Regulation of Subsoil Use and Investment in the Countries of Caspian and Black Sea Regions (Zhumageldy Sakenovich Yelyubayev Doctor of Law, MCIArb)

Zhumageldy Sakenovich Yelyubayev

Doctor of Law, MCIArb,

Chevron EBU Legal Managing Counsel

President of the Kazakhstan Petroleum

Lawyers Association (KPLA),

Professor of the Chair of Customs, Financial and

Environmental Law

of Al-Farabi Kazakh National University

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Conference «Upstream Development in Caspian and

 Black Sea Regions», February 19-21, 2014, Baku

Legal Regulation of Subsoil Use and Investment

in the Countries of Caspian and Black Sea Regions[1]

«The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.»

1962 General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources (Article 1)

Political and Legal Aspects of Subsoil Use in Caspian and Black Sea Regions

The Black Sea and Caspian region, being the focus of great powers and transnational energy companies, becomes a «hot» spot on the world map as it is deemed to be a geographic crossing rich with energy resources and providing their flow from East to West and from North to South.

It should be noted that during the last 20 years this region is characterized by a certain political tension caused by unresolved interstate conflicts and confrontation between the large countries and political and economic alliances to influence and promote their own interests in the region.

For example, the key factors of economic confrontation of the countries are competitive projects of transportation of Caspian energy carriers to Europe such as:

Ø      «Southern Energy Corridor», being implemented to ensure the delivery of Turkmen and Azerbaijan gas to Europe by-passing the Russian Federation via the Caspian Sea, Azerbaijan and Turkey;

Ø      «SouthStream» is the project for transportation of the Russian gas to the European Union countries by the bottom of the Black Sea to Bulgaria by-passing the Ukraine;

Ø      Unrealized Nabucco Project, the fate of which has not been finalized, as well as of other transportation projects.

The reason of the differences are rich hydrocarbon deposits within the shelf of the Caspian Sea and the Black Sea, the development of which is the target of almost all energy companies of both littoral and distant countries.

It is not a secret that within the framework of such plans great powers are trying to influence the countries of the Caspian and Black Sea regions, trying to enlist their sympathies, i.e. there is a competitive struggle for the spheres of influence. The situation is aggravated by the military expansion of a number of countries.

A certain tension in interstate relations also exists due to the unsettled issue of the status of the Caspian Sea. Thus, there are disputes with respect to: shelf oil and gas fields; principles and procedure for demarcation of the Caspian Sea between the Pre-Caspian countries; establishing of the limits of territorial waters for each country and other major and minor issues. The existing interstate relations on these issues, both earlier and entered into during recent decades are the subject of criticism from the disputing parties. The delay in determining the status of the Caspian Sea does not allow effective international cooperation in the development of natural resources of this region.

It seems that the countries which are key players in the Black Sea-Caspian region should be mutually cautious in solving problems associated with the development of this region to maintain political and economic stability, to achieve their strategic national interests. These countries should realize that in order to implement own plans for subsoil development and transportation of hydrocarbon crude in this dense region they should not let any military or other conflicts break out to avoid any adverse consequences difficult to remediate.

However there are positive aspects confirming a desire of all interested parties to facilitate a civilized development of the Black Sea-Caspian region. The example of such approach is the regional initiative of 11 countries «Black Sea Economic Cooperation» (hereinafter BEC)[2], which became a fully legally established international organization since 1999. Now within its framework cooperation of parliament members, representatives of business and science is being developed. The bank for development extends funds to finance regional projects.

Pursuant to the BEC Charter events within the framework of this organization facilitate the implementation of the following key principles and objectives:

Ø      To act in a spirit of friendship and good neighborliness and enhance mutual respect and confidence, dialogue and cooperation among the Member States;

Ø      To further develop and diversify bilateral and multilateral cooperation on the basis of the principles and rules of international law;

Ø      to act for improving the business and promoting individual and collective initiative of the enterprises and companies directly involved in the process of economic cooperation;

Ø      to develop economic collaboration in a manner not contravening the international obligations of the Member States including those deriving from their membership to international organizations or institutions of an integrative or other nature and not preventing the promotion of their relations with third parties;

Ø      to take into account the specific economic conditions and interests of the Member States involved;

Ø      to further encourage the participation in the BSEC process of economic cooperation of other interested states, international economic and financial institutions as well as enterprises and companies.[3]

It is worth noting in this connection the activity of the Union of Black Sea and Caspian Confederation of Enterprises (UBCCE)[4], established by the representatives of 12 countries in 2006. Based on the foundation documents UBCCE will address the issues of integration and formation of the common economic space with a large potential. The key strategic objective of the new union is to become a herald of business in the Black Sea and Caspian regions to ensure global equilibrium and to prevent conflict situations.

There are other structures based on bilateral and multilateral arrangements, whose activities are aimed to ensure political and economic stability in this important part of the world, which currently is the source of energy security for many countries of this continent.

Summarizing the above I would like to note that world powers located at a distance from the Black Sea-Caspian region as well as transnational energy corporations operating in this part of the world should consider the littoral countries of this region as partners in regional economic projects and «not as the spheres of their influence». In addition, the countries of this region should see that all economic disputes and political and military conflicts be resolved on the basis of guaranteed reciprocal concessions subject to the principles and rules of the international law. Such approach, utopian at the first glance, can ensure peaceful development of the Black Sea and Caspian region for the benefit of littoral countries and the rest part of the world.

Legal Aspect of Subsoil Use Regulation in the countries of the Black Sea and Caspian Region

The countries located in the Black Sea and Caspian region are politically and economically diverse, therefore legal relations in the sphere of subsoil use are regulated differently. It should be noted that various models of political and economic development selected by the former soviet republics did not allow carrying out economic reforms; hence each country developed its own strategy taking into account new realities of the world globalization process.

The attempts of CIS[5] and EurAsEC countries to integrate their efforts in the sphere of subsoil development did not yield results, because each county chose its own way: Russia was based on the opportunities of the national companies; Azerbaijan and Kazakhstan became focused on attracting foreign investments; Georgia and Ukraine remained in the condition of political crisis, and the economies of these countries developed by their own specific laws; Moldova preferred to wait, probably, due to the lack of a sufficient mineral raw material base. The integration process in these countries was barred by the aggressive activities of transnational energy companies focused on the Eurasia space, specifically the pre-Caspian region, rich with oil and gas deposits.

At the same time after the collapse of the USSR, CIS and EurAsEC countries[6] attempted to coordinate their steps to align their activities in the sphere of subsoil development, transportation of hydrocarbon crude and activities in other spheres associated with subsoil use and investment.

For example on March 27, 1997 there was adopted the Mining Charter of the Commonwealth of Independent States to ensure effective operation of the economic union in the sphere of study, prospect, use and protection of subsoil.

The parties signed the Mining Charter, agreeing to coordinate their activities in the following directions:

1)      gradual rapprochement and unification of legislative and other normative acts in the sphere of study, prospect, use and protection of subsoil;

2)      improvement of legal basis for economic cooperation under conditions of formation and development of market relations;

3)      realization on mutually acceptable basis of geological exploration of subsoil and reproduction of mineral raw materials, securing increase in production efficiency, transportation and use of minerals and products of their transformation under conditions of simultaneous increase of safety standards and minimization of the issues of environmental pollution;

4)      elaboration and forwarding of new mechanisms of efficient cooperation between State authority and State institutions, as well as between subjects of economic activity in the sphere of study, prospecting, use and protection of subsoil.

In addition, the parties committed to facilitate:

Ø      development of the market of mineral raw materials and the products of their processing within the limits of the common economic space;

Ø      securing access to subsoil, its prospecting and development in accordance with the national legislation;

Ø      elaboration and realization of joint programs in the sphere of geological study of subsoil, reproduction and qualitative improvement of mineral raw-material base;

Ø      unification of the development policy and distribution of enterprises of mining industry;

Ø      making arrangements for the development of industrial infrastructures of mining industry;

Ø      facilitation of access to transportation infrastructures for the purpose of international transit of the flow of mineral raw materials as well as the products of their processing;

Ø      facilitation of access on commercial basis to new technologies applied in the sphere of prospecting, extraction, transformation and use of mineral raw materials;

Ø      creation of conditions guaranteeing rational and complex use of reserves of mineral deposits;

Ø      assistance in carrying out measures aimed at elaboration and introduction of technologies and works for economy of resources;

Ø      elaboration and realization of joint operative programs in the sphere of industrial safety and liquidation of the consequences of large-scale accidents;

Ø      elaboration and realization of mutually agreed approach to the solution of the environmental protection issues;

Ø      assistance to bringing investments and credits into mining complex;

Ø      establishing joint ventures for extraction, processing of minerals, production of mining equipment for mining industry;

Ø      exposure of priority directions of scientific research;

Ø      coordination of measures of improvement and concordance of normative and methodical documents that regulate geological prospecting on the basis of requirements on a world scale as regards work contents in accordance with stages, classification of reserves of mineral deposits, form and contents of geological reports, balance of reserve of minerals and other geological information;

Ø      analysis of state of the world market of mineral raw materials as well as world achievements in the field of science, techniques, technology, elaboration of mutually agreed strategy and tactics on world market of mining geological produce and service;

Ø      assistance in carrying out coordinated arrangements as regards training and improvement of professional skill of personnel;

Ø      development and introduction of legal assistance mechanisms and securing social guarantees to the specialists engaged in mining and geological works;

Ø      establishing of favorable conditions for the complete fulfilment and within established terms of the agreements on mutual delivery of the most important kinds of minerals, products of their processing, mining equipment;

Ø      elaboration of prognoses of social and economic consequences of exploitation of reserves of mineral deposits.[7]

In practice the Mining Charter of the CIS countries did not play a significant role in the integration of their efforts in the sphere of subsoil development; its provisions remained declarative as the intent of the parties thereto. Only Russia and Kazakhstan to a certain extent implemented their intents, in particular: jointly with western investors represented by major energy corporations they facilitated the construction and commissioning of the Caspian Pipeline Consortium (CPC), build specifically for the transportation of the Kazakhstani oil; reached the agreement on joint development of Caspian offshore oil and gas deposits and construction of a joint venture gas refinery in Orenburg to process hydrocarbon crude produced at the Karachaganak gas condensate filed. It resulted in the arrangement between Azerbaijan and Kazakhstan on the «southern transportation corridor» for the export of the Kazakhstani oil.

The CIS Charter did not also help to approximate subsoil and subsoil use laws of these countries, because the law of each country is based on a different concept. Thus, e.g. decisions on one of the main subjects of legal regulation - granting the right to use subsoil - in each country are made differently: in Russia - based on the license, i.e. a governmental administrative act; in Kazakhstan - based on the civil law contract; in Azerbaijan- based on the contract ratified by the Parliament of the country; in the Ukraine - based on the combination thereof, to a national subsoil user - under a special state permit (license), to a foreign legal entity - under the contract granted according to the results of bidding; in Turkmenistan - based on the license.

In this connection it should be noted that on December 7, 2002 CIS countries adopted a Model Subsoil Code, which stipulated a combined procedure for granting the rights to use subsoil. Thus, pursuant to these international acts, the rights to subsoil areas may arise (Article 55):

1)      pursuant to the acts of executive authorities and local government;

2)      pursuant to production sharing agreements, concession, farm-out, service agreements and other transactions;

3)      pursuant to court judgment;

4)      pursuant to appropriately established and confirmed fact of discovery by a subsoil user of a mineral deposit at own expense.

Unfortunately, this proposal was not included into any CIS internal regulatory legal act regulating relations in the sphere of subsoil development. In Kazakhstan on the contrary there is a tendency to limit the grounds for granting the right to use subsoil, specifically during last few years there were excluded from the RoK Law «On Subsoil and Subsoil Use» joint operating contracts (with and without formation of a legal entity), production sharing agreements and some other contracts by types of subsoil use.

Thus, this model legal act remained unclaimed in CIS countries.

CIS and EurAsEC countries entered into a number of bilateral and multilateral agreements on different types of cooperation in the sphere of subsoil use. However, it should be noted that these agreements/contracts did not form a legal basis for joint efforts of CIS countries to develop subsoil. For example, in 2000 the Republic of Kazakhstan and the Ukraine signed a special Agreement on the principles of cooperation in the oil and gas sector, but for the past thirteen years no significant interaction between two countries was observed, i.e. the provisions of the agreement remained inly the intent of the parties thereto.

It is worth to stress that though the acts of CIS and EurAsEC countries on subsoil use did not play a significant role in the integration of the efforts of these countries in the sphere of subsoil development, nevertheless they met the objective that CIS and EurAsEC countries would not create for each conflicting situations in subsoil use on their sovereign territories when attracting foreign investments and transporting minerals to the markets. Subsoil use relations in each country were and are regulated primarily by the national legislation based on similar concepts.

As per the Black Sea region, a very frequently asked question is: Is there «Kuwait» at the Black Sea? And the answer to this question is being actively sought by the countries of the Black Sea coast. If what mass media publishes is true, in 2014-2015 there will be drilled the most number of deep-water exploratory wells on the Black Sea: four - in Rumania; two - in Russia; one each in Turkey and Bulgaria.[8] These plans are a serious claim for subsoil use operations to be conducted by consortia, consisting of both national companies of these countries and international energy companies. It is known that recently 3D wide-scale seismic survey has been conducted on the Black Sea in the territorial waters of Bulgaria[9], the processing of data of which would help making a decision on additional drilling of exploratory wells.

Thus, practically all Black Sea littoral states have their own plans for subsoil development. They can implement these plans based on the provisions of the national legislation, stipulating an opportunity for granting the right to use subsoil only by issuing a state administrative act (e.g. license), but also by entering into subsoil use contracts, establishing consortia with the participation of international energy corporations. Such approach allows maximally reduce exposure to conflicting situations, and if they arise to settle them in a civilized manner as it has been done for instance by Rumania and Ukraine in the dispute regarding the ownership of Zmeiniy Island. There were no winners or losers as the judicial compromise allowed both parties to continue implementing their plans for offshore subsoil exploration and use on the Black Sea.

As per Turkey … Historically this country was the bridge between East and West; therefore in the current conditions of globalization this circumstance becomes most significant in the issues of its participation in subsoil development both onshore and offshore of the Black Sea. Despite that Turkey holds a very modest position in the list of oil producing countries; nevertheless this country has a specific significance determined by its unique geographical position. Turkey is the only country that has ports both on the Black Sea and the Mediterranean Sea. Being located at the junction of Asia and Europe, it services as a transcontinental bridge for running oil and gas pipelines from the oil producing countries of the Black Sea-Caspian region, including Azerbaijan, Russia, Kazakhstan and Turkmenistan.

Turkey benefits from such relations both commercially and strategically. The Turkish Government is trying to attract foreign companies to conduct prospecting and exploration in the most promising regions of the country. The achievement of such objectives is facilitated by the Turkish legislation on subsoil and investment which allows foreign companies to cooperate with the national company on the basis of civil law agreement and governmental acts.

Therefore the existing platform for international cooperation, availability of the necessary legal framework, tolerant attitude to controversies and seeking for civilized settlement of conflicts make the countries of the Black Sea-Caspian region a reliable link in the international business relations aimed at developing subsoil in the region for the benefit of the commonwealth of these countries.

Investment Attractiveness of the Black Sea-Caspian Region

The issues of legal regulation of investment in the sphere of subsoil use were always topical for discussions. Their topicality is determined by the necessity to ensure legal support to and protection of investment at the stage of drastic changes in the sphere of state regulation of investment activity. This thesis applies in the assessment of investment attractiveness of the countries of the Black Sea-Caspian region.

Economic needs of any country where the property right should be well-secured poses the objectives of enhancing law enforcement and protection of not only business entities - investors but the state and its bodies as well. It should be noted that the status of legal protection of investment activity in the Black Sea-Caspian region is estimated as positive and sufficient for meeting the needs of market economy, especially in the sphere of subsoil use. Therefore major energy corporations are focused on the Black Sea-Caspian region.

The analysis of investment attractiveness is a big and interesting topic, but within the framework of the issue in question I would like to enlarge only on some provisions of the Energy Charter Treaty (hereinafter ECT),[10] adhered to by the countries of the Black Sea-Caspian region: Azerbaijan, Armenia, Bulgaria, Georgia, Kazakhstan, Russia (has not filed the ratified document), Rumania, Turkmenistan, Turkey and Ukraine.

Researchers of this international act note that the main objectives of the Energy Charter Treaty are contracted to the establishing of conditions for liberalization and stimulation of investment in power generation and sale, ensuring free access to the energy markets, resolving disputes in this sector in the international arbitration process, minimizing environmental risks. The content of this Treaty is very complicated and its provisions can be interpreted differently, therefore the practice of application of its rules requires a comprehensive and reasonable approach in order to exclude disputes between the parties to the Treaty.

The said Treaty, in spite that to a greater extent it regulates relations in the sphere of investment protection, nevertheless extends to the sphere of subsoil use, specifically the oil and gas sector. This conclusion is based on the construction of the term «Economic Activity in the Energy Sector», meaning «an economic activity concerning the exploration, extraction, refining, production, storage, land transportation, transmission, distribution, trade, marketing, or sale of Energy Materials and Products» (Article 1.5 of the Treaty). In its turn almost all kinds of minerals and their products, being energy sources, including: oil and gas are referred by the Energy Charter Treaty to «Energy Materials and Products (Annex ЕМ to the Treaty). Annexes to the Energy Charter Treaty impose on the countries a number of obligations, specifically:

Ø      to ensure that within its jurisdiction it has and enforces such laws as are necessary and appropriate to address unilateral and concerted anti-competitive conduct in Economic Activity in the Energy Sector (Article 6.2);

Ø      to take the necessary measures to facilitate the Transit of Energy Materials and Products consistent with the principle of freedom of transit and without distinction as to the origin, destination or ownership of such Energy Materials and Products or discrimination as to pricing on the basis of such distinctions, and without imposing any unreasonable delays, restrictions or charges (Article 7.1);

Ø      to acknowledge the importance of open capital markets in encouraging the flow of capital to finance trade in Energy Materials and Products and for the making of and assisting with regard to Investments in Economic Activity in the Energy Sector in the Areas of other Contracting Parties (Article 9.1);

Ø      to endeavor to promote conditions for access to its capital market by companies and nationals of other Contracting Parties, for the purpose of financing trade in Energy Materials and Products and for the purpose of Investment in Economic Activity in the Energy Sector in the Areas of those other Contracting Parties, on a basis no less favorable than that which it accords in like circumstances to its own companies and nationals (Article 9.1);

Ø      to examine in good faith requests by Investors of another Contracting Party, and key personnel who are employed by such Investors or by Investments of such Investors, to enter and remain temporarily in its Area to engage in activities connected with the making or the development, management, maintenance, use, enjoyment or disposal of relevant Investments, including the provision of advice or key technical services (Article 11.1);

Ø      to permit Investors of another Contracting Party which have Investments in its Area, and Investments of such Investors, to employ any key person of the Investor’s or the Investment’s choice regardless of nationality and citizenship provided that such key person has been permitted to enter, stay and work in the Area of the former Contracting Party and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key person (Article 11.2);

Ø      to facilitate access to energy resources, inter alia, by allocating in a non-discriminatory manner on the basis of published criteria authorizations, licenses, concessions and contracts to prospect and explore for or to exploit or extract energy resources Article 18.4);

Ø      to be fully responsible under this Treaty for the observance of all provisions of the Treaty, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its Area (Article 23.1);

Ø      to provide to the Secretariat (a special working body managing the affairs of the parties to the Energy Charter Treaty) a «list of all tariff rates and other charges levied on Energy Materials and Products at the time of importation or exportation», notifying the level of such rates and charges or any changes to such rates and charges (Article 29.2).

Taking into account that the Energy Charter Treaty has been ratified by all countries of the Black Sea-Caspian region, except Russia, the above provisions have a priority over the national legislation and apply directly. Each ECT Member State committed «to stimulate and create stable, equitable, favorable and transparent conditions for investors» being the entities of the parties to the Energy Charter.

There should be noted the following key provisions of this international legal act which are binding on all signatories thereto:

1.       Providing to all foreign investors the «regime» of investment activity not less favorable than that provided to national investors.

2.       Limiting to the minimum the exceptions from the established «regime» of investment and other useful activity.

3.       Progressively removing existing restrictions affecting investors.

4.       Providing effective means for the assertion of claims and the enforcement of rights with respect to investments, investment agreements.

5.       Excluding with respect to investors nationalization, expropriation or other measures, having effect equivalent to nationalization and expropriation. If such measures are applied to protect the national interests and to comply with legal procedures, there should be «payment of prompt, adequate and effective compensation.»

Thus, pursuant to the existing international legal commitments, the countries of the Black Sea-Caspian region cannot and should not perform actions or adopt legal acts prejudicing rights and legal interests of investors.

On the other hand, investors, especially foreign investors, should not endeavor to obtain from the state larger exemptions and concessions than the national investors. Pursuit of excessive profits, disparagement of the country and its people, existing laws and legal system elicit a defensive response from the state. Everything should be subject to the balance of interests, respect of rights and arrangements made; this is the only way to achieve positive results and harmonize relations between the participants of the investment process.

Summary: conclusions and proposals

In conclusion it is worth to note that the Black Sea-Caspian region needs a more stabilized model of international cooperation in the sphere of subsoil development. The existing bilateral and multilateral relations established on the basis of legally binding documents signed by the countries of this region, are not capable to resolve the issues of subsoil development, transportation of hydrocarbon crude given the interests of all parties to these relations. Therefore due to the economic relations established in this region, the subsoil legislation of these countries needs to be harmonized and unified, and approximated to the rules of international law.

It is reasonable to draft and sign a uniform international act to be signed by the state of this region, providing that all producing (exporting) countries, transit countries and energy resources consuming (importing) countries to maximally take into account each other’s interests. Such act may encompass all aspects of global energy interrelations.

Of course, even in such situation it is impossible to exclude the competition of the countries at the energy market. However all competing countries (producing, transiting and consuming) should ensure that competition between them is based on the general practice of global cooperation without serious conflicts between them and destabilization of the situation in the region.

In this connection it is worth to remind approaches fixed in the Energy-G8 documents on ensuring global energy security, approved at the St-Petersburg summit in 2006.[11] In particular, they contain the following important principles of cooperation in the sphere of subsoil development and consumption of energy resources:

Ø      Recognition of indivisibility of the stable global energy security and interdependence of all participants of the international energy exchange;

Ø      Mutual responsibility of energy resources consuming and supplying countries and transit states for ensuring global energy security;

Ø      Exclusive state sovereignty over national energy resources;

Ø      Non-discrimination stimulation and protection of investment;

Ø      Facilitating unimpeded delivery of energy resources to the world markets, including transit systems;

Ø      Promoting infrastructural projects which are important for maintaining global and regional energy security;

Ø      Joint environmental work, mitigation of adverse climatic changes.

It may be stated with confidence that if the countries of the Black Sea-Caspian are guided by these principles, security and mutually beneficial cooperation will be provided for the benefit of the peoples inhabiting this region and future generations.