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.
The JOA will record the date upon which it is signed by the authorised representatives of the parties, and will also define the date upon which it actually becomes effective and binding between the parties (which might be later than the date of signature in certain circumstances).
The JOA will have a duration that principally tracks the duration of the underlying concession, although the JOA can precede and go beyond the existence of the concession in certain circumstances. The JOA will also be capable of being terminated by or in respect of a party in a number of circumstances. Certain of the terms of the JOA might also be declared to have continuing existence notwithstanding the termination of the JOA.
This chapter begins with consideration of an agreement between the parties that could regulate their relationship prior to the JOA coming into existence.
This