Stabilization and the impact of changing patterns of energy investment
Published on Wed 18 Oct 2017
Recently published in the Journal of World Energy Law & Business, the abstract for this article, written by Professor Peter Cameron, reads, "More than a decade of investor–state tension in which states sought to rebalance arrangements with international investors in the light of rising commodity prices is now a matter of history in the energy industry.
Some of the disputes that resulted from that fractious period continue in arbitration or litigation proceedings, and plenty of new disputes have emerged since, but those that had their roots in actions by states seeking what they saw as a fairer deal with investors benefiting from high rents are increasingly rare on the time-lagged landscape of investment disputes.
During this period, the interplay between investors and states took on at least one new feature that continues to play a role in the very different investment context of today. What we might call a diversification of both investors and states became evident, with an influx of new states aspiring to market their wares to international energy investors, especially in oil and gas. Their novelty lies not in their statehood but rather as new entrants in the competition for investment capital characteristic of states with actual or prospective reserves of petroleum. Many have rapidly evolving economies after a period of prolonged conflict, meaning that guarantees offered are particularly vulnerable to a review in the near to medium term. Indeed, a number of them have been willing to commence that process of review even before production of the resource has commenced.
At the same time, the kind of offer held out by such states has been particularly attractive to a new kind of energy investor: either private equity investors on the one hand, or small, exploration-focussed companies on the other, neither being likely to be motivated by the decades-long view of an investment typically associated with an international oil company (IOC). For them, stability guarantees are no less important but they serve a different purpose, and are linked to an exit strategy in the foreseeable future. This combination of players—new market entrants—and their rather unconventionally short-term approaches to the stability of long term contractual arrangements have raised questions about the adequacy of traditional guarantees of contract stability. Yet, it has attracted little attention in the writings on energy disputes. In this article, I want to revisit this twin feature of recent and current energy investment and consider its significance for the notion of stabilisation in long-term petroleum contracts".