Essay: Petroleum Contracts - Sustainable Strategies Analysis.

The emphasis is on a piece of independent research. Key to this is locating relevant resources and then analysing them to produce well-reasoned conclusions. Therefore the quality of the research and the ensuing analysis are important.

• Decision-making in joint operating agreements
• Operator liability
• Joint operating agreements and shale gas
• Force majeure in gas sales
• Agency and joint operating agreements
• Delivery obligations in gas sales contracts
• Joint operating agreements and LNG
• Contractual issues in relation to floating LNG
• Model JOA’s- should their use be compulsory
• Sustainability issues in petroleum contracting

Petroleum Industry Operations

Since the introduction of the industrial revolution, oil has been the source of energy to many companies, thus has facilitated direct and indirect development in most facets of the economies across the world. While the world is enjoying the commercial benefits of the petroleum industry, numerous problems are associated with the operations that when not successfully sustained, then the probability of the existence of life is reduced to the minimum level. Petroleum industry operations are environmental intrusive in nature thus resulting innumerous environmental problems throughout the operationscycle from the upstream to downstream stages.Being a natural resource, petroleum is subjected to the diminishing law, since the key stages include: exploration; development;production and abandonment. At the last stage, the resource cannot be renewed, thus without proper strategies, the countries with different resources will be unsustainable.

According to the expert, large natural resource extraction projects such as building, operating financingamongothers are classified under the single category ‘petroleum contract’. The petroleum contracten compasses numerous stakeholders such as the government of the host countries, engineering firms, transportation firms, community, financialinstitutions among many others. Over the past, petroleum contracts were drafted with crude oil in mind, and the pattern has continued to dominate the current petroleum contracts. The petroleumoperations are classified either under the onshore or the offshore and contain different contract. The offshore operations tend to be more expensivethan the onshore due to the facilities and the structures that are required. For example, deep-water drilling is too expensive than shallow water drilling that is common in the onshore, thus the former has differentcontract. The petroleum contracts are awarded to cover the natural resources with an aim of sustainable exploitation. Generally, the petroleum contracts are awarded under three main categories:Competitive bid that provides thecontract to the winningbidder; Ad hoc negotiations thatrequire an investor to ask for a particular land to explore after direct contractual agreement; first-come-first-served.

There are three different typesof petroleum constructs: concession, production Sharing Contract, and Service Contract. The concessions form the oldest form of cornstarchdeveloped in1800 in the United States is based on landownership. The concract denotes that the landowner has right on the element below the earth thus when a land is granted to a company, the natural element below the specified land is under the control of the company. The  PSC and service contracts, unlike the concessions, does not grant the company the owner of the natural element under the land thus states is the rightful owner of the resources identified below the ground and must contact the company to explore the resources. Through the system nature, where the partiesconsult one another, the revenues are shared thus the term sharing.

Types of Petroleum Contracts

Sustainable issues encompass all factors that are met during the operation of the petroleum industry such as political, economicand social that affects the development of the industry. These issues most of them occur during the contracting between the parties: Company,government,and the society.

Environmental degradation by the petroleum operations activities directly affects the sustainability of the petroleum industries and the type and contactawarding in differentcountries of the world. Most of the envelopment petroleum problems occur in the exploration, production and transportationstages that have resulted innegativeexternalities to both the human being and the wildlife. There are numerous environmental effects that result from the petroleum industry activities both in the local and the global level. The nature of the impacts differs with the nature of the activities such as exploration, transportation, and usage. During the explorations, such as drilling of the ground, numerous negative activities such as seismic actions, noise, vibrations and dust cause disturbance to the vegetation, wildlife, and the human being. These activities result in an exposition of dangerous chemicals such as hydrocarbons that increase the greenhouse gases, the salinity of the water, thus resulting in poor health status, diseases and even death. At the transportation stage, some of the risky happenings include petroleum spillage on the roads and water systems as aresult of an accidental collision of thevehicle, oil leakage from the broken pipes, thus causing serious damages to the vegetation and water system.

At the processing of the petroleum, there ishazardous waste generated on both the water and the sludge contains toxic substances such as toluene, benzene among other air pollutants such as carbon dioxide. These emissions cause seriousdisease such as breathingsystems sickness among people.The above environmental petroleum industry effects have impacted on the international petroleum organizations and various governmentsto poses serious requirement on the petroleum industry to curb the negative impacts on the environment. The strategies target reduction of hazardous wastes, emissions, proper transportation and rehabilitation of the production sites; majorly to make the petroleum industry.

In case of such occurrences that affect the environment, there are different models designed by differentcountries to address the emergencies. For example, the Iraq Model of Technical Service Contract denotes that “ in case of the occurrence such as oil spillage on the environment, the operator is required to inform ROC and the contractor shall immediately apply the relevant contingencies measures to restore the impacts to the normalcy using the Best International Petroleum Industry Practices’. On the same note, the Ghanian Model of Petroleum Agreement denotes that” if the petroleum operations results into any form of environmental pollution that has detrimental effect on, human, water, plant,animal life; the contractor is required to act promptly in accordance to the accepted Petroleum Industry practice to remove any damage and restore the status”. Comparing just the two models, it is clear that both have common trend and demand requiring the restoration of the environment, however, the policies fail to address how the cost is incurred; for example who pays the expenses incurred during the image resolution.

Sustainable Issues of Petroleum Industry

Due to the ambiguity of the cost responsibility, conflicts tends to arise between the stakeholders with each feeling the burden. On many occasions the cost is always left to the company, the recovery will be through the petroleum operations in either way and most probably, through raising of the prices.In the concession contract, such resolution cost is always received through deducting from the revenues collected from the petroleum sales. in case of production sharing contract, the oil company is entitled to share the cost through the produced petroleum to recover the incurred cost while in the service contract, the cost will be recovered from the fee paid form the company.

Petroleum is a natural resource by nature, thus the exploration of the elements entails the participation of numerous stakeholders such as the government, community and other business organizations. In most of the countries, the petroleum contractsare always provided by the government without consultation of various stakeholders especially the community. The innovation of the community leading to over exploration of the resources without the benefit of the community, the Age of Responsibility requires that organizations should not only focus on the profit but also focus on the ways on how to improve the wellbeing of the customers and the community. The discussions of the exclusions of the major stakeholders have impacted discussions on proper creations of sustainable development strategies, thus somecountries have designed procedures for adoption of the petroleum contract that require full access of the contactinformation.Numerous governmental and organizations have been under debates the role of public consultation on the petroleumcontracting and how to set the community participation policy in the contracts. Some of the debates have been successful while others have failed to be implemented to ensure the sustainability of the contract. Some of the countries that have successfully implemented the public participation in the petroleum contracting thus include; use of such as Azerbaijan; that have created parliament legal instrument that has ensured that all the petroleum contract are publiclydebated to ensure that it benefits all the population, and the best decision arrived at for the future sustainability.

The corporate social responsibility is a significant tool in every business in the current world that has so many environmental,economic, and social impacts. unlike the traditional business operations that were formed with the objective of making a profit, the current business aims at giving back to the society to remain relevant in the competing market. However, while there is still limited contention about how large can a CSR be, there is no agreed definition of the CSR at the operational level; how much can a business give back to the community to remain relevant and be sustainable, and the role of the stakeholders such as society and the government in assisting the business organizations to remain sustainable while giving back to the society.

Environmental Impact of Petroleum Industry

In numerous countries that are producing petroleum, the government and the community have a strong notion of CSR.  Issues regarding the petroleum contract and the CSR are observable in Kazakhstan and other countries; during the tenure of president Nazarbayev’s between 2006-2008, several issues such as the social investments programs, community developments, and education, transfer of skills from the companies to the community among others were addressed by variouscontracts. Before the licensing of the operations of the petroleum companies in those areas, the companies were required to provide clear explanation of how the contract is going to address the community in terms of education and training, public access to the company's environmental and other impacts of the petroleum operations activities,employment pact and development of the community such as the infrastructure. Some of the pre-requirements tend to be too expensive to other petroleum companies, thus deter them from accepting the terms, while other companies that have realized the benefit of the CSR, and the society, takes is as the business role to build the society.

These petroleum contractstend to be expensive, about 5-10 million USD per annum for large projects in countries such as Kazakhstan's, thus making the money to be significant revenues sources for such countries. The governance and the implementations of the social investment projects among many petroleum regions have remained significant issues, since without proper governance of the resources and the revenues in accordance to the grounded policy and priorities, there are little developmental impact received. Most of the resources gained from such contracts end up being utilized in other non-essential activities, thus making the social investment programs corruption to be a global concern.

Cost reversibility issues in respect to social and social development programs have also remained of concern in most of the petroleum countriesacross the world. In most cases, when there is a failure of the social investment programs within the contracts scopes, there is always the lowprobability of bringing together the joint venture partners on the discussion table. The cost recoverability might result from both aspects; projecting too low ceiling on the cost recoverability tends to disincentivize the company spending while the high setting of the ceiling tends to deprive the government the revenues. Generally, best practices of the petroleum contracts tend to encourage most of the companies to utilize business competencies and skills in providing community and social investments programs in alignment with the social investment policies and practices as mandated by the contract to ensure the sustainability.

Emergency Models in Addressing Environmental Pollution

It is imperative that every petroleum project in a region should have the capability of providing the local developmental aspects such as employment; however, most of the local content in regard to the petroleum contract tends to fail due to numerous reasons. The quality of the local economic development benefits received from the petroleum investments majorly depends on the economic opportunities in the regions such as the technical skills to offer employment and develop the business in the local area. The major issues thus arisewhen there is a conflict between the role of the region law and the initiatives that aim at promotinglocal content as well as the supply chain between the local supplies and the international companies. According to the World Bank, most of the petroleumoperators should have a ‘reservation price’ on the applied operation license thus when these companies are approached by respective governments to facilitate the economically viable local content activities, these will be perceived as requirements that are outside the ‘reservation price’. Thus in most cases results into a conflict that affects the sustainability of the contract and the existence of the petroleum in the region, since the company will lose the support of both thegovernment and the local community.

Some countries such as Kazakhstan have rigorous goods and services procurement regulations that continue to raise issues on the contract. For example, Kazakhstan’s Subsoil Law demands the holders of the petroleumcontracts produce products that are of Kazakhstan's origin; in that employment of Kazakhstan should be employed at different operations levels of the company with specified percentage representation. In such case, there are always numerous practical issues that arise in the implementation of such a demand, especially when there are limited skills among the targets population, thus cannot carry out the specified duty. In such cases, the companies always opt to break or bend the contracts that in many situations are not welcomed by the majority of the stakeholders, thus it is imperative for the company to avoid the amusement of such issues through educational and vocational training.

In most cases, the petroleum contractis always awarded to the foreigninvestors due to the high cost and the extreme risk incurred during the options that can not be sustained by the local companies. During the contractual period, some incidences that breach the contractual rights such as abrupt termination of the contract by his government might occur, thus all the foreign investor poses the compensation right. However, the benefit is always limited to the domestic business. Most of the contractbreachresolutionsapproach between the foreigninvestors and the host governments are always carried out at the international commercial arbitration courts since they are always non-bias as opposed to the transparency of most of the national legal systems. However, numerous debates have risen on the use of the international commercialarbitration, being termed as being opaque in nature, raises undesirable public concerns and might fail to realize theinterest of the public from the host country. Due to this ambiguity, it is thus imperative that every country develop a general rule in alignment with the international commercialarbitration and Law on Arbitral Tribunals to govern such issues.

Cost Burden of Environmental Restoration

It is the general public knowledge that most of the regions and countries with large petroleumresources are frequent to the political,regulatory and institutional uncertainty. These inconsistent changes tend to affect the operations of most of the foreign investors thus the ‘stabilization clause’ in the petroleum contracts are legal framework designed to manage the ‘non-technical risk’. The stabilization clause thus requires the host government to cease from reverting the contractual terms or even alter the legal system in a manner that will negativelyimpact the investmentoperations of the foreign petroleum company in case of such risks. Therefore, in the occurrence of such ‘non-technical risk’ governments that breach contractual stabilization clause are required to pay compensation to the affected companies, and this at times is always expensive and costly leading to raising of some issues.

In most cases, the governmentand the company are always forced to return to the table and draft new terms that will resolve the issues, however, in many cases the terms are not always fully satisfactory to either party. Consequently, issues arise when the foreign investment contract states that the host country law is in an application with exception of a particular piece of legislation that might have not beenextensively drafted during the signing, thus raises different interpretations of the law from both parties. Thus, there is a need for the new address of various stabilization clauses in various countries that the norms and regulations to efficientlygovern the investment project at the most controversialmoment. The parties, therefore, are always required to extensively discuss the pros and cons of different sides of the laws with different interpolations and understanding and have stabilized normative regimes within the petroleum contract. Most of the petroleum companies in the developing world consequently have made limited steps in producing renewable energy thus pay less attention to the sustainability issues during the contract award to the forcing countries.

It is in the global debate of the dramatic depletion of the petroleum sources, as aresult of over-exploitation. The effect of this is that the next generation is poised to lack sources of energy, thus the call by the international organizations to variouscountries and companies to develop and adopt alternative energy sources. However, the calls tend to conflict since the most promotes of renewable energy such as the United States, are the greatest consumers of the petroleum products. Most of the countries have developed sustainability models that are in accordance to the International Environmental Bests Practices, however, the practices always fail due inadequate skills and strategic approaches that will ensure that all the stakeholders are benefited with the operations. These conflicting interests make numerous countries tend to lack law compliance of the sustainable development of the petroleum contract. For example, most of the developing countries such as Libya suffers the lack of compliance of legislation even though there is numerous environmental legislation. The inadequate compliance with the legislation is attributed to the poor education and awareness among the population.

Stakeholders Roles in Petroleum Industry

Consequently, the sustainability issues concerning the petroleum industry in the developing countries are insufficiently cojoined in the developmental strategies resulting in unsustainable utilization of the natural resources for development.

The petroleum price is a global issue since it is bath and sold at many different prices across the world irrespective the available benchmarks such as the West Texas Intermediate and Henry Hubb used in determining the prices. The pricing of petroleum is affected by numerous factors such as technological change, the population growth, the increase of the global oil consumption, political dynamic among many others. The conscious change of petroleum prices hasfundamentally shifted the petroleum contracts since the 1960s, leading to the development of the nationalization of natural resources. The nationalization of resources led to the formation of contracts such as production sharing contract that requires that the host countries benefit from the exploration of the natural resources from the respective countries.

Corruption majorly the embedment of petroleum revenues has been on the rise across numerous petroleum producing countries and companies. Numerous petroleum scandals have risen in the stages of petrol contracting, whereby the most qualified foreign company is deprived operational license in the expense of the less qualified company. The corruption among these companies tends to distort the markets thus undermining the sustainable strategies that are put in place. For example, when an unscrupulous company is awarded a tender, the company will not successfully manage the natural resources thus leading to diminishing and pollution of the environment. Enhanced transparency in the contractual process has been perceived as a significant channel tomaintaining the sustainability developmental plan among the companies.

Conclusion

There are numerous commercial benefits of the petroleum industry as well as problems that are associated with the operations that when not successfully sustained, then the probability of the existence of life is reduced to the minimum level. Exploring various issues that are brought about by the petroleum industry, numerous sustainable issues have been covered concerning the constructing policies.  Petroleum contracts are awarded under three main categories:Competitive bid that provides the contract to the winning bidder; Ad hoc negotiations thatrequire an investor to ask for a particular land to explore after direct contractual agreement; first-come-first-served. The petroleum contracting, thus aim at ensuring that the natural resources majorly the petroleum sources are not exhausted and the operations are fully sustained to keep the wellbeing of all the stakeholders such as human being, plants, animals, governmentamong others. Enabling and enhancing the environment is perceived as the major issue that is arising from the petroleum companies, thus it is upon the business entity to be responsible on the operations, however, and issues such as reduced price, conflict of interests among others always arise in the process of sustainability.

Public Consultation in Petroleum Contracting

The identified sustainability issues entail transparency and public participation that requires all the contractual agreements to take the views of the community. Environmental degradation by thepetroleumoperations activities directly affects the sustainability of the petroleum industries and the type and contactawarding in differentcountries of the world. Most of the envelopment petroleum problems occur in the exploration, production and transportationstages that have resulted innegativeexternalities to both the human being and the wildlife.Inconsistent changes tend to affect the operations of most of the foreign investors thus the ‘stabilization clause’ in the petroleum contracts are legal framework designed to manage the ‘non-technical risk’ helps in addressing the inconsistent changes that are as a result of political instability that might affect the operations of the business.

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