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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
33/2013/ND-CP
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Hanoi,
April 22, 2013
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DECREE
ON
THE MODEL PETROLEUM PRODUCTION SHARING CONTRACT
Pursuant to the Law on
Government Organization dated December 25, 2001;
Pursuant to the Petroleum Law
1993; Law on amending and supplementing a number of articles of the Petroleum
Law in 2000 and Law on amending and supplementing a number of articles of the
Petroleum Law in 2008;
At the proposal of the Minister
of Industry and Trade;
The Government promulgates the
Decree on the Model Petroleum Production Sharing Contract,
Article 1. To promulgate
together with this Decree the Model Petroleum Production Sharing Contract.
Article 2. All Petroleum
Production Sharing Contracts must comply with the Model contract promulgated
together with this Decree.
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Article 3.
This Decree does not apply to the petroleum contracts executed before the
effective day of this Decree. With respect to the blocks of which the
basic economic, technical and commercial conditions have been approved by the
Prime Minister before the effective day of this Decree, the negotiation and
execution of such contracts shall continue performing under the Model Petroleum
Production Sharing Contract promulgated together with Decree No. 139/2005/ND-CP
of the Government dated November 11, 2005.
Article 4. This Decree takes
effect on June 08, 2013 and replaces Decree No. 139/2005/ND-CP of the
Government dated November 11, 2005 on promulgating the Model Petroleum
Production Sharing Contract.
Article 5. The Ministers,
Heads of ministerial-level agencies, Heads of Governmental agencies, the
Presidents of the People’s Committee of central-affiliated cities and provinces
and relevant organizations and individuals shall implement this Decree./.
ON
BEHALF OF THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung
MODEL
PETROLEUM PRODUCTION SHARING CONTRACT
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PETROLEUM
PRODUCTION SHARING CONTRACT
BETWEEN
VIETNAM
OIL AND GAS GROUP
WITH
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…………………
AND
…………………
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SOCIALIST
REPUBLIC OF VIETNAM
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Hanoi,
……..[year]
TABLE
OF CONTENTS
CHAPTER I. DEFINITIONS, EXHIBITS
AND SCOPE OF CONTRACT
1.1 DEFINITIONS
1.2. BASIC PRINCIPLES OF CONTRACT
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CHAPTER II. TERM, MINIMUM WORK
COMMITMENTS AND SURRENDER OF CONTRACT AREA
2.1. TERM
2.2. MINIMUM WORK AND FINANCIAL
COMMITMENTS
2.3. SURRENDER OF AREAS
CHAPTER III. MANAGEMENT COMMITTEE
CHAPTER IV. WORK PROGRAMS AND
BUDGETS
CHAPTER V. GENERAL RIGHTS AND
OBLIGATIONS OF THE PARTIES
5.1. CONTRACTOR
5.2. PETROVIETNAM
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6.1. CRUDE OIL ALLOCATION
6.2. NATURAL GAS ALLOCATION
CHAPTER VII. TAXES, FEES AND
CHARGES
CHAPTER VIII. VALUATION,
MEASUREMENT AND HANDLING OF PETROLEUM
8.1. VALUATION OF PETROLEUM
8.2. VALUATION OF NATURAL GAS AND
ASSOCIATED GAS
8.3. MEASUREMENT OF PETROLEUM
8.4. PRODUCTION SCHEDULES
8.5. OIL LIFTING AND GAS
CONSUMPTION
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CHAPTER X. TRAINING, EMPLOYMENT AND
SERVICES
10.1. TRAINING
10.2. EMPLOYMENT AND SERVICES
CHAPTER XI. ACCOUNTING AND AUDITS
11.1. ACCOUNTING
11.2. AUDITS
CHAPTER XII. PARTICIPATION OF
PETROVIETNAM AND ASSIGNMENT
12.1. PARTICIPATION OF PETROVIETNAM
12.2. ASSIGNMENT
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13.1. PAYMENTS
13.2. CURRENCY AND EXCHANGE
CHAPTER XIV. TITLE TO ASSETS,
LEASED ASSETS AND ABANDONMENT
14.1. TITLE TO ASSETS
14.2. LEASED ASSETS
14.3. ABANDONMENT
CHAPTER XV. ARBITRATION, SOVEREIGN IMMUNITY
AND EXPERT DETERMINATION
15.1. ARBITRATION
15.2. SOVEREIGN IMMUNITY
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CHAPTER XVI. TERMINATION AND
DEFAULT
CHAPTER XVII. DOMESTIC CONSUMPTION
CHAPTER XVIII. STABILIZATION AND
UNITIZATION
18.1. STABILIZATION
18.2. UNITIZATION
CHAPTER XIX. FORCE MAJEURE
19.1. EVENTS OF FORCE MAJEURE
19.2. EFFECT AND NOTICE
CHAPTER XX. OTHER PROVISIONS
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20.2. APPLICABLE LAW
20.3. INSURANCE
20.4. OPERATOR
20.5. RELATIONSHIP AND LIABILITIES
20.6. CONFIDENTIALITY
CHAPTER XXI. IMPLEMENTATION
PROVISIONS
21.1. EFFECTIVENESS
21.2. ENTIRETY
21.3. AMENDMENTS AND SUPPLEMENTS
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21.5. WAIVER
21.6. SEVERANCE OF PROVISIONS
21.7. PUBLICITY
21.8. ORIGINAL TEXT
Exhibits
[As agreed by Parties]
Exhibit A: Map and Co-ordinate of
Contract Area;
Exhibit B: Accounting Procedures;
Exhibit C: Basic information for
issuance of Investment Certificate.
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THIS PETROLEUM PRODUCTION
SHARING CONTRACT is made and entered into this _____day of _______, by and
between:
VIETNAM OIL AND GAS GROUP, a one
member limited liability company, acting in its capacity as the national oil
company, incorporated and operating under the laws of the Socialist Republic of
Vietnam, having its registered office at 18 Lang Ha, Ba Dinh District, Ha Noi,
the Socialist Republic of Vietnam (hereinafter referred to as
"PETROVIETNAM"), on the first part and
[……………….], [……………………….] a company
incorporated and operating under the laws of [……………..] and having its
registered address at [………………..] [hereinafter referred to as “……………..”]. [….]
and [….] hereinafter referred to collectively as the “CONTRACTOR” and
individually as the “Contractor Party” on the second part.
The parties of both first and
second parts are hereinafter referred to individually as "Party" and
collectively as "Parties" as the context may require.
WITNESSETH
Whereas, PETROVIETNAM with
authority as provided in Article 14 of the Petroleum Law and the CONTRACTOR
desire to enter into the Petroleum Production Sharing Contract in order to undertake
petroleum exploration, appraisal, development and production operations in the
Contract Area.
Whereas, the Parties desire to set
forth the terms and conditions of this Contract in accordance with the
Petroleum Law to achieve the purposes and goals expressed hereunder.
Now, therefore, the Parties hereby
agree as follows:
Chapter 1.
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Article 1.1 Definitions
The terms used in this Contract and
its Exhibits in accordance with the Petroleum Law shall have the meanings set
forth below:
1.1.1 "Force Majeure"
has the meaning ascribed to it in Chapter XIX.
1.1.2. "Party" has the
meaning ascribed to it in the first part of this Contract and/or such party's
lawful successors and/or assignees.
1.1.3. "Foreign Party" means
any individual and/or legal entity established and registered under foreign law
constituting the CONTRACTOR and/or its lawful successors and/or assignees,
excluding PETROVIETNAM and its Affiliates.
1.1.4. "Parties" has the
meaning ascribed to it in the first part of this Contract and/or their lawful
successors and/or assignees.
1.1.5 "Vietnam Accounting
Standard" (VAS) means the accounting principles generally used and
accepted in accounting practice in Vietnam.
1.1.6 "Petroleum Operation
Costs" means all expenditure made and incurred by the CONTRACTOR to carry
out Petroleum Operations hereunder, determined in accordance with the
accounting procedures as stated in Exhibit B and recovered in accordance with
Articles 6.1.2, 6.2.2 and Article 11.2.2.
1.1.7. "Government"
means the Government of the Socialist Republic of Vietnam including any
ministries and ministerial-level agencies.
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1.1.9. "Work Program and
Budget" means a program itemizing the Petroleum Operations established
under this Contract for each Year with respective estimated budget therefor as
provided in Chapter IV.
1.1.10. "Chapter" means
a chapter of this Contract.
1.1.11. "Willful
Misconduct" means any act or omission to act by any personnel of the
CONTRACTOR which was intended to cause, or which was in reckless disregard of
or wanton indifference to, harmful consequences which such CONTRACTOR knew, or
should have known, would have on the safety and property of another person or
entity in connection with Petroleum Operations carried out, or to be carried
out, under this Contract.
1.1.12. "Affiliated
Company" or "Affiliate" means an organization or other
individual which controls any Party to this Contract or (ii) which is
controlled by any Party to this Contract or (iii) which is controlled by an
organization or individual which controls any Party to this Contract, it being
understood that control means ownership of more than fifty per cent (50%) of the
voting rights of such organization, individual or the direct or indirect right
to appoint the majority or all members of the executive board of such
Affiliate.
1.1.13. "Petroleum" means
crude oil, natural gas and hydrocarbons whether in natural gaseous, liquid,
solid or semisolid state including coal gas and other similar substances
associated with hydrocarbons except coal, shale, bitumen or other minerals from
which oil can be extracted.
1.1.14. “Profit Oil" means the
portion of Crude Oil remaining after deducting Royalty Oil and Cost Recovery
Oil from Net Oil Production pursuant to Article 6.1.
1.1.15. "Crude Oil" means
hydrocarbons in natural liquid state, asphalt, ozokerite or liquid hydrocarbons
obtained by distillation or extraction of natural gas.
1.1.16. "Cost Recovery
Oil" and "Cost Recovery Gas" mean the portion of Net Oil
Production or Net Gas Production, as the case may be, from which costs recovery
is to be made by the CONTRACTOR pursuant to Articles 6.1.2 and 6.2.2.
1.1.17. "Royalty Oil"
means Crude Oil allocated out of Net Oil Production for the satisfaction of
Royalty obligations pursuant to Article 6.1.1.
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1.1.19. "Development
Area" means that portion of the Contract Area duly retained for the
development of a Commercial Discovery as further defined in Articles 2.1.3 and
2.3.4.
1.1.20. "Suspended Development
Area" has the meaning ascribed to it in Article 4.6.
1.1.21. "Point of
Delivery" means the point at which Petroleum reaches the outlet of the
loading flange of the oil tanker or storage facility used to lift or offtake
Petroleum or such other points as may be agreed by the Parties.
1.1.22. "Article" means
an article in this Contract.
1.1.23. "US Dollar" or
"USD" means the lawful currency of the United States of America.
1.1.24. "Dong" or
"VND" means the lawful currency of the Socialist Republic of Vietnam.
1.1.25. "Market Price"
means the price for Crude Oil lifted or consumed by the Contractor Parties at
the Point of Delivery as determined for all purposes hereunder in accordance
with Article 8.1.
1.1.26. "Exploration
Period" means the period during which Exploration Operations are conducted
in short phases consistent with the detailed provisions in Article 2.1.1.
1.1.27. "Investment
Certificate" means the investment certificate issued by the Ministry of
Industry and Trade in respect of this Contract, and its amendments (if any).
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1.1.29. "Development
Well" means a Well that is drilled in a reservoir, product layer or field
for the purpose of conducting the following activities: production of
hydrocarbons or fluids; observation, monitoring of the changes of a reservoir;
injection of fluids into the reservoir or product layer; and injection of
fluids into the well.
1.1.30. "Exploration
Well" means either Wildcat Well or Appraisal Well.
1.1.31. "Appraisal Well"
means a Well that is drilled for the purpose of obtaining information on the
scale of reserves and characteristics of a product reservoir, product layer or
field.
1.1.32 "Wildcat Well"
means a Well (whether a dry hole or a Discovery) drilled in the Contract Area
for the purpose of finding a Petroleum accumulation in a prospect or prospects
other than any which have been previously drilled by the CONTRACTOR and in accordance
with the drilling plan approved by PETROVIETNAM.
1.1.33. "Petroleum
Operations" mean all Exploration Operations, Development Operations,
Production Operations and Abandonment Operations, including all activities
directly servicing such operations.
1.1.34. "Production
Operations" mean operations conducted by the CONTRACTOR for the purpose of
producing Petroleum in the Contract Area, comprising the operation and
maintenance of the necessary facilities and equipment; scheduling, controlling,
measuring, testing and carrying out the flow; and gathering, treating, storing
and dispatching Crude Oil, Associated Gas and Natural Gas from the Petroleum
reservoir to the Point of Delivery.
1.1.35. "Development
Operations" mean operations conducted with a view to the development of
Petroleum accumulations underlying Development Areas. Development Operations
include, but are not limited to, reservoir, geological and geophysical studies
and surveys; drilling, testing, completing, recompleting and reworking of Development
Wells, the drilling and completion of Production Wells; planning, design,
construction and contracting in order to transport and install
product-gathering lines, onshore and offshore platform facilities, equipment
installations, separators, tankage, pumps, artificial lifts and other
producing, gathering and injection facilities and related activities required
in order to produce, process, treat, transport, store and deliver Petroleum,
and other operations as required for the safe and efficient development of the
Petroleum accumulation.
1.1.36. "Abandonment
Operations" means demolition, removal, destruction, conversion and
placement of artificial bases, installations or structures constructed by the CONTRACTOR
in connection with Petroleum Operations as regulated in Article 14.3.
1.1.37. "Exploration
Operations" means operations conducted pursuant to this Contract with a
view to the discovery of Petroleum accumulations, and to the appraisal of the
extent and reserves of such Petroleum accumulations, the characteristics of the
relevant reservoir(s) and their likely behaviour when produced. Exploration
Operations may include, but are not limited to, geological, geophysical,
geochemical, aerial and other surveys, analysis and studies; drilling,
deepening, sidetracking, plugging back, testing, completing, recompleting,
redrilling and abandonment of Exploration Wells, taking samples and
stratigraphic tests and testing of such Wells; and all activities related to
such operations.
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1.1.39. "Development
Plan" means the plan as prepared by the CONTRACTOR for development of a
Commercial Discovery pursuant to Article 4.3 which PETROVIETNAM adopts and
submits to the competent authorities for approval in order to carry out the
construction of works, install the equipment and exploit the product
reservoirs, product layers or fields.
1.1.40. "Commercial
Production" means the production of Petroleum from a Commercial Discovery
and delivery of the same at the Point of Delivery under a program of regular
production and sale after the Development Plan has been approved for such
Commercial Discovery.
1.1.41. "Associated Gas"
means hydrocarbons in gaseous state which are separated during the process of
production and treatment of Crude Oil.
1.1.42. "Profit Gas"
means the portion of Net Gas Production remaining after deducting Royalty Gas
and Cost Recovery Gas pursuant to Article 6.2.
1.1.43. "Natural Gas"
means hydrocarbons in gaseous state produced from wells, including wet gas, dry
gas, wellhead gas and residue gas after the extraction of liquid hydrocarbons
from wet gas.
1.1.44. "Coal Gas" means
hydrocarbons in which the main component is methane in gaseous or liquid state
which are contained in coal reservoirs or in adjacent reservoir holdings.
1.1.45. "Royalty Gas"
means Net Gas Production allocated for the satisfaction of Royalty obligations
pursuant to Article 6.2.1.
1.1.46. "LIBOR" means the
London Interbank offered rate of interest for US Dollar deposits for a three
(3) month term as published by the Wall Street Journal or the Financial Times
of London for the day in question. Should a rate not be quoted for a relevant
date, then the first subsequent quoted rate shall be used.
1.1.47. “Production Schedule” means
the summarized profile of Crude Oil output in Barrels per day or Natural Gas
output in Cubic Metres per day as prepared by the CONTRACTOR and adopted by the
Management Committee and approved by PETROVIETNAM, in accordance with the Work
Program and Budget for Development Operations and Production Operations in each
Development Area.
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1.1.49. "Law on
Investment" means the Law on Investment passed by the National Assembly of
the Socialist of Vietnam on 29 November 2005, effective from 1 July 2006 and
its subsequent amendments; the implementing guidelines and their subsequent
amendments.
1.1.50. "Cubic Metre"
means one cubic metre of Natural Gas at atmospheric pressure of one hundred and
one point three two five (101.325) kilopascals and at a temperature of fifteen
degrees Celsius (15oC).
1.1.51. "Year" means a
period of twelve (12) consecutive months commencing on January 1 and ending on
December 31 in accordance with the Gregorian calendar.
1.1.52. "Contract Year"
means a period of twelve (12) consecutive months in accordance with the
Gregorian calendar commencing on the Effective Date of this Contract.
1.1.53. "Day" means a
day according to the Gregorian calendar.
1.1.54. "Effective Date"
means the date of issuance of the Investment Certificate in respect of this
Contract by the Ministry of Industry and Trade.
1.1.55. "First Production
Date" means the day following the thirtieth (30th) day of Petroleum
production from the Contract Area via a production system including but not
limited to one or more Development Wells connected to a floating production
storage offload vessel or via pipelines to an onshore storage and export
terminal, but excludes any long-term well tests.
1.1.56. "Business Day"
means any day on which commercial banks in Vietnam are customarily open for
full business; for the purpose of defining "LIBOR", Business Day
means any day on which the commercial banks in the United Kingdom are
customarily open for full business.
1.1.57. "Budget" means
the estimate of total costs required to carry out Petroleum Operations pursuant
to an approved work program.
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1.1.59. "CONTRACTOR" or
"Contractor Party(ies)" has the meaning ascribed to it in the first
part of this Contract and/or such party's lawful successors and/or assignees,
and consistent with Chapter XII, and which may include an Affiliate designated
by PETROVIETNAM.
1.1.60. "Senior Supervisory
Personnel" means any supervisory employee of the CONTRACTOR who functions
as officer, designated manager or supervisor responsible for, or in charge of
on-site drilling, construction or production and related operations, or any
other field operations and any employee of the CONTRACTOR who functions at a
management level equivalent to or superior to the aforementioned manager or
supervisor.
1.1.61. "Discovery" means
any discovery of a Petroleum accumulation which, in the opinion of the
CONTRACTOR, has the potential of being produced in commercial quantities.
1.1.62. "Commercial
Discovery" means a Petroleum Discovery or an accumulation of hydrocarbons
which, in the sole opinion of the CONTRACTOR can be exploited economically.
1.1.63. "Quarter" means a
period of three (3) consecutive calendar months commencing on 1 January, 1
April, 1 July and 1 October.
1.1.64. "Petroleum Production
Regulations" means the Petroleum Production Regulations issued with Decision
84/2010/QD-TTg of the Prime Minister dated 15 December 2010 and its amendments.
1.1.65. "Participating
Interest" means the undivided percentage interest from time to time in
this Contract for each of the Contractor Parties and all rights, interests,
obligations and liabilities respectively held by each Contractor Party under
this Contract.
1.1.66. "Net Oil
Production" means Crude Oil produced and saved from the Contract Area,
measured and delivered at the Point of Delivery, and does not include any Crude
Oil used for the purpose of Petroleum Operations or normal waste during
Petroleum Operations.
1.1.67. "Net Gas
Production" means Natural Gas produced and saved from the Contract Area,
measured and delivered at the Point of Delivery, and does not include any
Natural Gas returned to the field or used or flared for the purpose of
Petroleum Operations or normal waste during Petroleum Operations.
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1.1.69. “Accounting
Procedures" means the document describing the methods of making accounting
book entries and conducting cost accounting during the conduct of Petroleum
Operations for the purpose of this Contract and as consistent with VAS set out
in Exhibit B.
1.1.70. "Gas Purchase and Sale
Agreement" means the agreement providing for consumption of Natural Gas
produced in accordance with each Development Plan for gas fields, as provided
in Article 8.5.
1.1.71. "Joint Operating
Agreement" means the agreement regulating the management of the
CONTRACTOR's operations and which sets out the rights and obligations
corresponding to the Participating Interest of each Contractor Party during the
conduct of Petroleum Operations.
1.1.72. "Oil Lifting
Agreement" means the agreement providing for the lifting and delivery of
Crude Oil produced in accordance with the Development Plan for the oil field,
as provided in Article 8.5.
1.1.73. Generally Accepted
International Petroleum Industry Practices means all practices that are
generally accepted in the international petroleum for the conduct of petroleum
activities, where there are similar activities and environment.
1.1.74. "Confidential
Information" means all technical, technological and commercial data and
information which may be owned by the CONTRACTOR after the Effective Date
including, but not limited to, all patents, intellectual property, technical
know-how, designs, concepts, Work Programs and Budgets, financial statements,
invoices, sales and pricing information, and data related to production,
marketing and service capability which the CONTRACTOR develops after the
Effective Date and which relates to Petroleum Operations and the terms and
conditions of this Contract.
1.1.75. "Royalty" means
the money collected in cash or in kind, at the option of the Government, for
the right to produce Petroleum from the Contract Area, payable by the
Contractor Parties in accordance with Articles 6.1.1 and 6.2.1.
1.1.76. "Barrel" means a
unit of Crude Oil consisting of one hundred and fifty eight point nine eight
seven (158.987) litres at atmospheric pressure of one hundred and one point
three two five (101.325) kilopascals and a temperature of fifteen degrees
Celsius (15ºC).
1.1.77. "Management
Committee" means the management committee established pursuant to Chapter
III.
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1.2.1. This Contract is a Petroleum
Production Sharing Contract in accordance with the Petroleum Law and is an
enforceable contract in accordance with the Law on Investment, the Petroleum
Law, and other relevant legal regulations in Vietnam.
1.2.2. This Contract establishes
the principles, terms and conditions under which the CONTRACTOR is granted the
exclusive right to conduct Petroleum Operations aimed at exploring, appraising,
developing and producing Petroleum in the Contract Area and other related
activities including rights to export, sell or dispose petroleum under the
Contract.
1.2.3. The CONTRACTOR has the
obligation to carry out Petroleum Operations at its own expense in a safe and
efficient manner and at its own risk in accordance with the provisions in this
Contract, the law of Vietnam and Generally Accepted International Petroleum
Industry Practices.
1.2.4. Petroleum Operation Costs
shall be borne and recovered by the CONTRACTOR in accordance with the Contract.
Article 1.3. Participating
Interests of the Contractor Parties on the Effective Date are as follows:
- [……………….]: [………..]%
- [……………….]: [………..]%
Chapter 2.
TERM,
MINIMUM WORK COMMITMENTS AND SURRENDER OF CONTRACT AREA
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The term of this Contract is [...]
(...) Contract Years from the Effective Date and may be extended up to five (5)
Years if mutually agreed by the Parties and approved by the Prime Minister.
Subject to Articles 2.1.4 and 2.1.5 hereunder, the Exploration Period of this Contract
shall be […] (…) Contract Years from the Effective Date, may be extended but
not to exceed two (2) Years and will be divided into short phases: [...] (...)
Contract Year(s) for the first phase (“Phase One”) and [...] (...) Year(s) for
the second phase (“Phase Two”) and [...] (...) Year(s) for the third phase
(“Phase Three”). Decision to enter into Phase Two or Phase Three shall be at
the option of the CONTRACTOR and such decision shall be notified to
PETROVIETNAM no later than 15 Days prior to the end of Phase One or Phase Two
respectively.
2.1.2. Subject to the provisions of
Articles 2.1.4, 2.1.5 and 2.3.4(a), this Contract shall terminate if at the end
of the Exploration Period no Commercial Discovery in the Contract Area has been
declared.
2.1.3. Immediately upon
determination of a Commercial Discovery in any portion of the Contract Area,
the development of such Commercial Discovery shall be commenced in accordance
with Chapter IV. In other portions of the Contract Area outside a Development
Area or Development Areas, exploration may continue concurrently subject to the
provisions of Articles 2.1.4, 2.1.5 and 2.3.
2.1.4. At least 90 Days prior to
the end of any phases of the Exploration Period referred to in Article 2.1.1:
a) If the CONTRACTOR has made a
Discovery in the Contract Area, where the term of any phase concerned is
insufficient for the CONTRACTOR to appraise such Discovery, then the term of
this phase shall be reasonably extended with the consent of PETROVIETNAM and
the approval of the Ministry of Industry and Trade to enable the CONTRACTOR to
make an appraisal of such Discovery.
b) If an Exploration Well or Wells
have been scheduled or are in the course of being drilled, then the term of any
phase concerned shall be reasonably extended with the consent of PETROVIETNAM
and the approval of the Ministry of Industry and Trade to allow the CONTRACTOR
to complete the drilling and appraise the results thereof.
The extension as mentioned above
shall not exceed 2 years.
2.1.5. Subject to the consent of
PETROVIETNAM and the approval of the competent authorities upon the proposal
submitted by the CONTRACTOR for an additional work program for Exploration
Operations in the Contract Area, at the end of the Exploration Period, such
Exploration Period shall be extended for a reasonable period to allow the
CONTRACTOR to carry out such additional work program.
2.1.6. Should the Exploration
Period be extended for the purpose of appraisal operations pursuant to Article
2.1.4 or in the circumstances set out in Article 2.1.5, such period of
extension shall be included in the maximum extension of the Exploration Period
as regulated in Article 2.1.1 and the Contract term shall be extended for a
period equivalent to the period for which the Exploration Period was extended.
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2.1.8. In case for reasons of
national defense and security, the Prime Minister shall consider and decide on
the extension of the Exploration Period in the Contract. At least 90 days
prior to the end of the Exploration Period or at least 01 year before the date
of termination of the Contract, the CONTRACTOR shall send the extension request
to PETROVIETNAM for submission to the competent authority for assessment, and
reporting to the Prime Minister for consideration and decision.
Article 2.2. Minimum work
and financial commitments
2.2.1. The CONTRACTOR shall
commence Petroleum Operations hereunder not later than thirty (30) Days after
PETROVIETNAM’s approval of the Work Program and Budget.
2.2.2. The CONTRACTOR shall carry
out the following minimum work commitment and minimum financial commitment:
(In accordance with the bidding
results with respect to the fundamental technical – economic - commercial
conditions approved by the Prime Minister)
Phase One:
Work
Minimum
work commitment
Minimum
financial commitment (USD)
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Total
Phase Two:
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Minimum
work commitment
Minimum
financial commitment (USD)
Total
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Phase Three:
Work
Minimum
work commitment
Minimum
financial commitment (USD)
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Total
Where the CONTRACTOR has exceeded
the minimum work commitment for each phase, such excess work shall be allowed to
be credited against the minimum work of a similar nature for the following
phase if and when the CONTRACTOR decides to opt into the subsequent phase.
2.2.3. Minimum financial
commitments referred in Article 2.2.2 are only for the purpose of guidance with
respect to the carrying out of the exploration program in any phase concerned.
However, in the event that the CONTRACTOR does not complete the minimum work
commitment in any phase concerned, the CONTRACTOR must pay to PETROVIETNAM a
sum equivalent to the value of any outstanding minimum work commitment that has
not been fulfilled within ninety (90) Days from the end of such phase.
2.2.4. If the CONTRACTOR has
completed the minimum work commitments at a cost less than the minimum
financial commitments set out in Article 2.2.2 hereto, the CONTRACTOR shall be
deemed to have satisfied its financial obligations and shall have no obligation
to pay PETROVIETNAM all or any portion of the amount by which such minimum
financial commitments exceed actual expenditure made in carrying out such
minimum work commitments.
2.2.5. For the avoidance of
misunderstanding, additional work programs during the period of extension of
the Exploration Period as specified in Article 2.1.5 or in the period in which
it is permitted to retain a part of the Contract Area as specified in Article
2.3.4(a)(ii) or in the period of temporary suspension of the obligation to
surrender the area, shall be considered as the minimum work commitment for the
relevant term of extension or retention or temporary postponement. If the
CONTRACTOR fails to complete the amount of the work commitment corresponding to
the period of the permitted extension, retention or postponement as mentioned above,
then Article 2.2.3 shall apply mutatis mutandis.
Article 2.3. Surrender of
Areas
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In the event the CONTRACTOR elects
not to enter Phase Two before or by the end of Phase One or elects not to enter
Phase Three, if applicable, before or by the end of Phase Two, the CONTRACTOR
shall be relieved of its work commitment defined respectively for the next
phase.
2.3.2. Any parts of the Contract
Area to be surrendered under Article 2.3.1 hereof shall not cover any
Development Area, Suspended Development Area that has been made by the
CONTRACTOR.
2.3.3. At any time earlier than the
time provided in Article 2.3.1, with thirty (30) Day prior written notice to
PETROVIETNAM, the CONTRACTOR has the right to surrender an acceptable portion
of the Contract Area, in accordance with Article 2.3.5, and such portion shall
then be credited against that portion of the Contract Area which the CONTRACTOR
is next required to surrender under the provisions of Articles 2.3.1 and 2.3.4.
Such surrender shall not relieve the CONTRACTOR of any outstanding obligations
and/or liabilities arising from Petroleum Operations pertaining to the portion
of the Contract Area concerned.
2.3.4.
a) Without prejudice to the
provisions of Articles 2.1.4 and 2.1.5 hereof, notwithstanding Article 3.1,
before or by the end of the Exploration Period plus any extension
thereof, the CONTRACTOR shall surrender all remaining parts of the Contract
Area excluding the following as the CONTRACTOR may determine:
i) All Development Areas and all
Suspended Development Areas as designated in Article 4.6; or
If the CONTRACTOR wishes to retain
any portion of the Contract Area outside a Development Area or Suspended
Development Area (except any portion that has been subject to or awarded to
another contractor) which has previously been surrendered or cannot be retained
by the CONTRACTOR pursuant to Article 2.3.4(a)(i), then the CONTRACTOR shall at
least ninety (90) Days prior to the end of such Exploration Period or another
time-limit subject to PETROVIETNAM’s approval submit to PETROVIETNAM an
additional Work Program and Budget for Petroleum Operations setting forth the
portion of the area which it wishes to retain and as belonging to the initial
Contract Area; and additional Exploration Operations which the CONTRACTOR
proposes to carry out in respect of such portion and the budget estimated by
the CONTRACTOR within which such operations will be completed. PETROVIETNAM
shall submit such additional work program and budget to the Prime Minister for
considering and permitting the CONTRACTOR to retain the aforesaid area together
with the additional Work Program and Budget.
b) The CONTRACTOR shall carry out
Exploration Operations in accordance with such approved additional Work Program
and Budget pursuant to Article 2.3.4(a)(ii) including the amendments thereof
(if any) mutually agreed to by the CONTRACTOR and PETROVIETNAM.
c) If as a result of such
Exploration Operations pursuant to Article 2.3.4(b):
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ii) any existing Commercial
Discovery in the Contract Area is determined to extend beyond the Development
Area originally established in respect thereof, such initial Development Area
shall be justifiably adjusted by the mutual agreement of the Parties;
iii) any new Discovery of Natural
Gas is made, the Development Area for such Discovery may in accordance with
Article 4.6 be designated as a Suspended Development Area.
The CONTRACTOR shall, upon
completion of the evaluation of the results of the work program and the
establishment of any new Development Area or the adjustment of any existing
Development Area resulting therefrom or the establishment of any new Suspended
Development Area, relinquish all remaining parts of the Contract Area not
within the new or adjusted Development Area(s) or new Suspended Development
Areas.
2.3.5. The CONTRACTOR shall notify
PETROVIETNAM in advance of the date of surrender of the portion(s) to be
surrendered. The CONTRACTOR and PETROVIETNAM shall consult with each other
regarding the shape and size of each individual portion of the Contract Area
being surrendered. Such portions shall each be of sufficient size and
geometrically convenient shape to enable petroleum operations to be conducted
thereon. Before any surrender or prior to the termination of this Contract, the
CONTRACTOR shall, at PETROVIETNAM’s request, remove from the Contract Area
being surrendered all equipment or facilities installed or constructed by the
CONTRACTOR which is no longer necessary for the conduct of Petroleum
Operations.
Chapter 3.
MANAGEMENT
COMMITTEE
Article 3.1. Within thirty
(30) Days from the Effective Date, the Parties shall set up a Management
Committee under this Contract. The Management Committee shall be responsible
for assisting PETROVIETNAM and the CONTRACTOR to supervise and monitor
Petroleum Operations in the Contract Area pursuant to approved Work Programs
and Budgets and in accordance with this Contract. The Management Committee
shall have the rights and obligations as follows:
- Adopting and confirming the
implementation of the annual Work Program and Budget, including amendments and
supplements (if any);
- Approving the bidding processes
to choose subcontractors;
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- Adopting the Evaluation Report on
overall in place Petroleum reserves of the Discovery submitted by CONTRACTOR;
- Reviewing and adopting the
outline Development Plan to submit to PETROVIETNAM or competent authorities for
approval;
- Approving the Development Plan
for PETROVIETNAM’s consideration and submission to the Prime Minister for
approval;
- Approving the Abandonment Plan
for PETROVIETNAM’s consideration and for submission to the Ministry Industry
and Trade for approval;
- Adopting the annual Production
Schedule for PETROVIETNAM’s approval;
- Adopting the Operator’s proposal
on surrender of the Contract Area;
- Establishing necessary
sub-committees upon requests and pursuant to the provisions of this Contract;
- Deciding other issues under the
authority of Management Committee in accordance with this Contract.
Article 3.2. The Management
Committee shall supervise and monitor the accounting for costs, expenses and
expenditure and maintenance of books for the Petroleum Operations in accordance
with the provisions of this Contract and the Accounting Procedures.
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Article 3.4. The Management
Committee shall consist of [………..] (…) members, [……………] (…) of whom
shall be designated by PETROVIETNAM and the other [………..] (...) by the
CONTRACTOR. The number of members comprising the Management Committee may be
increased or decreased from time to time as mutually agreed by the Parties.
The CONTRACTOR shall designate one of its members as Chairman for the meetings
before declaration of the first Commercial Discovery and PETROVIETNAM shall
designate one of its members as Chairman for the meetings of the Management
Committee thereafter. Each member shall have one (1) vote. Meetings of the
Management Committee shall require a quorum of [...](…) members, at least […]
of whom shall be the representatives of each Party. Any member who is unable to
attend any meeting of the Management Committee may be represented and voted for
by another member or other person pursuant to a written and signed proxy from
such absent member. Except as provided in Article 3.8 of this Chapter, the
decisions of the Management Committee shall be taken by unanimous vote of the
members present and the authorised representatives.
Article 3.5. The Management
Committee shall meet at least once a Year unless otherwise agreed. Either
Party may call a meeting of the Management Committee at any time by a written
notice to the Chairman specifying the purpose of the meeting. The Chairman
shall thereupon call such meeting within thirty (30) Days of receipt of the
aforesaid notification, or any shorter period of not less than seven (7) Days
as requested by the Party requesting to call the meeting if a thirty (30) Day
interval would substantially prejudice the matter to be discussed.
Article 3.6. In the event
Management Committee agrees that any matter may be decided without holding a
meeting, Management Committee members may at any time cast their respective
vote on the matter via facsimile or any other means as they may agree upon
which should be sent to the Operator. The Operator shall, upon receipt of all
the votes, duly inform all the Parties of the decision arrived at. Such
decision shall be deemed to be the decision of the Management Committee and
shall be binding upon the Parties in the same manner as if the votes were cast
at a meeting. The Operator shall keep a written record of each such vote. If
any member of Management Committee does not give written notice of its decision
within the time limits, such issue shall be deemed to be approved by that
member.
Article 3.7. Representatives
of each Party attending a Management Committee meeting may be accompanied by a
reasonable number of advisors. Such advisors shall not be entitled to vote at
the meeting.
Article 3.8. All exploration
and appraisal matters before declaration of the first Commercial Discovery
shall be decided by the Management Committee on the basis of a majority vote or
as the Parties may otherwise agree.
Article 3.9. All reasonable
per diem expenses incurred by each member and his/her advisor(s) in attending
Management Committee meetings shall be borne by the CONTRACTOR and be considered
as recoverable Petroleum Operation Cost.
Chapter 4.
WORK
PROGRAMS AND BUDGETS
Article 4.1. Within sixty
(60) Days of the Effective Date and thereafter at least ninety (90) Days prior
to the beginning of each Year or at such other times as may otherwise be
mutually agreed by the Parties, the CONTRACTOR shall prepare and submit an
annual Work Program and Budget for the Contract Area in accordance with
Articles 4.4, 4.7 and Article 4.8.
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Within ninety (90) Days after such
notice, the CONTRACTOR shall submit to the Management Committee an appraisal
plan for such Discovery. The Management Committee shall review and adopt the
proposed appraisal plan submitted by the CONTRACTOR within thirty (30) Days of
receipt. Within ten (10) Days after the Management Committee's adoption of the
appraisal plan, the CONTRACTOR shall submit such appraisal plan to PETROVIETNAM
for the final approval. PETROVIETNAM shall review and approve such appraisal
plan within thirty (30) Days of receipt of the submission.
The CONTRACTOR shall immediately
implement the appraisal plan approved by PETROVIETNAM. Within ninety (90)
Days, or another period as approved by PETROVIETNAM, after completion of such
appraisal plan, the CONTRACTOR shall submit to the Management Committee and
PETROVIETNAM an evaluation report on overall in place Petroleum reserves of the
Discovery as appraised.
Together with the submission of the
aforementioned evaluation report on overall in place Petroleum reserves, the
CONTRACTOR shall submit a written declaration about the Discovery to the
Management Committee and PETROVIETNAM which indicates one of the following:
a) The Discovery is commercial; or
b) The Discovery is not commercial.
Where the Discovery is in the
nature of a commercial discovery, the date on which the CONTRACTOR submits a
notice to the Management Committee and PETROVIETNAM about such Discovery shall
be the date of declaration of the Commercial Discovery. The CONTRACTOR must
provide its proposal on designation of the Development Area, consistent with
the provisions in this Contract and Generally Accepted International Petroleum
Industry Practices, for the declared Discovery in the corresponding appraisal
report on overall in place Petroleum reserves. The Management Committee shall
consider and adopt the appraisal report on overall in place Petroleum reserves
of such Discovery as submitted by the CONTRACTOR within thirty (30) Days from
receipt of such document. Within ten (10) Days after the Management Committee
has adopted such report, the CONTRACTOR shall submit the appraisal report on
overall in place Petroleum reserves to PETROVIETNAM for the latter to consider
and submit to the Prime Minister for consideration and approval in accordance
with applicable regulations on management of reserves.
Article 4.3. Within one
hundred and eighty (180) Days or other time-limit approved by PETROVIETNAM from
the date of approval of the appraisal report on overall in place Petroleum
reserves with respect to any Commercial Discovery within the Contract Area, the
CONTRACTOR must submit an official and complete outline Development Plan for
such Commercial Discovery to the Management Committee.
Such outline Development Plan shall
comprise a preliminary feasibility study on development options at the time of
preparation of the plan and all relevant information then available on
technical, economic, commercial and market matters.
Within thirty (30) Days after the
receipt of the outline Development Plan, the Management Committee shall
consider or subject to any amendments thereto which it requires, the Management
Committee shall adopt the outline Development Plan. If the Management
Committee does not provide a written document adopting the outline Development
Plan within the aforesaid thirty (30) Days, such outline Development Plan shall
be deemed to have been adopted.
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Within twelve (12) months or other
time-limit as approved by PETROVIETNAM from the date of approval of the outline
Development Plan, the CONTRACTOR shall submit to the Management Committee a
Development Plan for the Commercial Discovery. The Development Plan shall be
formulated on the basis of the options selected in the approved outline
Development Plan with the objective of maximizing development and production,
and shall include but not be limited to the following main contents:
a) Details and scope of the
Development Area for such Commercial Discovery;
b) Results of a study of the
special geological characteristics of the field;
c) Data and analysis of the
composition and nature of fluids and beds, the Petroleum production volumes,
and the Petroleum recovery coefficient;
d) Study of a field simulation
model, field technology and production equipment;
e) Information about production
technology and feasibility;
f) Technology for drilling and
completion of wells; statistics on principles and technical regulations
applicable during the drilling process for production;
g) Description of the system of
works and equipment to be used for production;
h) Data and analysis on composition
and nature of the environment;
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j) Proposed plans on: protection
of natural resources and the environment; safe operation and dealing with any
breakdowns; solutions on preventing and dealing with any environmental incident
and cleaning up the field aimed at environmental recuperation once production
has finished;
k) Plan on personnel; recruitment
and training of Vietnamese staff, and a plan on replacement of foreign
employees consistent with Chapter X of this Contract;
l) Plan on use of Vietnamese
materials and services for Petroleum Operations in accordance with Chapter X of
this Contract;
m) Total investment capital and
economic effectiveness of the project;
n) Evaluation of level of technical
and financial risks of the project;
o) Schedule for implementation of
the project;
p) Plan on use of Associated Gas in
the event of development of a petroleum field with Associated Gas;
q) Other information as the
Management Committee may request.
Within thirty (30) Days after
submission by the CONTRACTOR or thirty (30) Days from receipt of the
Development Plan amended as requested by the Management Committee, as the case
may be, the Management Committee shall consider, adopt such development plan.
If the CONTRACTOR does not receive a response from the Management Committee
within thirty (30) Days then the Development Plan will be deemed to have been
adopted.
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Article 4.4. No later than
ninety (90) Days prior to the beginning of each Year or such other date as may
be agreed upon, the CONTRACTOR shall submit to the Management Committee a Work
Program and Budget for the succeeding Year including one or both of the
followings:
a) Exploration Operations and
appraisal;
b) Updated Development Plan of the
Commercial Discovery.
Within sixty (60) Days prior to the
first Commercial Production and to the beginning of each subsequent Year, the
CONTRACTOR shall submit to the Management Committee for adoption and
PETROVIETNAM for approval an annual Production Schedule which is based on the
production plan proposed in the Development Plan and updated information
obtained during the conduct of Development Operations and Production Operations
and which shall be in accordance with Generally Accepted International
Petroleum Industry Practices. The CONTRACTOR may at any time propose revisions
to the field Development Plan in accordance with the Petroleum Operation
Regulations. The procedures for approving an amended Development Plan shall be
the same as those set out in Article 4.3 for approval of the field Development
Plan.
Article 4.5. In respect of
subsequent Development Areas, the CONTRACTOR shall follow the same procedures
mutatis mutandis, as set out in Articles 4.3 and 4.4.
Article 4.6. If the
CONTRACTOR determines that there is a significant volume of Natural Gas in the
Contract Area, then the CONTRACTOR must immediately notify PETROVIETNAM about
such Discovery and must conduct the appraisal work in accordance with Article
4.2 and an appraisal of the commercial nature of such Discovery. The
CONTRACTOR must notify PETROVIETNAM of the results of such appraisal and if in
the CONTRACTOR's sole opinion such result shows:
a) That commercial development of
the volume of Natural Gas discovered is feasible. The CONTRACTOR must provide
an undertaking for the early exploitation of such Commercial Discovery. The
Parties shall use their best endeavours to find a gas market and the CONTRACTOR
shall sign with PETROVIETNAM (or a third party as agreed by the Parties) a
binding Gas Purchase and Sale Agreement based on a duration and minimum volume
agreed by the Parties. The CONTRACTOR must develop such Discovery in
accordance with the provisions stipulated in Articles 4.3 to 4.4 in order to
meet the demand of the Gas Purchase and Sale Agreement; or
b) That the Natural Gas Discovery
is not commercially viable at the time the CONTRACTOR discovers it, but
pursuant to study results such Discovery may become commercially viable for
specific reasons such as that there are additional reserves; that the Natural
Gas or Coal Gas market is capable of improvement; or because of Petroleum
developmental and operational techniques; or because of new gas utilization
technology; or because it is possible to share operational and development
costs in accordance with a joint development venture or so forth, then the
Contract Area encompassing such Discovery shall be deemed to be a Suspended
Development Area for the purposes of this Contract. In accordance with the
Petroleum Law, the CONTRACTOR may retain the aforementioned Suspended
Development Area with an additional work volume in order to determine the
potential of such Discovery as may be required, subject to approval from the
Prime Minister.
Article 4.7. Annual Work
Programs and Budgets and Production Schedules shall be adopted by the
Management Committee within thirty (30) Days of the CONTRACTOR’s submission. Within
ten (10) Days after the Management Committee's adoption, the CONTRACTOR shall
submit the same to PETROVIETNAM for its approval. PETROVIETNAM shall consider
and approve within thirty (30) Days of receipt of additional amended
information pursuant to a request for amendment. The CONTRACTOR shall carry out
the approved Work Programs and Budgets and is not obliged to obtain any further
consents or approvals for amounts additional to that already approved by the
Management Committee and PETROVIETNAM for the relevant Year which do not exceed
ten percent (10%) of any budgeted item in the relevant Budget, always provided
that the total additional amounts so expended do not exceed five percent (5%)
of the total Budget approved for the relevant year.
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Article 4.9. If the
CONTRACTOR wants to carry out early production, the CONTRACTOR shall submit for
PETROVIETNAM’s consideration and for the Ministry of Industry and Trade to
approve the early program and Production Plan in accordance with the Petroleum
Law.
Article 4.10. PETROVIETNAM
from time to time may issue detailed procedures and guidelines for the purpose
of implementing provisions of this Chapter.
Chapter 5.
GENERAL
RIGHTS AND OBLIGATIONS OF THE PARTIES
Article 5.1. CONTRACTOR
5.1.1. Each Contractor Party shall
have the rights and obligations:
a) For the purpose of Petroleum
Operations, to enjoy all incentives and encouragements provided in this
Contract, the Investment Certificate, the Law on Investment, the Petroleum Law
and other relevant legal instruments of Vietnam;
b) To contribute capital for
Petroleum Operations in accordance with the approved Work Programs and Budgets
at the capital contribution ratio agreed in Article 1.4.;
c) To own, lift, sell or otherwise
dispose of, except as provided in Chapter XVII hereof, the portion of Petroleum
owned by it in accordance with this Contract including Cost Recovery Oil, Cost
Recovery Gas and its share of Profit Oil and Profit Gas and each Foreign Party
shall have the right to retain abroad the net turnover therefrom.
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In addition to the rights and
obligations provided in Article 5.1.1, the CONTRACTOR shall have the following
rights and obligations:
a) To comply with Vietnamese laws;
b) To submit the accounting
procedures, bidding process for the Management Committee's consideration and
approval prior to the Management Committee’s first meeting;
c) To conduct Petroleum Operations
and other activities associated therewith, and furnish all technical aid and
personnel and to advance all expenditure and committed financial commitment
required for the performance of such Petroleum Operations and other activities
under the approved Work Programs and Budgets;
d) To prepare and submit to the
Management Committee and PETROVIETNAM the annual Work Programs and Budgets; and
execute them diligently in accordance with Generally Accepted International
Petroleum Industry Practice once such Work Programs and Budgets are approved;
dd) To be responsible for the
procurement, purchase or lease of all services, materials, equipment and
supplies and entering into sub-contracts, service contracts or supply contracts
required for the performance of Petroleum Operations under the approved Work
Programs and Budgets. In the procurement, purchase or lease of such services,
materials, equipment and supplies, the CONTRACTOR shall adhere to the following
guidelines:
i) Annually, the CONTRACTOR must
prepare an overall tendering plan on purchase and/or lease of services,
materials, equipment and supplies and submit the same to PETROVIETNAM for
approval. Division into tender packages must be based on the technical nature,
ensuring completeness and an appropriate size of tender packages. The
CONTRACTOR must not divide tender packages into smaller ones in order to avoid
the necessity for approval from PETROVIETNAM in accordance with Article 5.1.2(dd)(iii);
ii) In respect of a contract the
value of which the CONTRACTOR estimates to be less than […………...] US Dollar
(…USD) for Exploration and Appraisal Operations, and less than [………….] US
Dollar (…USD) for Development, Production and Abandonment Operations [subject
to negotiation], the CONTRACTOR shall be entitled to award such contract,
provided that such operations are in the approved Work Program and Budget;
iii) In respect of a contract the
value of which the CONTRACTOR estimates to be equal to or in excess of the
value provided in Article 5.1.2 (dd)(ii), the CONTRACTOR shall submit the
contract to international tender except where the CONTRACTOR provides
reasonable grounds proving that tendering would be disadvantageous for
practical operations or for progress reasons or would adversely impact on
commercial interests and approved by PETROVIETNAM. PETROVIETNAM shall consider
and approve within ten (10) Business Days of the receipt and shall not reject
unreasonably. In the event of submission of the contract to an international
tender, the CONTRACTOR shall:
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(iii) (ii) Accept PETROVIETNAM’s
proposal on addition or deletion of one or more individuals and/or
organizations to the bidding invitation list, provided that PETROVIETNAM shall
provide reasonable justification for such addition or deletion;
(iii) (iii) Submit to PETROVIETNAM
a tendering plan (comprising but not limited to the name of the tender package
and its price, funding sources, form of selection of contractor, tendering
method, time-limit for selection of contractor, form of contract and term for
contract implementation), tender invitation documents (comprising but not
limited to technical requirements, financial, commercial requirements; and
criteria for assessing tenders) for PETROVIETNAM's consideration and approval
prior to inviting tenders. PETROVIETNAM shall consider and approve within ten
(10) Business Days from the date when PETROVIETNAM receives the full set of the
documentation and shall not reject unreasonably. During such period, if
PETROVIETNAM fails to respond in writing, it would be deemed as an approval;
(iii) (iv) PETROVIETNAM must notify
the CONTRACTOR of its approval or other opinion about the overall tendering
plan, the tendering plan and the tender invitation documents of the CONTRACTOR
within ten (10) Business Days from receipt by PETROVIETNAM of a complete and
valid file without any unreasonable rejection. During such period, if
PETROVIETNAM fails to respond in writing, it would be deemed as an approval;
(iii) (v) Submit to PETROVIETNAM an
appraisal report and recommend the award of the contract to the selected person
or organization (together with the tender received) for PETROVIETNAM's
consideration and approval. The CONTRACTOR shall be responsible to explain or
clarify any matters (if any) as requested by PETROVIETNAM in the data submitted
by the CONTRACTOR. PETROVIETNAM must notify the CONTRACTOR of its approval or other
recommendation regarding the award of the contract within ten (10) Business
Days from receipt by PETROVIETNAM of a complete and valid file without any
unreasonable rejection;
(iii) (vi) Preferentially use
Vietnamese materials, equipment and services based on a competitive basis
regarding price, quality and time of delivery; the CONTRACTOR must provide
details of the criteria for using Vietnamese services in its tender invitation
documents;
(iii) (vii) Provide PETROVIETNAM
with copies of sub-contracts entered into under Article 5.1.2.(dd)(iii) within
ten (10) Business Days after such contracts are executed;
(viii) The aforesaid process shall
be applied mutatis mutandis to Contractor’s selection process in other
circumstances.
e) To submit to the competent State
authority and to PETROVIETNAM an environmental impact assessment report on
Petroleum Operations in accordance with the laws of Vietnam.
To provide essential solutions for
protection of navigation, fishing and the environment; on prevention and proper
control of environmental pollution of the sea, rivers and streams and land
consistent with the insurance program and the environmental, safety and
occupational health operational plan adopted by the Management Committee; and
to advise PETROVIETNAM and other agencies concerned in accordance with
instructions from PETROVIETNAM of such solutions. In the event where the
necessary solutions have in fact been implemented as advised but environmental
pollution nevertheless occurs, then the CONTRACTOR is obliged to take all
effective measures for minimizing the effect of pollution, remedy the
consequences and pay appropriate compensation for such consequences in
accordance with the laws of Vietnam, the CONTRACTOR may use the services and
resources of local, regional and international oil spill response centres in
this regard.
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g) The CONTRACTOR and each
sub-contractor shall have the right to import into Vietnam in accordance with
Vietnamese customs regulations all materials, equipment and services required
for the Petroleum Operations and to re-export the same or any unused portion thereof
excluding materials and equipment charged to Petroleum Operation Costs, in
accordance with the laws of Vietnam;
h) At any time, to have the right
of ingress to and egress from the Contract Area and to access the equipment and
facilities used for the purpose of Petroleum Operations, wherever located
within the Contract Area;
i) To have access to and the right
to use all available geological, geophysical, well, production, environmental
and other data and information in respect of the Contract Area held by
PETROVIETNAM, except for data and information in the category of the State’s
secrets which must be approved by the competent authorities;
j) Subject to reasonable approval
from PETROVIETNAM, to have access to and the right to refer to all available geological,
geophysical, well, production, environmental and other data and information
held by PETROVIETNAM now or in the future relating to the areas adjacent to the
Contract Area, on condition that such areas are not the subject of a
contractual arrangement by PETROVIETNAM with third parties. In relation to
documents of adjacent areas for which PETROVIETNAM has contractual arrangements
with third parties, PETROVIETNAM will use its best endeavours to obtain such
third party's consent for disclosure of the relevant data and information where
possible;
k) To submit to PETROVIETNAM data
and study reports on processing results, tests and data analyses, and original
samples from the Contract Area, including but not limited to analysis documents
being geological, geophysical, geochemical, drilling, Well, production, and
technical design performed by the CONTRACTOR or its sub-contractors. Within
forty five (45) Days from completion of each aforementioned process, test or
analysis, the CONTRACTOR shall deliver to PETROVIETNAM a set of original data
and at least fifty per cent (50%) of the original data obtained from such
activities in accordance with Generally Accepted International Petroleum
Industry Practices and a maximum fifty per cent (50%) of the remaining original
data may be performed, as applicable, by the CONTRACTOR outside of Vietnam, and
provided further that the CONTRACTOR may retain copies of such original data
and possession of a maximum fifty per cent (50%) of the samples as required for
operational purposes and in such case PETROVIETNAM shall at all times have
access to such data and samples retained by the CONTRACTOR. The CONTRACTOR
shall provide copies of data on request by PETROVIETNAM and the cost of such
copying shall be deemed recoverable Petroleum Operation Costs. The CONTRACTOR
shall deliver to PETROVIETNAM all data and samples promptly after such data and
samples are no longer required for the Petroleum Operations or after the part
of the Contract Area respecting such data and samples is surrendered;
l) Expatriate staff of the
CONTRACTOR working in Vietnam shall be allowed to import and re-export free of
tax a reasonable amount of goods for their personal use in accordance with
Vietnamese regulations on import and export;
m) To have the right to open and
use (an) account(s), to convert currencies, import and export currencies during
the performance of the Petroleum Operations in accordance with Vietnamese laws
on foreign exchange control, account’s opening and usage. The CONTRACTOR shall
register with the State Bank of Vietnam for offshore account opening;
n) To withhold and pay income tax
for Vietnamese and expatriate staff, and personnel employed by the CONTRACTOR
in connection with the Petroleum Operations pursuant to Vietnamese laws;
o) To provide PETROVIETNAM with the
following Reports and information:
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(ii) Daily geological, testing and
drilling report during drilling operations;
(iii) Weekly report on the conduct
of Development Operations;
(iv) Monthly report on Petroleum
Operations within seven (7) Business Days following the end of each month;
(v) Annual report on Petroleum
Operations within thirty (30) Business Days following the end of each Year;
(vi) Overall report within thirty
(30) Business Days following the completion of seismic, drilling, geological
study, sample analysis operations; within ninety (90) Business Days following
the completion of Development Operations or other important operations;
(vii) Financial reports and
statements as specified in the Accounting Procedures;
(viii) Reports on reserves,
Appraisal Plans, Development and Production Plans;
The CONTRACTOR must supply to the
Management Committee, PETROVIETNAM or the State administrative authority for
oil and gas any other report on request.
p) To advise its foreign personnel
and sub-contractors to abide by Vietnamese laws and local customs; and to
inform such employees and sub-contractors of relevant provisions of this
Contract which are applicable to them;
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r) If it encounters, in the course
of the Petroleum Operations, any abnormal material including but not limited to
deposits of valuable hard minerals, to notify and deliver samples of same to
PETROVIETNAM;
s) To facilitate at the
CONTRACTOR's cost up to [………….] (…………..) US Dollar for each Contract Year for
representatives nominated by PETROVIETNAM to supervise Petroleum Operations.
The costs incurred shall be deemed as recoverable Petroleum Operation Costs;
t) To have the right, subject to
the approval of competent Vietnamese authorities, to construct, install,
operate and maintain pipelines, cables, production and processing plants, power
stations, communication, transportation, navigation and other essential
facilities for Petroleum Operations and to use such works and equipment free of
charge;
u) Subject to the approval of the
competent Vietnamese authorities, to have the right to use existing harbours,
airports, waterways, roads and other facilities in Vietnam upon payment of fees
in accordance with the laws of Vietnam;
The use of roads, airports,
harbours, waterways and other traffic and transportation facilities constructed
by the CONTRACTOR shall be free of any taxes or other charges. Such facilities
shall be used by the CONTRACTOR for the transportation and export of Petroleum
and for other activities under this Contract. The CONTRACTOR shall make
available for public use by the local community the roads constructed and
maintained by the CONTRACTOR, except such roads as the CONTRACTOR may, with
approval of the relevant Vietnamese authorities and PETROVIETNAM's assistance,
declare to be for its exclusive use. The local community shall have the right
of access and reasonable public use at their own risk of transportation
infrastructure constructed by the CONTRACTOR, provided that the use of such
facilities does not hinder Petroleum Operations;
v) To have the right, subject to
the approval of the competent Vietnamese authorities, with PETROVIETNAM's
assistance, to access and make use of internal waters, territorial waters,
exclusive economic zone, continental shelf and land areas which are
unrestricted in Vietnam for the purpose of Petroleum Operations;
x) To have the right to remove from
Vietnam data and samples of Petroleum, water, formation fluids and rock samples
including but not limited to cuttings, cores and sidewall cores obtained from
the Contract Area and other related unitized areas under Article 18.2 for
examination, analysis or processing outside Vietnam, to the extent required for
Petroleum Operations in accordance with Vietnamese laws;
y) In any case at all, when there
is any change on information relating to any of the Contractor Parties (as
listed in Exhibit C attached herewith), the Contractor shall notify to
PETROVIETNAM in writing within sixty (60) Days from the date such change is
officially certified and the CONTRACTOR must complete all necessary legal
procedures in order to be issued with an amended Investment Certificate for
this Contract (where necessary) in accordance with applicable Vietnamese laws.
Article 5.2. PETROVIETNAM
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a) To have the right, at all
reasonable times and at its own risk, to have access to the Contract Area, to
check and inspect Petroleum Operations including inspection of data and files
relevant to the Petroleum Operations and facilities used for the Petroleum
Operations after giving the CONTRACTOR an advance written notice of the date on
which such access is required and the names of the representatives to whom
access is to be given, provided such access does not interfere with the
performance of Petroleum Operations;
b) At all times, to retain title to
all original data and samples, including but not limited to all geological,
geophysical, geochemical, Well, production, technology and other data and
samples obtained from the Contract Area or compiled by the CONTRACTOR as a
result of the Petroleum Operations as well as other interpretative and
derivative data;
c) Subject to appropriate
arrangements with the CONTRACTOR, to have the right to use the assets purchased
by the CONTRACTOR for Petroleum Operations in order to service the personal
objectives of PETROVIETNAM, provided that such use does not interfere with
Petroleum Operations of the CONTRACTOR;
d) To have title and the right
during the term hereof to lift, sell or otherwise dispose of its portion of
Profit Oil and Profit Gas, and to be authorized by the Government to lift, sell
or otherwise dispose of Royalty Crude Oil and Royalty Natural Gas;
e) From time to time, to issue
detailed procedures and guidance for implementation of the articles of this
Contract in conformity with the provisions of this Chapter V.
5.2.2. PETROVIETNAM will offer its
assistance to the CONTRACTOR to deal with competent Vietnamese authorities
during the conduct of Petroleum Operations. PETROVIETNAM shall assist the
CONTRACTOR, upon request by the CONTRACTOR, on condition that the CONTRACTOR
supplies complete data which is necessary, to:
a) obtain office space, lease
personal accommodation, transportation and communications facilities as may be
required for Petroleum Operations at reasonable rates;
b) obtain approvals and licenses
required to open, maintain and operate bank accounts in Vietnam and abroad, and
to proceed with the formalities of foreign currency exchange;
c) proceed with the formalities of
customs clearance and obtain permission to send abroad documents, data,
specimens and samples for examination, analysis or processing;
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Charges applicable for the use of
facilities and services for the provision of materials, equipment, supplies of
personnel, personal visas, permits or security protection and other rights
requested by the CONTRACTOR hereunder and actually delivered or rendered by
PETROVIETNAM or by any Vietnamese Government authority shall be the same
applicable rates which are charged to other foreign companies in Vietnam in
accordance with applicable regulations of Vietnam;
e) Except where otherwise
stipulated in Chapter XVII of this Contract, proceed with necessary
formalities in order to allow the CONTRACTOR to be able to export its
entitlement to Petroleum hereunder and retain abroad revenue obtained
therefrom.
Expenses incurred in advance by
PETROVIETNAM at the CONTRACTOR's request by way of assistance as provided in
this Article 5.2.2. shall be reimbursed to PETROVIETNAM by the CONTRACTOR
within thirty (30) Days of receipt of a valid file (invoice and relevant
explanatory data) and shall be deemed as recoverable Petroleum Operation Costs.
Chapter 6.
ALLOCATION
OF PETROLEUM
Article 6.1. Crude Oil
Allocation
The amount of Net Oil Production in
each Quarter shall be lifted by the Parties in accordance with the Oil Lifting
Agreement established in accordance with Article 8.5 and shall be divided and
allocated in the following manner:
6.1.1. Allocation for Royalty Oil
a) Royalty Oil shall be allocated
out of Net Oil Production per incremental tranches of total Net Oil Production
in each taxable period calculated by reference to the average daily rate of Net
Oil Production from the entire Contract Area, ascertained as follows:
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Daily
average of Net Oil Production per quarter in Contract Area
(in
Barrels per actual day of production)
Royalty
Oil
(%
Net Oil Production in accordance with the laws)
b) Subject to Article 6.1.1.(c),
each Contractor Party shall:
i) be entitled to lift, in
accordance with the Oil Lifting Agreement, its share of estimated Royalty Oil
in proportion to its Participating Interest during each Quarter;
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iii) pay retrospectively, in
accordance with the royalty regulations, final Royalty actually received from Crude
Oil based on the price received at, or netted back to, the Point of Delivery by
that Party during the Quarter with appropriate reconciliation on a cargo by
cargo basis for its share of Royalty Oil in proportion to its Participating
Interest lifted and sold or otherwise disposed of hereunder Crude Oil obtained
pursuant to this Contract.
c) The Government may, by notice in
writing exercised through PETROVIETNAM and given to the CONTRACTOR not less
than three (3) months prior to the commencement of each Year, elect to lift and
take in kind at the Point of Delivery all or part of the Royalty Oil which is
estimated to be available for lifting during that Year based on the Production
Schedule for that Year approved by PETROVIETNAM. The Royalty Oil so specified
shall be lifted by the Government in each Quarter of that Year in accordance
with the Oil Lifting Agreement. If Royalty Oil is delivered in kind to the
Government, the CONTRACTOR shall have no liability to pay Royalty in respect of
that Royalty Oil.
d) If the Government exercises its
election under Article 6.1.1.(c), PETROVIETNAM in its role as representative of
the Government may request and enter into an agreement with the CONTRACTOR or
any Foreign Party, whereby the CONTRACTOR or such Contractor Party shall either
(i) lift and sell on PETROVIETNAM's behalf as agent or (ii) purchase as
principal client and lift all or any part of the Government’s entitlement to
Royalty Oil in kind at a price to be agreed and in accordance with the
customary and prevailing terms and conditions applied to the agent or
purchaser.
6.1.2. Allocation for Cost Recovery
Oil
a) Cost Recovery Oil shall be
allocated out of Net Oil Production for cost recovery by the CONTRACTOR of
Petroleum Operation Costs (without interest) during each Quarter provided that
in no Quarter shall the amount allocated to Cost Recovery Oil exceed […………]
percent (...%) of Net Oil Production in that Quarter. [In accordance with
the bidding results with respect to the fundamental technical – economic - commercial
conditions approved by the Prime Minister].
b) Subject to Articles 6.1.2.(a)
and 6.1.2.(d), each Contractor Party shall be entitled to lift in each Quarter
its share of estimated Cost Recovery Oil in accordance with the Oil Lifting
Agreement and recover its proportionate share of Petroleum Operation Costs paid
or expressly provided for under this Contract up to and including that Quarter
without interest from the sale or other disposal of its share of Cost Recovery
Oil actually lifted under the terms of the Oil Lifting Agreement during that
Quarter.
c) Petroleum Operation Costs shall
be recovered from the applicable Cost Recovery Oil on a first-in-first-out
basis. Petroleum Operation Costs which are not recovered in a Quarter may be
carried forward to the next succeeding Quarters without interest until fully
recovered or the termination of the Contract, whichever occurs earlier.
d) The Petroleum Operation Costs
accounting books shall be revised in each Quarter after the applicable value of
the Market Price actually received is finally determined and appropriate
adjustments are made for that Quarter.
6.1.3. Allocation for Profit Oil
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[In accordance with the bidding
results with respect to the fundamental economic – technical - commercial
conditions approved by the Prime Minister]
Daily
average of Net Oil Production per quarter in Contract Area
(in
Barrels per actual day of production)
Profit
Oil (percentage)
PETROVIETNAM
CONTRACTOR
...
...
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b) Each Party shall be entitled to lift,
in accordance with the Oil Lifting Agreement, its share of estimated Profit Oil
during a Quarter.
6.1.4. Allocation Method
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Article 6.2. Natural Gas
Allocation
6.2.1. Allocation for Royalty Gas
a) Royalty Gas shall be allocated
out of Net Gas Production per incremental tranches of total production in each
taxable period calculated by reference to the average daily rate of Net Gas
Production from the entire Contract Area, ascertained as follows:
[In accordance with the
fundamental economic – technical – commercial conditions approved by the Prime
Minister]
Net
Oil Production per Quarter in Contract Area
(in
million m3 per actual day of production)
Royalty
Gas
(%
of Net Gas Production in accordance with the laws)
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b) It is agreed by the Parties that
the provisions of Articles 6.1.1.(b) and (c) shall apply mutatis mutandis to
Natural Gas.
For avoidance of misunderstanding,
the CONTRACTOR may utilize Natural Gas and Associated Gas, at no Royalty
burdens, for the conduct of the Petroleum Operations in accordance with
Generally Accepted International Petroleum Industry Practices, including but
not limited to:
(i) Use in facilities for
production and processing and in assisting works;
(ii) Facilitate or enhance Crude
Oil production;
(iii) Effect pressure maintenance
by secondary or tertiary recovery processes;
(iv) Process in order to extract Crude
Oil;
(v) Recycle; or
(vi) Flare, in the absence of other
economical solutions, subject to approval of the Ministry of Industry and Trade
in the case of Associated Gas. In emergency cases, in accordance to Petroleum
Production Regulations, the CONTRACTOR may flare Associated Gas but immediately
thereafter must report such decision to flare to the Ministry of Industry and
Trade and to PETROVIETNAM.
6.2.2. Allocation for Cost Recovery
Gas
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(b) It is agreed by the Parties
that the provisions of Article 6.1.2.(b), (c) and (d) shall apply mutatis
mutandis to Natural Gas.
6.2.3. Allocation for Profit Gas
(a) After allocation of Royalty Gas
and Cost Recovery Gas, the remainder of Net Gas Production shall be regarded as
Profit Gas and shall be divided between PETROVIETNAM and the CONTRACTOR as
follows:
[In accordance with the bidding
results with respect to the fundamental economic – technical - commercial
conditions approved by the Prime Minister]
Daily
average of Net Gas Production per Quarter in Contract Area
(in
million m3 per actual day of production)
Profit
Oil (percentage)
PETROVIETNAM
CONTRACTOR
...
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(b) It is agreed by the Parties
that the provisions of Article 6.1.3.(b) shall apply mutatis mutandis to
Natural Gas.
6.2.4. Allocation
The allocation of Royalty Gas, Cost
Recovery Gas and Profit Gas out of Net Gas Production shall be made during each
Quarter and shall be calculated on a preliminary basis at the time of gas
lifting, using the estimated quantity of Net Gas Production available for
lifting and consuming for that Quarter based on the approved Production
Schedule for that Quarter and adjusted on a final basis after the end of that
Year.
Chapter 7.
TAXES,
FEES AND CHARGES
Article 7.1. The Contractor
Parties shall be the entities liable to pay tax in accordance with this
Contract and must comply with all regulations on tax applicable to
organizations and individuals conducting petroleum exploration and production
operations in Vietnam, and shall be responsible for completing returns
declaring tax, paying tax, and keeping books and relevant reports. The
provisional tax assessment, tax payment, currency of tax payment and tax
finalization shall be in accordance with prevailing Vietnamese tax laws.
Article 7.2. Each Contractor
Party shall be liable to pay its royalties tax in accordance with the
provisions in Articles 6.1.1. and 6.2.1..
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Article 7.4. Each Contractor
Party shall, in accordance with the applicable law, pay export duty on the net
Crude Oil lifted and exported outside Vietnam, except for Crude Oil for Royalty
payment, at the tax rate of [……………………. ] per cent (... %). [In accordance
with the fundamental economic – technical – commercial conditions approved by
the Prime Minister]
Each Contractor Party shall, in
accordance with the applicable law, pay export duty on the portion of net
Natural Gas lifted and exported outside Vietnam, except for Natural Gas for
Royalty payment, at the tax rate of [………….] per cent (... %). [In
accordance with the fundamental economic – technical – commercial conditions
approved by the Prime Minister]
The aforementioned taxes shall not
be recoverable costs but shall be tax deductible for the purpose of corporate
income tax assessment.
Article 7.5. Each Contractor
Party shall pay corporate income tax on income generated from an assignment in
accordance with Article 12.2. and other relevant charges as stipulated in the
applicable laws of Vietnam.
Article 7.6. Each Contractor
Party shall pay Value Added Tax (VAT) in accordance with the applicable VAT law
of Vietnam.
Article 7.7. Each Contractor
Party shall pay taxes/charges for environmental protection when producing Crude
Oil, Natural Gas in accordance with the applicable law of Vietnam.
Article 7.8. Each Contractor
Party shall pay a surcharge on its share of Profit Oil when Crude Oil prices
increase, in accordance with the laws of Vietnam effective as at the time such
income arises;
Article
7.9. Each Contractor Party shall pay other types of taxes, land lease tax
and other fees and charges in accordance with the applicable regulations of
Vietnam. Neither Contractor Party is required to pay rental for lease of
water surface.
Article 7.10. Should
Vietnamese tax laws provide for more favourable tax rates or treatment for the
petroleum industry, the CONTRACTOR shall, with the assistance of PETROVIETNAM
and approval from the competent governmental authorities, be subject to
application of such favourable tax rates and treatment.
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VALUATION,
MEASUREMENT AND HANDLING OF PETROLEUM
Article 8.1. Valuation of
Petroleum
8.1.1. The value of Crude Oil for
all purposes under this Contract in any Quarter shall be the Market Price. All
Contractor Parties shall use their best efforts to obtain the highest possible
Market Price. The Market Price shall be denominated in US Dollar and
calculated in each Quarter as follows:
a) For all Crude Oil sales pursuant
to Arm's Length Transactions, the Market Price shall be the actual price in US
Dollar received by each Party during that Quarter from each sale with delivery
on the basis of Free on Board (F.O.B.) or Free into Pipeline (F.I.P.) at Point
of Delivery or, where sold on any other basis, as netted back to the equivalent
F.O.B./F.I.P. at Point of Delivery;
b) For Crude Oil sales pursuant to
a non-Arm's Length Transaction or in relation to Crude Oil retained by a
Contractor Party, such Contractor Party shall, unless otherwise agreed, enter
into discussions with PETROVIETNAM for the purpose of agreeing the basis for
calculating the F.O.B. Market Price in US Dollar for each sale of Crude Oil to
be sold or exported during that Quarter prior to the commencement of the
Quarter in question. The Parties shall determine the Market Price in US Dollar
in accordance with the following principles:
i) by reference to the arithmetic
average price quoted over the Bill of Lading Date Spread in the Oil Publication
for the F.O.B. sale of the relevant Crude Oil produced from the Contract Area
with appropriate adjustments or if the Parties in question do not agree on the
Oil Publication, or if such Oil Publication is agreed but no such price is
quoted; then
ii) by reference to the arithmetic
average of the current market F.O.B. selling price quoted over the Bill of
Lading Date Spread during that Quarter for a representative crude or a basket
of two (2) or three (3) representative crudes reported in Platt's Crude Oil
Marketwire which crude or crudes at the time of calculation are actively traded
in the Asia Pacific region and are of nearest comparable grade, gravity, quantity,
and quality to the Crude Oil and adjusted for differences in location, quality,
terminal facilities at port of loading, credit terms, yield and other pertinent
factors that affect costs to buyers, after appropriate adjustments are made for
the costs and expenses set out in Article 8.1.1(a), but in connection with such
determination of Market Price no account shall be taken of government to
government sales or national oil company to national oil company sales or
barter sales. The Contractor Party shall notify PETROVIETNAM in writing of the
valuations of Crude Oil pursuant to this Article 8.1.1(b)(ii).
c) For purposes of provisionally
determining a weighted average Market Price in US Dollar required under Article
8.1.3., the weighted average Market Price shall be calculated by determining
the average of the F.O.B. equivalent selling prices for all cargoes lifted from
the Point of Delivery for the Quarter preceding the previous Quarter
ascertained in accordance with this Article 8.1.1;
d) In the event that a Contractor
Party has sold or otherwise disposed of Crude Oil in a non-Arm's Length
Transaction to an Affiliate, it shall be deemed to have actually received the
Market Price for that Crude Oil thirty (30) Days after the Bill of Lading Date.
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(i) "Arm's Length
Transaction" means a sale on the Vietnamese market and on the
international market in freely convertible currency between a willing and unrelated
seller and buyer, but excluding a sale by a Party to its Affiliate, sales
between governments or government owned entities, transactions involving
exchange or barter, and generally sales which are not at free international
market prices;
(ii) "Bill of Lading
Date" means the date appearing on the face of the bill of lading issued
for a shipment of Crude Oil from the Point of Delivery;
(iii) "Bill of Lading Date
Spread" means the period from ten (10) Days prior to the Bill of Lading
Date to ten (10) Days after the Bill of Lading Date;
(iv) “F.O.B.” has the meaning as
defined in INCOTERMS 2010 as amended from time to time.
(v) "Oil Publication"
means an oil industry publication or wire service generally accepted
internationally and which contains reports of the current market F.O.B.,
selling price mutually agreed and accepted by the Parties in question;
8.1.2. If after two (2) requests
from PETROVIETNAM, a Contractor Party consistently and significantly undersells
its allocated share of Crude Oil hereunder (the "Underselling
Party"), PETROVIETNAM may request discussions with the Underselling Party
to agree on appropriate revisions to the applicable Market Price for the
applicable period (being no longer than six (6) months before the request is
made), taking into consideration the actual net price received F.O.B. by
PETROVIETNAM for Crude Oil sales made by PETROVIETNAM from the Contract Area
for that period, the weighted average Market Price actually received by the
other Parties for that period and the market conditions prevailing at the time.
If PETROVIETNAM and the Underselling Party cannot reach agreement on the
appropriate revisions to be made to the applicable Market Price for the
applicable period within forty five (45) Days of receipt of written notice
given by PETROVIETNAM to the Underselling Party, the matter shall be referred
to an Expert hereunder for resolution. The Expert shall make the determination
on the value of the Market Price for the applicable period in accordance with
the principles contained in the preceding Article 8.1.1.
8.1.3. Pending the determination of
the value of the Market Price of Crude Oil pursuant to the preceding Article
8.1.2. for a given period, the weighted average Market Price in US Dollar
received by CONTRACTOR and PETROVIETNAM (excluding the Underselling Party) for
the applicable period shall be provisionally applied to the Underselling Party
until the applicable Market Price for that period is finally determined. Any
adjustment to such provisional Market Price and payment, if necessary, shall be
made within thirty (30) Days after the applicable Market Price is finally
determined.
8.1.4. If PETROVIETNAM does not
accept a Contractor Party’s Market Price valuations of Crude Oil under Article
8.1.1. and PETROVIETNAM and such Contractor Party cannot reach agreement on
such valuations within forty-five (45) Days of receipt of written notice by
PETROVIETNAM of such Contractor Party's valuations, the matter shall be
referred to an Expert hereunder for resolution. The Expert shall make the
determination in accordance with the principles contained in Article 8.1.1. The
Expert shall make the determination in accordance with the principles contained
in Article 8.1.1.
8.1.5. Each Contractor Party shall
promptly advise PETROVIETNAM in writing in accordance with the Accounting
Procedure of full details of all sales of Crude Oil lifted in accordance with
the Oil Lifting Agreement.
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8.2.1. The price of Natural Gas
shall be determined on the basis of an agreed price between the seller and
purchaser (including but not limited to the price of condensate created from
the gas), consistent with the law of Vietnam, taking into account the time of
price calculation, the market, quality, quantity of gas and other relevant
factors.
8.2.2. Associated Gas shall be
valued in accordance with provisions of laws and customs of Vietnam.
Article 8.3. Measurement of
Petroleum
8.3.1. For all measurement of
Petroleum required for the purposes of this Contract, the CONTRACTOR shall
employ appropriate methods and equipment in accordance with Generally Accepted
International Petroleum Industry Practice. The Government and PETROVIETNAM may
appoint a permanent representative who shall have the right to observe such
measurements and to examine and test, at their sole risk and expense, whatever
equipment may be used therefor. Such representative shall comply with all
necessary and usual safeguards for the prevention of fire and other accidents
and shall make all examinations and tests at such times and in such manners as
will cause the minimum interference with the Petroleum Operations.
8.3.2. If upon examination or
testing, any equipment shall be found to be out of order, the CONTRACTOR shall
cause the same to be put in order within a reasonable time, and if upon such
examination or testing, any error discovered in any such equipment, shall be
deemed to have existed for a period of seven (7) Days prior to the discovery
thereof, or since the date of the last examination or testing of such
equipment, whichever period is shorter, and all consequential adjustments shall
be made to any payments or deliveries of Petroleum affected by such error.
8.3.3. If any measuring equipment
needs to be adjusted, repaired or replaced, then the CONTRACTOR shall give
prior reasonable notice in writing to the authorized persons representing
PETROVIETNAM and the Government to be present during such adjustment, repair or
replacement.
Article 8.4. Production
Schedules
8.4.1. The annual Production
Schedule submitted to the Management Committee for adoption and to PETROVIETNAM
for final approval shall comprise but not be limited to: the CONTRACTOR's
estimated Production Schedule showing the expected production, expressed in
Barrels per Day or Cubic Meters per Day, the production and grade of Petroleum
of each type during the relevant Year in accordance with the maximum efficient
rate for production of each Commercial Discovery determined in the Development
Plan and in accordance with General Accepted International Petroleum Industry
Practices.
8.4.2. The CONTRACTOR shall use
reasonable efforts to ensure that the quantity and level of each grade of
Petroleum in any Year shall approximate, as closely as possible, to the
quantities set for such period in the approved Production Schedule referred to
in Article 8.4.1.
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a) Net Oil Production and Net Gas
Production during the ensuing Quarter, expressed in Barrels per Day or Cubic
Meters per Day and level of each grade pursuant to the adopted Work Program and
Budget and approved Production Schedule; and
b) Estimate of the quantity, grades
and rates of Net Oil Production and Net Gas Production which will be available
for lifting and/or sale from the Contract Area, including Royalty Oil, Cost
Recovery Oil, Profit Oil and Royalty Gas, Cost Recovery Gas and Profit Gas.
Article 8.5. Oil Lifting and
Gas Consumption
8.5.1. Principles for Oil Lifting
and Gas Consumption
a) Pursuant to the method of
allocation specified in Chapter VI, PETROVIETNAM, each Contractor Party and the
Government (if the Government elects to take and lift Royalty Oil in kind)
shall have the right to lift an aggregate amount of Crude Oil for every cargo
lifted by it consisting of:
(i) in the case of PETROVIETNAM and
each Contractor Party, Royalty Oil (if applicable), Cost Recovery Oil (if
applicable) and Profit Oil;
(ii) in the case of the Government,
Royalty Oil if taken in kind.
b) Each Party's entitlement in the
sale of Natural Gas allocated in accordance with Article 6.2 shall be delivered
in accordance with the Gas Purchase and Sale Agreement;
c) The Parties' nomination of Crude
Oil shall be adjusted at the end of each Quarter by increasing the nomination
of an Underlifter at the commencement of the next Quarter by the amount of its underlifting
at the end of the previous Quarter and decreasing the nomination of an
Overlifter at the commencement of the next Quarter by the amount of the
overlifting at the end of the previous Quarter in accordance with the Oil
Lifting Agreement.
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d) Each lifting of Crude Oil shall
be deemed to take place at the Bill of Lading Date as defined in Article
8.1.1.(e)(ii).
8.5.2. Within twenty one (21) Days
after the end of each Quarter, the Operator shall prepare and furnish to
PETROVIETNAM and the Contractor Parties a report setting out the amount, type
and grade of Crude Oil or volume of Natural Gas produced from the Contract
Area, the entitlements of each Contractor Party and PETROVIETNAM, the liftings
made by the Parties by reference to the relevant Bill of Lading Date as defined
in Article 8.1.1.(e)(ii) or volume of Natural Gas produced, which are delivered
from the Contract Area to each Contractor Party and PETROVIETNAM, and the
resulting overlift or underlift position of each Contractor Party and PETROVIETNAM
at the commencement and at the end of the Quarter.
8.5.3. The Management Committee
shall review and adopt a Oil Lifting Agreement and/or Purchase and Sale
Agreement for Natural Gas or Coal Gas (if applicable) as the case may be, but
in all cases the agreements must be adopted no later than ninety (90) Days for
Crude Oil or one hundred and eighty (180) Days for Natural Gas and Coal Gas
prior to the date of commissioning the field or mine for operation as proposed
in the approved Development Plan.
The Oil Lifting Agreement shall be
purposed to avoid interruption to the production of Petroleum and to the
desirability of each tankship sailing from the loading facilities with an
optimum standard cargo range as determined by the Operator of Crude Oil in a
timely manner in order to avoid production curtailments due to constraints on
Crude Oil storage and minimize demurrage incurred. The Oil Lifting Agreement
shall provide for matters such as tanker scheduling, terminaling, nominations,
procedures and a detailed method for balancing out any final overlift/underlift
positions which may occur consistent with the terms of this Article 8.5.
8.5.4. Basic contents of the Oil
Lifting Agreement or Natural Gas Purchase and Sale Agreement
a) The Oil Lifting Agreement or
Natural Gas Purchase and Sale Agreement shall also provide that:
(i) the Operator shall be the
coordinator for lifting oil and selling/consuming gas;
(ii) the Operator shall establish
minimum operational safety and environmental standards for lifting oil or selling/consuming
gas in accordance with the Generally Accepted International Petroleum Industry
Practices;
(iii) PETROVIETNAM and each
Contractor Party and the Government (if the Government elects to take and lift
Royalty Oil in kind) shall be entitled and obliged to take and receive at the
Point of Delivery and separately or jointly dispose of its/their share of Crude
Oil in kind;
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(v) expenses in relation to the
sales of Crude Oil shall be borne by Contractor Parties or Parties, as the case
may be, and shall not be recoverable.
b) When necessary and upon request
by any Party, the Management Committee shall review, revise and supplement the
provisions of the Oil Lifting Agreement or Gas Purchase and Sale Agreement.
Chapter 9.
BONUSES
AND DATA FEE
Article 9.1. The CONTRACTOR
shall pay to PETROVIETNAM a sum of money being a signature bonus of [……….] US
Dollar (… USD) within thirty (30) Days after the Effective Date of this
Contract. [In accordance with the bidding results with respect to the
fundamental economic – technical - commercial conditions approved by the Prime
Minister]
Article 9.2. The CONTRACTOR
shall pay to PETROVIETNAM the sum of […………] US Dollar (… USD) within thirty
(30) Days after the date on which the CONTRACTOR declares the first Commercial
Discovery in the Contract Area. [In accordance with the bidding results with
respect to the fundamental economic – technical - commercial conditions
approved by the Prime Minister]
Article 9.3. The CONTRACTOR
shall pay to PETROVIETNAM the sum of […………] US Dollar (… USD) within thirty
(30) Days from the First Production Date in the Contract Area. [In
accordance with the bidding results with respect to the fundamental economic –
technical - commercial conditions approved by the Prime Minister]
Article 9.4. The CONTRACTOR
shall pay to PETROVIETNAM a lump sum amount of bonus for the various levels of
increased production (if applicable) within thirty (30) Days after daily
production from the Contract Area initially reaches the average level in the
equivalent production levels set out in the following table after a consecutive
period of thirty (30) Days applicable respectively to Crude Oil and Natural
Gas: [In accordance with the bidding results with respect to the
fundamental economic – technical - commercial conditions approved by the Prime
Minister]
a) Applicable to Crude Oil:
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(in
Barrels per actual day of production)
Bonus
b) Applicable to Natural Gas/Coal
Gas:
Daily
average of Net Gas Production per Quarter in Contract Area
(in
million m3 per actual day of production)
Bonus
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Article 9.5. Data fee (if
applicable): The CONTRACTOR shall pay data fee to PETROVIETNAM in a sum of
[……………] US Dollar (… USD) for access to all data and information relating to
the Contract Area and held by PETROVIETNAM and shall have the right to use such
data and information during the term of this Contract provided that ownership
of such data remains vested in PETROVIETNAM. [In accordance with the bidding
results with respect to the fundamental economic – technical - commercial
conditions approved by the Prime Minister]
Article 9.6. The amounts
paid to PETROVIETNAM in accordance with the provisions from Article 9.1 to
Article 9.5 shall not be recoverable costs, and shall not be tax deductible for
the purpose of corporate income tax assessment.
Chapter 10.
TRAINING,
EMPLOYMENT AND SERVICES
Article 10.1. Training
10.1.1. The CONTRACTOR shall commit
to pay PETROVIETNAM the amount of [...] US Dollar (... USD) per Contract Year
prior to the first Commercial Discovery and the amount of [...] US Dollar (...
USD) per Contract Year thereafter for the purpose of training PETROVIETNAM’s
managerial staff and personnel. [In accordance with the bidding results
with respect to the fundamental economic – technical - commercial conditions
approved by the Prime Minister]
10.1.2. Payment of the training
expenditure shall be made by the CONTRACTOR to training institutions agreed by
the Parties or designated by PETROVIETNAM. Upon request of PETROVIETNAM, the
CONTRACTOR shall pay PETROVIETNAM or shall carry forward to the next Contract
Year any remaining balance of the annual training expenditure commitment. Any
training expenditure in a Contract Year in excess of the amount set forth in
Article 10.1.1. shall be carried forward to and shall be deducted from the
commitment defined in Article 10.1.1. for the following Contract Year(s).
10.1.3. The CONTRACTOR shall commit
to pay PETROVIETNAM an amount of money equivalent to [……..] per cent (... %) of
the annual Petroleum Operation Costs from the first oil/gas production point of
time or the amount of [...] US Dollars (USD …) for each Contract Year for the
Petroleum Scientific Research and Technology Development Fund. [In
accordance with the bidding results with respect to the fundamental economic –
technical - commercial conditions approved by the Prime Minister]
10.1.4. The items payable to
PETROVIETNAM pursuant to Articles 10.1.1. and 10.1.3. above shall not be deemed
as recoverable Petroleum Operation Costs and shall not be tax deductible for
the purpose of corporate income tax assessment.
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10.2.1. In the annual Work Program
and Budget, the CONTRACTOR shall prepare an employment program including but
not limited to recruitment of local employees, training for Vietnamese
personnel, schedule and rates of replacing foreign employees by local
employees.
The CONTRACTOR must implement the
staff recruitment plan in accordance with the approved plan.
10.2.2. The CONTRACTOR shall make
priority use of services of Vietnamese companies in the conduct of Petroleum
Operations on the principle that such services are competitive in terms of
price, quality, schedule and availability.
Chapter 11.
ACCOUNTING
AND AUDITS
Article 11.1. Accounting
11.1.1. The CONTRACTOR, through the
Operator, shall comply with the Vietnamese Accounting Standards and Vietnamese
rules and regulations on accounting.
11.1.2 The CONTRACTOR, through the
Operator, shall record all petroleum operations costs as well as revenues
received from the sale of crude oil or natural gas in accordance with
Vietnamese Accounting Standards and Vietnamese rules and regulations on
accounting.
Article 11.2. Audits
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11.2.2.
a) PETROVIETNAM has the right at
any time, on condition that PETROVIETNAM bears the costs and at its own risk,
to provide at least thirty (30) Days in advance a written notice to the
CONTRACTOR in order to access and audit the books and take copies of original
data and source vouchers of the CONTRACTOR by their internal auditors or third
party auditors; provided, however, that such an audit shall not be conducted
more than once a Year. Such audit must be completed within twelve (12) months
of such request;
b) Any expenses in the Financial
Statements which are not accepted by the auditors of PETROVIETNAM at the time
of auditing will be provided in writing (audit conclusion) within sixty (60)
Days after the audit completion with specified reasons;
If the audit conclusion is not
issued within such sixty (60) Days, the books and Financial Statements of the
CONTRACTOR shall be deemed to be correct for all purposes;
c) If the CONTRACTOR does not
provide objections to the items in the audit conclusion within sixty (60) Days
from the date of its receipt, then the audit conclusion of PETROVIETNAM shall
be final and binding on the Parties. If within the sixty (60) Day time-limit
referred to above, the CONTRACTOR does provide objections, then PETROVIETNAM
and the CONTRACTOR shall attempt to amicably settle the matter and reach an
agreement. If within one hundred and eighty (180) Days from the date of
receipt of the written objections referred to above, the Parties fail to reach
an agreement, then such dispute shall be resolved by arbitration pursuant to
Article 15.1;
d) In order to avoid any
misunderstanding, any expenses excluded by PETROVIETNAM or pending in the audit
conclusion shall be non-recoverable until the disputes are settled in
accordance with Article 11.2.2(c).
Chapter 12.
PARTICIPATION
OF PETROVIETNAM AND ASSIGNMENT
Article 12.1. Participation
of PETROVIETNAM
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If PETROVIETNAM exercises its
option, then PETROVIETNAM or its Affiliate as the case may be and the Parties
shall conduct the necessary procedures in order to amend the Investment
Certificate and the Contractor Parties shall consider (accordingly) and adopt a
Joint Operating Agreement.
12.1.2. PETROVIETNAM or its
Affiliate’s share of all expenditure corresponding to the participation of
PETROVIETNAM or its Affiliate, incurred by the CONTRACTOR during performance of
this Contract from the Effective Date up to the Commencement Date shall be
borne by the CONTRACTOR. If PETROVIETNAM gives the notice of intention to
participate referred to in Article 12.1..1., the CONTRACTOR shall be reimbursed
of all such expenditure paid in advance in accordance with the following
provisions:
a) As to PETROVIETNAM or its
Affiliate’s share of all expenditure to be borne by the CONTRACTOR under this
Contract (excluding the bonuses and data fee paid under Chapter IX and the
training costs and costs for establishing the scientific research fund under
Chapter X) from the Effective Date up to the Commencement Date, the CONTRACTOR
has the right to take [#] per cent (… %) of the share of expenditure of
PETROVIETNAM or its Affiliate in Cost Recovery Oil and/or Cost Recovery Gas
belonging to the CONTRACTOR until the CONTRACTOR has fully recovered without
interest the above share of expenditure;
b) As to PETROVIETNAM or its
Affiliate’s share of all expenditure to be borne by the CONTRACTOR under this
Contract (excluding the bonuses and data fee paid under Chapter IX and the
training costs and costs for establishing the scientific research fund under
Chapter X) from the Commencement Date up to and including the date of
PETROVIETNAM's notice of intention to participate, PETROVIETNAM or its
Affiliate as the case may be shall make a lump sum payment to the Operator of
all the above expenditure within thirty (30) Days of the date on which the
Operator on behalf of the CONTRACTOR sends a request for payment of money;
c) As to PETROVIETNAM or its
Affiliate’s share of all expenditure to be borne by the CONTRACTOR under this
Contract (excluding the bonuses and data fee paid under Chapter IX and the
training costs and costs for establishing the scientific research fund under
Chapter X) after the date of PETROVIETNAM's notice of intention to participate,
PETROVIETNAM or its Affiliate shall make payment therefor, on a current cash
call basis, in accordance with the provisions of the Joint Operating Agreement;
d) The Parties undertake that
PETROVIETNAM shall have no financial obligations under the provisions of this
Chapter if there is no declaration of Commercial Discovery in the Contract
Area.
12.1.3. In case PETROVIETNAM’s
Affiliate participates in the consortium of contractors from the execution of
the Contract, other CONTRACTOR in such consortium shall be responsible to bear
the capital burden for PETROVIETNAM’s Affiliate. Portion and method of capital
burden bearing as well as methods of cost recovery relating to the capital
burden bearing will be agreed by the Parties in the Contract.
Article 12.2. Assignment
12.2.1. Each Contractor Party shall
have the right to sell, assign, transfer, convey or otherwise dispose of all or
any part of its rights, interests and obligations under this Contract to any of
its Affiliates with a written notice to PETROVIETNAM. The above sale,
transfer, conveyance or other disposal shall require approval by the Prime
Minister and shall take effect in accordance with the amended Investment
Certificate.
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12.2.3. In accordance with Articles
12.2.1. and 12.2.2, the potential Assignee must:
a) have adequate technical and
financial capability in order to discharge its obligations pursuant to this
Contract;
b) agree to and comply with the
Participating Interest which is assigned and with all clauses and provisions of
this Contract; and
c) at the request of and subject to
the consent from PETROVIETNAM, provide PETROVIETNAM with a guarantee from the
parent company or credit institutions corresponding with the Participating
Interest of the assignee.
12.2.4. For the purpose of Article
12.2., change in ownership or change in control of a Contractor Party (except
for cases of restructuring, internal financial arrangement of such Contractor
Party or consolidation of the Contractor Party’s parent company) will be
considered as assignment under this Contract.
Chapter 13.
PAYMENTS,
CURRENCY AND EXCHANGE
Article 13.1. Payments
13.1.1. In accordance with
applicable foreign exchange regulations of Vietnam, any payments due from one
Party to another, or from a Contractor Party to the Operator, under this
Contract shall be made in US Dollar or such other freely convertible currency
or currencies as may be acceptable from time to time to the recipient Party or
the Operator, at a bank and bank account to be designated by such recipient
Party or the Operator.
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13.1.2. Except where otherwise
provided in this Contract or in the Accounting Procedures, any payments
required to be made pursuant to this Contract shall be made within thirty (30)
Days following the end of the month in which the obligation to make such
payment occurs.
Article 13.2. Currency and
exchange
13.2.1. The CONTRACTOR and the
Operator shall, under the terms of this Contract and in accordance with the
applicable Vietnamese foreign exchange regulations, have the following rights:
a) to make any payments, to
maintain and operate bank accounts in any currency within Vietnam and to freely
convert any of their funds into the currency of Vietnam or any other available
foreign currency at the rate of exchange of a Commercial Bank in which the
exchange transactions are to be made and to freely retain or dispose of any
funds and currencies currently held by the CONTRACTOR and Operator;
b) to make any payments, to
maintain and operate bank accounts in any foreign currency outside Vietnam and
to freely retain, convert or dispose of any funds held by them, provided that
in the case of opening bank accounts in foreign currency outside Vietnam the
CONTRACTOR must register with the State Bank of Vietnam;
c) to freely remit out of Vietnam
their income in foreign currencies from the sale of Petroleum belonging to
their cost recovery, profit and other allowable [lawful] income received in the
course of Petroleum Operations on condition that the CONTRACTOR fully
discharges financial obligations in accordance with the law of Vietnam;
d) to freely exchange such foreign
currencies referred to in Article 13.2.1.(c) into other currencies;
e) to freely maintain and operate
accounts in its books or records; and
f) to freely retain abroad or dispose
of such funds arising from or related to this Contract in Vietnam on condition
that the CONTRACTOR fully discharges financial obligations in accordance with
the law of Vietnam.
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13.2.3. In respect of all other
matters relating to foreign exchange and the remittance of funds abroad arising
in any way out of their connection with this Contract, the CONTRACTOR and the
Operator (and their expatriate employees) and sub-contractors (and their
expatriate employees) shall be entitled to receive treatment no less favourable
to them than that normally accorded to any other foreign company or person doing
business in Vietnam.
Chapter 14.
TITLE
TO ASSETS, LEASED ASSETS AND ABANDONMENT
Article 14.1. Ownership of
Assets
14.1.1. Subject to Article 14.3,
title to assets of the CONTRACTOR used for Petroleum Operations in the Contract
Area and charged to Petroleum Operation Costs shall be transferred
automatically to PETROVIETNAM when the total cost of such assets has been fully
recovered by the CONTRACTOR under Articles 6.1.2. and 6.2.2. or at the
termination date of the Contract, whichever is the earlier. Notwithstanding
the above provisions, the CONTRACTOR has the exclusive right to use free of
charge the above assets so long as they are needed for the Petroleum Operations
under the Contract.
Regarding assets jointly used for a
number of petroleum contracts, when this Contract terminates then such assets
shall be dealt with in accordance with guidelines of PETROVIETNAM consistent
with Article 5.2.1.(e).
14.1.2. The CONTRACTOR shall
transfer any of such costs recovered assets which are no longer needed for
Petroleum Operations to PETROVIETNAM and if PETROVIETNAM does not want such
transferred assets, the CONTRACTOR may dispose of them on behalf of
PETROVIETNAM. All net proceeds from the sale or other disposal of these assets
will be paid to PETROVIETNAM in accordance with Vietnamese laws.
14.1.3. The CONTRACTOR may dispose
of any assets which have not been fully cost recovered but which are no longer
needed for Petroleum Operations, subject to PETROVIETNAM’s approval. All net
proceeds from the disposal of these assets will be credited to Petroleum
Operation Costs.
Article 14.2. Leased Assets
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14.2.2. The CONTRACTOR, Operator or
sub-contractors and any other person performing services for the CONTRACTOR or
Operator shall retain control of, and freely import and re-export all leased
assets used for Petroleum Operations under this Contract.
14.2.3. Rental payments incurred by
the CONTRACTOR or Operator for assets used in Petroleum Operations shall be
regarded as Petroleum Operation Costs.
Article 14.3. Abandonment
14.3.1 Any artificial islands,
installations, structures, facilities or wells constructed or drilled by the
CONTRACTOR for the purposes of this Contract must be abandoned during the term
of the Contract or upon termination of the Contract as provided in Chapter XVI,
the CONTRACTOR shall, upon written request from PETROVIETNAM, carry out the
abandonment of such islands, installations, structures, facilities or wells,
whether by way of plugging, demolition, removal, dismantling, conversion,
placement on temporary or permanent care and maintenance or other bases in
accordance with relevant regulations of Vietnam and in conformity with
Generally Accepted International Petroleum Industry Practices.
14.3.2 CONTRACTOR shall, no later
than nine (09) months from the First Production Date in respect of each oil
field or gas field, submit to the Management Committee an Abandonment Plan
which shall be carried out upon completion of production of the relevant oil
field or gas field for approval. The Management Committee shall review the
Abandonment Plan prepared and submitted by the CONTRACTOR as regulated
hereunder. Subject to any amendments made in accordance with Generally
Accepted International Petroleum Industry Practices, the Management Committee
shall adopt such Abandonment Plan within thirty (30) Days of the submission by
the CONTRACTOR. The Abandonment Plan shall include, but not limited to, the
primary provisions as follows:
a) Introduction to the Abandonment
Plan for fixed installations, equipment and facilities;
b) Summary of contents of the
Abandonment Plan for fixed installations, equipment and facilities; and
solutions for implementing the same;
c) List of the various
installations, equipment and facilities which need to be abandoned;
d) Detailed description of the
items of works required to be done;
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e) Items on environmental safety
and protection;
g) Abandonment of pipelines;
h) Disposal of rubbish;
k) Total abandonment expenses;
l) Schedule for implementation;
m) Project management and
inspection regime;
n) Results of support study.
No later than eleven (11) months
since the First Production Date, the Abandonment Plan as adopted by the Management
Committee shall be sent to PETROVIETNAM for review and submission to Ministry
of Industry and Trade for assessment and approval.
14.3.3 Notwithstanding approval of
the Abandonment Plan, no later than twelve (12) months from the First
Production Date, the CONTRACTOR, via the Operator, must temporarily establish a
fund ensuring financial obligations for Abandonment Operations in accordance
with the plan on fields abandonment within the approved field/fields
Development Plan. Establishment of such fund shall be amended or supplemented
in accordance with the approved Abandonment Plan and in accordance with
relevant regulations of the law of Vietnam. All expenses incurred and borne by
the CONTRACTOR for Abandonment Operations in accordance with the approved
Abandonment Plan shall be Petroleum Operation Costs for the purpose of cost
recovery.
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ARBITRATION,
SOVEREIGN IMMUNITY AND EXPERT DETERMINATION
Article 15.1 Arbitration
15.1.1. The Parties shall endeavour
to settle, through negotiations, differences and disputes related to or arising
under this Contract.
15.1.2. Except with respect to
disputes referred to an Expert as provided in Article 15.3 below, in the event
such differences or disputes cannot be settled through negotiations by the Parties
within ninety (90) Days of any Party's issuance of notice of a dispute, such
differences or disputes shall be decided by an arbitration tribunal. The
Parties on either side of the dispute shall each appoint an arbitrator. The
two arbitrators so appointed shall appoint a third arbitrator by mutual
agreement who shall act as chairman of the tribunal. In the event the two
Party-appointed arbitrators cannot agree to the appointment of a third
arbitrator within thirty (30) Days of the appointment of the second of the
appointed arbitrators, then the chairman of the tribunal shall be appointed by
the Vietnam/ International Arbitration Centre […] (depending on the
agreement). The arbitration shall be conducted in [...] (English or
Vietnamese) in accordance with the Rules of Arbitration of [ .... ](depending
on the agreement). The place of arbitration shall be in [……] Any award of the
arbitration tribunal shall be final and binding on the Parties.
The arbitration costs relating to
settlement of the dispute among the Parties to the Contract shall be borne by
the Party which failed in the tribunal.
The arbitration costs relating to
settlement of the dispute between the Parties to the Contract and a third party
shall be included as recoverable Petroleum Operation Cost.
Article 15.2. Sovereign
Immunity
The Parties hereby agree that all
of the transactions contemplated by this Contract shall constitute commercial
activities. To the extent that a Party may be entitled in any jurisdiction
whatsoever to claim for itself or any of its agencies, instrumentalities,
properties or assets, immunity, whether characterized as sovereign or
otherwise, or as arising from an act of state or sovereignty, from suit,
execution, counter-claim, attachment or other legal process of any nature
whatsoever, it hereby expressly and irrevocably waives such immunity and hereby
agrees not to claim or permit to be claimed on its behalf or on behalf of any
of its agencies or affiliates any such immunity. Without limiting the
generality of the foregoing, each of the Parties hereby expressly waives any
right to claim immunity under the law of Vietnam or in any other jurisdiction
in the world.
Article 15.3. Expert
Determination
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Chapter 16.
TERMINATION
AND DEFAULT
Article 16.1. Termination
16.1.1. Without prejudice to the
provisions of Article 16.2, the CONTRACTOR may, if there are circumstances that
do not warrant continuation of the Petroleum Operations and after consultation
with PETROVIETNAM, at any time, give a ninety (90) Day prior written notice to
PETROVIETNAM regarding the intention to relinquish its rights and be relieved
of its obligations pursuant to this Contract, except such rights and
outstanding obligations as have accrued in the period prior to such relinquishment
as well as other continuing rights and obligations as may be contemplated under
this Contract.
If the CONTRACTOR requests
termination of the Contract in accordance with provisions of this Contract, the
CONTRACTOR must fully discharge the obligations and responsibilities in
accordance with this Contract and the Petroleum Law. Termination of this
Contract shall be effective on the day recorded in the decision on termination
of the Contract issued by the Ministry of Industry and Trade.
16.1.2. Without prejudice to the
provisions of Article 16.2 hereunder, PETROVIETNAM has the right to terminate
the Contract by a ninety (90) Day prior written notice to the CONTRACTOR
without any compensation for CONTRACTOR’s loss in the following cases:
a) If the CONTRACTOR fails to
conduct Development Operations in accordance with the approved Development Plan
within twelve (12) months from the date of such approval or ceases the
Development Operations in accordance with the approved schedule recorded in the
Development Plan within six (6) consecutive months, unless such cessation is
caused by (i) a Force Majeure stipulated in Chapter XIX, (ii) decision of the
competent authorities; or (iii) approval from PETROVIETNAM;
b) If the CONTRACTOR commences
exploiting a field twelve (12) months later than the approved schedule or
ceases the Production Operations within three (3) consecutive months, except
for cessation (i) with a prior approval from PETROVIETNAM; (ii) pursuant to a
decision of the competent authorities; (iii) for reasons of Force Majeure;
c) If one Contractor Party goes
bankrupt, becomes insolvent or is dissolved, on condition that the
aforementioned notice is only effective if the remaining Contractor Parties are
unable to bear the rights and obligations of such insolvent or dissolved Party
under this Contract and the Contractor Parties must notify such decision to
PETROVIETNAM within the aforementioned ninety (90) Day period.
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Article 16.2. Default
16.2.1. Where either Party (the
“Defaulting Party”) is in material breach of any of its obligations under this
Contract, the other Party (the “Non-Defaulting Party”) may give notice to the
Defaulting Party requiring the Defaulting Party to remedy such breach. Where
the Defaulting Party fails to remedy such breach or to commence and diligently
pursue the remedy of such breach within thirty (30) Days of the date on which
the notice of breach is delivered by the Non-Defaulting Party and the
Defaulting Party received such notice, the Non-Defaulting Party may, at any
time after the expiration of the aforesaid thirty (30) Day period, terminate
this Contract by a notice of termination delivered to the Defaulting Party. If
a dispute arises between the Parties as to whether a Party is in material
breach of any of its obligations under this Contract or whether a Party is
entitled to terminate this Contract pursuant to the provisions of this Article,
either Party may require that the dispute be submitted for arbitration pursuant
to Article 15.1 of this Contract.
16.2.2. For the purposes of Article
16.2.1., a Party shall be deemed to be in material breach under this Contract
on the occurrence of any of the following circumstances:
a) Failure to perform, in
accordance with the provisions of this Contract, any capital call or other
payment within thirty (30) Days from the due date of such payments;
b) Failure to perform or comply
with any significant obligation which must be discharged and failure to comply
with this Contract, where such failure or non-compliance seriously impacts on
the implementation or economic, commercial objectives of this Contract, if such
failure to perform still remains not to be remedied within thirty (30) Days of
receipt of a notice from the Non-Defaulting Party. However, on condition that
such failure to perform can be remedied (as decided by the Non-Defaulting
Party) but not within such thirty (30) Day period, then it shall not be deemed
to be a material breach if the Defaulting Party speedily commences and
carefully takes action to complete the remedy of such breach and completes such
remedy within ninety (90) Days of the aforesaid notice.
Chapter 17.
DOMESTIC
CONSUMPTION
Article 17.1. Crude Oil
produced from the Contract Area must be prioritized for sale on the Vietnamese
market at the request of the Government on the basis of the approved annual
production plan. The CONTRACTOR and PETROVIETNAM will consult with each other
regarding the annual plan on purchase of Crude Oil.
In emergency cases, at the request
of the Vietnamese Government, PETROVIETNAM may require the CONTRACTOR by a
written notice given thirty (30) Days in advance to sell Crude Oil to
PETROVIETNAM for an amount exceeding the agreed plan. Such Petroleum shall be
supplied from the portion of Net Oil Production to which the CONTRACTOR is
entitled to own under this Contract.
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Article 17.3. Upon request
of the Vietnamese Government, the CONTRACTOR has the obligation to sell the
portion of Natural Gas which it owns on the Vietnamese market on the basis of
agreements in projects for development and production of gas.
Chapter 18.
STABILIZATION
AND UNITIZATION
Article 18.1. Stabilization
18.1.1. The Parties base their
relations hereunder on the principles of mutual goodwill, good faith and mutual
benefit and respect for the investment guarantees and other rights accorded to
investors in accordance with Vietnamese law.
18.1.2. The Government and
PETROVIETNAM shall take all steps necessary to ensure that during the term of
this Contract all rights and obligations regarding tax stipulated in Articles
7.2, 7.3 and 7.4 shall be applicable to each of the Contractor Parties.
18.1.3. If after the Effective
Date, existing laws are amended or annulled or new laws and regulation(s) are
introduced in Vietnam, or there is application of changes of regulations of a
law; or a licence is cancelled, or the conditions therefore are revised
adversely affecting the rights and obligations regarding tax stipulated in
Articles 7.2, 7.3 and 7.4, then immediately upon notice from the CONTRACTOR,
the Parties shall consult with each other and make such changes to this
Contract as are necessary both to maintain the CONTRACTOR’s rights, benefits
and interests hereunder, including the CONTRACTOR’s share of Profit Oil or
Profit Gas, as at the Effective Date and to ensure that any revenue or income
or profit, including any one or more of the foregoing, derived or to be derived
to the CONTRACTOR under this Contract, will not in any way be diminished in
comparison to that which was originally contemplated as a result of such
changes of law or annulment thereof or as a result of such changes,
cancellation of approvals or licenses.
Article 18.2. Unitization
18.2.1. If any proven accumulation
of Petroleum extends beyond the Contract Area into one or more adjacent areas
held by one or more contractors, PETROVIETNAM and the CONTRACTOR and other
relevant contractors in the adjacent areas must reach agreement on the most
efficient approach for jointly appraising the accumulation and agree on
possible joint development, production, storage, transportation of Petroleum
from such accumulation and on the manner in which the costs and revenue
deriving therefrom shall be equitably apportioned. Depending on each case but
no later than eighteen (18) months from the date of the appraisal report on
overall in place Petroleum Reserves of the Discovery as approved by the Prime
Minister in accordance with the methods and procedures stipulated mutatis
mutandis in Article 4.2 of this Contract, the CONTRACTOR shall receive the
adopting document for such agreement(s) from PETROVIETNAM and submit the same
to the Prime Minister for approval in accordance with applicable regulations.
The unitized areas shall be regulated by the corresponding contract and the
unitization agreement.
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18.2.3. If any proven accumulation
of Petroleum extends beyond the Contract Area into another adjacent area that
is at that time not subject to any agreements executed between PETROVIETNAM and
a third party, and is considered "open", then the CONTRACTOR shall be
entitled to define, with seismic data and other possible technical solutions
available at that time and approved by PETROVIETNAM, the limits of such
accumulation. The CONTRACTOR and PETROVIETNAM shall endeavour to reach a
supplementary agreement to the boundary of the Contract Area to include all of
the newly discovered accumulation and any such agreement must be considered and
approved by the Prime Minister. The aforementioned modification shall be
limited to the specific area defined as the vertical and horizontal productive
limits of the newly discovered accumulation or field.
Chapter 19.
FORCE
MAJEURE
Article 19.1. Events of
Force Majeure
None of the Parties shall be liable
to any other Parties for delay or failure to perform caused by an event of
Force Majeure to the extent such delay or failure was not attributable to the
fault or negligence of the Party seeking protection under this Chapter XIX. As
used herein, an event of Force Majeure shall mean an event which is objective
and unforeseeable beyond the reasonable control of the Parties and unavoidable,
including but not limited to, natural disasters such as fire, explosion, flood
or earthquake, and other events such as war, blockade or embargo, occupation,
civil war, civil disturbance, sabotage or other civil disorder, strike or other
labour disturbances, or any applicable law which is proclaimed and issued and
which has the effect of disrupting, obstructing or preventing the performance
of Petroleum Operations. For avoidance of misunderstanding, lack of funds
shall not constitute Force Majeure.
Article 19.2. Effect and
Notice
19.2.1. Should an event of Force
Majeure occur and prevent any Party from the timely performance of its
obligations hereunder, but excluding any financial shortage, the Party whose
performance is affected shall be excused from such performance until the
cessation of the event of Force Majeure in question.
19.2.2. The Party claiming an event
of Force Majeure is obliged to immediately notify the other Parties in writing
regarding the existence of an event of Force Majeure. The notification given
hereunder shall contain information regarding the nature of the circumstances
and, to the extent possible, an estimation of how the Party's performance will
be affected as well as an estimate as to when the Party's performance under the
Contract will be resumed.
19.2.3. Upon the occurrence of an
event of Force Majeure, the time of fulfillment of the related obligations
under this Contract shall be postponed for the duration of such circumstances
and the period of restoration of such event of Force Majeure.
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19.2.5. Upon the cessation of the
event of Force Majeure, the Party affected shall promptly notify the other
Parties in writing. Such notification shall state the time deemed necessary for
the fulfillment of obligations under this Contract. Should the Party affected
fails to make or unduly delay making such notification, such Party shall
compensate any losses suffered by the other Parties as a direct result of such
failed or delayed notification.
Chapter 20.
OTHER
PROVISIONS
Article 20.1. Notices
Any notice required or given by any
Party, to the others, shall be deemed to have been validly served when
delivered personally, or sent by recognized courier service or fax to the
following addresses:
To: VIETNAM OIL AND GAS GROUP
18 Lang Ha, Ba Dinh District, Hanoi
The Socialist Republic of Vietnam
Attention: General Director
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Fax: 84-4-38 265942
To: CONTRACTOR
Address:
Attention:
Telephone:
Fax:
Any Party may substitute or change
such address by a prior written notice thereof to the other Parties.
Article 20.2. Applicable Law
This Contract shall be construed
and governed by the legislation of the Socialist Republic of Vietnam. In the
absence of a specific Vietnamese law governing any matter that may be raised,
the relevant provisions of foreign legislation (the Parties may agree and
specify in the Contract) or Generally Accepted International Petroleum Industry
Practices shall apply, provided that such provisions of foreign legislation and
Generally Accepted International Petroleum Industry Practices are not contrary
to fundamental principles of Vietnamese laws.
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Annually, the CONTRACTOR shall
propose to the Management Committee a program of insurance for Petroleum
Operations in compliance with Vietnamese laws and Generally Accepted
International Petroleum Industry Practices.
When adopted by the Management
Committee, the CONTRACTOR shall be responsible for obtaining and maintaining
such insurance, insurance from an insurer with insurance capability and
experience within the Petroleum sector and currently operating in Vietnam in
conformity with the Law on Insurance Business of Vietnam and international
treaties of which Vietnam is a member shall be prioritized.
The said insurance program and
terms in compliance with Vietnamese law and Generally Accepted International
Petroleum Industry Practices shall cover loss or damage to all wells, assets
and equipments used in Petroleum Operations, including but not limited to
pollution and third party’s liability.
Article 20.4. Operator
20.4.1. ………. [In accordance with
the bidding result approved by the Prime Minister] is the appointed and
accepted Operator in accordance with the clauses and conditions of this
Contract and the Joint Operating Agreement (if any). Appointment of any
successor Operator must comply with this Contract and the Joint Operating
Agreement (if any) and shall be subject to approval from PETROVIETNAM and
competent authorities of Vietnam.
20.4.2. The Operator shall be
appointed to represent the CONTRACTOR in fulfilling the tax obligations,
carrying out work and discharging obligations in accordance with this
Contract. The Parties may also make an additional confirmation that in
emergency circumstances or abnormal circumstances requiring immediate
operations then any Party may also take any action which it considers
appropriate or necessary in order to protect its interests and those of its
staff and immediately notify the same to the other Party and any expenses
arising in relation to that event shall be deemed to be Petroleum Operation
Costs for the purposes of cost recovery in accordance with Articles 6.1.2. and
6.2.2. and shall be subject to audit result stipulated in Article 11.2.
20.4.3 For the purpose of Petroleum
Operations in accordance with this Contract, the Operator shall establish an
operating office in Vietnam as specifically stipulated in the Investment
Certificate within ninety (90) Days or another period agreed by the Parties as
from the Effective Date. However, the Operator may also jointly use the office
of its Affiliate in Vietnam (if any). The expenses of the office shall be
correspondingly shared in accordance with principles approved by the Management
Committee.
20.4.4. If a Contractor Party
provides an official letter requesting withdrawal from this Contract (the
'Withdrawing Party'), then the remaining Contractor Parties will have the
pre-emptive right to receive the Participating Interest of such Withdrawing Party
and must ensure that there is no adverse impact on the committed obligations
stipulated in this Contract. No later than twelve (12) months from the date of
receipt of a notice from the Withdrawing Party, the concerned Parties must
complete all legal procedures to make a submission to the Prime Minister for
approval of such withdrawal and receipt. If the Contractor Parties are unable
to reach agreement on the relevant legal instruments within twelve (12) months
from the date on which the Withdrawing Party provides such official letter on
withdrawal, then the CONTRACTOR must report to PETROVIETNAM to resolve the
matter or to declare termination of the Contract. If the remaining Contractor
Parties do not wish to receive the Participating Interest of the Withdrawing
Party, PETROVIETNAM reserves the right to terminate this Contract with a notice
to the CONTRACTOR ninety (90) Days in advance without compensation for any loss
of the CONTRACTOR.
Article 20.5. Relationship
and Liabilities
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20.5.2. The CONTRACTOR shall be
liable to PETROVIETNAM or any third party for any loss or damage, including
environmental pollution, arising from Petroleum Operations caused by Willful
Misconduct, omission to act and negligence. Under no circumstances shall the
CONTRACTOR be liable for consequential losses or damage.
Article 20.6. Confidentiality
20.6.1. Except as otherwise
specified hereunder, this Contract and all information acquired or received by
any Party under this Contract shall be kept confidential.
20.6.2. Notwithstanding the
provisions of Article 20.6.1 above, the Parties may use any such Confidential
Information for the purpose of preparing and publishing any reports and returns
required by law.
20.6.3. PETROVIETNAM may publish
any information of a geological, scientific or technical nature which relates
to a surrendered area at any time after the surrender.
20.6.4. PETROVIETNAM may disclose
Confidential Information as is required by its financing institutions or
consultants without a prior written consent of the CONTRACTOR.
20.6.5. The CONTRACTOR shall not
disclose to third parties Confidential Information without the consent of
PETROVIETNAM, which consent shall not be unreasonably withheld except in the
following cases:
a) to such extent as may be
required to be disclosed to any authority having jurisdiction by law or by the
regulations of any securities exchange;
b) to its Affiliate, technical
consultants, any financing institution from which the CONTRACTOR is seeking
finance for the purposes of carrying out its obligations hereunder, and to a
potential assignee of an interest in this Contract, on condition that the
CONTRACTOR must obtain a confidentiality undertaking from the recipient prior
to disclosing such information and must provide such signed confidentiality
undertaking to PETROVIETNAM; and
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20.6.6. The foregoing provisions of
this Article 20.6 shall continue in force after termination of this Contract
for five (5) Years.
Article 20.7. Other
agreements (as negotiated).
Chapter 21.
IMPLEMENTATION
PROVISIONS
Article 21.1. Effectiveness
This Contract shall come into
effect on and as of the Effective Date.
Article 21.2. Entirety
This Contract constitutes the
entire agreement among the Parties with respect to the subject matter hereof.
No amendment or modification of this Contract shall be valid unless the
amendment or modification is made in writing and signed by the duly authorized
representatives of the Parties. No prior agreement involving the Parties shall
be considered incorporated herein unless specifically incorporated by
reference.
Article 21.3. Amendments and
Supplements
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Article 21.4. Conflict
In the event of a conflict between
the provisions of this Contract and its Exhibits, the provisions of this
Contract shall prevail.
Article 21.5. Waiver
No waiver of any breach of this
Contract by a Party shall be effective unless made in writing and signed by a
duly authorized representative of such Party. Any such waiver shall not affect
the rights of the Parties with respect to any other breach.
Article 21.6. Severance of
provisions
If any provision of this Contract
shall become invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity of the rest of this Contract. The rest of this
Contract shall remain in full force and effect as if such invalid or
unenforceable provision had not been made a part of this Contract.
Article 21.7. Publicity
The Parties shall cooperate in
developing joint publicity statements to be released at an agreed time. After
the Effective Date, all public announcements about the Petroleum Operations
shall be issued via the CONTRACTOR with the approval of PETROVIETNAM.
Article 21.8. Original text
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Article 21.9. The Operator
is permitted to use English in transaction documents and in recording books of
account, which however must be translated into Vietnamese at the specific
request of state authorities of Vietnam.
IN WITNESS WHEREOF, the
Parties hereto have made and executed this Contract, as of the day and year
first above written.
VIETNAM OIL AND GAS GROUP
By: [………………………..]
Name: […………………………]
Title: […………………..]
CONTRACTOR
By: [………………………..]
Name: […………………………]
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