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Introduction
This is the case for renegotiation of the Petroleum Agreements between the Government of Guyana and ExxonMobil (“Guyana-Exxon agreements”). In my article dated 8 December 2017[1], I wrote extensively on the nature and types of stability clauses and their pros and cons. Most notably, what the Model Petroleum Contract describes as a Stability Clause embodies the objective to provide assurance to international oil companies that they will be protected from any variation in fiscal or economic policies by governments for a period of as much as thirty years.
In the Guyana-Exxon agreements of 2012 and 2016, the Petroleum Prospecting Licence and Petroleum Agreement, respectively, modern stability clauses are contained in Clauses 32.1 and 32 respectively. In addition to barring the government from amending, modifying or negotiating for changes the agreement, the 2016 agreement purports to bind subsequent Parliaments from doing the same. This is contrary to the rule of law, separation of powers and common sense, and the Israeli decision of The Movement for Quality Government in Israel v Prime Minister HCJ 4374/15 demonstrated that stability clauses can be stuck down by courts if it is found that the clauses defy basic principles of the rule of law. This and other reasons motivated this case for renegotiation, which is both relevant and necessary, at this time.
Points to be considered
The case for renegotiation of the Guyana-Exxon agreements is based on the following facts:
- The Minister of Natural Resources, Mr Raphael Trotman, had no power to bind the entire country to an unfair petroleum contract, that is, he acted ultra vires.
- The Government of Guyana, through Minster Trotman, exceeded its powers by seeking to bind subsequent Parliaments.
- The non-provision for local content is ultra vires the Act.
- The provision for self-insurance is ultra vires the Act
- The grant of addition blocks of petroleum by the Minister is unjustified.
- The payment by the State of taxes payable for the oil companies is discriminatory.
- The contract was made under duress.
On the first fact, the case for renegotiation contends that the stability clauses contained in the Guyana-Exxon agreements fetter Guyana’s sovereign legislative prerogative as well as Guyana’s permanent sovereignty over natural resources. Deloitte reported that governments in developed countries decline granting stability clauses on the premise that they cannot bind a future government to the policies of the current administration[2]. The Israeli decision referred to earlier, The Movement for Quality Government in Israel v Prime Minister HCJ 4374/15 27 March 2016, the main issue to be determined was whether the Government of Israel in its executive power, had the authority to commit a stability clause which had the effect of binding future Governments, especially where the composition and ideology are different than the current one[3]. The court held inter alia that the actions of government were an affront to basic principles of administrative law against shackling authorities ability to govern. In addition, the court found that the stability clause was ultra vires and therefore invalid, in that it unduly restricted future governments from regulating their own affairs and market thus making the clause undemocratic and unconstitutional.[4] How then do we reconcile the Government of Guyana’s conformity to the Guyana-Exxon agreements with a clause of this nature when legal authority suggests that principles of administrative and constitutional law are being abrogated?
In addition, the address the second issue, the Nigerian case of Niger Delta Development Commission v Nigerian Liquefied Natural Gas Company Limited, Suit Number FHC/PH/CS/313/2005, unreported Judgment, 11 July 2007, in addressing the issue of the legal validity of legislative stability provisions, held that it is unconstitutional for investment statutes to fetter the power of the National Assembly, that is the legislature, from making law, a right acknowledged by the Constitution.[5] In Guyana, Article 65(1) of the Constitution of Guyana provides that subject to the provisions of the constitution, Parliament shall make laws for the peace, order and good government of Guyana. Therefore, the principles of constitutional supremacy dictate that it is the power of Parliament to make law and this is subject to the constitution, and any provision contrary to this constitutional mandate ought to be deemed unconstitutional and invalid. It is therefore my submission that Clause 32 of the 2016 Guyana-Exxon agreement severely impinges on the constitutional powers conferred on present and future Parliaments of Guyana and as such, the case for renegotiation is open.
Special Rapporteur Victor Cedeno on Unilateral Acts of States reported that, in the interest of legal security, certainty, predictability and stability to international relations and to strengthen the rule of law, an attempt should be made to clarify the functioning of this kind of acts and what the legal consequences are, with a clear statement of the applicable law. It is my submission that the actions of Minister Trotman and the Government of Guyana are unilateral acts which purport to bind future governments to an unfair arrangement, and this should be renegotiated.
While certainty and predictability are important to oil and gas arrangements, it is submitted that law is intended to be fair, just and reasonable. Oxford Institute for Energy Studies (2016) recorded that modern stability clauses are legally workable when they are beneficial to both the government and oil companies. However, the effectiveness of such post 1990-stability clauses in developing countries is questionable particularly where such countries lack the administrative capability, a non-discriminatory and fair tax system, and credibility in general government policy, investment laws and the judiciary.
Similarly, an article published by the Oxford Energy Forum by Curtis Chairman George Kahale on “The Uproar Surrounding Petroleum Contract Renegotiations” highlighted that petroleum agreements should renegotiated when:
- the agreements were entered upon at a time when the host country was politically or economically weak, or was badly advised,
- the consequence being a contract that put the host country at a clear disadvantage.
- Later the country, usually under a new political regime, realizes the problem and seeks renegotiations
While the principle of pacta sunt servanda has often been raised by oil companies to justify the continued enforcement of unfair petroleum contractual terms, Skyes on Oil and Gas Law: Renegotiation notes that the inclusion of a renegotiation clause or negotiated economic balancing clause is important through the oil and gas cycle because it ensures that the parties are not put in to a position which exposes them to exploitation in an unconscionable manner.
There are three well-known renegotiations or industry restructurings in the oil and gas industry over the last few years involved the operating service agreements (convenios operativos) in Venezuela, the gas production contracts in Bolivia, and the renegotiation of the world’s largest production sharing agreement, the one covering the Kashagan field in Kazakhstan. However the case of renegotiation for Iraq left the Iraqi governments undertaking greater risks of compensation and infrastructure than they had before.
On the third fact of the non-provision of local content, it is submitted that as part of fair negotiations, the provision for the supply of only local content of host governments by oil companies is an essential feature of stability contracts. This ensures that on the balance in favour of the government, resources will be utilized by oil companies that can increase the revenue of locals. On the contrary, the Guyana-Exxon agreements demonstrate a deviation from this expectation in favour of all Guyanese. However, there has been no part of the clause that appears unfavourable to Exxon.
On the fourth point, again the Guyana-Exxon agreements is one of a kind in allowing Exxon Mobil to self-insure versus domestic insurance in Guyana, which is an affront to the entire system involved in regulating the business of oil companies and ensuring that Guyana is not exploited.
On the note of the discriminatory taxation provision as contained in the stability clause of the 2016 Guyana-Exxon agreements, the Government has undertaken to pay taxes for ExxonMobil that are otherwise payable for them. While oil companies are ordinarily responsible for paying their own taxes whether under a system of deferral or subsidy, there are no reported cases of governments paying taxes for oil companies. Thus, instead of Guyana earning extensively through taxing Exxon Mobil, the country is instead likely to run into high debt as early as 2020. This is quite unfortunate and beckons the call for renegotiation in a louder and more desperate way. Why should giant oil companies be allowed to rely on unfair terms which affect the economy of a nation? As alluded to earlier, common sense and good faith has been demonstrated in the cases of Venezuela, Kazakhstan and Bolivia to show that renegotiate is ideal is ideal and necessary in unfair petroleum contracts. In addition, this raises a satellite issue that will be considered on another occasion, that is, the role of the Chief Inspector in ensuring that the Guyana’s oil sector is properly managed[6] and not expose the economy to sudden downfalls.
On the final note of the contract being made under duress, this further justifies that the contract in itself that not satisfy the elements of voluntariness and capacity that are essential features to agreements. The absence of voluntariness in this instance seriously undermines the capacity of the weaker contracting party and also makes the contract voidable.
The case for renegotiation has been considered by the competent courts and demonstrates that an order of court will allow defective petroleum agreements to be reviewable, modified and renegotiated. The case of Associated British Ports v Tata Steel UK Ltd [2017] EWHC 694 (Ch) considered whether to declare unenforceable a price review provision as an ‘agreement to agree’. Similarly, the arbitral tribunal in Ampal-American Israel Corp. et al v Arab Republic of Egypt (ICSID Case No. ARB/12/11) gave insight into the operations of the termination provisions in a gas sales agreement for non-payment. In these circumstances, it is evident that the Guyana-Exxon agreements cannot arbitrarily or unilaterally remove the jurisdiction of the courts to declare that the agreements are open for scrutiny and interpretation, and can be renegotiated. The question is, who will challenge these poorly drafted and unfair agreements between Guyana and Exxon Mobil, before a court of law?
Conclusion
It is my ultimate and
concluding submission that the weaknesses in Guyana-Exxon agreements trigger
the case for renegotiation. The stability clauses contained in these agreements
are excessively favourable to the oil companies contracted at the expense of
the rule of law, common sense and modern governance. Therefore renegotiation is
necessary and relevant. This renegotiation is in lieu of the fact that the
principles of common sense, the rule of law and pacta sunt servanda dictate
that agreements of this nature should be fair, reasonable, non-discriminatory and
equal, and observed in good faith. It is my submission that the only stability
guaranteed under the Guyana-Exxon agreement is Exxon’s, and this is unfair,
unreasonable, discriminatory, and inequitable to the people of Guyana. It is my
submission that this agreement was not drafted or entered into in good faith
and therefore a competent court should direct that this be done.
[1] Article 26
[2] Page 8
[3] The Movement for Quality Government in Israel v Prime Minister HCJ 4374/15 27 March 2016
[4] The Movement for Quality Government in Israel v Prime Minister HCJ 4374/15 27 March 2016
[5] Gjuzi, Jola. (2018) Stabilization Clauses in International Investment Law: A Sustainable Development Approach, Springer: Switzerland pgs 195-196
[6] Article 9