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A study of the legal problems of state contracts

par Odilon Evrard NGOUNDOU
Institute of International Law of Wuhan University
Traductions: Original: fr Source:

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Nowadays, the prices of barrels of crude oil (petroleum) keep rising and it is common knowledge according to some specialists of petroleum field that this product would become rare or will disappear in the next 50 years. The oil-producing countries are scrambling to change their laws, to renegotiate old petroleum contracts signed with political regimes or previous governments in order to better adapt them to current circumstances, to put in place policies to strengthen control of oil activities by national and foreign companies, etc, these are among the reasons why the phenomenon of the renegotiation of petroleum contracts in contemporary times by the new political regimes and also by certain big petroleum industries or by oil-producing countries is on the rise. Certain oil-producing countries want to nationalize or expropriate some oil companies which operating in the territories of host states. Local or foreign investors also are jostling for the huge investments in the search of oil deposits. Investments in oil or in the field of hydrocarbons are increasing globally. All these facts reflect the panic and fear associated with the prospect of the end of the age of petroleum. In view of these kinds of situations, there are many legal problems which are arising between the host states of investment and foreign oil companies. It is important to understand the legal problems of state contract and particularly the petroleum contracts. This thesis, divided into 3 Chapters covering 9 Sections, makes a systematic and thorough discussion of the problems that are encountered in international investment law within the framework of the state contracts and particularly the legal problems that arise in the «state petroleum contracts» signed between the private foreign oil companies and the host state of petroleum investments. The first Chapter, describes, analyzes and explains what is exactly the State contracts and petroleum contracts, in a nutshell, the main content and nature. In this part, the central analysis will be about state contract definition because it is different from other kinds of contracts signed between the state and the foreign companies. We'll analyze the way that a petroleum contract is formed i.e. their formation and more specially their content and the different stages of the negotiations of «state petroleum contract» between a host state and a private foreign oil company. In the second Chapter we'll examine the special clauses contained in the state contracts and petroleum contracts. This chapter mainly focuses on certain special clauses that foreign investors or foreign oil companies can negotiate with the host state and include these in the state contracts and petroleum contracts. These clauses are for example the stabilization clause, the arbitration clauses, intangibility clause etc. in the other words, we'll analyze the content of these clauses and thus discuss their background, the reasons they are proposed, content and their nature, and potency. Finally, the third Chapter will deal with the settlement of dispute, implying the analysis of the applicable law (the kind of law which will govern the contract and will be applied during the settlement of dispute? Is it the domestic law of the host state of investment or international law? ) and secondly on the competent courts or arbitration tribunal which must settle the dispute relating to the violation or the breach of contract between, on the one hand the host state of investment, subject of international law and owner of petroleum resources contained into its territory, and on the other hand, the foreign investors or a private foreign oil company, which is not the subject of international law. But we think that before examining these problems, we have to look for the different causes of the violation of the «state petroleum contract» such the breach of contract,

the change of legislation, the damages caused to the investment by local messes, the problems caused by the environmental legislation, problems of political risk, the problems of nationalization and expropriation. Regarding suggestions on other forms of dispute settlement within the framework of petroleum contracts, these are discussed in the ninth chapter of this thesis.


State contract, Petroleum contract, stabilization clause

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