Monday, April 23, 2012

As Argentina’s Bid Is Far From the First, Here’s How to Seize an Oil Company

The global energy industry is in an uproar this week after Argentine President Cristina Fernandez de Kirchner’s announcement that her government planned to seize a majority stake in YPF, the country’s largest oil company. The Spanish government has threatened retaliatory action — Spanish energy giant Repsol is currently YPF’s largest shareholder — for what’s being called the largest oil nationalization since the Russian government’s takeover of Mikhail Khodorkovsky’s Yukos in 2003.

While the hostile state takeover of a $7.7 billion company is making waves, such nationalizations are hardly unprecedented, particularly in Latin America. Today, government-controlled oil companies, many of which acquired their holdings through takeovers like Argentina’s, control 85 percent of the world’s oil reserves and 55 percent of production. Here’s a quick look at the anatomy of a government takeover:

Choose your moment

Research has shown that oil nationalizations happen most typically while oil prices are high and political institutions are weak. Nationalizations in countries — from Iraq to Libya — were relatively common during the 1970s, then nearly unheard of during the 1980s and 1990s. They then returned with a vengeance in the last decade, with major seizures in Bolivia, Ecuador, Venezuela, and Russia.

Oil has never just been a commodity; it’s a strategic asset as well, and forced nationalizations are as old as the oil industry itself.

In 1938, the Mexican government expropriated half a billion dollars worth of foreign oil assets after the companies failed to come to an agreement with labor unions over working conditions. The seizure set off a war of words with Standard Oil and many countries chose to boycott Mexican petroleum products, but the government stuck to its guns, creating what is now known as the state oil monopoly Pemex, the world’s second-largest non-public company after Saudi Aramco, as of 2006.

Many recent post-Soviet and Latin American oil seizures have actually been “re-nationalizations,” state takeovers of energy resources that had been privatized during the free-market reforms of the 1990s. This includes YPF, which was originally a state monopoly privatized in 1993.

Build your case

It’s usually wise to set up some kind of legal framework before you start seizing private property. In 2001, two years after he took power, Venezuelan President Hugo Chavez passed a new hydrocarbon law increasing the amount of royalties paid by foreign oil companies and increasing direct state control over the national oil company, PdVSA, which had operated as a relatively independent entity under previous administrations.

Over the next several years, Chavez built up his rhetorical case against the foreign oil companies until he finally began seizing their assets in 2007.

As he put it at the time, “To God what is God’s, and to Caesar what is Caesar’s. …Today we also say: to the people what is the people’s!”

Fernandez presented the YPF takeover in similar terms. “We are the only country in Latin America, and, I would say, in practically the entire world, that doesn’t manage its own natural resources,” she said.

Make them an offer they can’t refuse

Most oil company nationalizations aren’t outright seizures — governments at least go through the motions of compensating the former owners for their lost assets.

Surprisingly, the United Nations has even weighed in on the reimbursement issue: A General Assembly Resolution passed in 1962 decrees that in cases of nationalization carried out “on grounds or reasons of public utility, security or the national interest … the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law.”

Beyond the legal ramifications of just booting out the old owners, it can sometimes be useful to allow them to continue to play some role in your country’s oil industry — after all, they probably know what they are doing. After Venezuela’s state-owned PdVSA took over several multibillion dollar projects in the oil-rich Orinoco belt in 2007, Chevron, BP, Total, and Statoil signed agreements that allowed them to continue operating in the region as minority stakeholders. Conocco Phillips and Exxon Mobil refused. Oil productivity fell by nearly a quarter following Chavez’s nationalization.

Put the boot down

It’s always preferable to handle these sorts of things with a boardroom handshake, but sometimes a firmer hand is needed. In 2009, Chavez mobilized troops to assist in the seizure of 60 oil service companies as part of his gradual takeover of the oil industry.

In 2006, Bolivian President Evo Morales ordered foreign oil companies — including Repsol — to renegotiate their contracts with the government within six months or they had to leave the country. Just to make his point clear, he sent troops to occupy 56 oil and gas sites throughout the country.

Argentina has wasted no time. The government representative on YPF’s board reportedly arrived at work this week with a list of Spanish executives who had been banned from the company’s headquarters.

The Putin method

Another, often cheaper, method of nationalization is to build a criminal case against the management team of an oil company and take it apart, bit by bit. In the case of the Kremlin’s prosecution of former Yukos CEO Mikhail Khodorkovsky, this had the added benefit of removing a troublesome political rival.

Yukos had been the first fully privatized Russian oil company of the post-Soviet era. But following a number of disputes between Khodorkovsky and the Kremlin — over state control of the pipeline industry, the planned sale of big shares to American oil companies, as well as his own political ambitions — he was arrested and charged with tax evasion in 2003. Over the next two years, Yukos was ordered to pay billions of dollars in back taxes and forced into bankruptcy.

The last of its assets were seized in 2005 and eventually acquired indirectly by state energy monopoly Gazprom.

Don’t get overthrown

Seizing international companies may score populist points with voters, but it can also make some powerful enemies in a hurry. Two years after Iran nationalized the Anglo-Iranian Oil Company, Prime Minister Mohammed Mossadegh was overthrown in a CIA-backed coup, returning the Shah Mohammed Reza Palavi to power. The shah’s government paid $70,000,000 in compensation to Anglo-Iranian in 1954.

Chavez survived a coup attempt just months after the passage of his controversial hydrocarbons law.

Fernandez’s nationalization of YPF seems like the latest in a series of provocative international gestures, including efforts to reassert control over the Falkland Islands. While she’s clearly counting on the political benefits of these bold movements making up for the international backlash, she’s entering very dangerous waters.

Joshua E. Keating is an associate editor at Foreign Policy.
Jakarta Globe

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