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Оглавление4. Managing state participation
The JOA might need to legislate for the possible participation of an entity representing the interests of the state that has granted the concession, where the concession contains or is subject to a form of state participation right.
4.1 State participation in the concession and JOA
In respect of the relationship between the state and the parties, the conventional formulation is that the state grants the concession to the parties in their capacity as the concession holder (see Chapter 2), and may have a right of approval of the form of JOA that the parties propose to adopt in respect of their horizontal relationship. Thereafter, the need for compliance by the parties with any ongoing reporting, audit or approval obligations (in accordance with the terms of the prevailing petroleum law or of the concession) should represent the extent of the state’s relatively limited involvement in the business of the JOA.
It may be, however, that the state also wishes to participate in the concession directly as a concession holder and so could (through an appropriate nominee) become a party to the JOA, with its own defined participating interest, to reflect that intended participation. The right of such state participation could be recited in the terms of the prevailing petroleum law or within the concession, and might be exercised through a state entity that exists for just such a purpose.
The principal necessity for such participation is usually expressed as being so that the state can secure a direct share of the produced petroleum for itself at the point of production, as a consequence of which the overall level of rent extracted by the state from the grant of the concession will be increased.
Such participation might also be helpful to the state in that it offers a window on the parties’ activities that might not be open to the state solely in its capacity as the grantor of the concession. This will enable the state to observe first-hand how technical, financial and management decisions are made in the context of the JOA, and the state may then be able to apply these observations towards the better development of its own national oil company and to the growth of the indigenous petroleum sector.
If the terms of the prevailing petroleum law or of the concession oblige the concession holder to provide training, education or employment opportunities to local nationals, the information access that such an obligation might provide to the state might obviate the need for exercise of a participation right, if the state’s primary motivation is to secure information.
Despite being on both sides of the concession, the participation of a state entity as a concession holder, with a position as a party under the JOA, should not arouse too much excitement if the state entity’s capacities are made clear. The state entity will ostensibly be, and will behave and be treated as, a conventional party, subject to all of the rights and obligations that the JOA imparts (except that the application of the remedy that the JOA provides in respect of a party’s default might be more difficult to achieve in respect of a state entity; see 18.4).
The AIPN JOA expressly considers the prospect of the participation of a state entity. The AIPN JOA also applies an optional formulation1 whereby, rather than admit the state entity to become a new party to the existing JOA, a separate JOA is entered into between the parties and the state entity solely in respect of the state entity’s participation. However, implementing such a subsidiary JOA adds another layer of complexity to the operating arrangements (and does little to encourage good relations between the parties and the state). If the real intention behind doing so is to frustrate the state entity’s ability to access production information within the primary JOA, then it overlooks the audit and inspection rights that the state might already have under the terms of the prevailing petroleum law or of the concession.
It is also sometimes the case in practice that where a state entity becomes party to the JOA, the non-state parties will enter into a separate JOA, purely to regulate their own internal relationship.
An alternative formulation, which is sometimes recited, is that state participation could trigger the entry of the parties (including the state entity) into an entirely new JOA.
Usually the concession provides that the state entity exercising a participation right is not required to make any payment to the parties in consideration of doing so, but this is not a given. If some form of payment or compensation is due from the state entity to the parties under the terms of the concession, then the JOA should provide for how that payment is to be disbursed between the parties (such as by reference to their participating interests under the JOA, or by reference to the proportion of the costs that they have each actually incurred in relation to the JOA).
Some commentators have suggested that having a state entity in place as a party to the concession and the JOA might help to reduce the risk of political interference with the concession and the wider petroleum project, on the basis that the state might be less inclined to affect adversely a particular project in which it has some investment. This might be true around the margins in respect of adverse state interference with projects on an individual basis, but it is not a reliable proposition and would do little to protect against state re-regulation across an entire petroleum sector. The JOA is not an investment protection agreement (even if the grantor of the concession is also, indirectly, party to the JOA through a state participation right), and should not be relied on as such. If there are wider regulatory or political issues that adversely affect the interests of the parties under the concession there is little that the JOA can do to help.
Some commentators have also suggested that having a state entity in place as a party to the concession and the JOA might help to secure some advantage in accessing infrastructure for the disposal of produced petroleum (see 12.4). Again, this might have a grain of truth to it in practice, but it is not a reliable operational proposition.
A form of state participation in the business of the JOA could also be represented by the requirements of a wider participation agreement, through the establishment of a joint operating committee structure under the terms of the concession or through a right of a state representative to attend operating committee meetings to be held under the JOA (see 8.2).
It may be that the state does not assume its position in the concession – and so its interest in the JOA – at the outset, but rather that it reserves an option (in the concession, and to be recited in the JOA as a reminder to the incumbent parties) subsequently to insert itself into these arrangements if it so wishes. The terms of the prevailing petroleum law or of the concession will usually limit the maximum amount of participation that the state entity can so secure, and this will be reflected in the size of the state entity’s participating interest under the JOA.
In respect of the Norwegian Petroleum Directorate (NPD) JOA (see 1.7), the Norwegian government has by legislation a reserved right to participate in the licensed activities through a specified management company. This right will be reflected by a corresponding participating interest in the relevant JOA, but will be applicable and effective only as a pre-emption right where any party transfers its interests to an entity other than an affiliate.2
If the state elects so to participate in the concession then, if there is only one party to the concession at the time of that election, it will be necessary for that party and the state entity to enter into a JOA for the first time. If, however, the concession is already held by more than one party, then it will be necessary for the parties to adjust their participating interests in the JOA such that the state entity’s participation is accounted for.
Where there is already a JOA in place, then to accommodate the state entity’s interest each party might be required to surrender a portion of its original participating interest in proportion to the aggregate of the original participating interests3 (unless the parties elect to adopt a different contribution ratio between themselves), such that by an accumulation of those surrendered participating interests the state entity’s participating interest is created.
The state will typically exercise a later-occurring participation right only after the exploration and appraisal phases (see 1.8) have ended under the concession and the JOA, and the operation has moved into the business of petroleum production and so revenue generation. This is so that the state entity can avoid the risk, uncertainty and expense associated with the exploration phase. If, however, the state exercises its participation right before that point, there will usually be a carried interest (see below), so as to protect the state entity from the economic burden of early participation in the JOA.
To protect the state entity from the risks which would ordinarily be associated with participation through the exploration phase each party might (in accordance with the terms of the prevailing petroleum law or of the concession) be required to contribute to the carried interest for the state entity’s share of the costs associated with the JOA, with the extent of each party’s contribution determined by reference to its original participating interest (see 3.2) pro rata to the aggregate of the original participating interests.
The AIPN JOA 2012 revision (see 1.7) introduced a major change in the form of an optional provision for the terms of a carried interest in favour of the participating state entity,4 with carried costs to be borne by the non-state parties according to their respective participating interests and provision for the subsequent repayment of the carried costs out of a portion of the state entity’s share of the produced petroleum. The guidance notes which accompany the AIPN JOA 2012 revision also suggest that the parties might elect to recite these provisions within a separate carry agreement rather than within the terms of the JOA itself.
A carried interest which is held by a state entity might be capable of being transferred to apply to the benefit of a third party, possibly limited by the requirement that the third party is another state entity. The JOA will need to address this mechanism with clarity and similar issues to how an affiliate of a party is defined for the purposes of the JOA (see 3.1) might apply in respect of the definition of such state entities.
1AIPN JOA §3.4.B.
2NPD JOA §23.
3AIPN JOA §3.4.
4AIPN JOA §§3.4.C to 3.4.F.
