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164

Clyde & Co's letter on Libya's new O&G regime

Oil & Gas Middle East partners with Clyde & Co to bring you an executive overview of the Libyan Oil and Gas regime and the opportunities it presents. Authors: George Booth and Dr Amir Kordvani

Oil & Gas Middle East partners with Clyde & Co to bring you an executive overview of the Libyan Oil and Gas regime and the opportunities it presents. Authors: George Booth and Dr Amir Kordvani

Libyan oil reserves, estimated at 47.1 billion barrels, are the largest in Africa and among the largest in the World.

A large part of these oil reserves lie in fields that have remained underexplored in recent years. There is also the possibility that new fields will be discovered and technological advances mean that enhanced oil recovery could increase production from existing fields.

As Libya recovers from the conflict in 2011, International oil companies (IOCs) are gradually lifting their force majeure and resuming operations in the country. At present, the oil and gas framework remains unchanged from what was in force under the old regime.

However, there are indications that the current legal framework is likely to change when the transitional process comes to an end following the expected enactment of the new constitution in early 2013.

This is the first of four articles Clyde & Co will publish over the coming months, each of which will examine different aspects of the legal and regulatory framework affecting the oil and gas industry in Libya.

This first article will set out the current legal framework governing the oil and gas industry in Libya. It will briefly outline the historical development of the oil and gas industry and go on to provide an analysis of the various laws and regulations in existence and the various governmental bodies. Finally it will analyse which parts of this framework are most likely to be amended in the future.

Libya's key petroleum legislation is the Petroleum Law No. 25 of 1955 (the "Petroleum Law"), which came into force the same year that saw the first Libyan concessions awarded. It was seen as one of the more sophisticated oil laws in existence, offering smaller concession areas and including relinquishment requirements.

By 1968, 137 concession agreements were in place with over 40 different companies. Over the following decades the Petroleum Law has been amended by various regulations, negotiations and new versions of model contracts.

After the enactment of the Petroleum Law, the Libyan government conducted numerous renegotiations of concessions previously offered under the original Petroleum Law and managed to impose tough fiscal terms on IOCs, using favourable market conditions to its advantage.

By the 1970s the Libyan Government began to demand higher shares of petroleum revenue and exercised greater control over the industry.

This led to a series of various degrees of nationalisations of oil assets. In 1972, participation agreements replaced the concessions, transferring 51% of all concessions to the Libyan National Oil Company (NOC). Between 1971 and 1973; BP, Occidental and Hunts' Libya assets were fully nationalised.

In 1973 the Libyan Government introduced Exploration and Production Sharing Contracts (EPSA). EPSAs are subject to the principles set out in the Petroleum Law (as amended by subsequent amending acts and regulations).

Under an EPSA, the Libyan Government, through the NOC, retains exclusive ownership of oil fields while signatory oil companies are considered contractors. Numerous versions of the EPSA have since been released.

The last EPSA round under the old regime was held in 2005 on an arguably more attractive version of the EPSA, "EPSA-IV", as a post-sanctions initiative to invite the much needed foreign investment to the country's oil and gas sector.

The key difference between various versions of EPSA relates to the scope of obligations of the Government and the IOC with respect to the recovery of development and production costs. In addition, EPSA-IV contracts were awarded on a competitive-bidding basis rather than the negotiated method used in the previous rounds.

EPSA-IV created tough terms for oil companies, who agreed to low profit shares and the handing over of large signature bonuses in return for licenses in order to win the concessions.

Whilst being criticised for their lack of transparency, EPSA-IV contracts remain in force under the General National Congress (GNC), but it was reported that the GNC was to subject them to a corruption review process.

Under the EPSA IV, an IOC or a consortium of IOCs commonly enter into a joint venture with the NOC. The IOC or consortium undertakes exploration work and bears the costs for a minimum of 5 years, while the NOC retains exclusive ownership.

The JV company management is assigned to a committee comprising of two NOC representatives and one IOC with decisions being made using unanimous voting.

Over the course of 2008, a number of IOCs had the terms of their Exploration and Production contracts with the NOC renegotiated outside of the bidding rounds, to bring them into line with the new EPSA IV framework.

The EPSA-IV contract is seen as having particularly tough commercial terms relative to the global oil industry and IOCs have been keen to express their desire for a new version of the EPSA offering more attractive terms (Royal Dutch Shell has recently ceased exploration under its Libyan licenses citing poor exploration results that cannot be economically justified under the EPSA-IV terms).

The National Transitional Council (NTC) (the predecessor to Libya's General National Congress) made suggestions in June of this year that production-sharing agreements with IOCs will be offered on improved terms in order to encourage IOCs to invest more money in exploration and enhanced oil recovery. But it has also made clear such a development will not occur this year.

More recently NOC officials have been reported as stating that there are plans to make Libya a more attractive upstream destination by offering more favourable contract terms.

The NOC recently indicated that there will no new bidding rounds until at least a permanent fully sovereign Government is in place which will not occur until after new elections are held following enactment of the new Constitution.

Such elections are currently estimated to take place in July 2013. However, they failed to elaborate further on the nature of any contracts that will be offered in the future.

The future role of the NOC going forward is unclear. It is unlikely that there will be any significant changes to the oil and gas sector prior to the establishment of a permanent government and the enactment of the new constitution.

Also unclear is the new structure of the NOC. The creation of the Ministry of Oil indicates that some of the NOC's power will be re-distributed to the new Oil Ministry. Prior to the 2011 conflict, control over oil and gas was heavily centralised in Tripoli.

It seems likely that power will be somewhat decentralised in order to reflect the geographical distribution of oil and gas reserves and allow greater autonomy for the oil-rich region of Cyrenaica in the East of Libya. Certainly the Eastern Region's arguments for federal rule have been driven by the long-standing complaint that it has been deprived of a fair share of oil wealth.

Given Benghazi's importance in relation to the upstream oil and gas sector it is likely to become a new economic hub in Libya and will want its own policy making role.

The National Oil Company
The NOC of Libya is a state-owned company that is responsible for implementing EPSA-IVs and controlling Libya's oil and gas production.

The NOC was established in 1970 replacing the Libyan Petroleum Company and oversees all petroleum activities in Libya including oil and gas exploration, drilling and production; refineries operation; petrochemical production; marketing and distribution of petroleum products and petrochemicals.

The NOC's main upstream subsidiaries are:
• The Sirte Oil Company
• Arabian Gulf Oil Company (AGOCO)

The main downstream subsidiaries are:
• Ras Lanuf Oil and Gas Processing Company
• Zawia Oil Refining Company
• Brega Petroleum Marketing company

George Booth has been a partner at Clyde & Co. since 2010, he has also acted as legal counsel for Halliburton Energy Services and related companies.
Dr. Amir Kordvani recently joined Clyde & Co. as an associate, and has worked on various technical service agreements in Middle East jurisdictions including Libya, Iraq and Iran.