Evidence Of Mills’ ‘Messy Oil Politics’; GNPC's Legal Opinion On Aker ASA

GNPC’s LEGAL OPINION ON AKER ASA’s ASSIGNMENT OF RIGHTS TO AKER GHANA (UNDER THE NOVEMBER 5, 2008 PETROLEUM AGREEMENT) WHICH THE MINISTER OF ENERGY FATALLY IGNORED!

“SECTION 23 (15) DOES NOT PRECLUDE FOREIGN COMPANIES FROM ENTERING INTO PETROLEUM AGREEMENTS; however, it requires them under (a) to the extent that they are not incorporated in Ghana under the Companies Code 1963 (ACT 179) to register an incorporated company in Ghana to carry out petroleum operations in respect of which a Petroleum Agreement or Petroleum Sub-Contract HAS BEEN ENTERED INTO. The past tense utilized in the provision, “HAS BEEN ENTERED INTO” refers to Petroleum Agreements or Sub-Contracts that HAVE ALREADY BEEN ENTERED INTO AND ARE IN EXISTENCE. Thus, the subsection should be interpreted to mean that the company incorporated in Ghana will take over the Petroleum Operations for which its foreign parent has made commitments under the terms of a Petroleum Agreement.

The portion of the subsection that states “SUCH COMPANY SHALL BE A SIGNATORY TO ANY PETROLEUM AGREEMENT” IMPOSES A MANDATORY REQUIREMENT THAT THE COMPANY INCORPORATED IN GHANA BE A SIGNATORY TO THE AGREEMENT.

Since the section requires the company incorporated in Ghana to be a signatory to an agreement the section recognizes as ALREADY BEING IN EXISTENCE, this MANDATORY requirement may be fulfilled by AMENDING the EXISTING Agreement”.

• EDITOR’S NOTE: Published below, for the benefit and perusal of our readers & the general public, is the full text of the GNPC LEGAL OPINION excerpts of which have been captured above. Please stay tuned for more revelations.

LEGAL OPINION ON IMPLICATIONS OF FAILING TO EXPRESSLY LIST AKER GHANA LIMITED AS A PARTY TO THE SOUTH DEEP WATER TANO PETROLEUM AGREEMENT, FEBRUARY 18, 2009.

BACKGROUND:

A Petroleum Agreement was negotiated by and among the Government of the Republic of Ghana represented by the Minister for Energy, the Ghana National Petroleum Corporation (GNPC), and Aker ASA, a Norwegian company and Chemu Power Company Limited, a Ghanaian company. THE AGREEMENT WAS EXECUTED BY THE PARTIES ON 24TH OCTOBER, 2008, AND RATIFIED BY THE PARLIAMENT OF GHANA ON 5TH NOVEMBER, 2008. Under the Agreement, Aker will have a 95% participating interest and Chemu will have 5% participating interest, subject to the GNPC’s initial and carried interests.

Aker ASA, global petroleum industry player, was incorporated in Norway in 2004. It is the parent company of the various companies constituting the Aker Group. The company has extensive experience and on-going activity in deepwater oil exploration in Norway and energy projects worldwide. Aker ASA owns high-specification rigs and other exploration and development assets. It is qualified as an Exploration and Production operator on the Norwegian Continental Shelf and is very active in Norway.

Internationally it acts as contract operator in areas where it provides equipment. The Aker Group currently has more than 27,000 employees in 35 countries. At the beginning of 2008, the Aker Group had total assets of about US$6 billion of which 36% was in cash. Aker ASA will bring its assets and equipment to bear on its operations in Ghana.

Chemu Power Company Limited was incorporated in Ghana on the 7th February, 2008 to own, manage, operate and construct power plants as well as provide energy consultancy services. The financial and technical obligations of Chemu will be fully guaranteed by Aker ASA. The two partners have signed a financing agreement to cover the financing of Chemu’s participating interest as well as a services agreement.

 LEGAL REQUIREMENT FOR REGISTRATION OF AN INCORPORATED COMPANY IN GHANA:

Section 23(15) of the Petroleum (Exploration and Production Law, 1984), PNDCL 84 provides as follows:

Except for such sub-contractors as may be exempted from the requirements of this subsection by the Regulations, a contractor or sub-contractor which is not an incorporated company in Ghana under the Companies Code, 1963 (Act 179) shall –

(a) register an incorporated company in Ghana under the provisions of the Companies Code, 1963 (Act 179) to be authorized to carry out solely petroleum operations in respect of which a petroleum agreement or petroleum sub-contract has been entered into under this Law and such company shall be a signatory to any petroleum agreement;

Section 23(15) does not preclude foreign companies from entering into Petroleum agreements; however, it requires them under (a), to the extent that they are not incorporated in Ghana under the Companies Code 1963 (Act 179), to register an incorporated company in Ghana to carry out petroleum operations in respect of which a petroleum agreement or petroleum sub-contract has been entered into.

The past tense utilized in the provision, “has been entered into” refers to petroleum agreements or subcontracts that have already been entered into and are in existence. Thus, the subsection should be interpreted to mean that the company incorporated in Ghana will take over the petroleum operations for which its foreign parent has made commitments under the terms of a petroleum agreement:

The portion of the subsection that states that “such company shall be a signatory to any petroleum agreement” imposes a mandatory requirement that the company incorporated in Ghana be a signatory to the agreement. Since the section requires the company incorporated in Ghana to be a signatory to an agreement the section recognizes as already being in existence, this mandatory requirement may be fulfilled by amending the existing agreement.

Aker Ghana Ltd., was incorporated under the Companies Code 1963 (Act 179) on 29th October, 2008, after the parties had executed the Petroleum Agreement on 24th October, 2008; an agreement that Parliament ratified on 5th November, 2008. Aker Ghana Ltd. is 100% owned by Aker ASA, and according to its Company Regulations, Aker Ghana Limited is authorized to carry on “Exploration and Development of Oil and Gas Resources and related industries.”

 CONCLUSION:

Aker ASA has satisfied the requirement of Section 23(15)(a):

• A Petroleum Agreement between the Government of the Republic of Ghana, GNPC and Aker ASA and Chemu was executed and ratified by the Parliament of Ghana. Section 26.9 of the Petroleum Agreement expressly states that, “This Agreement shall not take effect unless and until it is executed by the Parties and ratified by the Parliament of Ghana (the “Effective Date”). Consequently, once Parliament ratified the Agreement on 5th November, 2008, it became effective.

• Pursuant to Section 23(15)(a), Aker ASA registered and incorporated Aker Ghana under the provisions of the Companies Code, 1963 (Act 179), as a wholly-owned subsidiary.

• In recognition of the requirement that the company incorporated in Ghana be the company authorized to carry out petroleum operations in respect of which a petroleum agreement or sub-contract has been entered into, Aker Ghana is authorized to carry out exploration and development of oil and gas resources.

In light of the foregoing, Aker ASA has fulfilled the regulatory requirements, and its Aker Ghana subsidiary must be formally recognized as a signatory to the Petroleum Agreement. This can be done by amending the existing Petroleum Agreement to include Aker Ghana as a signatory to the Agreement, charged with fulfilling the obligations of its parent Aker ASA under the South Deep Water Tano Petroleum Agreement.

(Source: The Ghana National Petroleum Corporation – GNPC – February 18, 2009)

Source: Monitoring Desk, New Crusading Guide/Ghana