Beruflich Dokumente
Kultur Dokumente
Continued
Checklist 2. Continued
Independent Expert
A third-party expert is used for deciding issues
involving technical questions.
Assignment
Useful as a substitute for domestic arbitration
An Operator would like to have the right to
in those jurisdictions, which exclude the use of
assign its interest to third parties to earn a
an international arbitration.
financial reward from the transfer.
These “farmouts” are an important element in Foreign Exchange
international exploration. The right to “farmout” No restriction should be placed on an
should not be denied although the Operator to freely import or export funds
government should have the right to approve resulting from the conduct of its operations.
the assignee for its suitability as a participant. Any company should also have the right to
Governmental approval of the assignment convert payments and sums into convertible
should not be unreasonably withheld. currency at market rates, not artificial and
discriminatory rates, and must not be
Extraterritorial Application of Laws of
compelled to keep funds in local currency.
Operator’s Country of Incorporation
In some instances, the activities of an Control of Operations
Operator, its affiliates, and controlled foreign When a company is assuming the risk of an
subsidiaries are subject to the laws of the exploration venture, it should have control
company’s country of incorporation, even over operations.
though these activities take place beyond the State participation should not be used to seek
territorial limits. control of operations when the state entity is
not assuming an appreciable risk.
Tax Ring Fence & Consolidation
The regulatory powers of the Host
The absence of any “ring fence” provision in
Government should not be used to hinder
the agreement is an incentive for continued
efficiency in operations.
exploration once has established production.
Investments made on any area may be Reference Price
recovered against income from other Any price used as a basis for calculating tax,
operations within the country. royalty or other payments should be
Tax rates and the deductions for operating objectively ascertainable or a market price
expenses should be considered in Environmental Issues
determining the effective split of profit with the Operations will comply with the Host
Host Government. Governments laws, or in there absence, with
Contract Stability standards agreed in the contract.
Under the stability of contract provision, the Sovereign Immunity
Host Government guarantees the stability of The defence of sovereign immunity may
the terms of the contract for the duration of the permit Host Governments to avoid some or all
contract. of their obligations under the contract.
No new law or regulation would be permitted These contracts are commercial and not
to change the fiscal benefits agreed to in the governmental in nature and it is not
contract. unreasonable to expect that Host
Arbitration Governments waive sovereign immunity.
Self -executing mechanism: a self-executing Check whether the New York convention on
mechanism provides for arbitration to take enforcement of arbitration awards been
place in accordance with the terms of the ratified.
arbitration provision, regardless of the conduct Government Guarantees
of either party. This ensures that there can be Does the Host Government provide partial or
no frustration of the arbitration process. full faith and credit guarantees for state
Impartiality: arbitration should take place in a enterprises that have commercial obligations.
neutral forum and the arbitrators should be Force Majeure
nationals of neutral countries Suspension of obligations for specific events
Enforcement: the Host Government should including acts of Host Government
wave sovereign immunity and ratify New York
convention.