Dispute Resolution in the Oil andGas Industry: An overview

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By Morad A. Goerg

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CONTENTS

I. ABBREVIATION p. 4

II.TABLE OF CASES p. 4

1. INTRODUCTION p. 5

2. NON-ADJUTICATORY DRPs p. 5

2.1 Negotiation p. 5

A.Definition p. 5B.Advantages p. 6C.Disadvantages p. 6D.Conclusion p. 6

2.2 Mediationp. 7

A.Definition p. 7B.Advantages p. 7C.Disadvantages p. 8D.Conclusion p. 8

2.3 Early Neutral Evaluationp. 8

A.Definition p. 8B.Advantages p. 9C.Disadvantages p. 9D.Conclusion p. 9

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3. ADJUDICATORY DRPs p.10

3.1 Litigationp. 10

A.Definition p.10

B. Main featuresp. 10

3.2 Arbitration p.11

A.Definition p.11

B.Main featuresp. 12

4. CONCLUSION p.14

5. BIBLIOGRAPHY p.15

ABBREVIATIONS

AC Arbitration ClauseADR Alternative Dispute ResolutionAHA Ad Hoc ArbitrationDR Dispute ResolutionDRP Dispute Resolution ProcessENE Early Neutral EvaluationIA Institutional ArbitrationO&G Oil and Gas

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NC National Court

TABLE OF CASESNEW ZEALAND

MOTUNUI LTD V. METHANEX SPELLMAN [2004] 1 NZLR 95 (AUCKLAND HIGH COURT)P. 11

SWITZERLAND

ATF 130 III 66 CONSID. 3.1 (SWISS FEDERAL TRIBUNAL)P. 11

UNITED KINGDOM

COURTNEY & FAIRBAIRN LTD VS TOLAINI BROTHERS LTD [1975] 1 WLR 297 P. 6EMMOTT VS MICHAEL WILSON & PARTNERS LTD [2008] BUS LR 1361 P. 13HURST VS LEEMING [2002] 1 EWHC 1051 P. 7LIAMCO VS LIBYA [1982] 62 IRL 140

P. 12SAPPIRE INTERNATIONAL PETROLEUM LTD VS NATIONAL IRANIAN OIL CO [1964] 13 ICLQ 1011 P. 12WALFORD VS MILES [1992] 2 AC 128

P. 6

UNITED STATES

UNITED STATES VS. PANHANDLE EASTERN CORP. ET AL. (D.DEL.1988) 118 FDR 346 P.12

1. INTRODUCTION

Generally speaking, disputes are an inevitable part ofcommercial relations, and all commercial disputes need to besettled. The oil and gas industry is no stranger to disputes,like every large industries involving a variety ofstakeholders, large and long-term investments, the O&G industryhas unique requirements for clear and comprehensive disputeresolution technics. Commercially many of the disputeresolution processes in use in the O&G industry will be similarto those found in other areas of international trade.

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There is a need in the O&G industry for fast and cost-effectiveprocesses, which will cause minimum disruption and maintainworking relations. Therefore, one could think that the industryfavor most of the time both private and flexible processes. Thespecificity of the O&G industry creates a wide range ofdisputes, some of the most common are: inter-states or offshoreconstruction disputes, quantity or quality disputes, disputesrelated to equipment, jurisdiction disputes, insurance disputesand maritime boundary disputes etc1.

This paper will examine briefly popular non-adjudicatorydispute resolution processes, like negotiation, mediation, andearly neutral evaluation and secondly, analyze in detailsadjudicatory channels of resolving disputes, in particularlitigation and arbitration.

2. NON-ADJUTICATORY DRPs

2.1 Negotiation

A. Definition

Negotiation is a form of communication between the parties forthe purpose of arriving at a solution through discussion andmutual agreement2. It is mostly an informal process but it canget complicated when it involves substantial use of strategyand tactics3.Normally, negotiation is used as a first step inan escalating DR clause and is a most common in the energysector4.

1 CONNERTY 2002, PP 144-145.2 FIADJOE 2004, P. 22 ; GROTON 2000, P. 207. 3 BLAKE ET AL. 2012, P. 25. 4 BLAKE ET AL. 2013, P. 14.

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B. Advantages

1) Naturally flexible, it’s conducted by the partiesthemselves or by senior representatives5.

2) Negotiations are cost-effective, requiring littlepreparation and their consensual nature makes them easy toconduct.

3) The parties have total control over the process,controlling the outcomes without third party scrutiny6.

C. Disadvantages

1) The success rate of the negotiations will depend on theskills of the negotiators, the strategies and tactics theywill employ7.

2) Negotiation is cost-effective but can lead to pooroutcomes especially if the strengths and weaknesses of thecase are not properly exploited8.

3) Being consensual and non-binding9, negotiations must relyon the sole will of the parties to settle their disputesand this requires open and not entrenched positions.

D. Conclusion

5 THYGERSON 1994, P. 113.6 KING ET AL. 2009, P. 101.7 RAMSEY 2007, P. 875.8 BLAKE ET AL. 2012, P. 27.9 BEING NONBINDING THE AGREEMENT TO NEGOTIATE IS NORMALLY NOT ENFORCEABLE, NEITHER IS THE AGREEMENT TO NEGOTIATE FOR AN UNSPECIFIED PERIOD OF TIME SEE COURTNEY & FAIRBAIRN LTD VS TOLAINI BROTHERS LTD[1975] 1 WLR 297 ; WALFORD VS MILES [1992] 2 AC 128.

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Negotiations can be used at all-time but it will be moreeffective when the issue first arises10.

10 THE MAIN PROBLEM WITH NEGOTIATIONS IS THAT IT REVEALS THE STRENGTHS AND WEAKNESSES OF THE PARTIES. THIS COULD POSE A PROBLEM IF THERE ARE ANY MORE ATTEMPT AT DISPUTE SETTLEMENT.

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2.2Mediation

A. Definition

Mediation is a non-binding process in which a neutral mediatorwill facilitate the dispute settlement between the parties11.Mediation is a flexible, adaptable, DRP12, which is normallycontained in a written agreement. The mediator will conductseparate discussions with each parties to understand the caseand the parties’ positions13.

Mediation services can be provided by NC14, by commercialorganizations or by a mediator. There are two types ofmediations: first, interest-based mediation15, and secondly theright-based mediation16.

B. Advantages

1) The mediator will help the parties see the strengths andweaknesses of the case17.

2) The mediator will help the parties to step outside theirentrenched positions18.

11 BLAKE ET AL. 2013, P. 15.12 COX 2012, PP 399 ET SEQ.13 PEL 2008, P. 117.14 IN THE UK SEE CIVIL PROCEDURE RULES (1999); IN HURST VS LEEMING [2002] 1 EWHC 1051 THE CHANCERY COURT STATED IT WAS NOT WILLING TO PROCEED TO LITIGATION OR ARBITRATION IF MEDIATION IS SEENAS REASONABLE MEAN OF DR.15 A PROCESS IN WHICH THE MEDIATOR FACILITATE COMMUNICATION AND ENCOURAGES THE DISPUTANTS TO FOCUS ONTHEIR INTERESTS SEE BÜHRING-UHLE ET AL. 2006, PP 266-267 ; SPENCER/BROGAN 2006, P. 104.16 A PROCESS WHICH FOCUSES ON THE LEGAL RIGHTS OF THE PARTIES AND ATTEMPTS TO ACHIEVE A RESOLUTIONWHICH MEETS THE RELEVANT LEGAL CRITERIA ON THE DISPUTE IN A MANNER THAT IS CONSISTENT WITH

RESOLUTIONS ACHIEVED IN A TRADITIONAL COURT SETTING SEE SPENCER/BROGAN 2006, P. 105.17 HARDY/RUNDLE 2010, P. 182.18 CLARK 2012, P. 109.

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3) Mediation has an impressive success rate, according tofigures the resolution’s rate is near 90% when themediation process is endorsed by the parties19.

4) Mediation helps to find common grounds and concessionsbetween the parties20.

5) Implementation of any agreement reached through consensusis more likely to be achieved than where a unilateraljudgment is imposed21.

C. Disadvantages

1) Mediation’s success depends, for a large part, on theskills of the mediator.

2) Mediation costs can increase if the mediator isn’t skilledor if the parties might have been able to resolve theirdispute by negotiation.

3) The parties don’t benefit from any proceduralprotection22.

4) The parties have no obligation to stay in the mediationprocess and can walk away at any time23.

D. Conclusion

19 D'AMBRUMENIL 1997, P. 54.20 SIDAWAY/INGRAM 2000, P. 212.21 COX 2012, P. 399.22 FIADJOE 2004, P. 23. 23 COX 2012, P. 399.

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Mediation is useful at any stage and it doesn’t matter whetherit is pre-agreed or if the parties agree to it when the disputearises24. Being confidential and conducted without prejudice,it allows to have an open dialogue and this is useful when themonetary value is not high enough to justify a more formalDRP25. Mediation26 is also to be considered when the partiesintend to keep good business relations. Nevertheless, complexdisputes require an expert on commercial or technical issuesand which will be more involved than a mediator.

2.3Early Neutral Evaluation

A. Definition

ENE is an evaluative and typically non-binding DRP27. ENE isdesigned to provide an independent assessment, by a neutralthird party which is an expert in the industry. The Evaluator28

provides a non-binding evaluation of the likely outcome if thematter were to proceed to court or to arbitration29.

24 BLAKE ET AL. 2012, P. 209.25 HERMAN 2006 P. 130 ET SEQ. ; ALTHOUGH THIS POINT IS DEBATED SEE ALEXANDER 2009, PP 166-167.26 AS A NON-ADVERSARIAL PROCESS.27 BAILEY 2014, P. 1435.28 USUALLY A PRIVATE ATTORNEY OR A RETIRED JUDGE WITH EXPERTISE IN THE O&G INDUSTRY SEELOOTS/CHARRETT 2009, P. 304.29 RAMSEY 2007, P. 885.

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B. Advantages

1) ENE provides the parties with a forum where they canpresent their cases, it is appropriate in technicaldisputes, in which both parties disagree on thesolution30. The Evaluator will then evaluate allsubmissions and indicate his preferred solution to theproblem31.

2) ENE is cost-effective, it requires little time andpreparation and it is conducted at an early stage32.

3) ENE helps the parties assess the strengths and weaknessesof their cases, helps persuade or educate them in respectof the possible risk of escalating their dispute toarbitration or litigation.

4) ENE can help maintaining good business relations byassessing, at an early stage, disputes and advising aboutthe possible solutions.

C. Disadvantages

1) Because of time and cost-limitations, the cases may beincomplete and may not include all the evidences anddocuments needed to assess the case in a complete manner.

2) ENE is non-binding, it helps the parties to see possiblesolutions and consequences of their disputes but doesn’t,per se, settle their disputes. Furthermore, ENE willeffectively “show the parties’ hands” and others will be awarethat there exists a poor view on prospects, which couldmake a settlement on good terms more difficult33.

30 BUT AGREE ON THE PROBLEM. 31 VICKERY 1999, P. 66. 32 LOOTS/CHARRETT 2009, P. 304. 33 MCROBERTS 2008, P. 274.

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D. Conclusion

ENE isn’t designed to resolve entire case, it can help toevaluate specific and highly technical points. The Evaluatorassists the parties on these specific questions but ignores therest of the parties’ disputes and therefore be confined to verynarrow and particular matters. Some courts even offer a panelof attorneys providing ENE, thus avoiding some disputes beingbrought to NCs in a litigation process34.

3. ADJUDICATORY DRPs

3.1 Litigation

A. Definition

Litigation refers to lawsuits, the process of filling claims inNC, and ultimately going to trial35. When the parties didn’thave the prudence to include an alternative dispute resolutionthey have to resort to the NCs to settle their dispute36. Theinternational nature of O&G industry makes common the fact thatthe parties are domiciled in different countries and have theirassets in their home country.

Litigation does not require any contractual provision,commercial courts are competent to examine O&G commercialdisputes.

B. Main features

34 MUROV 2005, PP 237-238.35 BEATTY/SAMUELSON 2014, P. 45. 36 CONNERTY 2002, P. 148 ; DORE 1986, P. 3.

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1) Sometimes there is a genuine interest in having asettlement for example when the parties have takenadversarial position leaving little room for other DRPs.It can be also beneficial when there are largediscrepancies in the parties “bargaining position”.

2) The NC have formal rules for settlement of dispute andtheir decisions are binding, the system is technical andthe judges exercise most of the control over theproceedings as well as the outcome of the litigation37.

3) Litigation provides the parties with a forum in which thedisputants aren’t able to influence the process or theconduct of their dispute, the national substantive andprocedural laws apply and the courts follow a strictprocedure38. However, the procedure can be long thereforecostly.

4) Litigation, may restrict access to court to certain typesof people, Solicitors or more likely Barristers39. Thiskind of limitation may result in a cost increase,especially when faced with complex, lengthily procedures,nevertheless legal representation may give the parties acomprehensive protection. It is impossible to dismiss thefact that a competent legal team provides the parties withadequate protection in case of litigation.

5) Most justice systems provide with an extensive appealsystem that can be used in case the first instancedecision doesn’t meet with the parties’ expectations.However, this will slow down the resolution and increasecosts.

6) The litigation process may also have the advantage ofallowing the parties to be faced with a legal system theyare familiar with. This is true of course if the partiesdecide to submit their disputes to their NC.

37 BANSAL 2008, P. 1. 38 MILLER/JENTZ 2012, P. 66; DUNDAS 2004, P. 3; STEELE ET AL. 1999, PP 43-4. 39 KEENAN 2007, P. 99.

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3.2Arbitration

A. Definition

It is common to find an AC O&G contracts, this is particularlytrue when the parties are faced with a cross-bordersactivities40. By definition an AC withdraws the dispute fromthe NC and institute a separate independent forum41.

Arbitration is a contractual DRP. The parties agree to entrustthe dispute between them to an arbitrator, binding themselvesto accept the decision, and this whether or not they think itright42. The parties exclude the original competence of NC andsubject themselves to a determinable legal system43. It is aspecial forum selection clause that sets both the procedure andthe situs of the suit.

The parties can agree for either IA or AHA. The distinctionbetween the two forms results from arbitral practice44.

IA are managed by specific bodies, or arbitration chambers,which are set up in the frame of various Chambers ofCommerce45. The main advantage of IA is that costs arecontrolled ex ante and procedural rules and deadlines areknowledgeable in advance. On one hand there is a certainmeasure of convenience, security, administrative effectivenessand credibility on the other hand the costs can be relatively

40 BENTHAM 1987, P. 35. 41 IN A WAY ARBITRATION IS A SELF-CONTAINED JUDICIAL SYSTEM SEE LEW ET AL. 2003, PP 67-68. 42 MOTUNUI LTD V. METHANEX SPELLMAN [2004] 1 NZLR 95 (AUCKLAND HIGH COURT).43 ATF 130 III 66 CONSID. 3.1 (SWISS FEDERAL TRIBUNAL) “IN ÜBEREINSTIMMUNG MIT DEM ÜBERLIEFERTENBEGRIFF DER PRIVATEN SCHIEDSGERICHTSBARKEIT IST DARUNTER EINE ÜBEREINKUNFT ZU VERSTEHEN, MIT DER SICH ZWEI ODER MEHREREBESTIMMTE ODER BESTIMMBARE PARTEIEN EINIGEN, EINE ODER MEHRERE, BESTEHENDE ODER BESTIMMTE KÜNFTIGE STREITIGKEITENVERBINDLICH UND UNTER AUSSCHLUSS DER URSPRÜNGLICHEN STAATLICHEN GERICHTSBARKEIT EINEM SCHIEDSGERICHT NACH MASSGABEEINER UNMITTELBAR ODER MITTELBAR BESTIMMTEN RECHTLICHEN ORDNUNG ZU UNTERSTELLEN.“44 POUDRET/BESSON 2007, P. 68.45 OGLIO/SUTTI 2007, P. 40.

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high and sometimes delays and cumbersome administrativeprocedure can pose a problem46.

AHA is an agreed form of proceeding independent of allinstitutions, the parties enjoy high flexibility to specify allaspects of the arbitral procedure47. Being out of anyinstitutional control it can be faster, since AHA can avoidredundancies and delays encountered in institutionalarbitration. AHA arbitration may also be viewed as moreconfidential as less people are involved and it is sometimesless expensive48. The main disadvantage is that theeffectiveness depends upon the parties’ cooperation and theassistance that the court of the seat may provide if there aresome conflicts between the parties49.

B. Main features

1) Arbitration50 is private and confidential, an advantageoustrait to the resolution of certain types of disputes whereprivacy of both the proceeding and the outcome is desired.Nevertheless, in United States vs. Panhandle Eastern Corp. et al51. aprotective order was brought to the court by Panhandlepreventing the disclosure related to the proceedingsarguing that it would severely prejudice Panhandle’srelations with other business partners52. The courtrefused the motion, on the argument that Panhandle failedto satisfy legal requirements53, and recognized thatrelease of documents was permissible, where no expressconfidentiality intention existed. This shows that

46 BÜHRING-UHLE ET AL. 2006, P. 3647 MANY OF THE WELL-KNOWN ARBITRATIONS UNDER OIL CONCESSION AGREEMENTS WERE AD HOC ARBITRATION, SEEFOR EXAMPLE : SAPPIRE INTERNATIONAL PETROLEUM LTD VS NATIONAL IRANIAN OIL CO [1964] 13 ICLQ 1011, LIAMCOVS LIBYA [1982] 62 IRL 140. 48 SCHLAEPFER/GIROD 2004, P. 6-7.49 CONFLICTS MAY ARISE IN RELATION TO APPOINTMENT OF ARBITRATORS, OR QUESTION LINKED TO THE JURISDICTION OF THE ARBITRAL TRIBUNAL, SEE REDFERN/HUNTER 2004, PP 50-51.50 AS OPPOSED TO LITIGATION.51 (D.DEL.1988) 118 FDR 346. 52 IN THIS CASE THE ALGERIAN NATIONAL OIL COMPANY SONATRACH AND THE ALGERIAN GOVERNMENT. 53 ESPECIALLY ART. 26 (C) OF THE US FEDERAL RULES OF CIVIL PROCEDURE AND THE GOOD CAUSE REQUIREMENT.

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confidentiality is not absolute and it may be disregardedwhen circumstances justify it54.

2) Neutrality is one of the main feature of arbitration. Byremoving the possibility from the parties to subject theirdisputes to NCs, arbitration avoids a race to court andthe possibility of dueling litigation in differentjurisdiction55. IOCs faced with a dispute involving aState would normally prefer to see their dispute settledby a neutral panel of arbitrators.

3) Arbitration cost depends on the form of the arbitration.AHA is considered less expensive than IA but it depends onhow the arbitration agreement is tailored. Factors, likethe specificity of the case, length of the proceeding andefficiency of the whole construction will greatlyinfluence the costs. Arbitration is generally lessadversarial than litigation, which can further reducecosts56. On the other hand, NCs are heavily subsidized,parties that decide to turn to arbitration just for costsreasons may be forced to pay higher fees due to complexproceedings or if they decide to resort to NCs tochallenge the arbitration award.

4) Arbitration tribunal are usually composed by expert in theindustry, on the other hand NC are composed by regularjudges that are not accustom to the scope and implicationsof O&G disputes. It is true that having an expert withtechnical or commercial expertise in the O&G industryimproves the DRP, helps the parties accept the decisionand make the decision itself equitable and just57.

On the other hand, the arbitration world, especially inthe O&G industry, looks like a closed and restricted club.Most arbitrators or arbitration institutions are

54 FOR A FULL DISCUSSION ON THE SUBJECT SEE NOUSSIA 2010, PP 161 ET SEQ. 55 BENNETT 2002, P. 8. 56 CABRILLO/FITZPATRICK 2008, P. 211.57 ONYEMA 2010, PP 65-67 ; O’MALLEY 2013, PP 158 ET SEQ.

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criticized for being too “clubby”. It is amusing to notethat for an institution that prides itself on beingtransnational and suited to resolve cross-culturaldisputes, the vast majority of international arbitratorsare white, western male lawyers or law professors over theage of 5058.

5) An award may be either binding or non-binding depending onthe arbitration agreement59. Usually, an arbitral awardshall be considered a final and binding court judgment,which may not be appealed60. The 1958 New York Conventionon the Recognition and Enforcement of Foreign ArbitralAwards, specifically states that awards should berecognized and enforceable in all countries acceded to theconvention61.

On the other hand, a non-binding award has no legal effectunless it is accepted by the parties. Contrastingly, NCsalways have the means to enforce and impose theirdecisions upon the parties.

6) Finally, arbitration is supposed to be a fast DRP. MostNCs systems are submerged under thousands of lawsuits andallocate their access by queuing62 which is incompatiblewith the O&G industry needs for speedy DR.

Nevertheless, arbitration can take time, arbitrators arebusy, scheduling hearings, finding witnesses can requiremonths, particularly when faced with large, complex casesthat require multiple arbitrators and hearings.Furthermore, arbitrators can consider evidence that are

58 MCILWRATH/SAVAGE 2010, P. 255. 59 COOLEY/LUBET 2003, P. 242.60 KRAST 2003, P. 267. 61 AS STATED IN EMMOTT VS MICHAEL WILSON & PARTNERS LTD [2008] BUS LR 1361 “[INTERFERENCE OF THE COURTS]SHOULD BE KEPT TO A MINIMUM AND THE PROPER ROLE OF THE COURT WAS TO SUPPORT THE ARBITRAL PROCESS RATHER THAN REVIEW IT”. 62 CABRILLO/FITZPATRICK 2008, P. 211.

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sometimes not admissible in NCs, resulting in moreevidence being presented and longer hearings63.

63 EDGERTON 2008, P. 110.

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5. CONCLUSION

It is true that many O&G contracts have an ADR clause, and thisto avoid submitting disputes to NCs. Nevertheless, thisstatement must be carefully commented.

In my opinion litigation is far more effective than arbitrationin resolving O&G disputes and practice shows that the O&Gindustry has traditionally preferred litigation over any otherADRs64 and this for the following reasons:

1) The question of the neutrality of national courts is oftena cover up of O&G companies to add an arbitration clauseto an O&G contract. In fact, I believe that an externalarbitrator will only consider the narrow commercial issuesin the dispute and won’t appreciate the wider body of lawof the country. Furthermore, the arbitration world iscomposed of a small category of institutions of peoplethat have in a way a legal monopoly on dispute settlementand one can question their neutrality as well.

2) National courts can be specialized courts composed ofexperienced judges in commercial matters, which willspecifically meet the needs of O&G players such as speed,flexibility, expertise, and confidentiality.

3) The question of finality of litigation can be addressed bystreamlining the original and appellate stages of theproceeding, thus ensuring speedy settlements.

4) The expertise question is rather peculiar. Technicalissues aren’t an O&G monopoly. If NC can settle disputesin Bank cases, Medical cases or Human rights cases, Idon’t see why they could not settle O&G disputes.

64 SEE ERKAN 2011, PP 221 ET SEQ. AND 251 ET SEQ. ; DUNDAS 2004, PP 1 ET SEQ.

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5) Saying that ADR are less expensive than litigation isquestionable. After the final appeal litigation concludesthe dispute. On the other hand arbitration tends tominimize or manage disputes that can reappear in a biggerform at a later point in time.

6) Finally, the question of arbitration being lessadversarial is also open to debate. The desire to maintainbusiness relations will put the parties in the position ofhaving to watch their rights being trampled upon65 whilelitigation places the parties in an equal position.

The O&G industry cannot run away from litigation in all cases,and I believe opposing litigation and arbitration is a mistake,there are more complementary than contradictory, and that, inthe end, one doesn’t necessarily exclude the other, even if Ibelieve litigation is a more effective DRP.

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