Negotiating Deviations from the Myanmar Model PSC and Commercial Terms Myanmar Jean Loi VDB Loi Myanmar Yangon, 25 February 2014 1
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Key People on the Ground in Myanmar (over 40 staff in Myanmar) Jean Loi Managing Partner Jean Loi is widely recognized as one of the region s most experienced professional advisors with a CPA background. She was formerly a partner with PricewaterhouseCoopers in Southeast Asia. As the managing partner of VDB Loi, Jean has extensive experience with licensing energy, power, property and consumer product projects. Her Myanmar tax experience is unsurpassed. She lives in Yangon. Nicholas Angel Senior Associate, Yangon Nicholas has practiced as an attorney for over 10 years and has a master s degree in international and EU law. He worked for international law firms handling major structured financing deals for vessel and aircraft acquisitions. He advises on market entries, joint ventures and financial services. Nicholas lives in Yangon. Edwin Vanderbruggen Partner, Yangon Edwin was formerly with Loyens & Loeff and a partner at DFDL. He has 21 years of experience as a lawyer and government advisor, including five years of experience on Myanmar legal and investment issues. Edwin advises three of the oil and gas supermajors in the offshore tender, the Japanese and Korean governments on major infrastructure and power projects and is local counsel to one of the foreign licensed telecom operators in Myanmar. He lives in Yangon. Wai Nwe Tun Senior Associate, Yangon Wai is a seasoned Myanmar attorney with a BA in Law from the University of Dagon. Prior to joining VDB Loi, she worked with an international law firm s Yangon practice and was in-house counsel to a foreign oil company in Myanmar. As part of our legal team, Wai advises on corporate and commercial legal issues, investment projects, oil and gas transactions, and real estate issues. May May Kyi Director, Yangon May directs our licensing team, focusing primarily on investment permits, operating licenses and import/export licensing. In addition, her practice areas include customs duty, customs valuation, compliance and company establishment. She holds a bachelor s degree in Commerce from the Institute of Economics, University of Yangon. Helen Sullivan Associate, Yangon Helen is a qualified attorney with a master s degree in international law and has worked in the legal field for the past 11 years. Her practice focuses on investment, corporate and commercial law. She has advised on transactional documentation for joint ventures, acquisitions and major investment projects. Helen lives in Yangon. U Myo Nyunt Senior Counsel, Yangon U Myo Nyunt is an advocate to the Supreme Court of Myanmar and one of Myanmar s most distinguished senior lawyers. He is the former Director of the Supreme Court and Appellate Judge, and a noted author on Myanmar law. He is a member of the Bar Council, and a member of the board of editors of the Myanmar Law Review. Aung Soe Moe Associate, Yangon Previously in-house counsel to a leading telecom operator in Myanmar, Aung has unique and extensive experience in telecommunications, land and licensing issues. He is part of the legal team advising telecom operators, tower companies, infrastructure providers, real estate developers and power plants, and has assisted with proposing land use reforms to the Government. 3
Contents 1. Overview of the offshore bidders 2. Which elements of the commercial terms will carry the most weight? Signature bonus, allocation, work commitment, or others? 3. Experience from the onshore negotiations: what do we know so far? 4. Some key legal issues in the Model PSC: put them on the table or not? Feel free to ask questions (the more difficult, the better) 4
Myanmar Offshore Block Bidding Round 2013 Companies that have submitted a bid NO. COMPANY SUBMITTING PROPOSAL FOREIGN PARTNER BLOCK BID 1 Daewoo International Corporation - 1 Block 2 Statoil ConocoPhillips 2 Blocks 3 Northern Gulf Petroleum Pte. Ltd. - 1 Block 4 Exxon Mobil - 2 Blocks 5 PTTEP - 1 Block 6 TOTAL - 2 Blocks 7 ENI Myanmar - 1 Block Petro Vietnam 2 Blocks 8 Unocal Myanmar Offshore (Chevron) - 2 Blocks 9 Stetson Oil and Gas - 2 Blocks 10 Shell Myanmar Energy MOECO 3 Blocks 11 Oil India Ltd. Mercator Petroleum Ltd. + Oil 3 Blocks Max Energy Pte. Ltd. 12 Kris Energy GAIL India Ltd. 3 Blocks 13 Berlanga Holding B.V. - 1 Block 14 BG Group Woodside Energy 2 Blocks 15 Transform Expl. Repsol Exploration 3 Blocks 5
Myanmar Offshore Block Bidding Round 2013 Companies that have submitted a bid NO. COMPANY SUBMITTING PROPOSAL FOREIGN PARTNER BLOCK BID 16 Repsol Exploration - 3 Blocks 17 Heritage Oil Plc. - 1 Block 18 Santos International Ventures Pty Ltd. - 1 Block 19 Hawkley Azimuth 3 Blocks 20 Woodside Energy BG Group 2 Blocks 21 Navitas Petroleum (Delek Group Co.) - 1 Block 22 Peak Oil and Gas Ltd. - 3 Blocks 23 ROC Oil Tap Oil 1 Block Tap Oil + Northern Gulf Petroleum 1 Block Pte. Ltd. 24 Transcontinental Resource Group Canadian Foresight Group Ltd. 3 Blocks 25 Ophir Energy Plc. - 3 Blocks 26 Ocean Star Energy - 1 Block 27 ONGC Videsh Limited - 2 Blocks 28 Twinza Oil (Asia) Ltd. - 3 Blocks 29 Petronas Carigali - 2 Blocks 30 Reliance Industries Ltd. - 3 Blocks 6
How does the evaluation work? Block-by-block Work commitment Can the commitment for the second well be contingent? Signature bonus Data fee Profit petroleum allocation: changes from the 2012 Standard T&C (better split for the contractor but slower cost recovery) Production bonus Training fund 7
How does the evaluation work? Block-by-block Work commitment Can the commitment for the second well be contingent? Signature bonus Data fee Profit petroleum allocation: changes from the 2012 Standard T&C (better split for the contractor but slower cost recovery) Production bonus Training fund Corporate Social Responsibility 8
PSC Time vs Fiscal Regime Study Exploration Development and Production Signature Bonus Data Fee Work Commitment Withholding Tax obligations Training Fee Production Bonus Royalty MOGE s Petroleum Share Income Taxes Withholding Tax obligations Training Fee and R&D Fund 6 Months 3 Years 1 Year 1 Year 20 Years (from completion of development) Drill 1 well Development Plan + bonus Gas Sales Agreement Drill 1 well, evaluation Drill 2 wells Remote sensing, modeling 9
PSC Time vs Fiscal Regime Study Exploration Development and Production Signature Bonus Data Fee Work Commitment Withholding Tax obligations Training Fee Production Bonus Royalty MOGE s Petroleum Share Income Taxes Withholding Tax obligations Training Fee and R&D Fund 6 Months 3 Years 1 Year 1 Year 20 Years (from completion of development) Drill 1 well Development Plan + bonus Gas Sales Agreement Remote sensing, modeling Drill 1 well, evaluation Drill 2 wells Government backs in 10
Example: Drilling Services Performed in Myanmar Operator (branch) Myanmar Has a branch in Myanmar Operator s headquarter Singapore Providing exploration & drilling services Pays 1,000 USD under the contract Drilling Service Agreement Exploration & Drilling in Myanmar Send exploration ships and crews to Myanmar (duration is 90 days) Subcontractor Singapore Myanmar tax liability of the Operator s headquarter in Singapore: 1,000$ WHT @3.5% (possibly to be reduced by DTA if the Subcontractor in Singapore has no PE in Myanmar and the IRD agrees) Myanmar tax liability of the Subcontractor Singapore TAX/WHT 1,000$ @3.5% sub-contractor Singapore is liable to tax in Myanmar even if the Operator s headquarter in Singapore does not withhold tax (possibly to be reduced by DTA if there is no PE and the IRD agrees) CT& Customs duty: could be exempted under the Operator s PSC PIT on the crews working in Myanmar (possibly to be exempted by DTA if there is no PE and the IRD agrees) 11
The onshore PSC negotiations What have we learned so far? Amendments to the PSC are not rejected out of hand for now (!) Bank guarantee Customs duty exemption under the PSC Dispute settlement clause Environmental Impact Assessment Social Impact Assessment Other issues 12
Some key issues in the Model PSC Put them on the table or not? For the payment of transportation tariffs by the users of the facilities which are based upon the costs of financing, constructing, operating and maintaining the pipeline and/or other transportation facilities, including depreciation thereof, any applicable taxes, and a reasonable return on investment 13
Some key issues in the Model PSC Put them on the table or not? Sovereign rights? Inalienable rights? No term or provisions of this Contract, including the agreement of the Parties to submit to Arbitration herein, shall prevent or limit the Government of the Republic of the Union of Myanmar from exercising its inalienable rights. Identical to the Mining PSC of 2012 14
Some key issues in the Model PSC Put them on the table or not? Force Majeure and reintroduction of sanctions Offshore: For purposes of this Contract Force Majeure means any event beyond the reasonable control of the Party invoking it. By way of illustration only, Force Majeure includes but shall not be limited to strikes, active hostilities or imminent threat of hostilities, blockades, riots, insurrection, fire, epidemics, natural phenomena or calamities, acts of public authorities, acts of God, substantial non-availability of services or equipment, substantial breakdown of equipment and accidents provided always that the foregoing incidents are beyond the reasonable control of the Party invoking Force Majeure. Onshore: The term Force Majeure as employed herein shall mean act of god, restraint of a government, strikes, lockouts, industrial disturbances, explosions, fires, floods, earthquakes, storms, lightning and every any [sic] other causes similar to the kind herein enumerated, which are beyond the control of either party, and which by the exercise of due care and diligence, either party is unable to overcome. 15
Some key issues in the Model PSC Put them on the table or not? The application of the Singapore DTA TYPE OF CAPITAL GAIN Non-oil and gas sector for residents Non-oil and gas sector for nonresidents (including a branch) Oil and gas sector CGT RATE 10% 40% 40% for gain below US$100M 45% for gain between US$100M and US$150M 50% for gain above US$150M 16
Some key issues in the Model PSC Put them on the table or not? The wording of the parent guarantee We hereby absolutely and unconditionally guarantee to the Myanma Oil and Gas Enterprise, Ministry of Energy, the Government of the Republic of the Union of Myanmar that the CONTRACTOR is financially sound and technically competent and shall perform the tasks such as funding necessary capital, assets and supplying machinery, equipment, tools, technicians, specialists and discharge of expenditure obligations undertaken by it through the... Offshore Block Production Sharing Contract, for the exploration, extraction and development work of the. Offshore Block and we hereby undertake to discharge all its obligation under the Contract on its failure to perform 17
Some key issues in the Model PSC Put them on the table or not? Arbitration Issues for the side letter Stabilization clause Tax calculation The Domestic Market Obligation Disputes on the commercial nature of any discoveries? Local content requirements in practice 18
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