Joint Operating Agreements. Peter Roberts

despite the termination of the overall JOA, might be suggested.

      •Confidentiality – the undertakings of confidentiality that have been given by and between the parties in respect of the JOA (see 15.1) will often be expressed to continue to subsist for a defined period after the termination of the JOA.¹³

      •Ongoing disputes and defaults – there may be ongoing litigation or other disputes in respect of the JOA (whether between the parties or involving a third party), which will not conveniently come to an end just because the JOA has terminated. If the operator is performing its obligations in respect of litigation management (see 20.7), then those obligations (and the obligation of the parties to cover the operator’s costs of doing so) should continue until the relevant disputes have been concluded. The same principle will apply in respect of any unremedied default by a party and that party’s liability for that default (see 18.4).¹⁴

      •Indemnity obligations – where an obligation of a party to indemnify another party has arisen in accordance with the terms of the JOA, that obligation should not be extinguished simply because the JOA has come to an end.¹⁵

      •Ongoing entitlements – there could be certain legacy arrangements which are required to survive the JOA, such as the licensed use of intellectual property between the parties (see 15.4).

      As a further alternative to a provision that entails the continuation of the JOA in its entirety notwithstanding the termination of the concession, or a provision that is intended to apply in its own right as an ongoing commitment in isolation despite the termination of the JOA, the OGUK JOA provides that if there are (in the opinion of the operator) any obligations and liabilities arising out of the existence of the joint property (see 3.4) that are likely to subsist beyond completion of the decommissioning phase and the final accounting between the parties, then the parties will enter into a separate agreement with regard to such obligations and liabilities; and in the absence of such a further agreement, the whole of the JOA shall be extended and shall continue to apply.¹⁶

      This solution might apply to govern any general, ongoing liabilities that are to be settled between the parties (such as, for example, any ongoing, residual liabilities for decommissioning that might remain beyond the conclusion of the decommissioning activity), or between the operator and the non-operating parties, but might also apply, for example, to any arrangements made between the parties and any third parties for the use of the joint property (see 6.2).

      1A model form JSBA has been published by the AIPN (available at www.aipn.org) and by the AAPL (available at www.landman.org).

      2CAPL JOA head agreement; OGUK JOA §2.1.

      3AIPN JOA recitals; AIPN JOA §2.

      4OGUK JOA recitals.

      5AMPLA JOA §2.

      6Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26.

      7Stocznia Gdynia SA v Gearbulk Holdings [2009] EWCA Civ 75.

      8AAPL JOA §26.1; AIPN JOA §2; AMPLA JOA §17.4; CAPL JOA §1.14; OGUK JOA §2.1.

      9AIPN JOA §2.1.

      10AAPL JOA §26.1; OGUK JOA §26.4.

      11AAPL JOA §26.1; AIPN JOA §2; AMPLA JOA §17.4; CAPL JOA §1.14; OGUK JOA §2.1.

      12AAPL JOA §26.1; AIPN JOA §2.

      13AAPL JOA §7.1; AIPN JOA §15.2; AMPLA JOA §18.7; CAPL JOA §18.00; OGUK JOA §19.1.

      14AIPN JOA §8.5.

      15AIPN JOA §2; OGUK JOA §2.1.

      16OGUK JOA §2.2.