No good faith

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Dead men don't pay
Dead men don’t pay

The World Bank’s ICSID Arbitration Panel ruled a few days ago that Venezuela lacked “good faith” and did not adequately compensate ConocoPhillips for the seizure of the latter’s assets back in 2007. Speculation is running rampant about how much money PDVSA will now have to fork over. PDVSA bonds fell when the ruling became public – clearly, the market believes PDVSA will have no choice but to pay, or as we say in Venezuela, get off from the mule.

ConocoPhillips obviously cheered the decision. Meanwhile, the government’s response has been muted. Rabid chavista propaganda sites are already spinning the government line – this is totally unfair, and we’re going to appeal. It’s not clear to me how far that will get them. Maduro, to my knowledge, has not talked about this obvious setback.

We’re going to leave the comments forum open so that people more knowledgeable than us can give us further background.

1 COMMENT

  1. If the agreement stipulated a max compensation of $27 per barrel, then PDVSA has a case. Conoco must have clever lawyers that were able to change the top to current market prices. The delta between $27 and current prices is substantial.

    • Dont know where that alleged $27 a bl max compensation figure comes from , Is that in a Contract ?? which Contract ?? does anyone have concrete information as to the source of this information ?? It sounds more like an interpretation than an actual written provision .

  2. I can’t imagine anybody inside PDVSA or the Ministry is genuinely surprised by this. It was sort of an open-and-shut case.

    The real question is whether they were able to financially prepare for this – is there a contingency fund within FONDEN or somewhere else earmarked “ConocoPhillips Settlement”? Is it adequate?

    Basic rationality suggests there should be. I mean, there must be. It’d be almost criminally negligent for there not to be…

    Oh shit…we’re in trouble aren’t we?

  3. Judging official actions on the basis of logic may have some future but, at this stage of the game, assuming there is a contingency logic within the system is rank recklessness.

    • It’s more than just an assumption, it’s trying to make sense of the government’s extreme reluctance to supply dollars to the SICAD/CADIVI system even when the backs of the envelopes of guys like Miguel Octavio suggest they have the money laying around. It’s not unimaginable that part of that reluctance stems from their own contingency planning about the 24 (or was it 25)? arbitration procedures pending at ICSID.

      Of course, with FONDEN accounts a black-hole, there’s no way to really tell…

      • FT, blue-sky thinking at its best. If the extra cash existed, the parallel rate wouldn’t be at 40+. As for contingeny planning with this Government, ….no one should believe in “pajaritos prenados.”

      • Based on Central Bank numbers, there appears to be about US$ 16 billion in these funds. I really dont think there is reluctance, the Government is simply importing more than the private sector and they give priority to Government imports, which area inefficient, corrupt, overpriced, etc.

  4. This abuse is even worse when it comes to venezuelan’s property; thousands of venezuelans have been expropriated with out proper or decent compensation.

  5. When ICSID was first proposed in the mid-1960s Latin America collectively spurned a neutral, independent mechanism that would reduce risks of investor-state disputes descending into difficult-to-manage conflicts. In the 1980s and 1990s all South American States except for Brazil had amended that position and ratified the Convention. Currently, the reputation of the Convention on the Settlement of Investment Disputes and Nationals of other States (ICSID) in Latin America, as the arbitral body of choice, is under increasing pressure. This pressure is due, in no small measure, to the formal denunciations of ICSID by Bolivia, Ecuador and Venezuela per Article 71 of the ICSID which establishes that every contracting state has the right to denounce the Convention through a written notification with the denunciation being effective six months after the notification. Argentina too has been at loggerheads with the institution. It may prove useful then to assess the stated rationales of the newly formalized opposition to ICSID and the assertions that the Convention does not constitute an effective arbitral body, in the main, because it embodies a systemic neo-Liberal/Washington bias in favour of transnational corporations. Implicit in these denunciations are the strains of adherence to the Calvo Doctrine.

    • The Calvo Doctrine? In Venezuela? You’re confused, our local jurisdiction over investment disputes is based on the Aponte Aponte Doctrine. And the Velásquez Alvaray Doctrine.

      I mean, let’s get serious – there’s a reason Russian investors continue to demand (and get!) arbitral clauses in investment deals with Venezuela. Hearing foreign investment disputes in Venezuelan tribunals? With *this* justice system?

    • Despite the govts position that only Venezuelan tribunals be allowed to decide cases were the public interest of the State is involved , Its fairly likely that it has accepted many international contracts with companies or govt agencies of countries it views as allies to provide for ‘neutral forum’ international arbitrations , Certainly in the world of international financing thats almost a given . The general view in the world business community ( and of some US tribunals) is that in Venezuela there is no rule of law and that the country’s tribunals will always favour the govts positions whatever the facts or the law.

        • Not true! As long as the tribunal agrees with the government, its a neutral forum. They understand it completely.

          Whether that represents a realistic definition for the other 7 billion people and 160 countries on the planet is something else entirely.

  6. It could have been worse . The arbitrators allowed the govt some wins , it threw away Conocos claim that it should be compensated for US tax losses related to the Expropriation , also its claim that it be compensated for increases in Venezuelan taxes decreed after their Joint venture Associations were set up. The ‘bad faith’ imputation may have implications which could worsen the final outcome of the lawsuit . In law when someone acts in bad faith certain limitations which are usually allowed to limit the amount of its liability are disregarded causing the losing party to have to pay a bigger compensation than otherwise would be the case. The actual amount of compensation wasnt decided in this award, thats to be decided in a second phase of the proceedings ( which might take another year or two) . There is a long queue of cases pending decision from the same World Bank Arbitration Body . This decision is not a good precedent for the Govt . The final fall out from the decision might run to a high number of billions . Accounting rules mandate that the govt make a contingency provision for potential set backs in ongoing litigation .

  7. Also worthy of deeper consideration is the utility of an intermittently proposed Bolivarian Alliance for Our America (ALBA) — Union of South American Nations (UNASUR) regional arbitration centre, most recently set out in the Declaration of the 1st Ministerial Meeting of the Latin American States Affected by Transnational Interests on April 22, 2013 in Guayaquil, Ecuador. There exists a proliferation of Latin American regional and sub-regional organizations, and; the mere proposal of the establishment of an inter-governmental organization in Latin America, supported by summitry, should not mislead investors, civil society nor states inside or outside the region into heralding a brighter future (in this case a better investment dispute settlement mechanism than ICSID). Early indications from the limited information available are that the focus of the UNASUR regional arbitration centre would be to defer to the supremacy of State courts and at all times favour the policy interests of elected governments. The proposed centre would address stated concerns of Latin American States regarding ICSID, including: the preference for an appeals mechanism; the desire to appoint directly preferred arbitrators to a stable roster; the open access to hearings for NGOs to address the alleged/perceived transparency deficit of ICSID, and; financial assistance needs of developing countries to access arbitral mechanisms. How these are deemed to be unsolvable problems at ICSID is not clear.

    • Why states that exercise direct control over their national judicial systems would resist shifting disputes to fora they can’t control seems entirely clear. Why investors should risk their money in countries where disputes are to be settled by judges controlled by the counterparty seems just as murky.

      Then again, the Venezuelan government can’t figure out why wildly stacking incentives in favor of one party and against another undermines the ability of any number of institutions to function, from the apartment rental market to the Supreme Tribunal. The difference here is that foreign investors can sidestep the problem altogether by just putting their money elsewhere.

      • The origins of the Calvo Doctrine and Clause are closely related to the recurrent theme in the history of international relations and international institutional arrangements of suspicion. Nobel Laureate Elinor Ostrom in ‘Understanding Institutional Diversity’ suggests that: ‘Institutional arrangements can be understood as responding to a world in which there are some sociopaths and some saints, but mostly regular folks capable of both kinds of behaviour.’ The Venezuelan situation at ICSID might suggest that Venezuela is no longer ‘regular folks’ as it is no longer aligning itself to (Exxon Mobil, Conoco, Chevron) but with National Oil Companies (Russia, Iran, China, India).

  8. I’ve talked to several people here in CCS the last couple days in the oil or oil-reporting business .. who should know what this means (although, other oil issues seem to me to be much more urgent and discussed at present here). Here’s what i got from people:
    .
    – Some reporters initially were not clear why Conoco was claiming victory;

    – Since then, with Ramirez on TV quite upset several times … it seems it is clearly in Conoco’s favor.

    – However, the fact that the Faja contracts of old limit compensation to $27/barrel would seem to indicate this is not a big hit to Pdvsa, just as Exxon’s ‘win’ was not a big hit. Although a “loss” for Pdvsa in the tribunal, it was exactly what they (Mommer, Baue, Ramirez et al) expected and it was basically reasonable … i.e., ti was exactly what Pdvsa thought it would cost to ‘take’ those fields. (Just ask Sr. Carlos Baué, he will humbly explain it in great detail.)

    – HOWEVER, HOWEVER those earlier cases were against Pdva as such. This case is against the state as such. Some claim that this means the “compensation” liability (apparently under the Bilateral Investment Treaty or BIT) is NOT limited/dictated by the contract. This, a veteran oil reporter and others told me is therefore serious for Pdvsa (though it would be a couple years off…).

    – So, last night i asked a guy who runs one of the biggest service companies, and has been in arbitration cases before. he said that the later claim is ridiculous …explaining that, in all cases, in the end, it is the contract that any legal case resort to , no matter the country where it is decided.

    — Nevertheless, and lastly, I do clearly recall oil-sector lawyers patiently explaining the difference between these two types of ‘arbitration’ … but, I confess not to recall the details. And, I ain’t got none of them old notes with me here.

    So… I’d like to know/remember if indeed, compensation in this case against the BRV itself (not against Pdvsa) is or is limited by the terms of the contract or no??

    • As I understand it , scope of compensation demanded through lawsuits agaisnt the government for expropiating an international investor have as background the international investment treaty under which the lawsuit is bought before an international forum as suplemented or superceded by customary international law , while scope of compensation through lawsuits against PDVSA have as background specific the terms of a Contract between Pdvsa and the international investor . The latter will normally provide for a dispute resolution mechanism different from that which under the treaty is used agaisnt the government . The scope of the lawsuits may overlap in part. This means that the govt may lose a case before the World Bank and win it before the particular forum chosen to decide the Contract litigation . Obviously if both scopes of compensation overlap, the money pdvsa pays as compensation under the contract may be subtracted from the compensation it may later be condemned to pay the investor under the treaty arbitration proceedings .

    • Hi Tom. In ICC arbitration, the award is pretty much governed by a compensation formula written into the contract. I think that’s where the $27/barrel figure you’ve heard is coming from. But in an ICSID proceeding like this one the arbitrator has far more discretion both in terms of how to date the expropriation and in calculating what the BIT calls “fair market value”.

      I’m still working through the decision, but there are two points you’ll be interested in. First, the panel shot down ConocoPhillips’ request that the earliest tax and royalty changes be included (as confiscatory “steps”) in the calculation of the award. This would seem to rule out the adventurous high end of what they’d been asking for. At the same time, though, the finding that PDVSA offered compensation in bad faith means the panel likely won’t use PDVSA’s own criteria when it does its own calculation. They might also add interest charges, etc. The award could end up being much higher than what Mommer, Boué, et al. told you.

    • I happened upon a third point you’ll also find interesting, Tom. The panel decided that “[t]he he date of valuation of the ConocoPhillips assets is the date of the Award”. I’m not a lawyer, but I’m pretty sure this means that neither the $27/barrel figure from the contract whatever the oil price was at the moment of the “migration” will be used to calculate the size of the award. So, yeah, it’s potentially going to be much, much higher.

      • The Dutch Venezuela Investment treaty (applicable to the conoco case) provides that the expropriating govt must pay the investor the market value of the expropriated property at the time of the expropriation Because the market value of an ongoing business is calculated on the basis of its future cash flow projection for the expected future life of that business, the price of oil to be applied to such calculation can have a big impact .on the amount of the compensation . If the price of oil is calculated as of the date of the expropiation and that price is $ 80 per bl but the arbitration panel decides that the market value will be calculated as of the date it had on the day of the award ( several years later) then the price of oil to be used in the calculation will be that current as of the date of the award. If the latter price has climbed to $102 by the date of the award that means that the calculation of the damages payable by the government will have as a bases an oil price $ 27 higher than would have been the case if the treaty provision had been applied. . It follows from the above that the WB arbitrators by moving forward the date for the calculation of the market value to the date of the award are hiking the compensation to be paid by the govt by some 30% plus ( 102 vs 80 $ per bl ) of what it would have been had the treaty provision been applied . Now for the WB arbitrators to app;ly a date different from that provided in the treaty they had to have a reason , In law that reason could have been the ‘bad faith’ character of the govts conduct during the expropiation process ,which as mentioned elsewhere deprives the party incurring in such conduct from the protection the treaty would have granted it in the calculation of the market price compensation as of the date the expropiation took place. The Icsid process of course does not concern Pdvsa , it concerns the expropiating govt . Pdvsa can only be sued under its contracts with Conoco and not as the expropriating govt of which it is legally a separate part . Have just started reading the award text which is rough going for someone who doesnt know that much about the details of the case , but so far the above seems to be the most likely explanation for what is being said in the press !! Hope the above helps my fellow bloggers understand the award and its implications .

  9. Will Maduro and Cabello have to reach into their own pockets to make the payoff?

    Maduro may control the Venezuela government but he does not make or interpret international laws. This is something Maduro has yet to learn.

  10. “…because it embodies a systemic neo-Liberal/Washington bias in favour of transnational corporations.”

    Huh? What? That’s complete gibberish. Just so that you know, corporations have individual shareholders. Real people. If you’re a school teacher in Pittsburgh, or a factory worker in Detroit, there’s a good chance that your personal pension program owns stock in some oil-related companies. Individual lives are affected when screwballs like Hugo Chavez decide to steal those assets on a whim. The big companies like ConocoPhillips can take the loss, the small ones can’t.

    • Just as readily international investors might complain that bringing a dispute to trial before a venezuelan tribunal might embody a statist or communistic bias in favour of the Venezuelan govt.

      • Plus, when ICSID decisions are final, embargos of Venezuela’s international assets, including oil tankers, will ensue, upon Venezuela’s refusal to pay the arbitrated amount. The idea of any international corporation of consequence agreeing to a UNASUR/ALBA/ET.AL. body of rogue states to arbitrate disputes is ludicrous.

        • Yes, it is ludicrous, if one has an interest in due process and the rule of law. It does appear to be the strategic objective of the Venezuelan Government to be legally ludicrous. Venezuela and ALBA are attempting to rid themselves of an independent, neutral arbrital model that permits investors a reasonable prospect of fair compensation. They favour a return to behind closed door “diplomatic’ solutions involving National Oil Companies from China. Russia, Iran, India.

    • Yes, it is complete gibberish… and it is the position argued by the current Venezuelan Government and supported by Ecuador, Bolivia and, to a significant degree, Argentina.

      • Some more background… In December 2007, Ecuador notified ICSID that it would withdraw consents with respect to an investor-state disputes regarding the exploration of natural resources. Since 2008 it has defaulted on $3.2 billion of sovereign debt. Having been the first ever Latin American state to conclude a bilateral investment treaty (in 1969), its cancellation of all of its bilateral investment treaties (BITs) with several countries was a historic matter. In the summer of 2009, it joined the Bolivarian Alliance for Our America (ALBA) and soon thereafter formally denounced ICSID. Correa in stating the denunciation’s significance was quoted: ‘…the liberation of our countries because [ICSID] signifies colonialism, slavery with respect to transnationals, with respect to Washington, with respect to the World Bank.’

        In June 2012, Venezuela eventuated its ALBA commitment to formally denounce ICSID. Chavez stated at the time that: ‘We have to get out of that ICSID and I tell you: We will not recognize any ICSID decisions’. Certainly, Venezuela’s official claims, in addition to those made unofficially by Bolivia and Ecuador, that the bias at ICSID had resulted in ICSID arbitrations ‘… rul[ing] 232 times in favor of transnational interests out of the 234 cases filed throughout its history’ appeared to be either a fabrication or a gross misprint. To better assess the strength of the basis for the claim of bias, academic SD Franck conducted a quantitative assessment – using pre-2007 ICSID archival data – to establish whether ICSID arbitration awards were substantially different from arbitration awards rendered in other forums. The results indicated that there was no reliable statistical relationship between ICSID arbitrations and either amounts claimed or ultimate outcomes. A conclusion of bias held by ICSID as an institution or by its arbitrators based on pre-2007 information could not be made. Please see SD Franck, ‘The ICSID Effect? Considering Potential Variations in Arbitration Awards’ (2011) 51(4) Virginia Journal of International Law

  11. and the worst part of this “nationalization” is that the orinoco belt was handed over again, this time to the chinese, russians etc. in very shady deals. The oil located there is very difficult to extract, that’s why pdvsa handed those oilfields decades ago in not-so-favorable terms and thats why they are giving them away again, we don’t have the expertise to extract it, I don’t know if the chinese etc have it either, the gringos did.

    • I beg to differ on the common misinformation that Pdvsa was technically or operationaly unable to exploit the Faja back when such project started . What it didnt have was enough money and of course there were some technogies which would help the project and which would have to be purchased . To be noted is that Pdvsa at the time had probably the most accumulated knowledge about the exploitation of heavy crude than any other oil company in the world because extra heavy crude was its specialty , its daily headache and challenge .
      The terms were not unfavourable , they simply reflected the state of the oil market at the time . If THAT Pdvsa would have wanted to negotiate terms with a price of 100$ plus per bl you can be sure they would have been much more favourable than those which have been negotiated now !!

      • I based mi comment on what I understood from what my father told me (he worked for pdvsa at the time), but I guess you are right, with enough money, and getting assistance where needed, pdvsa’s engineers could have done it themselves. Sadly I don’t think the red pdvsa can in it’s current state, at least they would have to toss a lot more money to the problem.

        pd. even tough venezuela’s oil is normally heavy, from what I understand, the oil in the faja is the heavier and harder to extract than anything else we have

      • The partners provided money and technology, but yes, the money was the key. The partners put up their share of the projects, they all issued debt to pay for things. The debt was guaranteed by PDVSA and the partners up to the point the porjects were producing the amount of oil promised. Remember oil prices were LOW then.

    • we don’t have the expertise to extract it..
      There are many Venezuelan engineers and scientists who worked in the Orinoco tar belt who are now working in Canada, with the Alberta tar sands. What expertise Venezuela had for developing the Orinoco tar sands is now considerably diminished. Sad.

      • If the government were serious they would have leveraged those first projects, using them to train domestic experts which can then work on future domestic projects. Key to that is respecting the work of those professionals and working to keep them, not firing them for petty political reasons, or physically stealing from your foreign partners (leaving you up a creek and without a paddle if you run into trouble in the future).

        China did this with nuclear power, paying Westinghouse and European nuclear power companies well to show them how it is done and also giving those foreign companies a long term interest in the success of Chinese nuclear power. More recently, China is attempting to do the same with fracking technology.

        Chavez completely missed the boat: Instead of stealing the Faja oil projects he should have let PDVSA learn how to build them, and then built copies of it. Then he’d have 40% ownership of one and 70-80% ownership of the copies… so Venezuela would have 2x-3x more state owned Faja production.

  12. Most of the comments have been about financial losses, big or not so big. As Tom O’Donnel says, the idel]ologues of the perps , Mommer, Boué, et al, estimated correctly what “it would cost” to do what they did . But this is not the only measure, not even the main one. The main result, I think, is in terms of prestige lost, in terms of credibility going to pieces, in terms of PDVSA becoming a pariah in the community of bona fide oil companies. This cannot be measured in dollars an ]d cents. It would be cynical to pretend that this is the only measure.

    • Any counter-intuitive possibilities?… that the shared objective of selected South American States (Argentina, Bolivia, Ecuador, Venezuela) is to undermine ICSID prestige in order to allow space for a new non-independent arbitral model that ensures/permits denial of justice?

    • I guess that that is why pastor maldonado is for, seriusly, I don´t think the goverment care that much about international prestige, they care a lot is about winning elections

    • Estmado Gustavo, Bill, Adam, et al – and esp.Juan

      (1) Indeed, it seems Pdvsa is open to penalties/compensation payments above the contractual $27/barrel. Thanks.

      (2) Of course, as Dr. Coronol and others point out, … the loss of confidence (worldwide) in Pdvsa has major consequences gong forward … ESPECIALLY now that Bolivarian PDVSA et al know CLEARLY that production must be raised as a matter of the BRV’s survival

      (Aside: How imminent is this crisis, and how soon the investments must begin esp. in Mature Fields …. months? in a year? etc. is another question on which informed people here differ. … but, what is clear is that a failure of Pdvsa to raise production “soon” and the resultant collapse-of-some-type that would ensue would have consequences severely constraining also any future government, and of course for citizens and for the private sector for years)

      So, indeed, in response to the collapse of confidence in PDVSA that Gustavo notes, there is much talk of “confidence building” between Pdvsa and the private sector here. Various arrangements are being proposed to Pdvsa that would provide some sort of ‘guarantee’. (I’m writing on this now)

      • Tom , the so called compensation formulas were part of some of the contracts between Pdvsa and its international partners , in principle they were not binding on the govt which for legal purposes is a different party from Pdvsa . In the Conoco case the Pdvsa affiliate allowed some kind of statement whereby the govt could be held to be bound by the contract provisions (dont know the details) . However as the parties during the discussions held as part of the migration processes never referred to them , their existence and possible application were specifically disregarded in the award . (see Par. 402 of the award) . Have independent confirmation from a Contractor Company Manager attending the late april meetings with Pdvsa that the latter is on a on a fence mending exercise with its contractors promising to treat them better if they faithfully help carry out the new projects ( also warned that if they are ‘disloyal’ they will get expropriated ) . Have heard that their project for recovery of inoperative fields or wells involves their counterparts putting up the money to carry them out with a guarantee to pay it back through some kind of mechanism which involves a lien or mortgage on the sale of oil proceeds of Pdvsa

        • We are all anxiously waiting for your blog to come out with some news of what is the time line for putting on stream the new projects and how the final contracting mechanisms will be structured , congrats on your very informative blog !!

  13. Dr Coronel , your comment (however worthy ) would have been more appropiate 12 years ago , Now a days Pdvsa’s credibiliy and reputation has fallen to the lowest depths laying between a deep layer of mud and a deeper layer of filth . Whats coming out ( and more has yet to come out) officially and in the open is how delinquent the Regime’s handling of Pdvsa and generally of the oil industry has been . The words ‘bad faith’ has a connotation in legal language which is about the worse that can be. Its the term used in the award to describe the behaviour of the people handling the expropriation process. It is not devoid of consequences for it usually implies that the party incurring in bad faith behaviour cannot rely on those legal precepts that ordinarily would protect it from having to suffer the worst penalties as a result of their trangression. For example if you write in a Contract that your liabilities for breach of it will never exceed a particular sum , the presence of bad faith or fraud or willful failure will make such limit non applicable . It carries the issue of compensable damage to an altogether new level . We always knew that top pdvsa and ministry officials conduct was criminal or negligent , but now its become part of the Official Record International institutions keep for all the world to know . Im not sure the money part will be as unsubstatial as some people appear to think.

  14. Bill: I think my comment is still pertinent since PDVSA still pretends to be an “important” oil company. It has partners like Chevron, Repsol, ENI, etc, etc., which are big real oil companies. Still claims to have the “largest reserves in the world”. The loss of this arbitration is just one more proof to the outside world (we Venezuelans don’t need any more proof) that Ramirez and his gang are just bullshitters and cannot b trusted.

  15. A final decision is still a couple of years away. This decision can be argued by PDVSA’s lawyers, while the monetary value is decide by the panel. That could take six months to a year. Then, once there is an award, Venezuela can appeal, a process that can easily take six months to a year. At that point Venezuela could negotiate how it would make payment, adding even more time. PDVSA could, for example, return the 40% that Conoco owned in Hamaca as compensation, without violating the law.

  16. There is no appeal process under the ICSID system. You can only claim that the awars should be annulled based on serious procedural mistakes, but the substantive issues are settled once and for all

    • From what I remember of the Icsid rules , grounds for revisiting the results of the award are extremely narrow so that there is little chance of any attempt by pdvsa to reverse its basic conclusions from being succesful. !! they may try but the odds of any kind of change in the award are extremely slim !! It must be humbling for Ministry personages to find out that it was their public behavior and speeches which ultimately did them in and provided the ‘proof’ of the expropiations illegality .!!

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