Ahmed Mousa Jiyad,
Iraq/ Development Consultancy and Research (I/DC&R)
30th June 2011
Dear Mr. Al-Janabi,
I am pleased to provide hereunder, as requested, my “expert opinion” for presentation before the experts’ hearing session scheduled on the 3rd July 2011 regarding the mentioned above INOC draft law, which is currently under consideration by the esteemed Iraqi Parliament and Oil, Gas and Natural Resources Committee.
I sincerely hope my intervention would contribute to enrich the debate and assist in enacting sound, coherent and functional law that could reinstate INOC as the main pillar of the Iraqi oil sector, to enhance the collective ownership of petroleum wealth and to insure best interests of the whole Iraqi people, as enshrined in the Constitution.
This report falls in two parts: A brief “Executive Summary” is provided first, followed by through “Opinion” examination of the law article-by-article.
1- The current draft of INOC law links, organically, INOC to both FOGL and FOGC, thus rendering INOC law dysfunctional and non-operational unless and until FOGL is enacted and FOGC is established.
Making INOC law hinges on not yet promulgated law and un-established Council is improper from legislative craftsmanship perspective, and thus could be unconstitutional.
The link also enforces the so-called “package of laws”- FOGL, revenue sharing law, INOC and Ministry of Oil law that have been dragged on since early 2007, thus jeopardising further the prospect of promulgating INOC law.
The legitimate questions are why then this unnecessary linkages, and how to de-link INOC law from FOGL, and consequently from FOGC?
2- The fiscal regime for INOC is very restrictive and intrusive as both the estimation of INOC operating costs and its profit margins are decided externally by entities with very questionable technical and petroleum related competencies.
Moreover, all decisions would be taken by INOC board are subject to approvals of other external authorities, thus eradicating the degree of independence this board might have.
In the mean time INOC is expected to compete, for business inside Iraq, with more powerful IOCs if FOGL is promulgated in its current version.
Effectively, this with high probability could work against INOC and thus detrimental to Iraqi interests.
3- The attachment of INOC to the Council of Ministers is problematic and could embroil INOC in the disastrous muhasasa politicisation. Unless effective and powerful measures are incorporated in the proposed INOC law against such a possibility, there is no merit in annexing INOC to CoM. Moreover, being a public company there is legal prohibitions against such attachment.
4- Practically, each and every article of the proposed INOC law suffers, one degree or the other, from flaws, ambiguities and inconsistencies. These are identified, analysed and suggestions are proposed on how to address them. However, no alternative texts were proposed as such matters are beyond the scope of this opinion.
5- Therefore, the present draft of INOC law requires very serious and thoughtful revision. As it stands, the current draft of INOC law is a non-starter, a recipe for failure and would reinstates week and ineffective INOC.
Draft of INOC Law
The Iraqi Federal Parliament
The followings comments are made in chronological order of the articles in the draft INOC law, and they are based on the Arabic version of the law. No attempt was made to reproduce the full text of any article as I assume all members of OGNRC have copy of the proposed law. Selective Arabic terms are added for clarification purposes. Editorial, drafting and linguistic matters within the text of the law were not addressed, as I assume the final version of the law would take care of these drafting issues.
1- Article 1 does not provide the definition of the “Company”. Therefore the definition should be added in this article as “the Company: the Iraqi National Oil Company.”
2- Article 2 (first), should be amended to read as follows: “The Company is a Public Company fully owned by the State of Iraq…...”
The emphases on the term “Public Company” is very important since it is different from the term “Holding company” mentioned in the draft federal oil and gas law-FOGL and previous draft of INOC law. Moreover, the term “Holding company” has in itself many legal complications.
3- Article 2 (first) suggests INOC will be “attached to the Council of Ministers.” This formulation could cause many serious problems for INOC and thus impacts its efficiency and performance. Therefore a special attention should be made to discuss this suggestion as there are many pros and cons, as elaborated in the following.
a- The Iraqi Public Company Law- PCL No 22 dated 1997 does not envisage a public company being attached to the Council of Ministers-COM but to a sectoral ministry. This implies the necessity for amending the PCL to accommodate this new situation, and address the resulting complexities due to the significant mismatching between the proposed INOC law and the PCL.
b- This could lead to INOC becoming more politicised through Almuhasasa practices, even though INOC has its independent legal status with its own Management Council/ Board of Directors.
c- From operational aspects, this also raises serious questions and concerns pertaining to who actually would supervise INOC within CoM: whether CoM supervises INOC's operations directly, or via an entity within the CoM structure, or the “Office of the PM”, or the Deputy of MP or the through the proposed Federal Oil and Gas Council (FOGC).
d- Unless these hierarchical relations are fully and clearly demarcated there could be an overlapping of authority over INOC that could generates conflict and ambiguities, with negative consequences on INOC.
On the other hand, having INOC attached to CoM might remove it from the exclusive domination of the ministry of oil-MoO, and could provide the company with a wider official and political audience, giving it more flexibility and power. This remains to be seen.
Undoubtedly, removing INOC from the umbrella of MoO would weaken the latter, limiting the ministry’s role. The formal relationship between these two interrelated entities, e.g. INOC and MoO, would be confined to the “two oil and gas experts” members in the INOC Board of Directors (Article 10), and MoO membership within FOGC.
The outcome depends on the pending law pertaining to the ministry itself, and its future relationship with other state companies and organizations that are currently under its auspices, such as the Oil Exploration Co. (OEP), Oil Drilling Co. (ODC) and State Oil Marketing Organization (SOMO).
I suggest consider the above very seriously before deciding the attachment of INOC to CoM, or MoO or any other entity.
What should be emphasised here is what matters practically, how powerful and independent INOC board is in conduct business, take decisions and adhere to good governance principles on one side, and how effective and efficient the external oversight on INOC on the other side.
These are addressed in other articles of the proposed law.
4- Article 2 (third) might need redrafting to accommodate the possibility of INOC conducting operations outside Iraq in the future.
5- Article 3 is too wide, vague, and extends the objectives of INOC beyond upstream and midstream sub-sectors. Moreover, the expression “واستثمار الثروة النفطية والغازية والنشاطات المرتبطة” “invest oil and gas wealth and related activities” is more of a macro-economic policy than INOC’s.
Therefore, I suggest redrafting this article to make it specific to INOC operations and functions.
6- Article 4 makes reference to FOGC and FOGL, and thus renders INOC law invalid unless FOGL enacts and FOGC establishes. Accordingly this linkage creates a vicious circle/ looping problem regarding which law should be enacted first. Obviously, the current formulation of INOC law assumes the existence of FOGC and promulgation of FOGL, which is not the case so far. If INOC law is enacted in its current formulation, INOC would not be able to function at all since its activities are dependent upon approval of entity, e.g. FOGC, that does not exists and a law, e.g. FOGL, that does not exists as well.
Moreover, even if we assume, for the sake of analysis, the existence of both FOGL and FOGC, Article 4 (sub-paragraphs first and second) creates or faces additional problems, as follows:
INOC, according to these sub-paragraphs, would be mandated to manage, develop and operate “current producing fields” and “the discovered not developed fields”.
However, two matters would effectively impact such mandate.
First, the law does not specify by name these “current producing fields” and “the discovered not developed fields”, thus open the possibility for different interpretation, as Article 112 of the Constitution does. There should be no difficulty in specifically naming these fields, as the Ministry of Oil had, in October 2010, provided detailed information on 66 oil fields and surely the ministry has equally sufficient data on gas fields, which permits identifying the field (developed or not yet) that would be earmarked for INOC.
Also in this respect, though the draft of FOGL clearly assigns fields mentioned in Annexes 1 and 2 for INOC, the two annexes are not provided in the said draft, and thus one cannot know for sure which fields are listed in the two annexes, especially these annexes were compiled in 2007 and much tampering have been done with them.
Second, the fields (developed or not) would be assigned to INOC by FOGC. The implication is that INOC has no real but only symbolic mandate, since it is FOGC, which would effectively be the decision maker on which fields are to be assigned to INOC.
In addition to the above “mandate” INOC would be allowed, according to Article 4 (sub-paragraph third-c) to conduct exploration, development and production in “areas outside its areas of operation, in accordance with FOGL”. However, the current draft of FOGL mentions “competitive bases” among all ‘licence holders’ inclusive of the INOC as condition for having business in areas outside INOC’s areas of operation.
There is an apparent biasness against INOC’s involvement in petroleum operations in these areas for a number of reasons. To begin with and for strategic as well as sound policy, it is wrong and harmful to treat the INOC on an equal footing with those known IOCs. The pendulum definitely tilts against the INOC due to the large qualitative edge that works in theory and practice for the benefit of IOCs at the expense of the INOC. On the contrary, the INOC should receive preferential treatment, particularly as it faces international companies with a huge potential compared with its modest one, which has suffered from the disastrous consequences of more than a quarter century of war, sanctions, occupation and the absence of normality and security. INOC is not yet reinstated, yet it is expected to compete with well established, more powerful and better organized IOCs. This is surely a non-starter for INOC.
Second, which other OPEC member treats its national oil company in the manner this FOGL is advocating for INOC? I doubt very much that any national oil company in a developing, transitional or developed country has been subjected to such a crippling precondition.
Third, even the very developed countries, such as Norway, grant their oil companies’ favourable treatment until they stand fast on solid ground. Why then does FOGL deny the INOC this widely recognized practice?
Fourth, as shall be discussed below, while FOGL emphasises competitiveness, this INOC law suggests “administrative” profit margins, operating costs decided externally (by FOGC, Ministry of Finance or another entity), and all its decisions are to be approved externally as well. Obviously this indicates an intention to prevent incompatibility between financial constraints, through administrative capital and profits, and the requirements of international competitive norms. The outcome would work against INOC for the benefits of IOCs, leading to further weakening of INOC and national efforts in upstream petroleum.
To overcome the above highlighted unfavourable provisions in the INOC law and FOGL and their possible disastrous consequences, I suggest an alternative comprising the following main principles:
· Since INOC is fully a state entity, each and every petroleum field (regardless of their exploration, development and production status) should be, by virtue of INOC law, earmarked for INOC. Provisions regarding petroleum fields located in Kurdistan region would be negotiated between the federal government and KRG.
· INOC should be mandated to develop these fields in cooperation with qualified Iraqi and foreign oil companies subject to: providing detailed economic and technical feasibility studies; approval by higher authorities as required by the law such as the Councils of Ministers (COM) and/or FOGC; such cooperation not taking the form of concession and/or production sharing contracts/agreements; and, when cooperation involves a foreign oil company, the related contract has to be approved by the federal parliament and enacted by law according to the constitutional process.
7- In Article 4 (third), the word المساهمة “participate” has very little meaning as to what was mentioned in sub-paragraphs (a) and (b) are among the main activities of INOC.
Also the inclusion of “export” in sub-paragraph (a) and “marketing” in sub-paragraph (b) could collide with the functions of SOMO.
Moreover, the drafting of sub-paragraph (a) should be clear to avoid misinterpretation. For example “conclude exploration and productions contracts” could be interpreted as each contract combines “exploration and production”. Instead I suggest, “conclude exploration contracts, productions contracts….”
8- Article 6 (first). All Iraqi Dinar-ID numbers should be considered carefully considering the possibility of removing 3 zeros from the current banknotes and adjust the exchange rate of the Iraqi dinar.
9- Article 7 (first and fourth) authorises INOC to borrow externally subject to the agreement of CoM. However, if such external borrowing is formalised by “treaties or agreements” then it should be subject to the approval of the parliament NOT the CoM, according to Article 61 (fourth) of the Constitution.
I suggest amending these sub-paragraphs to cover the approval of the parliament if, constitutionally required or needs be.
10- Article 7 (second to sixth) needs re-arrangement by moving (sixth) to (fourth) and adjust accordingly since (second, third and sixth) are related to borrowing via Bonds.
This INOC law is silent whether foreigners (individuals, entities, companies, etc) are allowed to acquire such bonds? And if yes, the law is also silent about the maximum value of bonds “all” foreigners would be allowed to hold. This INOC law, under sub-paragraph (sixth) put a cap of 20% of total value of issued bonds for “one” holder/borrower.
Theoretically, five different foreigners could hold all issued bonds. And if this occurs, it could very well represent strategic threat to INOC. And since these bonds are “سندات قرض لحامله holder’s bonds”, then the risk for INOC could be grave and detrimental if these bonds are traded and owned by hostile foreign entities and or individuals.
This is very serious matter with high risk potential. Accordingly I suggest amending this article to incorporate the following conditions:
1- No more than 20% of the total value of all issued Bonds is allowed to be held by all “Non-Iraqis”.
2- The foreign holders of bonds are not allowed to transfer ownership of the bonds without prior written consent from INOC. Any transfer of such ownership would render the related bond(s) null and void.
3- Transfer of bond ownership from Iraqi to non-Iraqi holder is prohibited, and if occurs would renders the related bond(s) null and void.
11- Article 7 (third) exemptions the bonds and their accrued interests from taxes.
Why this exemption? There are two types of taxes involved here: “property/ wealth” tax related to the value of the bonds, and “income” tax related accrued interests on these bonds.
There are absolutely no compelling justifications for this exemption, especially if foreigners are allowed to hold bonds. The same applies to Iraqi companies, both public and private, as well as rich Iraqis.
I, therefore, suggest delete this sub-paragraph and remove any possible tax exemption.
12- Article 8 uses two terms regarding profits: “operational profits” and “net profits”, without defining either of them. The two terms are used simultaneously and could cause confusions in implication and implementation of certain provisions of this law.
I suggest either define these two terms clearly and correctly or select one of them and define it clearly. But since the reference to the term “net profits” is more frequent in this article, it is preferable to keep it and define it properly, and delete the term “operational profits” unless there is strong justification for it.
13- Also Article 8 (first) does not state what to do with the net profits occurring during the first 5 years period after the realization of such net profits. Furthermore, it does not tell what to do with the remaining 50% of the net profits occurred afterwards? How and where they would be allocated?
Since these amounts could be of a significant magnitude, I suggest amending the sub-paragraph (first) by allocating all the mentioned above residual of net profits to INOC reserve account الحساب الاحتياطي للشركة
14- Article 8 (second) refers to two reserve’ accounts- mandatory and voluntary, without clarifying the differences and purposes of the two reserves accounts?
Unless the differences and purposes of these two reserve accounts are clearly outlined in the law, I suggest merge them in one reserve account.
15- Article 8 (third) obliges INOC to pay all its net profits once the reserve account becomes four times its capital.
However, this sub-paragraph is not clear on two important matters: first, is the reserve account resulting from the net profits occurring in that specific year (annual) or the accumulated (over the years) reserve account. Second, what happens to INOC obligations (bonds and debts referred to in article 7) if the company has to pay all its net profits.
Theoretically, if total INOC debts is four-folds its capital, according to article 7 (fifth), and payable on the same year that its reserve account equals four-folds its capital, then INOC will have ZERO reserve account when it pays its debt AND Zero Capital since, by definition, it has paid back the capital to the Ministry of Finance!!! Unless the nominal capital is fully replenished by the state INOC becomes, hypothetically, bankrupts.
The above is a serious matter, though rather remote, that needs careful redrafting as precautionary measure to avoid such eventuality from taking place. As I mentioned earlier clarities regarding the definitions of net profits, types and purposes of the reserves accounts are important issues that this draft law should specify clearly and comprehensively.
16- Article 9 allows INOC “to deal تتعامل” with banks outside the country. The expression “to deal” is wide and could imply having deposit and/or saving accounts, investment portfolios, etc in addition to ordinary baking operations such as letters of credit-LCs.
Though this article obligates INOC “to deal” with the banks “according to the law”, nevertheless this article needs specific prohibitions regarding depositing money in accounts outside Iraq, as this could carry high risks and uncertainties. Distinction should be made between “depositing money” and having banking dealings is another.
17. Article 10 addresses the composition of the INOC management board. This is important matter, especially under the above-mentioned strict oversight by FOGC and CoM.
Members of INOC board should essentially represent oil companies under the umbrella of INOC such as South Oil Company (SOC), North Oil Company (NOC), Misan Oil Company (MOC), Midland Oil Company (MiOC) and any other oil/gas producing entities.
In addition to these there should be one ministerial representative from each of the ministries of oil and of finance. The first is to insure sector-specific harmonization and coordination, while the second is to insure financial coordination since the Ministry of Finance has a vital role in affecting the fiscal regime pertaining to INOC. I support such representation.
The proposed INOC law suggests representatives from the Central Bank of Iraq (CBI) and the Ministry of Planning as members of the INOC board. I actually do not see compelling reasons for these representations. CBI, according to its current law, is an independent entity, and thus its role is very different from what it used to be prior to 2003. Hence, its representation could either contravene its own law or would not be effective. Also, the representation of the planning ministry is redundant on this operational level since the ministry would be represented in FOGC, which oversees INOC. I suggest removing these two entities from INOC board.
A suggestion could be made to give the chairman ceremonial duties while the real day-to-day authorities should be given to the Executive Director. I do not see too much benefit in such suggestions for the following reasons: INOC is fully a state entity and thus it is structurally different from corporations, which usually have a chairman and chief executive/director for reasons of governance and efficiency of operations. Second, among the most important indicators of good corporate governance are: a- independence of audit, b-discloser of directors’ remunerations, c- Anti-bribery measures. Provisions catering for these governance principles govern INOC, as state entity and by its own law. Finally, if the chairman has ceremonial duties s/he should not have a ministerial status while the one who has the authority and responsibility has lower status.
I found no compelling justification for having chair and chief executive with separation of respective roles, at least at this early stage of re-instating INOC.
Having said the above, many other matters are due here:
a- The board should also have deputies to the members/ or alternates members.
b- Representative of oil labour union is not included, though PCL requires such representation.
c- The non-fully owned companies “الشركة التابعة ” are not represented on the board. They could attend as Non-voting/ observer members.
d- The terms/durations of the board members, except the heads of the regional oil companies, are not specified and whether they are renewable or not.
I suggest the draft law take care of the above and provide provisions for each of them.
18- Article 11 (first, c.) uses the term “oil industry”. This term is too wide for INOC, as INOC mandate should be confined to upstream and midstream sub-sectors. I suggest redrafting to make the sub-paragraph (c) more specific to INOC.
19- Article 11 (first, g.) deals with remuneration for external advisors and experts.
I prefer to see some criteria or qualifications regarding remuneration to avoid abuse and corruption.
20- Article 11 (second). This sub-paragraph contradicts the principle of good governance and collective management, since the duties of the INOC boards are important and essential that they should not be left to one person. I suggest deleting this sub-paragraph, and redraft article 11 accordingly.
21. Article 12 (fourth) requires two-thirds of attending members to take decisions in the board.
Attendance as such should not be the guiding criteria, since decisions could, theoretically, be taken with three attending members only.
To avoid such a possibility I suggest a quorum of two-third of all board members to validate a meeting and 51% of all board members to validate decisions taken by the board.
22- Article 12 (fifth, a) has many problems as follows:
a- It is not clear why “all” decisions taken by INOC board are subject to the approval of FOGC.
b- It pre-judges the decisions by FOGC to “approve” INOC board’ decisions. What if FOGC rejects or requests revision of such decisions? The law does not, technically, envisage such a possibility!!
c- Who would issue the needed procedure referred to at the end of this sub-paragraph- INOC, FOGC or MoO?
23- Article 12 (fifth, b) also suffers from many problems as follows:
a- The word “approve” is too restrictive and pre-emptive, as if FOGC have no authority to disapprove decisions by INOC board!!.
b- The deadlines 15 and 30 days are, operationally dysfunctional. What happens if FOGC disapprove any decision any time between the 15th and 30th days?
c- This could lead to obtain FOGC approval “by default” due to elapse of time?
24- Article 13 has many problems as follows:
a- Sub-paragraph (first) is too unspecific as the Chairman could have experience in his field of specialisation but that could have nothing to do with upstream petroleum. Therefore, experience in (Iraqi) petroleum industry should be prerequisites with minimum number of years, say 15, and minimum university degree in a related field of study.
b- Sub-paragraph (second) is not clear as who appoints the Chairman of INOC: CoM or PM? Does this require approval by CoR since the Chairman of INOC has ministerial status?
c- Sub-paragraph (fourth, f) sounds impractical with regards to any الشركة التابعة affiliated company.
d- Sub-paragraph (fifth) suffers from the same flaws referred to in (a) and (b) above.
25- Article 14 has the following problems:
a- Sub-paragraph (first, e) mentions “Commission الهيئة”! It should be “the company”.
b- Sub-paragraph (second) refers to SOC and NOC only. What about other ROCs: Misan and Midland; other RGCs: north and south?
26- Article 15 problems are:
a- Sub-paragraph (second) refers to “operating companies شركات مشغلة تابعة ومملوكة” but these are not defined in Article 1 of this law. Are they the same شركات تابعة ومملوكة or they are different since the term “operating” appears only in this sub-paragraph.
b- Sub-paragraph (third) uses the expression “conclude exploration, development and production contracts”. This could be interpreted that each contract comprises the three phases of exploration, development and production. To avoid any such misinterpretation a redrafting is necessary by referring to exploration contracts, development contracts and production contracts.
It must be stated here that such contracts should have the approval of CoM or preferably CoR as condition before they enter-into- force.
c- Also sub-paragraph (third) refers to “conclude contracts for oil and gas fright”. But these contracts are the responsibility of SOMO not INOC. Therefore, this constitutes interventions in SOMO’s works and functions and thus could create conflict between the two entities.
d- Sub-paragraph (forth) obligates INOC to finance the non-fully owned companies شركات تابعة . This obligation is legally questionable as why INOC finance companies that it does not fully owned.
27- Articles 16 and 17 decide the core fiscal regime for INOC, and thus they are of critical importance. Yet there are ample ambiguities here as well.
According to these two Articles INOC, for each barrel of oil and gas (in terms of barrels of oil equivalent) delivered at any specific delivery point, is entitled to receive “remuneration المقابل” equals to that barrel’s “operating cost and profit percentage”.
The barrel’s “operating cost” is to be negotiated between INOC and the Ministry of Finance, and if they fail the FOGC will have the final word. The “profit rate/percentage نسبة من الربح” would also be decided by FOGC “in accordance with INOC’s annual investment plan, provided it [the remuneration المقابل ] is not less than the operating costs.”
The above indicates that INOC financial entitlements are basically administered by FOGC. The relevant questions are:
How competent and qualified this ad hoc body, e.g. FOGC, would be in determining INOC revenues?
What are the main parameters, methods, and data it uses to reach a rewarding profit margin and accurate operating costs?
What are the means to ensure and validate the correctness of the used data and resulting profit margin and operating cost?
How often this estimation would be made: monthly, quarterly or annually?
Could this become a disincentive for INOC or even a powerful leash to hold it from playing an active role in upstream petroleum development?
Moreover, by focusing on operating costs that are, by definition, geared to production of oil and gas, INOC would have less incentive for exploration activities that could augment the national reserves to replenish production.
Finally, the last part of Article 16 (first) could indicate to a possibility of zero profit! Thus this externally fixed administrative profit could have detrimental repercussions on INOC investment and its operational functions.
Considering the importance of these two articles and their impacts on INOC they have to be seriously revised and addressed according, among others, the flaws and ambiguities above mentioned.
28- Articles 18 & 19. There are ambiguities in and incompatibilities between the provisions of these two articles. These provisions do not cater very well for the needs of INOC at the first few years of its re-establishment since these provisions are basically linked to previous years “operating costs”. Also it is not clear, in these two articles, what are the differences between “operating cost” and “operating cost of actual production”
29- Article 23 (first). Same remarks mentioned in item (25) above regarding Article 14 (second) are applicable to here also.
30- Article 24. Clarification is needed whether this could apply to the JV such as BGC of Shell HOA.
31- Article 25 (second) clearly states that provisions of PCL apply to INOC except what contravenes this proposed law. However, disparities between the two laws are so many, so substantive and so effective that it makes no sense nor serves any purpose to have INOC governed by the PCL. This adds even more ambiguities and creates further legal complexities that could affect the functions of INOC and its legality.
What is mystifying is that, while PCL provides the possibility of excluding any “extractive company” belonging to the Ministry of Oil from the provisions of the law (Article 41), the proposed law brings INOC under the umbrella of the PCL despite all the serious disparities between the two laws.
32- The “Preamble الأسبـــاب الموجبـــة” needs minor redrafting.
Please fell free to contact me should you find it necessary.
Kindly accept the assurances of my highest regards,
Ahmed Mousa Jiyad,
Development Consultant and Scholar,
Iraq/ Development Consultancy and Research (DC&R)*
*: DC&R is an independent consultancy firm registered in Norway under organisation number 982351537, listed on the Norwegian company registry- Brønnøysundregisrene and governed by the Norwegian law.