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For Namibia, a newcomer to oil and gas deals, adding a fiscal stability clause to petroleum contracts will be key to retaining the energy industry’s intense interest

The world is watching Namibia. To be more specific, the energy world is watching. This was evident at the recently concluded Namibian Internation Energy Conference.  Ever since oil and gas majors, Rhino Resources, Galp Energia, Shell and TotalEnergies announced massive hydrocarbon discoveries in Namibia’s offshore Orange Basin, interest in additional exploration in the Southern African country has been intense. And so has curiosity about how quickly Rhino Resources, Galp Energia, and TotalEnergies, and their partners will be able to finalize their petroleum contracts with Namibia and move on to final investment decision that leads to production. Will their negotiations stall, as we’re seeing all too often in African nations, or will the process move forward smoothly?

One of the reasons the Orange Basin finds were so exciting — in addition to sheer size, with as much as three billion barrels of oil combined — was the fact that Namibian exploration efforts up to then had been fairly disappointing. Only about 15 wells had been drilled before Rhino Resources Capricornus 1-X, Galp Energia Mopane, Shell’s Graff-1 well and TotalEnergies’ Venus 1-X find, and none of those earlier efforts yielded commercial quantities of oil or gas. That means the Orange Basin discoveries represent Namibia’s first chance to show oil and gas companies what they can expect after announcing discoveries there.

Now is the time for Namibia’s leadership to show it respects the billions of dollars companies spend on oil and gas production. One of the most practical ways for Namibia to do that is to update its petroleum contracts: They need language that protects oil and gas companies’ investments. Namibia’s contracts should include what’s known as a fiscal stability clause, which would clearly state that if Namibia were to make legislative or regulatory changes — such as new tax requirements — the energy companies signing the contract would be protected from negative economic impacts.

Depending on the language of the clause— also known as an “economic rebalancing” or “equalization clause” — contracting companies might be exempt from new tax codes or compensated to make up for legislation that adds to their expenses such as new labor or environmental laws. What matters is, in the end, the companies’ return on investment would not be impacted by changes that occurred after their deal was finalized.

For Namibia, a newcomer to oil and gas deals, adding a fiscal stability clause to petroleum contracts will be key to retaining the energy industry’s intense interest.

This clause carries a lot of weight

Guaranteeing oil and gas companies’ investments is hardly a new or radical measure. Fiscal stability clauses are common practice and in place in such countries as Guyana, Mozambique, Mexico, and Angola. While I cannot produce a study that proves that these countries have attracted more investment as a result of their clauses, I do know this: When a developing country fails to offer the clauses, they’re giving oil and gas companies reason to limit investments there.

In a recent paper on financial stability clauses, international consulting company Deloitte commented on the clauses’ value.

“Stabilisation clauses enhance certainty and predictability which are key ingredients for the success of long term investment projects,” the report states. “Petroleum exploitation is capital intensive and recouping the investment takes much longer than most sectors. Any subsequent changes in the laws of the host state may significantly alter the economics of the economics of a project.”

For international oil companies (IOCs), investing in a country without a fiscal stability clause is quite a gamble in an already risky industry.

I realize that Namibia has already taken measures to ensure an enabling environment for upstream activity, including making updates to its tax laws, and I applaud those actions. Namibia’s legal framework and oil and gas code, in general, are considered investor-friendly. But guaranteeing companies’ investments is a critical next step.

Time is precious

Not only does Namibia need to add a fiscal stability clause to its petroleum agreements, it needs to do it now. It must also be done alongside local content legislation. Otherwise, there is a possibility that the issue of financial risk will come up during contract negotiations with BW Kudu, Rhino Resources, Galp Energia, and TotalEnergies, and their partners. And that, in turn, could lead to costly project delays, a topic the African Energy Chamber addresses extensively in its soon-to-be-released “The State of African Energy Report.”

For international oil companies (IOCs), investing in a country without a fiscal stability clause is quite a gamble in an already risky industry

I encourage Namibian authorities to learn from the delays that have taken place in Mozambique’s offshore Rovuma Basin. Natural gas discoveries totaling as much as 17 billion barrels of oil equivalent (boe) were announced in the early to mid-2010s, but Mozambique’s negotiations with operators, including Italian energy major Eni and U.S. firm Anadarko, have dragged on for years. As a result, the only project to be completed so far is the Coral Sul floating liquefied natural gas (FLNG) project, fed by Coral Field. The FLNG saw a final investment decision (FID) in mid-2017, followed by construction getting underway in 2018 and the project shipping its first cargo in November 2022. This is a positive step, but imagine the economic and energy security benefits Mozambique’s natural gas could have yielded without such extensive delays.

Then there’s the example of the massive oil discoveries made by Tullow Oil in Uganda and Ghana, announced about three months apart from one another in 2006 and 2007. Tullow Oil began producing oil from its Jubilee Field discovery in Ghana in 2010. Contrast that with Tullow’s Lake Albert Rift Basin discovery in Uganda. After more than a decade of disputes with the government and no progress, Tullow sold all of its Ugandan assets to Total (now TotalEnergies) in 2020.

In 2021, TotalEnergies concluded final agreements to launch Lake Albert resources development, including the Tilenga and Kingfisher upstream oil projects and the construction of the East African Crude Oil Pipeline (EACOP) in Uganda and Tanzania. TotalEnergies continues to move these projects forward in collaboration with China National Offshore Oil Corporation and Uganda National Oil Company. Unfortunately, climate concerns and net-zero emissions aspirations have made driving oil and gas projects forward considerably more challenging than it was in 2006. TotalEnergies is under heavy pressure from environmental activities to abandon its plans for oil production and the pipeline. They have courageously pushed forward and we must applaud them. Soon Uganda will be an oil producer.

So much to gain

Not only will a fiscal stability clause in Namibian petroleum agreements help prevent delays, acting decisively to protect companies’ investments will also position Namibia for more exploration.

The Orange Basin is one of several Namibian locations of interest to IOCs. Eco Atlantic’s Osprey exploration campaign in Block 2012A of the Walvis Basin, for example, was described as one of Africa’s most promising high-impact wells. Meanwhile, Global Petroleum, Namcor, and Aloe Investments are expected to begin exploration in Block 2011A of the Walvis Basin this year. BW Energy is set to drill for more gas on its Petroleum Production License 003 that could lead to developing the Kudu Gas discoveries.

Chevron Namibia Exploration Limited continuous to pursue its prospect portfolio offshore Namibia. There is potential for exploration wells to be drilled in Petroleum Exploration License 82 in the Walvis Basin.

Namibia’s offshore Luderitz Basin and Namib Basin, along with the onshore Owambo and Karoo basins, offer great potential as well.

But, again, interest could dry up quickly if companies begin to perceive Namibia as a risky country for investments. I personally don’t think so and certainly the African Energy Chamber does not think Namibia is a risky place for investment.

Calls for change

The African Energy Chamber is not the first to urge Namibia to take steps to guarantee oil and gas companies’ investments. This topic came up in 2020, before the large Orange Basin discoveries.

Uaapi Utjavari, then chairperson of the Namibia Petroleum Operators Association (NAMPOA), wrote to Namibian Minister of Mines and Energy Tom Alweendo to describe the role that fiscal guarantee clauses could play in supporting ongoing investment in Namibian’s fledgling oil and gas sector. NAMPOA recommended a legal/fiscal/commercial framework that balanced the needs of the country and investors.

“There is a fundamental need for a stable and sustainable business environment so the country and the investors are able to plan ahead and rely on terms agreed upon,” Utjavari wrote. “An economic rebalancing provision provides appropriate security around economic terms, which are critical for large-scale multi-billion dollars project investment/bankability, while not infringing the host country’s sovereignty and are a common feature in many petroleum contracts globally.”

The recommendations NAMPOA made in 2020 still make sense for Namibia today.

The African Energy Chamber would like to see Namibia reap all of the benefits its natural resources can offer, from increased energy security to industrialization and economic growth. Namibia can do that — if it shows a watching energy industry that the country is committed to helping companies realize a reasonable return on their investments. Adding a fiscal stability clause to its contracts is the right move. I encourage Namibia to act now.