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Joint ventures in general
A ‘joint venture' can be generally defined as an enterprise, co-operation, partnership, formed by two or more companies or organizations, at least one of which is an operating entity that wishes to broaden its activities, for the purposes of conducting a new, profit motivated business of permanent duration. In general, the ownership is shared by both the participants with more or less equal equity distribution and without absolute dominance by one party. In other words, a joint venture is a partnership through which two or more firms create a separate entity to carry out a productive economic activity in which each partner takes an active role. Each party to the joint venture makes a substantial contribution in the form of capital and technology, marketing, experience, personnel and physical assets. The partners may also contribute by allowing access to their respective distribution networks. The primary motivation behind these processes of corporate restructuring like forming joint ventures is the possibility of being able to enjoy the benefits of the synergy. The synergy or the co-operation leads to certain surplus, which the entities would not have been able to produce on a standalone basis. So a joint venture sees a unique combination of two competency sets that can generally vary from one party bringing the capital, the other the expertise or the technology, so on and so forth.
Based on the above, the essential features of a joint venture can be identified as thus:
- An agreement between the parties on common long term business objectives, such as, production, purchasing, sales, maintenance, repair, research, co-operation, consultations, financing;
- A characterization of the pooled assets as capital contributions by the parties;
A sharing between the parties, usually in proportion to their respective capital contributions, of the profits, resulting from the risks associated with, the pursuance of the agreed objectives, the liabilities of the parties being normally limited to their capital contributions.
A pooling of resources by the parties, for the advancement of the agreed objectives of assets, such as money, plant and machinery, management and technical know-how, intellectual property rights etc.;
Management of the agreed objectives by ,management organs which are separate from the management organs of the parties;
From a legal perspective, joint ventures can be established in two forms:
- Equity joint ventures - these joint ventures involve the participation of two or more partners in the creation of a new corporate entity in which each partner owns a given share of the equity capital.
Contractual joint ventures - in a contractual joint venture, the parties do not establish a jointly owned but separate corporate entity for carrying out the joint venture activities, or do they arrange for the redistribution among themselves of the shares of an existing corporation. The internal legal relations between the parties as well as those between the parties on one hand, and third parties on the other, are structured and regulated on a contractual basis.
The basic documentation required in the case of a joint venture include:
At the pre- negotiation stage
- Confidentiality Agreement, which seeks to protect the confidentiality of information, disclosed between the prospective joint venture parties and establish a framework for pursuing the joint venture agreement.
Letter of Intent or a Memorandum of Understanding provides a more detailed outline of what the parties want to develop in the joint venture agreement.
On successful completion of the pre- negotiation conditions and formalities and on a successful completion of the deal negotiation, the joint venture agreement has to be drawn up. This being the constitutional document of the business activity to be pursued, must be most detailed and prolific in spelling out the details and allocation of the rights and the liabilities of the parties. General issues to be covered therein would include
- Responsibilities and Risks
- Profit Sharing
- Force Majeure
- Dispute Resolution
Termination and Exit Routes
To sum up, therefore, a joint venture presents legal and regulatory issues as well as strategic issues. The emphasis in this project would be on the strategic issues involved in a joint venture in the petroleum sector and this shall be done by means of case studies.
Petroleum Setor And The Strategic Needs For Joint Ventures
The petroleum sector involves various parts - upstream activities like exploration and production, mid- stream or down- stream activities like refining, trading distribution and marketing. Each aspect of this sector requires extremely high-end technology, is highly capital intensive and involves high levels of risk. Access to the resources is also a major issue in this sector as the resources are such over which the state has sovereign rights. Most of the petroleum products being essential products, their pricing is regulated, though pressure is there to deregulate their pricing. The sector has severe energy and security implications and thus is quiet regulated. Till date, the sector is dominated by public sector undertakings. However, it is because of these features that this sector has witnessed large numbers of joint ventures between domestic firms as well as that between domestic and foreign firms. This sector promises lucrative returns and the demand for the petroleum products is on the rise. This draws firms to the sector. However, given the risks, capital requirements, technical and region- wise expertise required for a successful business in the sector, it makes strategic sense to tie up with other players having complementary skill sets or competency. For example, to be able to win an exploration license, it is important to meet both the economic as well as technical requirements. Thus, a firm, which may have necessary technical expertise but lacks the financial strength, can forge a joint venture with one who meets the financial requirements but lacks the technical qualifications. Again, the sector being a strategically important sector, many countries statutorily mandate a domestic company to have a majority stake in an exploration block of its country . For example, Russia imposes such a requirement. Thus, any foreign company wanting access in the Shaklin- III Exploration Block has no other way but to take the joint venture route with a Russian company. The importance of exploration assets is of utmost importance for sound business in the sector. It is imperative to have a balanced portfolio of producing assets and exploration assets because cost of acquiring producing assets is very high. Thus, having exploration assets is an imperative for surviving in the business and forging joint ventures is an imperative for accessing exploration assets. In light of this example, it can therefore be reasonably inferred that joint ventures is largely one of the most potent business strategies in the petroleum sector.
(In India, joint ventures in the petroleum sector are numerous.) A cursory glance at the website of any Indian company operating in the sector would testify this statement. The reasons for this are the same as stated above. But additionally, two special factors are adding to the Indian advantage:
First, India has emerged as a major refining hub with a current refining capacity 150 million ton per annum. Furthermore, it is predicted that the country's oil refining capacity will rise 60 per cent to about 240 million tons by the end of the eleventh plan period. A report by HSBC says that 12 million barrels per day or 600 million ton per annum is the capacity addition expected by 2012 worldwide and India and China are expected to account for the bulk of these.) This surplus refining capacity comes at a time when the international refining industry is experiencing a capacity crunch and high margins. Thus, India's refining capacity will attract players from capacity deficit countries. Moreover, the refining capacity surplus comes at a time when the demand for petroleum products has seen an unprecedented rise. (According to the report by HSBC, 2007 and 2008 are likely to be the two best years of the past 20 for the refining industry globally.
Demand for petroleum products is expected to increase to 90 million barrels/ day by 2010, up from the current level of 84 million barrels/ day and is projected to touch 105 million barrels/ day by 2020. Obviously, this increase in demand will require a corresponding addition of refining capacity. Another factor that would help new refiners is the greater demand for light refined products like diesel and petrol and lower demand for heavy ends like fuel oil. This creates a need for refiners that are able to process the bottoms into lighter products. Thus, India with its refining capacity surplus and that too at a time when the global refining industry is experiencing a capacity crunch, can be expected to pocket a substantial share of the profits. Second, petroleum products have turned out to be the highest export earner for India. For the first five months of the current fiscal, the export growth stood at 8.35 billion USD as against 3.84 billion USD in the corresponding previous year. It is predicted that this trend shall continue for the time to come. This points to the fact that the export market for Indian petroleum products is vast ad growing at a fast pace.
These two factors put together, would undoubtedly make the Indian petroleum companies attractive joint venture partners.
Regulatory Issues In India
To begin with the regulatory issues, it would be prudent to start with the regulations governing the upstream activities like exploration.
The Oil Fields [Development and Regulation] Act 1948 is dedicated towards the regulation of oil fields and for the development of mineral resources. The Act defines mining lease to include exploration and prospecting license. The rules for the grant of mining leases are contained in the Petroleum and Natural Gas Rules, 1959. The 1959 Rules mandate that any license or lease in respect of ay land or mineral underlying the ocean within the territorial waters or the continental shelf of India vested in the Union, shall be granted by the Central Government. When such land involved vests in the State Government, then the license or the State Government shall give the lease, with the previous sanction of the Central Government. Royalties in respect of the mineral oils have been given in the Schedule, both for the existing mining leases as well as hose granted after the commencement of the Act. The level of such royalty is statutorily capped at a maximum of 20 per cent of the of the sale price of the mineral oil at the oilfields or at the oil heads. However, the Central Government is empowered to exempt generally the whole or any part of the royalty leviable from offshore areas. The Government of India has adopted a New Exploration Licensing Policy [NELP] and Contract for Exploration and Extraction [Production] of Oil and Natural Gas including Coal Bed Methane. Along with private players, even foreign players are also allowed to participate in the bidding process by means of International Competitive Bid. The Bid Evaluation Empowered Committee has been set up so that the entire process of award of the blocks and the conclusion of the contract is completed in an expeditious manner. This procedure has cut down time limits required for the several steps like obtaining the certificate of approval, obtaining exploration license, prospecting license and the mining lease. This has been made possible by several policy measures like allowing of private participation in the sector, dismantling of the APM etc. A Production Sharing Contract is entered into with the successful bidder to ensure a fair deal for ensuring national energy security. This contract is divided into for phases:
- Phase I - Exploration Phase - upto 3 years
- Phase III - Development Phase - upto 5 years
Phase II - Pilot Assessment, Market Survey and Commitment Phase - upto 5 years
Phase IV - Production Phase - upto 25 years
The sixth round of the New Exploration and Licensing Policy (NELP-6) has introduced a new trend of multiple tie-ups among bidders pitching for the 55 exploration blocks on offer. The state-owned GAIL (India) Ltd has tied up with as many as 16 domestic and foreign firms to bid for around 20 out of the 55 blocks on offer. Indications are that GAIL and ONGC may be the only two companies to have entered into maximum of tie-ups for blocks on offer under NELP-6. Oil refining and marketing firm, Indian Oil Corporation (IOC) is likely to submit joint bids with four foreign and one domestic firm for the five blocks it plans to bid. Reliance Industries was also looking for multiple tie-ups with six to seven domestic and foreign companies. Nelp-6 is India's biggest exploration licensing round so far. As many as 47 companies, including 30 foreign majors had bought data for the 55 blocks on offer. The offered blocks include 24 deep-water blocks, of which seven are in the KG basin. The 25 onshore blocks include three in Rajasthan. There are also six offshore blocks in shallow waters.
Thus with NELP - 6, joint ventures in the Indian petroleum sector has gained an added dimension. However, NELP - 6 is not without problems as well. The winners of the exploration blocks may have to wait for some more time before the blocks are finally awarded. Objections have been raised in certain quarters over the issue of profit sharing with government in at least 19 bids. The 19 blocks in question include bids awarded to Focus - Newbury and Petrogas - GAIL - IOC consortia in the shallow water blocks and an on- land block awarded to the Naftogaz- RNRL - Geopetrol combine. The main issue is that the bids show a lower stake for the government's share of the profit petroleum in the later years of production from these reservoirs. The whole issue was around the interpretation of the principle of “sliding scale of the pre tax investment multiple”. The bidder was expected to indicate the profit share proposed to be offered to the government against the pre- tax investment multiple trenches. Thus the investors argued that it was perfectly right to bid on a sliding scale of profit petroleum for the government as the notice inviting the offer does not specify that the sliding scale should be with regard to investors alone. The investors further argue that by resorting to this approach, the companies are in fact taking an increased risk in committing a higher share of the profit petroleum in the initial phase. However, the ministry officials want the profit share percentage to be shared between the contractor and the government to be in a rising scale. However, since the bidding was through a transparent mechanism and the bids had to conform to the rules to qualify, it is perhaps not right to re- negotiate the bids from the winning companies. Moreover, falling profit shares should not be taken, as the only consideration for rejecting these bids if the net present value offered by such bidders is the highest among all the bidders. Thus, even the winning bidders of the NELP 6 are in a tangle over the issue of profit sharing with the government. These regulatory issues are imperative to be resolved if the benefits of exploration are to availed of.
In mid- stream or downstream sectors like refining and distribution, they have been opened up to both the joint sector and the private sector. Thus, there is no regulatory hurdle to foster joint venture at this level. However, since this sector is dominated by the public sector undertakings, since they are not free to decide on their business processes, some level of restriction gets imposed. In total negation of the recommendations of the Arjun Sengupta Report on PSU Empowerment, the Group of Ministers on PSU Empowerment has held that as a new business venture involves the transfer of resources from the public undertakings causing a change in the nature of the public asset, the same is unconstitutional. Delegation of powers should not lead to a change in the character of the PSU. The Center should ensure that no asset stripping should take place when a new JV is created. Thus, if a PSU wants to go for a joint venture with another PSU, the move will require parliamentary approval. Thus autonomy may not come easy to the public sector undertakings with regard to formation of joint ventures, even if it is within their financial powers to do so. So formation of new joint ventures with the public sector undertakings would require parliamentary approval and this involvement of the parliament in pure commercial issues is unwelcome and poses a significant hurdle.
Now its important to have a look at the FDI restrictions as that becomes the governing law in case of transnational joint ventures.
In the petroleum and natural gas sector, in all activities other than refining and including market study, formulation, investments, financing, setting up of infrastructure, FDI upto 100 per cent is allowed in the automatic route. That means, a foreign company may hold as much as 100 percent equity in any business activity in India except for refining and this would not require any approval. However, in case of actual trading and marketing, the FEMA requires divestment of 26 percent equity in favour of the Indian partner/ public within 5 years. Thus, the foreign exchange laws have a controlled approach towards this sector and create even more conducive environment for joint ventures in the sector. However, the foreign investor in no way compelled to lose its majority stake in the venture, unless it wishes otherwise.
In case of refining, FDI upto 26 percent in PSU's is allowed but with the permission of the FIPB. But in case of private companies, FDI upto 100 percent is allowed in the automatic route. As stated earlier regarding the possibility of India to emerge as a major refining hub, the relaxed exchange control law would facilitate the process, but furthermore, it is important to further liberalize the FDI norms in the refining PSUs.
To facilitate the process of FDI, Press Note 4 dated 10.02.2006 permits all transfer of shares from the residents to the non- residents and acquisition of shares in the existing companies through the automatic route. However, as a means to protect the Indian partner in a transnational joint venture, there is a regulatory limitation that is imposed. Cases where the foreign investor already has an existing join venture in the same field, the automatic route of investment is not available. It has been made the prerogative of the foreign investor to prove that there would be no harm to the Indian partner because of the new venture. So, as a matter of caution, a joint venture agreement may be made to contain a ‘conflict of interest' clause to safeguard the interest of the joint venture partners in the event of one of the partners desiring to set up another joint venture in the same field. Other than this, the policy imperative has been to facilitate the inflow of foreign capital and to encourage entrepreneurs to invest in India.
These were more or less the regulatory issues involved in case of joint ventures in India. In the following section, a study will be made of some of joint venture cases in the petroleum sector involving Indian players.
Ongc - Rosneft
The most recent instance of joint venture in India is the signing of the Memorandum of Understanding [MOU] between the Oil and Natural gas Corporation of India Ltd [ONGC] and the Russian gas major OAO Rosneft for jointly bidding for exploration and refining projects. The MOU was signed to jointly study and bid for oil and gas exploration assets, refining and marketing projects in India, Russia and other third countries. ONGC and Rosneft are already partners with Exxon Mobil Corporation for Russia's Shaklin - 1 project. This new MOU is largely due to this previous positive partnership.
According to the MOU, the two parties will jointly study possibilities for mutual projects in exploration, production and marketing as well as other projects related to the hydro- carbon industry including joint bidding for oil and gas stakes in Russia, India and third countries. The two firms also agreed to jointly explore options for participation in refining and retail marketing projects in India. To implement the MOU, the two parties shall set up two joint study groups, one of which will be responsible for upstream and the other for downstream projects. Upon jointly identifying a project, the parties shall mutually decide on the structure of the joint venture to implement the identified project.
After the changed Russian law requiring a domestic country to have a majority stake in all its exploration blocks, ONGC is keen on partnering Rosneft to bid for Shaklin III projects in far- east Russia. Also on the radar are Trebs and Titov exploration blocks in Timan Pechora region and Vankor and Kurumangazy fields. ONGC is alos eyeing oil fields in East Siberia and the Russian continental shelf that may contain oil and gas in 4 million sqkm of its total area of 6.5 million sqkm. ONGC also wants partnership with Rosneft in the 3.2 trillion cubic meters super giant gas filed Shotokan and Prirazlomneye oilfields. Along with these, a major attraction for the rapidly growing Rosneft for the venture is the high potential of the Indian market. The rapidly growing Indian market would be an ideal match for the rapidly growing Russian production and the joint venture is aimed at capturing this synergy.
Ongc Videsh Ltd - Cnpc
Another very significant joint venture in the petroleum world is the possible venture between ONGC Videsh Limited [OVL] and China's CNPC. CNPC has offered equity to OVL in some of its exploration blocks in Africa. OVL will also be looking at a quid pro quo arrangement where it can rope in CNPC as a partner in some of its existing assets. The two parties have agreed to farm in the other partner even in an existing exploration block in a third country. This farming in will be on a reciprocal basis. It is only on specific asset evaluation that specific agreement will be made. The rationale for induction of new equity partners in the exploration blocks is to share the risks involved in the exploration. CNPC officials comment that this induction of ONGC as a partner is a win - win situation for both the parties. Another very important facet of this joint venture is that joint bids with the Chinese companies will also help in keeping valuations of exploration assets within limits. Often valuation of assets go up when Chinese and Indian oil companies are bidding against each other. A case in point is the Kazhakh asset of Petro Canada, where ONGC Mittal Energy Ltd. lost out to China. This problem can be avoided of both the parties collaborate. Thus, this collaboration would entail such benefits that the companies could not have got on a standalone basis.
Ongc - Mittal Energy Ltd - Shell - Total
ONGC - Mittal Energy Ltd. [OMEL], which is itself a joint venture between ONGC and the Mittal Group, has almost finalized a joint venture with Shell and Total of France as equity partners for exploration of the Nigerian blocks, OPL 212 and 209. It is believed that this partnership shall bring in value to the exploration activities. One of the relinquished blocks, which OMEL will now operate on a lease, is close to the Bongo Fields of Shell. The other, OPL 209, is close to the one operated by Exxon and Shell. Proximity to these discovered fields and geological reserves indicate a good potential for these Nigerian blocks. Moreover, Shell and Total having large experience and expertise in the region and data on these fields, would serve as ideal partners for getting the optimal returns from these fields. Apart from the rationale of gaining access to the data and expertise of Shell and Total, this venture is part of a larger strategy of quid pro quo deals. For example, Shell has relinquished its first right in the Brazilian Campos Basin to enable a stake for ONGC Videsh Ltd [a foreign investment subsidiary of the ONGC Ltd.] and in its return OMEL allows Shell an equity stake in the Nigerian blocks.
The above being instances of successful joint venture deals, the next case to be studied will be an instance of a joint venture in trouble due to improper allocation of responsibilities which has lead to a dispute. A dispute can hold back all the benefits promised by a synergy.
Cairn India - Ongc
Cairn India, which is a joint venture between the oil major Cairn Group and ONGC, has been facing problems with its equity partner ONGC. Additionally, it also got involved in another round of battle with the Central Government. The recent controversy centers on the liability to pay the cess under the Oil Industries Development Act [OIDA] leviable on production of commercial crude oil from the Rajasthan block. The production-sharing contract of the Rajasthan Block detailed various specific and general obligations in the nature of taxation, but it is silent with regard to the liability of the cess payable under the OIDA. Cairn India has challenged the Central Government's claim for the oil cess at a London based arbitration forum. Cairn contends that any statutory obligation to pay the OIDA cess that may be held to be applicable as a matter of Indian law, did not apply to the production from the Rajasthan Block. Further, assuming that the liability subsists, in that event the cess liability should be borne by ONGC. Before Cairn took the matter to arbitration, the petroleum ministry took up the cess controversy. After due consultation with the law ministry, it decided that both Cairn and ONGC are liable for the OIDA cess
on commercial crude production at the rate of Rs. 2500 per metric ton. Each of them would have to pay in proportion to their equity holding in he block. Aggrieved by this decision, that Cairn has moved the arbitration forum. The company expects twp possible outcomes of the arbitration - either it will be exempted from paying any tax or else it will be charged a cess at the rate of Rs. 918 per metric ton instead of the government determined rate of Rs. 2500 per metric ton. However, the company admitted that whatever be the arte at which it is required to pay, the payment will have an adverse effect on its profitability. This is an instance of how poor documentation or misallocation of liabilities can as much as affect the very viability of a venture.
Another problem faced by this venture is about the issue of evacuation of the crude. The responsibility of constructing the pipeline lies with the Government nominee MRPL. Thus cairn has no control over the construction or the operation of the pipeline. It is projected that commercial production from the Rajasthan oil blocks will start from mid - 2009. Construction of the pipeline, which takes about 12 to 18 months, should be completed before that. They fear that MRPL may not construct the pipeline in time that will stall the whole production process, or even if it is constructed, the success of its operation is dubious. Thus the venture of production, without having effective evacuation mechanism, may collapse. Indian Oil Corporation is agreeable to process the Rajasthan crude at their refineries at Panipat and Barauni. However, it is claiming heavy discounts from Cairn India to make the processing of the waxy crude economically viable. Thus, when on one hand, the company is faced with unexpected fiscal liabilities, it is unable to get the right price for its output. Moreover, before it can go on to the issues of processing, it has to settle the issue of evacuation. This venture seems to be in rough weathers from all sides. However, efforts are on to resolve these controversies.
Lessons should be taken from this joint venture to avoid like mistakes in future. With diligent planning and documentation, these problems could have been avoided and the benefits of the synergy could have been unleashed.
The above-mentioned cases reflect the strategic and commercial importance as well as the possible conflict areas of joint ventures in the petroleum sector. Irrespective of such problems, the necessity and importance of joint ventures in the sector cannot be denied.
To conclude, it can be said that the possible benefits of the synergies or co-operation that result out of the joint ventures are:
- Access to newer exploration blocks
- Access to markets
- Collaborative bidding to avoid high asset valuations
Strategic quid pro quo business deals
Diversification of risks
Access to expertise and data
Achieve balanced portfolio of exploration and producing assets
The case discussions that have been done in course of the present study brings to our attention that the name common in all the joint venture transactions, in the recent past, is ONGC. Since it is known that joint venture transactions are entered into for varied interests, therefore, it is very much obvious that the common existence of ONGC as an interested party might lead to conflict of interests between two joint venture projects.
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- Interview with Mr. R.S. Butola, Managing Director, ONGC Videsh Ltd., The Economic Times, Tuesday, January 16, 2007, p. 7
- The Economic Times, Wednesday, December 13, 2006, p. 15
- Jayaswal, Profit - sharing hurdle may halt NELP VI, The Economic Times, Tuesday, Dec 12, 2006, p.9
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Jayaswal, Banerjee, Cairn may have a bout with government over oil cess, The Economic Times, Monday, December 11, 2006, p. 11
Mr. B.K. Pandey, Study Material of Petroleum and Mining Laws, WB NUJS, Kolkata 2006
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Oils's Well, Petro Products Top Export Kitty, The Economic Times, Wednesday, December 13, 2006
Sinha, Jayaswal, Autonomy Unlimited unlikely for profit- making PSUs, The Economic Times, Thursday, January 18, 2007, p. 15
India, Russia oil majors to hunt in pairs, The Economic Times, Friday, January 26, 2007
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Jayaswal, Banerjee, Cairn may have a bout with government over oil cess, The Economic Times, Monday, December 11, 2006, p. 11