protection against breach of contractual obligations/umbrella clauses.

 

Multinational Investment Treaties (MITs) are similar to BITs. The Energy Charter Treaty (ECT) is an example of an MIT that seeks to protect and promote foreign investments in the energy sector in member countries. [19]

 

The use of BITs and MITs afford the IOGC the opportunity to arbitrate against host state Governments on the basis of international principles. [20]

 

In the case of Saudi Arabia –v- Arabian American Oil Co. [21] (“Aramco”), the Saudi Government challenged its concession agreement with an IOGC pursuant to which the IOGC held an exclusive right to transport the crude oil that it produced. The Saudi Government argued that any externally imposed restriction upon its right to exercise its administrative powers would constitute an infringement on its sovereignty. The Arbitral Tribunal held that Saudi Arabia had exercised its sovereignty to voluntarily bind itself to contractual obligations from which it could not escape by reinvoking its sovereignty.

 

Government Response

 

Governments have endeavoured to counteract attempts by IOGCs to protect themselves contractually from the external influences arising from the countries in which they operate.

 

A Government can respond by placing restrictions on the contracts either directly through the repudiation by the Government of the exploration and production contracts or indirectly through tax legislation, changes to regulations on royalties and production share, the establishment of environmental fees or other regulatory levies, and the imposition by regional or local authorities of special fees.

 

A Governments attempt to circumvent contractual attempts by IOGCs to protect their interests is perhaps best illustrated having regard to the regime in place in Kazakhstan.

 

One of the key threats that faces an IOGC in a country such as Kazakhstan is the right under the country’s municipal laws to amend or repeal legislation thereby creating a constant threat to the stability of an investment.

 

The Government in Kazakhstan has used this to great effect to challenge its oil and gas contracts with IOGCs.

 

In 2003, the Government in Kazakhstan revoked the 1994 Foreign Investment Law [22] that had stabilized the legislation applicable to foreign investors at the time they made their investment.

 

In 2004, Kazakhstan’s Parliament enacted the “Priority right” amendment to the Subsoil Law [23] , which gave the Republic a pre-emptive right to acquire an interest in any subsoil contract being offered for sale by an existing right holder, cutting off the rights of existing shareholders or consortium members whose contracts had allowed them first priority rights to acquire such assets. [24]

 

The Petroleum Law [25] in Kazakhstan provides that exploration and production contracts in Kazakhstan must be governed by Kazakhstan law so a foreign party cannot designate the choice of law governing the subsurface contract with Kazakhstan as a method of escaping Kazakhstan law.

 

Kazakhstan has also endeavoured to amend its legislation to weaken stabilisation protections especially in the Tax Code and in foreign investment legislation thereby weakening the enforceability and strength of stabilisation clauses.

 

At the end of 2004, two laws were enacted in Kazakhstan pertaining to arbitration, the Law on Arbitration and the Law on International Arbitration. Article 7.5 of the Law on Arbitration provides a list of exceptions where arbitration is prohibited and this includes where the issues “affects the interests of the state.”

 

Under the New York Convention Art.V.2 (a) if an issue is non-arbitrable under domestic law, recognition and enforcement of an arbitral tribunal may be refused. therefore it may be difficult to enforce a foreign arbitral decision in Kazakhstan on this basis.

 

Conclusion

 

Contractual risk management mechanisms assist in converting contracts with host states from “political understandings to at least to some extent, more legally affected contracts.” [1] 6 Without access to such mechanisms, the IOGCs’ oil and gas contracts may appear legally binding but are in effect closer to non-binding political understandings.

 

The abovementioned risk management provisions provide international and external “discipline” on host state conduct and allow for the imposition of litigation risk and cost on Governments.

 

However, these risk management tools were not able to prevent a widespread breach of contracts in economic emergency situations such as Asia in 1998 and Argentina in 2002, nor were they able to provide the full protection to international oil companies such as Russia, Venezuala or Bolivia where reliance on investment protection instruments would have meant a forced uncompensated exit from the country. [26]

 

While IOGCs are enjoying the utilsation of these tools to increasing success the underlining insecurity in less developed countries can never be underestimated as an ever-present investment risk.