The Commonwealth Natural Resources Forum

Proceedings of the Natural Resources Forum, 6-8 April, Marlborough House, London
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Contents
Introduction 3
Opening address - Kamalesh Sharma, Commonwealth Secretary General 4
Welcome Message from Ransford Smith, Deputy Secretary General 7
Welcome Message from José Maurel, Director, Special Advisory Services Division 8
Purpose of the Forum, Daniel Dumas, Adviser and Head, Economic and Legal Section 9
Section 1: Creating a sustainable investment climate
Legal frameworks for sustainable investment in natural resources
Investor attraction and selection process: international industry perspective
Bid round process and practice – The Trinidad & Tobago Experience
Open discussion
10
12
13
16
Section 2: Effective risk allocation
Contract design and negotiation: companies’ perspective
Issues in contract negotiation
Negotiating Mineral Agreements: The Pakistan Experience
Dispute Prevention and Resolution
Open discussion
17
20
21
22
24
Section 3: Issues in taxation of natural resource projects
International benchmarking of fiscal regimes in natural resources
Issues in taxation of natural resource projects: an industry perspective
Fiscal issues and challenges in developing countries: the case of Belize
Open discussion
26
28
29
31
Section 4: Natural resource revenue administration and management
Transparency in Natural Resources Revenue Collection: Challenges
Natural resources revenue management
Transfer pricing, issues and challenges
Implementation challenges and lessons from Tanzania
Open discussion
33
34
37
39
40
Section 5: Managing environmental and social risks
Managing the environmental impacts of offshore oil and gas developments
Regulatory framework for environmental financial risk management
The demand for an ‘environmental protection bond’ and implications for
upstream petroleum licensing
Open discussion
43
45
48
48
Conclusions 50
List of acronyms 51
Appendix A – Participant feedback 53
Appendix B – About ELS 55
Appendix C – About this report 60

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Introduction
The Natural Resources Forum was held between 6-8 April, 2011, at Marlborough House in
London. This was the first Forum of its type organised by the Economic and Legal Section of
the Commonwealth Secretariat’s Special Advisory Services Division. It provided an
opportunity for senior government officials from 18 countries across the Commonwealth to
meet and exchange ideas on the critically important subject of natural resource development.
It also provided an opportunity to share the work of the ELS team1 and show some of the
support available to member states. A fuller discussion of the objectives of the Forum follows
the welcoming messages.
The forum was organised around five half-day sessions, and this report follows the same
structure. This report is not a full, formal set of minutes of the proceedings. Rather it seeks to
capture the main points made by the presenters and a flavour of the rich discussions that
followed each section, reflecting the highly dynamic and rapidly evolving field of natural
resources management. A series of appendices provides further information about the
organisers. Electronic versions of all the presentations, together with further copies of this
report, are available from the ELS on request.
1
A full description of the ELS team, including biographies, is available in Appendix B.

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Opening address
Kamalesh Sharma, Commonwealth Secretary General
“Deputy Prime Minister, distinguished delegates, it is a great pleasure to welcome you all to
Marlborough House, and to the very first Commonwealth Secretariat Natural Resources
Forum.
We are a Commonwealth in microcosm: some 18 of our 54 member countries are here, from
virtually every continent. In conveying my appreciation to Daniel Dumas and my
Commonwealth Secretariat colleagues in the Special Advisory Services Division who have
organised this event, I also recognise other Commonwealth colleagues who will play their part
in their own areas of expertise, and applaud other international players from both public and
private sector who will bring us their own perspectives, and indeed four countries in
particular – Belize, Pakistan, Tanzania, and Trinidad & Tobago – who will share their
experience in detail.
This is another landmark for the Commonwealth Secretariat in its efforts – unfolding for over
thirty years now – to assist member countries to develop their natural resources sector, be it
in oil, gas or mining. At the core of what we discuss today is something supremely ethical. It
concerns our stewardship of the earth and our sharing of its bounty; it concerns not so much
what we inherit from our ancestors, as what we borrow from our children, and all
generations.
We humans and our complex, convoluted world are infinitesimally small, in the face of nature
and natural history. Commonwealth countries – like Zambia and Papua New Guinea – produce
a fifth of the world’s copper that we use to conduct heat and electricity in our houses, our cars.
But copper has been in use for thousands of years – smelted to make tools and artefacts.
The natural world is as old as time: we are the recent arrivals, who need to know where we
have come from, and when we might be headed – if only we knew.
So it is only right that this Commonwealth of values – for that, above all else, is what we are –
should bring both its wisdom and its wherewithal; its best policy and best practice – to so
fundamental a part of national and international life.
We sometimes forget that some of the more developed Commonwealth countries, such as
Canada and Australia, initially achieved their development and wealth to a large extent
because of the role that natural resources played in their economies. Indeed, if managed
properly, the natural resources sector is probably the only economic sector that can, on its
own, help lift a country out of underdevelopment in a relatively short period of time, if wisely
used.
For unfortunately the reverse situation is also equally significant. Mismanaged, revenues from
the natural resources sector can destabilise an economy, fuel conflict and war and corruption.
So, too, can they have a very negative impact on the environment, and create lasting damage
to human habitat.

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I have spoken of the sweep of history, and of resources that have been with us for centuries
and centuries. But so, too, must I speak of the start of the second decade of the 21st Century,
and challenging times in the field of natural resources. Oil and gas prices continue their
upward climb, as growth in demand for conventional energy sources outstrips growth in
supply of these finite commodities. In the case of the mining sector, after a huge drop in
demand for metals in 2008, prices have returned to their pre-recession levels, and demand
remains strong.
So the main objective of this Commonwealth Forum on Natural Resources is to provide an
avenue for our member Governments to discuss key issues in the development and
management of their natural resources.
The Secretariat has been providing assistance to Commonwealth member Governments in the
area of Natural Resources for almost 30 years. In visits to places like Namibia, Botswana,
Tanzania, Belize, I hear of our holistic work – not just advising on managing resources, but on
the legal and fiscal frameworks and rules which underpin successful resource management.
The Secretariat has gained significant experience and expertise, and has built a solid
reputation of “honest broker” in the field. We do so typically with hands-on assistance, on a
country-by-country basis, offering tailor-made expertise from the Economic & Legal team
within our Special Advisory Services Division.
But Natural Resource development is an area of ever-greater complexity, with more and more
at stake as the scale of potential social and economic impacts increase. It is an area tailor-
made for the Commonwealth, and its networks. Just as Commonwealth Trinidad and Tobago
can advise Commonwealth Ghana on stewarding its new-found resource of oil and gas, so can
Commonwealth countries in this room stand side by side in meeting their individual and
collective challenges.
My preface to your discussions is the simple observation that – from a global perspective – the
natural resources challenges we all face are twofold. In essence, they are about ensuring
availability of supply on the one hand; and ensuring acceptability and sustainable
development on the other.
Allow me to say a few words on these two issues.
First, a look at availability of supply.
As we know, many of the world’s largest oil fields are now past their peak, and on their way to
depletion. Added to the growing economies of the world, this is putting enormous pressure on
energy security, and obviously on prices. New oil-rich Commonwealth Countries such as
Ghana, Sierra Leone, Belize and Uganda are now coming into play, in a world of oil prices of
$100 a barrel, rather than $25.
But the real issue nowadays is not just prices, but rather one of security of supply.

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Around the world, companies have been courting countries to secure access to their
resources. Sometimes, this is done by exercising pressure. This is why we believe that the
work we are doing in putting in place adequate legal and commercial frameworks, strong
institutions and good governance principles is essential.
Second, to look at what we are calling ‘acceptability’, which is now at the forefront of the
natural resources debate.
Climate change is a major issue, as the world is struggling to find ways significantly to reduce
carbon emissions. The awful recent events in Japan have reintroduced questions concerning
nuclear energy – one of the few major sources of energy with a relatively small carbon-
footprint. Although in the very long run, nuclear energy will arguably still be necessary (and
this may be in the interest of Commonwealth countries such as Namibia, Botswana and
Malawi as uranium producers), in the medium-term, Liquefied Natural Gas (LNG) will
certainly regain strength.
As you may be aware, with the development of their LNG industry, Tanzania and Papua New
Guinea, among others will soon join Trinidad & Tobago as significant LNG producers. Finally,
in addition to renewable energy, new sources are being looked at, such as Coal-Bed methane
in Botswana. To keep up with the increasing demand in most minerals, the pursuit of new
sources of extraction has intensified, as we are seeing in the in Deep-Sea Mining now
happening in the Cook Islands and Papua New Guinea.
Acceptability also means greater awareness of environmental, social and accountability
issues. The recent Gulf of Mexico oil spill – and the serious environmental damage caused by
the accident – has had profound implications for offshore petroleum development. This is
why our work focuses more and more on environmental issues such as decommissioning of
mining or petroleum facilities, drafting environmental legislation (such as we are currently
doing in Ghana).
Last but not least, acceptability also pushes for greater transparency in the extractive
industries, so that Governments can be held to account regarding the management of natural
resource revenues. There is a growing realisation on the part of governments that while the
extractive process is purely converting a country’s mineral wealth into financial assets, this
wealth is finite. Provisions must therefore be made to secure some of these financial assets, so
that future generations also benefit from the country’s endowment in Natural Resources.
The Commonwealth Secretariat recognises the implications attached to these developments,
and has introduced transparency and revenue management principles in the assistance it has
been providing to member countries.
As such, the Secretariat is currently considering further collaboration with other
organisations, such as with the Extractive Industries Transparency Initiative (EITI).
Our objective is to ensure that, through the transparent and accountable management of
revenues accruing from natural resources, countries can benefit from increased growth,
achieve economic development and poverty reduction, and transform their societies.

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In closing, I hope that you will benefit from this Forum and by discussing the most
internationally acceptable and sustainable practices in the design of policy, legislation, and
contracts in the oil, gas and mining sectors. One of the great values of the Commonwealth is
sharing our experience and supporting each other: hence the title of our Forum – ‘Shared
Practice, Enhanced Wealth’.
I end where I began, with the Commonwealth of Values. If our brains and our hearts are our
own, ‘human’, natural resources, then let us use them. We have seen that ‘physical’ natural
resources can make us or break us: it depends on how we use our human natural resources,
to treat them. Our brains and our hearts should tell us how to treat them – and telling each
other is what this conference is about.
Once again, I thank you for being here this week, and I wish you a pleasant and rewarding stay
in London.”

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Welcome Message
Ransford Smith, Deputy Secretary General
It gives me great pleasure to welcome you to the very first Commonwealth Natural Resources
Forum. I strongly believe in the potential of natural resources to transform societies for the
better. Given the right conditions, the extractive industry can create jobs, strengthen the
domestic private sector, fund public service improvements and contribute significantly to
infrastructure development. Oil, gas and mineral resources can also contribute to inflows of
foreign investment, export earnings, government revenues and national income.
However, we are also mindful of the fact that fulfilling this potential is neither assured nor
automatic. The extraction of non-renewable natural resources (notably, oil, gas and minerals)
has often led to political instability, revenue management challenges, corruption and
increased social tension. It is therefore necessary for resource-rich countries to improve their
legislative and regulatory frameworks, build institutional capacity and strengthen
governance. These are major challenges.
This Forum comes at an exciting time for the extractive industries. Extractive industry
commodity prices surged between 2003 and 2008, and then dipped during the global
financial crisis and recession, only to continue in their upward direction from the latter part of
2009. These factors have contributed to an increase in pressure on the governments of
producing countries.
Balancing the need to optimise the benefits from natural resources whilst considering the
need to secure and sustain much needed foreign investment continues to pose a formidable
challenge for countries. This is one of the main reasons for this Forum. I do hope you find the
discussions useful.

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Welcome Message
José Maurel, Director, Special Advisory Services Division
As you may know, the Commonwealth Secretariat has been providing technical assistance
with regard to issues in natural resource management and maritime boundaries for a number
of years. In fact, we have been involved in assisting governments in negotiations and in
establishing legal, fiscal and commercial frameworks for more than 25 years.
The provision of advisory services to Commonwealth Governments on oil, gas and mineral
resource development policies and strategies is a core activity and key competence of SASD.
We maintain the requisite in-house expertise to provide such support and we are assisted
where necessary, by external experts in respect of certain specialised areas.
While many of our member countries such as Belize, Ghana, Sierra Leone and Uganda have
recently discovered oil, many others have had to address issues related to new areas, such as
coal-bed methane (Botswana), and deep sea mining (Cook Islands). Issues related to the
environment, revenue management and transparency are now also key aspects of our work.
We strongly believe that the key to successful management of Natural Resources requires
three essential components: well-enforced legislative and regulatory frameworks, strong
institutions with adequate capacity and a clear role, and good governance according to
widely-shared principles. The Forum will try to address some of these components.
SASD remains committed to assisting countries in making natural resources a blessing to our
member countries, not a curse. I wish you all a fruitful week at the Forum.

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Purpose of the Natural Resources Forum
Daniel Dumas, Adviser and Head, Economic and Legal Section
The ELS has over the years gained significant experience and expertise in the provision of
advisory and technical assistance in natural resources to Commonwealth member
governments. ELS’s primary mode of operation in this regard has centred on adapting its
international know-how to country specific economic and legal challenges in the management
of natural resources.
While member governments have benefited from this approach, it was felt that there was a
need for a central medium for sharing experiences and learning contemporary practices. This
led to the idea to develop the Commonwealth Natural Resources Forum as a capacity building
initiative, for senior Commonwealth member government officials to share and learn with ELS
advisers and industry experts.
Objective of the Forum
The event sought to provide a high-level discussion forum on today’s petroleum and mining
issues for both governments and investors. The sessions took participants through the
fundamentals of developing sound modern and sustainable policy, legislation and agreements
in line with international contemporary practice.
Relevance to Commonwealth Member Countries
In April 2009, ELS successfully launched a report titled “Minerals Taxation Regimes: a review
of issues and challenges in their design and application”, in conjunction with the International
Council on Mining and Metals (ICMM). It was pointed out by DSG Smith in his opening
remarks that such opportunities to interact in this regard did not happen enough. One of the
key recommendations by participants at the launch was for a forum which would foster
interaction on contemporary developments in natural resources between industry
practitioners and governments.
The ELS report ‘Transforming Society through the Extractive Industries’ identified weak
institutional capacity as a significant impediment to sustained development in the petroleum
and mineral sectors of many member countries. While most agencies and technical assistance
programmes focus on developing proper frameworks, countries often do not have sufficient
institutional capacity to properly implement and maintain them. A significant proportion of
ELS’ work focuses on establishing such frameworks. It is felt that additional effort now needs
to be geared towards enhancing institutional capacity. This is the primary focus of the Forum.
The comparative advantage of ELS stems from the interactive hands-on style the team
maintains while working with government officials. There is significant value in the access
which government officials gain into the ‘institutional memory’ of ELS as well as its
international knowledge-base, in addition to a high level of trust which ELS has gained from
experience in advising numerous Commonwealth countries over time.

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Section 1: Creating a sustainable investment climate
Attractive geological prospectivity of a natural resource is a primary consideration for
investment in the extractive sector. However, if a country is seeking to attract investors with
proven technical, financial and operational competence, for the development of its extractive
natural resources, it is critical to demonstrate the presence of suitable legal, fiscal, and
commercial arrangements. This section explores these arrangements, looking at the issues
from the perspectives of both a host government and an investor.
Legal frameworks for sustainable investment in natural resources2
Sustainable investment implies the allocation of resources in the most judicious manner in
order to achieve benefits for both present and future generations. This in turn requires an
effective legal framework, comprising the following elements:
- The constitution: There may be special provisions in the constitution relating
specifically to natural resources, including, crucially their ownership. Generally natural
resources are owned by the state, or a mix of public and private owners.
- National policy: A policy is simply a signpost or a roadmap. There are different policy
models available, including the ‘institutional model’ involving the judiciary or
executive branch of government or the ‘process model’, which involves a broader set of
stakeholders.
- Natural resources laws and regulations: These provide stability and are either
integrated, multidimensional or sector-specific. The Kenyan Energy Act is an example
of an integrated, multidimensional law, dealing with electricity, including rural
electrification, petroleum and natural gas as well as renewable energy, energy
efficiency and conservation. Sector-specific laws can be fragmented and may cover the
oil & gas sector, or mining environmental laws. There is no common denominator
across countries, though in all cases the quality of the regulation is measured in terms
of its ability to strike the right balance between attracting investment and providing
welfare gains to the host country.
- Contracts: These define the legal and commercial relationship between the host
government and the investor. It is important to understand the difference between a
contract (usual in common law, it means the basis of the relationship cannot be
changed); and an administrative permit (usual under continental law, and subject to
alteration). Different contractual models include a concession (royalty/tax licensing
system); a Production Sharing Agreement/Contract (where the government receives
some of the production); Risk Service Contracts; or hybrids. The box below, ‘Varying
contractual models across different oil and gas jurisdictions’, demonstrates the
diversity of approaches available to governments. Bid rounds should be relatively
short3, they should reflect geological prospectivity and socio-economic circumstances,
and they should be robust enough to allow for changing domestic or global socio-
economic and political circumstances.
2
Based on the presentation by Ibibia Worika, Adviser (legal), ELS.
3
Though sufficient time should be allowed for an investor to prepare a bid, bearing in mind that there may be several dozen other bid rounds
underway around the world at any one time. Trinidad & Tobago allows companies four months’ preparation time. See box ‘Bidding rounds – an
investor perspective’ on page 10.

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- Regulatory institutions: Regulatory institutions are responsible for the implementation
and compliance enforcement of regulations and contracts. There can be well-
developed laws and contracts but without the implementation capacity provided
through regulatory institutions, little can be achieved. If they are well developed,
regulatory institutions can facilitate natural resource development; if not, they may
stifle it. Enforcement can take place via line ministries, agencies or departments (for
more specific elements such as licensing procedures), and independent agencies,
which have some level of autonomy but whose remit is circumscribed by law. State-
owned enterprises may sometimes have regulatory powers, though this can lead to a
conflict of interests.
Varying contractual models across different oil and gas jurisdictions
There are many challenges to effective regulatory enforcement, including conflicting policy
goals, for example the encouragement of extractive sector development combined with
conservation laws. Whenever goals are unclear, the agency may become ineffective. There
may also be ambiguity in regulatory language which can make enforcement difficult.
Investors place a premium on the legal framework being stable and predictable, with clear
mechanisms to encourage good behaviour and punish bad practice. Political stability is also
crucial to investors, and a growing issue, as well as transparency and accountability. Other
important issues include revenue management, the quality of infrastructure, the skill level
among the country’s labour force, and the openness or receptivity of the country to foreign
investors. Regional economic development (or ‘regionalism’ – through organisations such as
SADC4, ECOWAS, the EU) is also critical as it creates a ‘bulwark’ for investors by increasing the
4
A list of acronyms appears at the end of this report.

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size of the market as well as developing a common set of rules which guarantees at least a
minimal level of democratic governance.
Investor attraction and selection process: international industry perspective5
Petroleum licensing is a highly complex process involving the constitution, ownership of
resources and reserves, multiple stakeholders, prospectivity, bid rounds, changes of
circumstances, economic stability, regulatory institutions and an educated workforce6. The
four main groups (or ‘stakeholders’ or ‘co-operants’) affected by the licensing process are the
host community7, the host government (or rights-holder), the investor, and the environment,
including future generations. A balance of interest should be sought between these four
groups.
These four groups are affected by risk, prospectivity and competition. The search for
petroleum is about management (as opposed to minimisation) of risk. There is a huge body of
research on petroleum risk. An industry maxim sates: ‘if you don’t like risk, you’re in the
wrong business’. Regarding prospectivity, there are commonly five types:
- technical prospectivity, which is subject to rapid changes (10 yrs ago, Uganda had
limited prospectivity in the oil industry, now it is considered a ‘hot area’);
- legal/contractual prospectivity, to do with the stability of the legal framework;
- fiscal prospectivity, which relates to prices, and subject to rapid change;
- geopolitical prospectivity, which can be important, for example knowing whether or not
there is a secure, safe pipeline route to the coast; and
- environmental prospectivity, which is a significant issue especially since the BP
Macondo spill8.
Each company accords different weights to the five elements. A valuable element of
prospectivity for investors is whether or not they will be granted bookable reserves. This is
the case in countries including the UK, Norway, Netherlands, US, parts of Latin America, the
UAE and Oman. In other countries including Iran, Iraq and Kuwait, reserves are not bookable.
There is tendency away from awarding investors this right as it is seen as an intangible
essence of a nation state, or a sovereignty issue.
Future challenges include the growing role of increasingly vocal and politically active host
communities, environmental considerations, and the potential for citizens to act as de facto
‘regulators’ (for example by protesting against extractive activity if there is no local social
licence to operate). Islamic law may also have a growing effect on the sector, as could ‘buy-
back’ type contracts as resource nationalism9 takes a greater hold. Prospectivity changes over
time, for example regimes with a low geopolitical prospectivity can improve their rating
surprisingly quickly as investors revise their risk assessments.
5
Based on the presentation by Mike Bunter, B and R Co, Petroleum Consultants.
6
The right licensing policy creates the conditions for an educated workforce: an estimated 350,000-500,000 people are directly or indirectly working
as a consequence of a sound licensing regime for the North Sea oil & gas sector.
7
Because of the demands of transparency, host communities are de facto involved in licensing processes.
8
A participant later suggested the addition of a sixth type, ‘corruption prospectivity’, given the increasing level of discussion of this issue across the
sector.
9
Resource nationalism is the trend whereby governments claim ownership of natural resources. Venezuela recently announced that foreign
investors can no longer book reserves, and Bolivia followed suit shortly afterwards.

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Investors are looking for the largest amount of acreage for the longest period of time for the
lowest cost. By contrast, governments offer the smallest possible acreage for smallest period
in return for the maximum amount of money. These mutually exclusive objectives clearly
require compromise on both sides10. Governments want to attract a large number of investors
into a licensing round - the bigger the market, the better the deal. The government wants to
assess whether investors are suitable for involvement in the territory so they ask for a bid
that includes financial and technical capability as well as management capability. They use a
point scoring system for tender evaluation to make sure investors are suitable. Then the
dialogue between governments and investors can begin.
Bidding rounds – an investor perspective
Investors need to have sufficient time to be able to consider each opportunity as it arises. At
the time of the forum, there were 39 bidding rounds underway around the world, including 10
in Africa, 8 in south-east Asia, 12 in Latin America. For each bidding round that an investor is
considering becoming involved in, the process followed is roughly:
- a company analyst or researcher is requested to provide information for the
management board to be able to make a preliminary decision about whether or not to
enter the bidding round
- if the company decides to take the investment opportunity further, they work out
whether or not to partner with another company and spread the project risk
- if they decide to partner, the new ventures manager (or equivalent) will talk to his
colleagues in other companies to see who is interested
- money is found to fund in-depth evaluation of the opportunity
- the opportunity is evaluated and an offer is made
All of these stages require time and management effort, and compressing the timescale may
cause an investor to walk away from the opportunity.
Bid round process and practice – The Trinidad & Tobago Experience11
Trinidad & Tobago is a small country in the southern Caribbean, covering around 1864m2. Its
current gas production is 4.1bcf/day and although its oil production is declining it would like
to increase it in order to balance oil and gas production. Petroleum production began 102
years ago, so it has a very well-established governance structure. The petroleum industry is
governed by the Petroleum Act (1969), which has had several amendments and is currently
being revised to align it with contemporary circumstances (but without any major upheavals).
The minister is responsible for determining the areas to be made available for petroleum
exploration and development. The minister invites applications for the right to explore and
produce petroleum. Competitive bidding and one-on-one negotiations have both been used
but competitive bidding is now preferred. This has been the policy since 1987 – ‘in a
competitive environment, you get the best out of companies’, notes Helena Inniss. A number
of licences are issued including (rarely) an exploration licence; an exploration and production
10
‘Relinquishment provisions’ provide part of the solution to this conundrum, see Trinidad & Tobago experience, page 14.
11
Based on the presentation by Helena Inniss, Director, Ministry of Energy and Energy Affairs, Trinidad & Tobago

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licence (more common and gives a company the exclusive right to develop an area); or a
Production Sharing Contract (PSC). Before 1995, there were few PSCs; since then there have
been many more. A PSC doesn’t preclude the option of using the licensing regime, for example
in two big offshore areas which have been under development since the 1970s. Generally
however PSCs are used now, on land as well as offshore.
The PSC approach has been refined since 1995 with changes including allowing more time to
explore in deep water, in recognition of the technical challenges of operating in these areas.
The exploration programme is biddable – the government has its own internal benchmark but
in their experience, when they publish this, the companies tend to stick to it. They have found
that it is better to allow the companies to say what opportunity is worth. The duration of
contracts is 25 years for shallow water, 30 years for deep water (400m or more). The
duration is flexible for gas because it has to include a market development phase. This
additional time is added to the term of contract, and companies are happy with this approach.
There are also ‘relinquishment provisions’ in PSCs because the government doesn’t want
companies retaining acreage indefinitely. At the end of each project phase companies
relinquish acreage until what they get to keep is the discovery that is commercially viable. In
some cases they can ask for acreage to be retained, up to 20%, but the government doesn’t
allow the company to keep acreage anyway – this is a lesson from past experience.
The country has attractive gas provisions and a lot of companies are involved in bidding
rounds. Over time they have chosen to have a fixed cost recovery limit, which is 60% in deep
water, 55% in average depth and 50% in shallow water. The government’s share of profit
petroleum is biddable, and it is price and production sensitive. When these are low, the
government gets a smaller take; when price and production are higher, the government gets a
higher take. The country has had a mixed experience of competitive bidding rounds, though
they have been mostly successful. They are highly dependent on the global environment,
including issues such as supply and demand, and energy security.
There are good perceptions of prospectivity of acreage in Trinidad & Tobago because it has a
stable operating environment, even though the technical prospectivity is lower than in
Venezuela12. The prospectivity of acreage is very important, especially in deep water.
Incentives have been built into PSCs, such as a reduction in petroleum profit tax from 50% to
35%, and an uplift of 40% on CAPEX for exploration drilling. There is a windfall profits tax if
oil prices go over US$90/bbl. The royalty is flexible, between 0% and 12%. With the windfall
profit, companies used to complain that the government took all of the upside, this has now
changed so that companies get a share in the upside. There is also an escrow account which
the investor pays into from start of development (the payment comes from the contractor’s
profit oil – 0.25c per boe). Five years before the operation ends, companies are required to
draw up a plan and bring it to the government, showing the cost of the plan. If more money is
required, the company needs to start paying it in at that stage. If less money is required, the
12
Some companies with offices in Venezuela have moved to Trinidad & Tobago, demonstrating that security of the operating environment is a big
factor for investors.

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government keeps the money, since the company operates on a cost recovery basis. The
country has tried to reduce front-end costs to companies and cost recovery has been set at
60%.
The competitive bidding process begins with a technical review of open acreage, which is
sometimes done in the ministry, but tends to be outsourced for deepwater areas. Companies
nominate the acreage they want, and the information is kept confidential to avoid overheating
the bid round. The country decides how many blocks to offer based on its strategic interests
and then makes recommendations to cabinet on the blocks and the terms and conditions of
the bid.
The competitive bidding order by which bids are invited is a very structured process, which
sets out prerequisites and terms and conditions. The bid form is totally self-assessable, there
is a point system and companies can work out what they are likely to receive for different
elements. Up to now, this stage has taken two months. A lot of evaluation time is required to
analyse different numbers and pick the best bid on the basis of this analysis. The contract can
be up to 40 years so the information needs to be correct from the outset.
The government is hoping for the process to take nine months, which includes four months
for companies to evaluate the area and receive internal approvals, and then five months for
the government’s own process. Negotiating the PSC can take a long time, as both parties
sometimes hold hard to elements that are dear to them. In response, the government has
started publishing the model contract and asking for comments. The discussion takes place in
the public domain. The government then responds to comments from companies and others,
trying to take on board as much as possible, and then asks companies to sign a schedule
indicating exceptions to the provisions of the model contract. One month after the award of
contract, the government wants the PSC signed. This approach brings all the big issues up
front, so when negotiations begin, there is a limited number of issues to cover so the process
doesn’t end up too time intensive.
Challenges include completing the process in the stated time; the dynamic, volatile global
environment; and accidents and environmental considerations. Deep water drilling will begin
for the first time fairly soon. Bids have been received and are currently being evaluated. The
future of the oil industry in Trinidad & Tobago will be focussed on deepwater production.

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Open discussion
What are the pros and cons of signature bonuses?
- There are none in Trinidad & Tobago for deep water, to try and keep front end costs
down13. For shallow water, where there is more competition, a signature bonus was
required, in the range of US$2m - US$12.8m.
- Signature bonuses are currently US$0.5bn in Angola for 6000sq km of deep water
acreage, per contract area. Angola is regarded as highly prospective. For a less
prospective area, signature bonuses may not be appropriate.
- Many NGOs dislike signature bonuses because it represents a large cash payment
which could be misused – it presents an opportunity for corruption.
What does it mean for citizens to act as regulators?
Communities may feel resentful about the presence of oil in their territory and citizens may
end up acting as ‘regulators’. For example the Wessex basin in the UK is a petroleum
prospective area and official ‘area of outstanding natural beauty’. The government in London
licenced acreage to a foreign oil company and failed to bring the local community along in the
process. When the first seismic trucks turned up, people lay down in the road to stop them.
Why do some governments provide incentives for gas exploration rather than for oil?
There is a lot of ‘stranded gas’ around the world, often in very remote, intercontinental areas.
If the pipeline is sufficiently long and selling price sufficiently low, it is possible for the gas to
have no commercial value, so an incentive is required to make it commercially viable.
13
Rig costs can approach US$1m/day for deepwater production.

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Section 2: Effective risk allocation
Investors in the natural resources sector prefer to be able to operate within the context of an
established legislative framework, but also expect that certain key issues of importance to
them will be substantially negotiable. This section focuses on contract design and
negotiations. The first part will address issues such as what should be set by law versus
contract, which parameters should be fixed or open for negotiation, and how to best handle a
negotiation process. The second part of the session will focus on elements most frequently
raised during negotiations between governments and companies, such as provision for
discretionary power, stabilisation clauses, and dispute prevention and resolution.
Contract design and negotiation: companies’ perspective14
There is often a sense of frustration among investors that they struggle to convey their
messages to governments. This is not due to translation difficulties but rather to differences of
culture – ‘what happens when worlds collide’, according to Peter Roberts. A number of issues
come up time and again in negotiations between investors and governments, these are
described below.
Local content
When investors say that ‘local content rules must be sensible and proportionate’, they mean
that ‘it will be impossible to do the work if the rules are unrealistic about what skills and
materials can be procured locally’. One example was a requirement to make pipelines using
only materials from Indonesian steel mills, but local producers lacked the technical capacity to
undertake the high pressure, high temperature welding required, making it impossible for the
company to adhere to the requirements.
Tax rates
When investors say that ‘taxes should be favourable to the investor’, they mean that ‘tax terms
should be favourable, but at the very least, they should not be worse or less attractive than
anyone else’s tax terms (including local companies).’ Tax stabilisation clauses or other
measures can be used to guarantee equal and fair treatment. This principle can be applied
across all fiscal issues.
Government take
When investors say that ‘there should be a proportionate allocation of profits and
hydrocarbons between the government and the investor’ this means that the cost recovery
element should not be blocked by the requirement to pay an early royalty (though investors
are mindful that the government wants some kind of early economic benefit) (also, see
comment box on ‘Domestic market obligations’, below).
14
Based on the presentation by Peter Roberts, Ashurst LLP

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Domestic Market Obligations
Many developing countries, particularly those facing fuel shortages or energy security issues,
may require companies to sell a proportion of oil and gas that they produce to the domestic
market under a domestic market obligation (DMO). The prices offered domestically may well
be lower than the price on the international market, which means that investors do not like
these obligations from a financial point of view (though they may accept the need for such
obligations).
An investment strategy is based on selling products at the best price available on the
international market, so the obligation to sell at an artificially low price reduces a company’s
profits. When setting the rate of DMOs, governments should therefore be mindful of the
impact on the investor’s overall profitability and maintain the obligations at a fairly low level.
Change in law/regulatory application risk
Legal stability is important to investors. They worry that at some point there might be a
change in the way regulations are applied to the project, which will have an adverse effect on
the investment. They would like upfront protection from this, which means stabilisation
provision (treaty protection), to protect them from expropriation of their interests.
‘Expropriation’ in this case refers to everything from an asset seizure to ‘creeping
expropriation’ whereby the regime changes subtly. Investors want governments to exercise
their power objectively and fairly, but recognise that governments may react negatively to
this view since it sounds like it is a curtailment on its sovereign powers. The investor’s view is
that, if there is re-regulation of the sector, it should affect all companies (including local ones)
equally.
There is a split view among investors on the value of termination payments (whereby an
investor takes money from the government in the event of a loss of the project), with some
seeing them as a useful form of insurance, and others more tentative because the government
may see an opportunity to sequestrate the project and buy out the project.
Remittability
Investors believe there should be free remittability of cash and hydrocarbons from the
country, which means that cash generated by the investor should be remittable without
exchange controls, and hydrocarbons should be exportable (subject to domestic market
obligations).
Dispute resolution
There should be some mechanism to ensure that disputes are resolved fairly, amicably,
objectively, and in a way that doesn’t stultify continuing operation of the project. This could
be undertaken under local government law rather than international law, but disputes need
to be settled via an international panel in a place outside country (e.g. via ICSID – see section

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on dispute resolution later in this report). This means that the host government needs to
agree to abide by the findings of an international process/arbitral award.
Government control
The investor must be free to operate the project as it sees fit15. This does not mean ignoring
local standards, or reporting and data sharing requirements, but rather, being free to operate
in the best interests of itself, its shareholders, and the local communities affected by the
operations. Governments should have no say in key decision making, particularly:
- initial commerciality of the project: this refers to circumstances where an investor may
decide that there is not enough oil to be commercially recoverable, but the government
might disagree, pointing to high oil prices, and insist on production regardless of
whether the finances hit internal rates (there can be similar debates about the size of
blocks);
- ongoing production: this refers to times where, because of high tax rates and low
prices, investors are inclined to buy gas in rather than producing it, but the
government insists that the facility runs regardless of the investment climate; and
- final decommissioning: at the end of the life of project, whose argument prevails about
what ‘end of life’ means – the company may see a decline in production and announce
end of project, the government might disagree and say that there is plenty of resource
left.
Government participation
Investors say that government participation in a project is not necessary, but if it happens, it
should be on fair and reasonable terms. For example a government may reserve the right for a
national oil company to back into a contract and take 10% of the equity. The concern for an
investor is that a government will seek to exercise this because they are concerned about how
the block is being operated by the investor, and what information is being provided to the
government (the true extent of hydrocarbon plays, the difficulty of the geology, whether or
not it is a viable project, etc.).
The investor view is that if the concession is set up so there is enough information flowing,
and the domestic market obligation is being fulfilled, there’s no need for a government to back
into the concession. If it happens, investors want to know that government participation will
be ‘full value’, that is, they need to pay to participate, and if there are carried interests (which
the investor would rather not have) then they should be hard/repayable, preferably with
interest.
Recognition of international standards
The government should recognise the investor’s imperatives towards upholding international
standards, and investors like to see wording in the contract referring to ethical standards
including bribery prevention. Investors also like to be seen to be upholding critical corporate
responsibility standards, with an external audit to demonstrate that they are doing so.
15
Makbul Rahim (see next section) makes the following point: ‘It is important to minimise government discretion to the bare minimum of
circumstances where critical public interest is involved. In those cases, there should be clear objective criteria on how this discretion will be
exercised.’

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Issues in contract negotiation16
The key question in this section is how a contract, as an instrument, relates to a country’s
legal and regulatory regime. A basic principle of a contract is that it cannot be inconsistent
with the law – not only the petroleum/mining law but also the environmental law. The
licensing regime sets out minimum terms and conditions in law – the government wants to set
out core non-negotiable principles and make them generally applicable. There may be some
provisions which allow some flexibility, for example regarding the rate of relinquishment, or
the retention period in natural gas projects. However in general the law is non-negotiable and
there is a need for a contract in order to be able to tailor projects to the requirement of an
investor. A contract is therefore an instrument that seeks to provide a degree of
assurance/stability to the overall project.
A negotiation process might begin with a model contract which is synchronised with the law,
indicating to investors how they are expected to carry out a project, what provisions apply to
them and so on17. If there is competitive bidding, involving a licensing round, followed by
evaluation of bids, the conclusion is a selection of bids with which the government negotiates.
In mature oil and gas countries, cash auctions may be the best approach, but they may not be
applicable in new markets. In such cases, a negotiation process coupled with a competitive
bidding process may be more appropriate.
A concern for an investor relates to ancillary rights such as a drilling permit. Often, in
negotiations the company may draw up a very long list of ancillary rights. The government
should negotiate a procedure in which all ancillary rights are granted to investors, while
fulfilling those rights in the respective legislation. Subject to those rights being met, the
institutional arrangements can be worked out, for example by convening a coordinating
committee of the investor and relevant ministries.
Contractual considerations often boil down to risk management – if there are risks that are
better managed by the company, they will take responsibility. If there are projects risks that
governments have control over, these will be of concern to the company.
During contract negotiations governments are keen to enhance national capacity. One way to
do this is through participation. This is not just about an equal balance of fiscal responsibility
but also includes issues such as technology transfer, provision of employment, local content,
encouraging local businesses, training and skills development, local processing.
Negotiating Mineral Agreements: The Pakistan Experience18
Pakistan is relatively new to large-scale mining. A model mining agreement has been
developed which addresses the concerns of governments, communities, mining companies
and other stakeholders. It provides clarity over the basis for negotiations, sets out the
substantive rights and obligations of mining companies under law. It also acts as a legal
16
Based on the presentation by Makbul Rahim, MMR Consultants
17
Trinidad & Tobago’s practice of allowing a four-month period for investors to critique model contracts was welcomed by the audience.
18
Based on the presentation by Irshad Ali Khokhar, Director General Minerals, Ministry of Petroleum and Natural Resources, Pakistan.

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instrument to provide stability, assurance, and investment security for mining activity in the
country. Governments are bound to the agreed terms for the duration of the agreement unless
amendments are mutually agreed.
Mining agreements are not the usual way to regulate a mining operation and their use is
restricted to large-scale operations involving foreign investors. It provides a mechanism to
clarify how much of the regime should be fixed in legislation and how much should be left
open for negotiation. Pakistan’s model mining agreement covers a wide range of areas
including rights and obligations; investment protection; financing, royalties and taxation;
corporate social responsibility; and protection of environment and reclamation.
Located in western Pakistan, Reqo Diq is the world’s fifth largest copper deposit with
estimated reserves of 2.20 billion tonnes of copper ore. The first agreement to develop the
deposit was signed in 1993 and ownership has shifted a number of times since then. Most
recently a series of scoping, feasibility and Environmental and Social Impact Assessment
(ESIA) studies have been undertaken, for a total investment of US$435m, of which US$214m
covers exploration activities. The draft mineral agreement covers fiscal systems, dispute
resolution, regulatory issues and infrastructure, setting out such details as the life of the mine
(56 years), and involving the government of Balochistan as regulator, the government of
Pakistan as guarantor and regulator, and the investor (Tethyan Pakistan).
There are a number of important commercial terms set out in the draft agreement. These
include a reduction in corporate tax from 35% to 25% and stability for the full life of the mine.
50% of tax payments can be withheld by the company in return for specified infrastructure
obligations. Regarding royalty: the investor will pay 2% of gross sales proceeds for the life of
the agreement, with 50% of the tax available as an offset as above. The infrastructure
obligations cover power supply, a road connection from Gwadar Port, and a rail connection
from Karachi to locations near to the deposit.
The agreement is based on a number of precedents from power and petroleum sectors as well
as from competitors. There are however a number of new elements that the government has
not dealt with before, including the infrastructure obligation, the use of an export processing
zone for the life of mines, and a dispute resolution mechanism.
A detailed review process has been undertaken for the mineral agreement over the course of
the last few years, between the three main parties involved. Many amendments and reviews
have taken place over this time. For example the company sought to self-govern mining
operations in a number of areas, but this proposal was blocked by the government. Other
counter-proposals were made by the government parties in the areas of infrastructure, tax
exemption and dispute resolution (for example, the use of ICSID19 for international
arbitration). There was also detailed negotiation about the split between investor take and
government take.
19
The International Centre for the Settlement of Investment Disputes.

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Many of the outstanding issues have been settled via the input of a high-level, 13-person
steering committee headed by the Minister for Petroleum & Natural Resources and including
government representatives from a range of departments at national and regional levels. The
steering committee is currently meeting for the second time with a view to resolving
outstanding issues including the settlement of the royalty rate, the operational obligations
relating to social development, and value addition up to the final refining stage. Pakistan is in
a strong position at this pre-agreement stage because of the mineral potential and the
international competitiveness of its regimes. The government hopes to conclude negotiations
with TCCP (the investor) in the very near future.
Dispute Prevention and Resolution20
Dispute resolution is a critical matter that investors expect to be taken into consideration
when they are deciding whether or not to invest. The ideal is for disputes to be resolved in an
orderly, lawful and amicable manner, while preserving the contractual relationship if
possible. A number of different dispute resolution options exist, with an overall trend towards
harmonisation under international law. ELS assists member countries to address dispute
resolution issues, including through the development of model contracts and agreements.
Disputes often arise over an interpretation or application of an agreement or contract
between a government and an investor. These are known as ‘mixed disputes’ (public-private
disputes, as opposed to disputes between two private parties). The extractive industries
require high capital outlays, long contracts, a range of technical issues, and sovereign risk - all
of which creates a broad scope for dispute. It is therefore vital for the government and the
investor to consider in advance, within the contract, how disputes will be resolved, for
example through the use of a model contract or agreement. Such documents reflect
internationally agreed standards and practices.
There is a continuum of options from highly informal through to formal, adversarial, rules-
based processes. The majority of disputes are resolved informally through negotiations,
which are the most efficient way to deal with concerns and allow the contractual arrangement
to continue. When negotiation fails, the first fallback position is usually to seek third party
intervention, whose central tenet is for the parties to consent to be bound by the findings of
the process. International arbitration is a last resort. The categories further break down as
follows:
Fact-finding: This model helps to clarify issues and resolve a dispute before it gets out of hand.
It results in report limited to findings of fact, and parties are free to decide how to give effect
to the report.
International conciliation: Under this model, parties agree to appoint a conciliator or
commission to clarify issues and secure agreement. This is a formal process which doesn’t
involve rendering of a binding award. It ends with a report containing recommendations, and
if parties have agreed on plan of action, that report can contain the agreement. Conciliation is
20
Based on the presentation by Joshua Brien, Adviser (Legal), ELS.

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less adversarial than arbitration and more and more international organisations have applied
this approach.
Expert determination: This model is often used in conjunction with arbitration and features a
qualified expert who resolves issues, especially those of a technical nature for example
regarding the payment of royalties. This can be an informal process (which is quick and
cheap) and results in binding determination by the expert, unless parties have agreed
otherwise. ELS has worked with the government of the Seychelles on a clause on expert
determination, designed as an adjunct to formal dispute process – the two elements can work
together.
International arbitration: This is the most costly and time-consuming model, but some
disputes can’t be resolved by any other means. It involves the appointment of an arbitrator or
tribunal which issues an award to the parties to resolve the matters in dispute, and results in
a decisive outcome –the rendering of a binding and enforceable award.
The best known rules covering dispute resolution have been developed under the United
Nations and are known as UNCITRAL21. They cover all procedural issues. A number of bodies
apply international arbitration rules, such as the Permanent Court of Arbitration (which was
originally established for state-to-state disputes, but now works on mixed disputes, including
those relating to natural resources). ICSID provides another forum for the resolution of mixed
disputes under the Washington Convention. There are 157 parties to the convention,
including 41 commonwealth member countries.
ICSID provides an international agreed mechanism for the resolution of disputes between
states, and mixed disputes. Awards are binding and may be reviewed, revised (or annulled).
ICSID is increasingly popular and has such a full case-load (many of which are from Latin
America) that resolution of cases has slowed down. Many cases brought before ICSID involve
natural resources, such as the cancellation of oil concession. If a company succeeds in
characterising a dispute as an investment dispute they are able to have it heard at ICSID.
21
United Nations Commission on International Trade Law.

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Open discussion
Comment from a participant:
The challenge for most developing countries is that they have laws which are old and require
updating, hence, many countries do not have agreements for reciprocal investment and
protection of the government. Contracts are often negotiated at different times, under
different circumstances, which is why at particular times certain concessions may be offered.
However, investors often allude to precedent and attempt to circumvent the new policies of a
government, being reluctant to enter into new or revised agreements. It must also be
remembered that the mining and petroleum industry are distinct. Hence, laws and model
documents/agreements should be tailored accordingly.
Does being a signatory to ICSID allow a host government to be involved in the arbitration
process?
Any country that is a party to the treaty which established ICSID has an opportunity to put
forward their concerns, and be involved in many of the processes surrounding the arbitration,
including the selection of the panel and forum
Is it possible to write into law the method by which disputes will be handled?
There can be and there are instances when countries have laws which require and refer to
arbitration, yet when they don’t have such laws in place, resolution of the dispute is usually
decided on an ad hoc basis. In this regard, in order to prevent such ad hoc resolution of
matters, it is prudent to include dispute resolutions provisions in model law or contract which
will form part of negotiations between the investor and host governments.
The Trinidad & Tobago PSC example showed that one can go outside the ambit of the law, to
the extent that matters can be negotiated for, even if the law has not yet been amended or
revised to address such prevailing issues at that time.
The government often encourages investors to be involved in the country, yet at times when the
government wants to be involved in critical decision making situations the investors declare that
the government should not be involved. In this regard, how can government know and be
assured that the interest of the country is being taking into account?
Citizens are the stewards of a country’s natural resources, hence, although investors are often
ignorant of the public interest and may adopt aggressive negotiation tactics, there is a need
for investors to be aware of what is reasonable, what is unreasonable and how to be sensitive
to negotiations.
A balance needs to be attained between the objectives that an investor wants to achieve and
the matters where the government wishes to stand firm. Robust and open negotiations from
the outset, which allow for clear channels of communication between the government and
investor throughout the project, can help to avoid difficulties further down the line.

Page | 26
There is often a conflict between government objectives and investor objectives and a
government will need to provide for and balance the rules and legislative provisions that
support the public interest and yet, can attract investment.
There is a perception that the investor does not want local content, but can’t these requirements
benefit the investor as well as the government?
Local content can benefit investors over the long term in a number of ways, for example
through increasing the size and diversity of the domestic private sector (and therefore the
quality of the supply base), or through increasing the pool of skilled employees available for
recruitment to the company. Both of these elements may in turn reduce the investor’s costs
because it becomes cheaper to access these resources locally as compared with bringing them
in from an international location. However, in the short term, meeting local content targets
usually represents a cost to the investor because it requires capacity building for local
businesses or potential employees. These costs can sometimes be shared between companies
and governments (and international development organisations).
Usually an investor decides to invest depending on geology of area and legal framework, but
what are the other critical features of a regulatory regime that foster investment?
The legal framework of a country should be clear and stable but also dynamic, in relation to
policy changes. Generally, at any given time law is evolving, however, it cannot or should not
be developed to respond retrospectively to new policies and prevailing issues at a particular
time.
Does ICSID waiver sovereign immunity?
There is immunity from suit and immunity from execution. ICSID removes the immunity from
suit to the extent that an arbitration award is to be treated as akin to a final judgment of a
court of competent jurisdiction. However, execution against government assets is an entirely
different matter which is not under the purview of ICSID.

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Section 3: Issues in taxation of natural resource projects
Many resource-rich countries have special fiscal regimes relating to the extractive sector,
given the unique nature of the industry. Where governments choose to set up these regimes,
they are faced with a range of complex questions. The first part of this section covers the main
considerations for taxation of the extractive sector, making a case for why they should be
taxed differently, and discussing various tax instruments and the main characteristics of an
effective fiscal regime. The second part will consider the question of government take and
international fiscal competitiveness.
Tax administration of extractive natural resources has presented significant challenges for
governments. The problem is often not in the fiscal regime itself but in the failure to enforce
fiscal rules. This section explores tax administration practices that can help a government
maximise its revenue collection, including the appropriate determination of tax liability,
transfer pricing, tax filing, and auditing.
International benchmarking of fiscal regimes in natural resources22
When considering different fiscal regimes and comparing competitiveness, the conventional
wisdom is that the more competitive a country’s fiscal system, the more likely it should be
that the country will attract investment. This is because of the perspective that international
capital is mobile, and investors will go elsewhere if the regime is uncompetitive. However, as
of 2008, in the oil sector, about 150 countries were offering investment opportunities and 200
companies were pursuing these opportunities. The assumption that the bargaining power lies
with the company is increasingly not the case (see comment box, below: ‘Negotiation power
swings back to governments?’).
The Commonwealth Secretariat’s benchmarking work in this area helps governments to
assess the quality of their fiscal regimes by comparing practices with a range of peers. This
helps countries stay abreast of good practice and ensures that countries are not
comparatively short-changed. This is based on the idea that a country’s bargaining position is
enhanced when it is clear what’s on offer from peer countries.
Negotiating power swings back to governments?
The view that the competitiveness of a fiscal regime is a critical determining factor in its
success held sway for a long time when prices were relatively low and resources and reserves
appeared plentiful. During these periods governments were wary of asking for too much from
companies. In the last few years, however, bargaining power appears to have shifted back into
the hands of governments.
Chinese oil demand alone (11bn barrels per day) is driving the market in an unprecedented
way and its demand will soon be higher than that of the US. Meanwhile it costs US$70/barrel
to produce oil from Canadian tar sands. Therefore, as demand increases, and the quality of the
remaining oil diminishes, a company’s options are limited.
22
Based on the presentation by Ekpen Omonbude, ELS Economic Adviser

Page | 28
The point was underscored by Andre Cho, director of petroleum for the government of Belize,
who agrees that countries are in a strong position with respect to negotiating terms, and that
governments often underplay their hand. His view was that, as the number of oil fields
worldwide dwindles, companies will increasingly have to accept the terms that they are
offered by government.
There have been three broad periods of fluctuation in oil prices since the mid-1970s (see
diagram below). During the period up to the early 1980s, this was a period of increased
government revenues as the profitability of projects went up. This coincided with a period of
nationalisation, and the prevailing philosophy was to try and get more out of project
revenues. Between the early 1980s and the turn of century, there was an increase in countries
offering acreage, lower prices, and better technology allowing companies to go offshore. This
resulted in a shift in bargaining power from governments to investors.
From the period 2003 to the present, the high spike in oil prices has led to a growing shift in
ownership of acreage from companies to governments. Increased oil prices have returned
increasing revenues to projects. Governments signed deals when prices were low and there
have been questions over the amount of revenue earned, and a general tendency to want to
bring investors back to table and re-think contracts. There has been a temporary slowdown in
the renegotiation drive, but as prices go up again, so will the renegotiations.
Three phases of oil price fluctuation since the 1970s
The diagram shows that, in general, when oil prices are high, a government’s negotiating
position is stronger than when oil prices are lower.
The benchmarking exercise comprises three phases. The analyst selects a group of countries
with similar technical, legal, fiscal and environmental characteristics. The ‘fiscal burden’ is
assessed in order to identify the level of government take and measure the impact of the
regime on government cash flow, as generated by a hypothetical extractive sector project. The
next step is to identify the main sources of government revenue and assume a field size

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(including import duties, royalties, income tax, additional dividends etc). The model does not
include minor fees such as rents, licence fees, bonuses and so on, even though signature
bonuses can reach into the hundreds of millions of dollars.
The next step is to determine the fiscal burden – if revenues are received later rather than
earlier, the government may have to find other sources to meet budget commitments, through
raising taxes, reducing expenditures, increasing government borrowing and so on. This can
also be analysed from the perspective of budget surplus and the development of a sovereign
wealth fund which may bring a return to the government. There is also an opportunity cost in
making the investment at the current time rather than later, and this is considered in the
model.
Next the model considers how long it would take investor to recoup cost of investment, and
the responsiveness of the government take – how much does the government get in return as
the profitability of the project increases? In reviewing a number of different regimes, it shows
that a number of oil regimes are progressive and a number are regressive, but in the mining
sector only two or three regimes are progressive. In a progressive regime, as profitability
increases, so does the government take. Different measures can be used to delay or speed up
the incidence of fiscal burden. For example the front-end burden can be reduced, which is
valuable from an investor’s perspective, but may not be so good for the government as it is
often looking for early signs of benefit from a project’s presence.
Having undertaken the benchmarking exercise a country can identify the areas where
adjustment is required in order to ensure at least a minimal revenue to government. Simple,
profit-based regimes are effective from the point of view of being low-maintenance and
easily-established. Non-fiscal characteristics must also be taken into account, for example
geological prospects, infrastructure, political and environmental risk, and so on. There is a
constant feedback process involved.
Issues in taxation of natural resource projects: an industry perspective23
What makes a tax regime attractive to investors? This question can be considered with
reference to the UK’s oil and gas regime. The UK’s is a mature regime – production peaked in
1999 and has fallen off since. There are substantial reserves left but they are in decline due to
the high cost of recovery and a changing tax regime. However, fiscal receipts still comprise
about 25% of UK corporate tax take. This is expected to decline in the medium term, but there
has been a recent tax increase so receipts will remain high in the short term. There remains a
fair amount to play for in UK reserves, including shale gas. The decline in the sector is not
inevitable and can be influenced by government policy.
There has been constant adjustment to the UK’s oil and gas regime. For example in 2002,
when the government introduced a supplementary charge when oil and gas prices started to
rise, this prompted a series of changes over the next ten years. A number of countries
followed suit with ‘windfall taxes’, but the UK was first. From an investor perspective, stability
23
Based on presentation by Roman Webber, Partner, Deloitte

Page | 30
is important and a fiscal stability clause can be very valuable to an investor. Knowing that net
present value (NPV) won’t change halfway through the project is important to companies –
recent cuts in NPV have been very badly received and the UK has recently fallen in terms of
international competitiveness.
An important concept for investors is creditability, which is the idea that a company shouldn’t
pay additional tax in its home country above what it has paid locally. In other words there
should not be double taxation and host countries should ensure that tax is creditable for
investors elsewhere. If this is not the case an investor’s fiscal burden could be doubled. It
becomes complicated in production sharing arrangements where the government may pay
tax on the investor’s behalf, which seems like a good deal, unless the investor is still liable for
the tax in the home country.
Accounting for tax is important and depends on where the company is incorporated and
listed. A company may use the UK or US GAAP (generally-agreed accounting principles) or the
IFRS standards. If companies have to book two ‘hits’ to their accounts (ie where tax is not
creditable) they tend to react badly. If a government must make changes to a fiscal regime it is
important from an investor’s perspective to make all the burdens happen at once so that
companies can account for it effectively.
Work has been undertaken by a consultancy, IHS CERA, to understand how domestic tax
regulations of various jurisdictions can impact the competitiveness of a bid for an overseas
project. For a US-based company, for example, how would the US tax regime affect a
company’s bid for work in Nigeria? Certain classes of investors are affected in different ways –
US investors may be adversely affected as opposed to nationally-owned companies and
independent companies, who pay low tax in their own countries.
Another important point for investors is clarity over the interaction of a country’s tax
provisions with local law. A PSC can either be independent of local law, or part of it, or
enshrined in it. The tax liabilities differ in each case and it is important for the investor to
have clarity as it may determine the creditability of taxes as well as the form in which tax is
paid. If local law insists on having a locally-incorporated company, this can restrict foreign
investors. In conclusion, a number of factors come together to make a successful regime from
an investor perspective – and the key impacts are sometimes in the details and not
immediately obvious when a change is introduced.
Fiscal issues and challenges in developing countries: the case of Belize24
Developing countries face highly complex challenges in attempting to exploit newly-
discovered natural resources in a responsible and sustainable way. In Belize, oil was
discovered in 2005 and a huge burden of work was involved in order to put in place the
infrastructure to respond to the discovery. Historically (since the late 1950s), most surveys
had taken place offshore, with many exploration wells drilled onshore in the same period.
When oil was discovered in 2005, many more companies arrived in search of exploration
24
Based on the presentation by Andre Cho, director of the geology and petroleum department in the ministry of natural resources and the
environment, government of Belize.

Page | 31
licences. 45 new wells have been developed since 2005 and four seismic surveys undertaken
(there had been none prior to 2005). The box below (Belize’s petroleum revenues, 2006-
2010) shows the rapid recent growth in the sector.
Belize’s petroleum revenues, 2006-2010
The first offshore discovery was in central western Belize, a fairly small field, where
production started in 2005. Production began quickly because the government wanted
revenues, and the small field impacted the country significantly. Many challenges arose,
largely due to a lack of experience in the sector, including a lack of staff; legal and contractual
deficiencies; and fiscal deficiencies (for example, high auditing costs compared to Trinidad &
Tobago). An immediate response was required and the government asked Trinidad & Tobago
for advice and technical assistance. The Trinidadian Prime Minster sent a senior
representative to provide advice. ComSec also provided assistance, for example through
providing a review of petroleum legislation and updating the model PSA. The ComSec’s ELS
team also helped develop a petroleum revenue management fund.
New personnel were hired in Belize, increasing staff levels from one to seven, and the UN was
approached for funding to build capacity in order to create a pool of in-house consultants in
favour of external consultants. The legal regime was developed in consultation with a number
of other departments including the income tax department. The fiscal regime was a hybrid
royalty/tax regime and PSA regime, where the government had a 10% buy-back option. This
was very difficult to administrate and included a negotiable royalty (a minimum of 7.5%).
Income tax was fixed (therefore regressive) and the minister of finance changed the income
tax regime without alerting the petroleum department. The wording on the government’s
10% option was ambiguous, i.e. whether it referred to 10% of commercial fields or 10% of the
entire project. These weaknesses were resolved, including the proposed development of a
public participation vehicle to enable the citizens of Belize to share in the profits from oil
projects. Other adjustments to the regime didn’t go as planned due to a change of government.
The new terms for investors included a requirement to provide degree-level training in
petroleum areas; to contribute to an environmental common fund (with the amount based on
the prospectivity of the field); and there would be no signature bonuses. Different fields were

Page | 32
mapped to ensure an adequate state take (low-medium-high), with the royalty higher for
onshore than deep offshore.
Belize’s revenue management fund is not yet established. The idea is that this would take
money from royalties, PSAs, income tax and the government’s 10% interest (excluding the
public participation vehicle, if it is accepted). An oversight committee would manage the fund
and provide transparency, along with a public information office which would clarify what
revenues had been collected. The government could invest the money outside the country,
with an annual transfer going from the fund to the government budget annually on the basis
of an agreed formula. There would be clear rules regarding withdrawal and use, and these
rules would be enshrined in law so that no administration could change it unless there was a
¾ majority vote in the house. An Act of Parliament was passed in 2007 to implement the fund
but it has still not been set up due to the new administration’s fears that they will not be able
to access revenues.
Open discussion
What are the opportunities and challenges in recovering infrastructure development costs from
investors? Should governments provide the infrastructure?
If an investor states that infrastructure needs to be provided by the government, the costs
need to be factored into whatever fiscal package is agreed. If an investor meets the cost of
infrastructure development (for example, transporting production to a port), this would also
need to be reflected in the fiscal package (ie the government take may need to be adjusted).
Governments can invest in these projects in a number of ways, for example via tax allowances
if an investor pays for the infrastructure, or by government participation if the infrastructure
has some kind of public usage (for example, road building). This could be in the form of
concessional financing either through a development finance institution or via user fees.
If you already have an income tax act governing taxation, is there any advantage in having a
specific petroleum tax in addition?
In the experience of Belize, it is better to have a separate petroleum taxation law. There are
three elements in Belize: one relating to income tax (25%), a second on petroleum (40%),
with its own regulations and guidelines, and a third is a corporate tax based on gross revenue
rather than income.
Which of the 23 mining regimes are progressive, and how do you transform a regressive regime
into a progressive one?
The two progressive regimes are Swaziland (based on recommendations prepared by ELS)
and Uganda. Pakistan’s regime is expected to be progressive but is currently under
development. Simple instruments can make a regime progressive. The key is to identify a
threshold of profitability after which tax increases – linked to the investor’s expectations of
the profitability of the field. Whether to enshrine this in contract or in law depends on
capacity, country context and so on.

Page | 33
What are the benefits of a windfall tax?
Flexibility is essential in capturing money from price peaks. If you can take account from the
outset of price changes and cater to upward as well as downward movements this encourages
flexibility while also providing a degree of stability for the investor. In these cases companies
know that as they get more profitable they will be taxed more. It is better to make these
arrangements from the outset rather than as a windfall tax as it increases stability. Another
difficulty with windfall taxes, from an investor’s point of view is that at time of high prices, the
cost of their inputs (steel, fuel, etc.) also increase so the overall increase profitability may not
be as dramatic as it might appear.

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Section 4: Natural resource revenue administration & management
Large sums of revenue from extractive production can cause adverse socio-economic impacts
if poorly managed. Many governments are now putting in place revenue management
mechanisms to ensure reliability, transparency, and accountability in the collection,
allocation, and utilisation of natural resource revenue. The section explores key
considerations for designing these mechanisms, such as natural resources funds, with
examples from around the world.
Transparency in Natural Resources Revenue Collection: Challenges25
The Extractive Industries Transparency Initiative (EITI)26 has its origins in the concept of the
‘resource curse’, or the paradox of plenty. Simply put, these theories state that a sudden flow
of natural resource revenues in a developing country, can have a destabilising impact on
economies and societies. Every study that looked into this phenomenon pointed to the need
for transparency – the need to know how much money is coming from the extractive sector.
Transparency can lead in turn to greater accountability and better governance of the sector.
A sustained campaign by a huge coalition of NGOs called Publish What You Pay pressured
companies to declare their payments in countries where they were operating. Companies said
that this would break confidentiality clauses on their contracts. A discussion followed about
whether or not this was the real reason, but in any case, it became necessary to involve
governments in the process, as well as civil society oversight. This tri-partite approach was
the basis for the EITI (see diagram below for a visual overview of how EITI operates).
25
Based on the presentation by Eddie Rich, deputy head, Extractive Industries Transparency Initiative.
26
Eight Commonwealth member countries are already implementing the Extractive Industries Transparency Initiative (EITI), and the experience may
be relevant for several more countries.

Page | 35
EITI aims to be a global standard and has been endorsed by many international organisations.
A number of supporting countries and organisations provide technical and political
assistance. The heart of the EITI is the report. This consists of information provided by
companies about what they pay to governments, combined with information provided by
governments about what money they receive from companies. The two sets of figures come
together in an independently-verified ‘reconciliation report’ in a process overseen by a
multistakeholder group.
This report then acts as the basis for wider dialogue, since if governments are sitting down
with companies and citizens the debate is not just about revenues, but a whole set of
accountability and management issues in the extractive sector including licences, operations,
how the money is spent and so on. Local processes are country-owned – the country decides
what the group most needs to discuss and what the report should cover. Internationally, 20
indicators are used to decide whether a country is compliant with the EITI rules. So far, 11
countries are in compliance, 67 reports have been produced and 0.5 billion people have
access to information on extractive sector revenues, many for the first time.
The quality of the data in reports is variable, but even though the first report in each country
is often quite weak, each one tends to improve along with the quality of discussion. There can
be some discrepancies between what companies pay and what governments receive. Often
these are accounting errors, but sometimes more corrupt activity is taking place.
EITI is not right for every country and it depends whether the process of resource extraction
is an issue of contention and debate. In each of the 35 countries where it has been applied
there have been different outcomes and benefits, though a common theme has been the
building of trust and dialogue. Australia is currently piloting the initiative following a big
debate last year about a mining ‘supertax’. In Liberia, the minister says that EITI attracts high
quality FDI; in Nigeria and Azerbaijan they say that their countries’ credit ratings have
improved. In other countries EITI has led to an improvement in tax collection systems, having
highlighted where companies have been avoiding tax. IMF and others are interested in
helping countries to improve fiscal management and companies are interested because it
helps create a more level playing field.
Natural resources revenue management27
Good natural resources revenue management proceeds from the perspective that revenues
related to the extractive industries are fundamentally different from other types of revenue.
Proper management of these revenues requires three elements: 1) adequate frameworks, 2)
strong institutions acting according to 3) good governance principles.
Natural resource revenues can also be different for a number of reasons. One good example is
the phenomenon of ‘Dutch Disease’, which affects all resource-rich countries, regardless of
their state of development. One of the causes of Dutch Disease is a labour shift towards
extractive companies, which pay better than other companies, leading to an inflationary
27
Based on the presentation by Daniel Dumas, adviser and head, ELS. See also Daniel’s report, ‘Transforming society through the extractive
industries’ (Commonwealth Secretariat, 2010).

Page | 36
pressure on the job market. The most important impact that leads to Dutch Disease is the
exchange rate. Increasing export revenues are pegged to the dollar, and a host currency tends
to inflate and become less competitive. The Dutch Disease effect hits small economies harder
than large economies.
Natural resource revenue can also be seen differently from other forms of revenue since it is
not really income in the traditional sense, but a translation of wealth lying under the ground
into cash and financial assets. In this way it is more like a bank account, and each time an
ounce of gold or pound of copper extracted, it is gone forever – there is no opportunity to
make additional deposits.
Another characteristic of natural resource revenues is their volatility. This makes it difficult to
balance the state budget. There is also the question of resource rent. The price at which the
products of the extractive sector are sold has no relation to cost of production at a single
operation. A barrel of oil can be extracted for less than US$10 in the Middle East while it costs
US$70 to produce the same amount from the Alberta tar sands. This gap is known as the
resource rent. It is essential that the fiscal regime is flexible enough for the government to
capture this additional value, since countries are the holders of the resources rather than
companies.
Introducing ‘the Five Ss’
Stabilisation
As discussed, mineral prices (and revenues) are volatile and there is a need to protect the
budgeting process. Funds should be built up during boom times and drawn down in times of
low prices. Where there is significant price volatility it becomes difficult to set a threshold
price. Stabilisation can help with managing a government budget, but it doesn’t help with
saving for future generations. If the threshold is at the correct price, the money available goes
up and down but there is no overall build-up of wealth.
Sterilisation
The purpose of sterilisation is to mitigate Dutch Disease effects, which is particularly urgent
for small economies. Norway invested all its revenues outside the country, because the
government realised that they had to sterilise the revenues. Although they have been doing
this since the outset, Norway has one of the highest costs of living in the world. This becomes
even more difficult in developing countries where non-natural resource revenues are small.
Some countries have found that the cost of living becomes very high in areas where there is a
lot of extractive activity. All the money coming into the country causes major inflation which
is hard to manage. It also causes a lot of problem for other economic sectors which tend to
become less competitive and sometimes even disappear.
Savings
Countries need to save some financial assets for future generations. This is difficult because
countries (especially developing countries) have ongoing budgetary needs. The question of
saving relates to ‘flattening’ the revenues from EI (see diagram below which shows the

Page | 37
uneven nature of revenues across the project life cycle), by transferring money in increasing
amounts per year and saving the surplus for future generations. The best scenario, where
there is genuine intergenerational equity, is that once minerals are depleted, there are
sufficient savings in the country’s savings fund to be able to maintain the same levels of
budget transfer in perpetuity.
Typical petroleum revenue cash flow across a project
The green, jagged line shows typical income from petroleum revenues over time. Note that at
the line falls away at the end of the project. The orange line shows the ideal ‘flattening’ of the
revenues which is achieved through saving a certain amount each year, such that the
revenues continue to provide an income to the country following the closure of the project.
Safeguarding
An intrinsic problem with natural resources funds is that the build-up of funds into a single
fund makes it very visible and tempting for a government to use. Hence the fund needs to be
designed in a way that makes this difficult to happen, for example by ring-fencing it.
Socio-economic development
Although saving is important, it is necessary in developing countries to find a way to use some
revenues for infrastructure, roads, electrification, health and education. If a government
spends wisely, these will also be of benefit to future generations. Spending per se is not bad if
done the right way. Often the projects begin well but with more and more money available the
quality of investments reduces. For example as a result of petroleum revenues, the Timor
Leste government budget tripled in matter of years and there was insufficient capacity to
manage the additional inflow of money. Investment requires strong institutional capacity in
order to be efficient.

Page | 38
Transfer pricing, issues and challenges28
Transfer pricing29 is gaining more importance due to the greater interest in transparency.
Large parts of the global economy are now short of cash, for example in the UK, the
government is trying to get a lot of tax from banks and the natural resources sector. This has
been termed the ‘dash for cash’. There is a lot of money in the energy and natural resources
sector (rather than in banks). In the recent UK budget there was an increased levy on
exploration in the North Sea.
From the perspective of companies, tax equals cost, so tax efficient planning is good for
shareholders, as long as no rules are being breached. The competitive nature of the global
economy is also causing complexity as companies want to be more efficient. The energy and
natural resources sector has seen a big wave of takeovers of less efficient companies. A lot of
energy/natural resource companies have roots in colonial administration, the operations
were little fiefdoms where materials were extracted with little communications with head
office. This is now changing and many companies are much more centralised. There is a need
to raise funds to open a mine or oil field, it’s a very capital intensive business, requiring a lot
of funding and a lot of controls (see diagram below, ‘Financial risks along the natural
resources value chain’).
Financial risks along the natural resources value chain
Extractive sector companies are now more like other multinationals where there is a
centralisation of administration and risk. For example, diamonds were traditionally sold in
the UK or US, but now China and India are the biggest markets. For a company the challenge is
how to ensure that diamonds are cheap in China and India but expensive in the US and UK?
There are therefore lots of interactions between different parts of multinational enterprises. It
is a fast-moving and rapidly changing business environment, barriers to trade and investment
have come down, and there are more IT and communications.
Meanwhile all governments are short of cash and there are aggressive tax authorities at home
and abroad. If you need those revenues as a government, how do you collect a fair share of
28
Based on the presentation by John Neighbour, partner, KPMG
29
Transfer pricing relates to the selling of goods or services between divisions of the same company.

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