Energy arbitrations in the Middle East

In summary

This article introduces the reader to the legal framework governing the ownership and management of energy resources in the Middle East, before undertaking an in-depth analysis of arbitration trends in the context of energy disputes. Finally, the areas of dispute that cause or impact current energy arbitrations and future energy disputes are explored.

Discussion points

• Ownership and management of natural resources in the Middle East
• Arbitration trends in the context of energy disputes in the Middle East
• Current and potential areas of dispute in energy arbitration in the Middle East

Referenced in this article

• UAE Federal Law No. 6 of 2018
• DIFC Arbitration Law No. 1 of 2018
• ADGM Arbitration Regulations 2015
• Qatar Law No. 2 of 2017
• KSA Executive Regulations of the Arbitration Law (Royal Decree No M/34)
• Decree 34 of 2021
• ICC
• DIAC
• SCCA
• BCDR

Introduction

The Middle East is synonymous with energy. It has just under half of the world’s oil reserves and just above one third of the world’s gas reserves.^[1] In terms of oil, Saudi Arabia has the largest reserves in the region and the second largest reserves in the world.^[2] Thereafter, the second-largest oil reserves in the region are in Iran (fourth globally), followed by Iraq (fifth globally), Kuwait (seventh globally) and the United Arab Emirates (UAE) (eighth globally).^[3]

In addition, the Middle East is the world’s largest oil producing region.^[4] It accounts for around a third of global oil production^[5] and is responsible for roughly a third of global oil exports.^[6] Saudi Arabia is the largest oil producing nation in the region (third globally), followed by Iraq (fifth globally), the UAE (seventh globally) and Iran (eighth globally).^[7]

The Middle East is also home to the largest natural gas reserves in the world.^[8] Within the region, Iran has the largest proven gas reserves (second globally), followed by Qatar (third globally), Saudi Arabia and the UAE (in joint eighth globally).^[9]

The region is the third largest producer^[10] of natural gas in the world. In 2020, and notwithstanding the continued imposition of sanctions that was only recently lifted in February 2022,^[11] Iran remained the largest producer of natural gas in the region (third globally), followed by Qatar (fifth globally) and then Saudi Arabia (in joint eighth globally with Norway).^[12]

This richness in resources and success in production has underpinned much of the economic development in the region in recent decades.

Prior to the crisis caused by the covid-19 pandemic, global energy demand was estimated to increase by 25 per cent by 2040^[13] and by 12 per cent between 2019 and 2030.^[14] While the growth in global energy demand dropped by 5 per cent in 2020,^[15] and is estimated to be lowered in the short term, some analysts have estimated it to return to pre-covid-19 levels between 2021 and 2023.^[16] Worldwide energy demand in 2021 has also been estimated to recover the ground that was lost in 2020 due to the pandemic, with a 4 per cent increase returning global energy demand to pre-pandemic levels.^[17] In line with this, the Middle East is expected to retain a significant share of oil and gas in its primary energy demand, with oil production remaining constant and gas production increasing by 50 per cent.^[18] Experts have also estimated a growing demand for oil and gas in the Middle East as production from other global producers declines.^[19]

Owing to the significance of the size and proportion of its oil and gas resources, and the estimated increase in demand for energy in the near future, the Middle East has started to look to other sources of energy, including nuclear,^[20] coal^[21] and renewables.^[22]

As the type of the Middle East’s energy resources expands, the nature and scope of disputes arising from projects relating to these resources will also be impacted.

Ownership and management of resources

Of fundamental importance in relation to the region’s energy sector, and disputes that may flow from it, are how rights to own and manage resources are allocated by local law and through various contractual structures involving the state, state-owned entities and international partners.

Ownership

As a starting point, natural resources in the region are generally owned by the relevant state. In Qatar, Law No. 3 of 2007 regarding the Exploitation of Natural Wealth and Resources, which regulates the ownership of the state’s natural resources, stipulates that natural resources are deemed the public property of the state.^[23] Saudi Arabia, Kuwait, Bahrain, Syria, Yemen and Oman also vest ownership rights to natural resources in the state.^[24] In the UAE, which is made up of seven emirates, the Constitution stipulates that the natural resources and wealth in each emirate are the public property of that emirate; that is, the energy resources of the UAE are not owned at the state level, instead each individual emirate owns its own energy resources.^[25] As a result, and for the most part, there is little dispute as to the ownership of a state’s resources in the Middle East.

However, there is scope for disagreement as to who may exercise that right on behalf of the state or its peoples. In Iraq, the state’s oil and gas resources are owned by ‘all the people of Iraq in all the regions and governorates’.^[26] The federal government in Iraq takes the position that it is the sole representative of the people and has the exclusive right to explore, develop, extract, exploit and utilise Iraq’s oil and gas resources. The governing authority of the federal Kurdistan region of Iraq (the KRG), disagrees with this view and considers that it is the federal regions and provinces (as defined in the Iraqi Constitution) that have the right to explore, develop, extract, exploit and utilise Iraq’s oil and gas resources within their territories. This issue could have been clarified with the entry into force of the Iraqi Federal Oil and Gas Law, which has existed in draft form from as early as 2007.^[27] The Iraqi federal court recently issued a ruling declaring the oil and gas law regulating the oil industry in KRG as unconstitutional and, accordingly, all KRG oil contracts with oil companies, foreign parties and states as invalid.^[28] This decision has clarified that all of Iraq’s oil and gas resources can only be exercised by the federal government in Iraq.

The complexities surrounding the question of who has the relevant rights to explore, develop, extract, exploit and utilise Iraq’s oil and gas resources in the areas controlled by the KRG has led to disputes. For example, Iraq commenced an International Chamber of Commerce (ICC) arbitration, claiming more than US$250 million in damages, against Turkey and its state-owned pipeline operator, BOTAS, because, among other things, BOTAS purchased oil directly from the KRG, without consent from the Iraqi ministry.^[29]

Management: the role of national oil companies

For the most part, states in the Middle East have created national oil companies (NOCs) to manage, at the least, their upstream oil and gas requirements. Notable examples of NOCs include the following:

• Saudi Arabian Oil Company (Aramco): Saudi Arabia’s state-owned national petroleum company manages the upstream, midstream and downstream components of Saudi Arabia’s crude oil and natural gas. Aramco is the world’s largest oil and gas company at US$2 trillion.^[30] Following its historic initial public offering (IPO) in 2019, it raised approximately US$25.6 billion to become one of the world’s most valuable listed companies.^[31] Despite oil prices falling during the pandemic, Aramco appears to have navigated its way through the situation and notably continued its commitment to pay shareholders an annual dividend of US$75 billion.^[32]
• Abu Dhabi National Oil Company (ADNOC): Abu Dhabi, which has the vast majority of hydrocarbon reserves in the UAE, created ADNOC to produce, manage, preserve and trade these reserves.^[33] ADNOC manages approximately 95 per cent of the UAE’s proven oil reserves and 92 per cent of the country’s gas reserves.^[34] ADNOC’s board of directors is comprised of members of the recently created Supreme Council for Financial Economic Affairs, responsible for all matters related to the financial investment and economic, petroleum and natural resources affairs in Abu Dhabi.^[35]
• QatarEnergy (formerly Qatar Petroleum): Qatar’s NOC manages upstream, midstream and downstream oil and gas operations in Qatar^[36] and acts as the state’s investment arm in the oil and gas sector both domestically and internationally.^[37]
• Iraqi Ministry of Oil/Iraqi National Oil Company (INOC): INOC was reconstituted in 2018^[38] and a decree transferred the ownership of nine state-owned oil companies from the Ministry of Oil to INOC.^[39] In January 2019, however, the law establishing INOC was challenged before Iraq’s Federal Supreme Court and was declared, in part, to be unconstitutional.^[40] At present, the Iraqi Ministry of Oil continues to control and supervise the oil and gas exploration process in Iraq.^[41] While INOC was initially expected to be operational by the third quarter of 2021 or the first quarter of 2022,^[42] the future of INOC continues to be up in the air after the Iraqi parliament’s recent vote to overturn the September 2020 appointment of its Oil Minister Ihsan Ismaael^[43] as the head of INOC.^[44]
• Iranian Ministry of Petroleum: the Iranian Ministry of Petroleum controls all issues pertaining to the exploration, extraction, exploitation, distribution and exportation of crude oil and oil products with a number of NOCs (including the National Iranian Oil Company, the National Iranian Gas Company, the National Iranian Oil Refining and Distribution Company and the National Petrochemical Company)^[45] that enter into contracts on behalf of the state.

These NOCs will, for the most part, enter into commercial agreements with private, often international, entities in order to assist with some or all of their upstream, midstream and downstream needs.

In respect of upstream arrangements, these agreements take a variety of forms. Middle Eastern countries use different types of structures for their upstream contracts. States are free to choose the type of contractual structure that suits their needs and reflects the strength of their bargaining position (with contracts sometimes developing as a hybrid of different forms). Structures that have typically been adopted in the region are:

• concession agreements in the UAE, under which the state has permanent sovereignty over hydrocarbons and only grants legal title to petroleum to the international oil company (IOC) partner once recovered at the wellhead;^[46]
• risk service contracts in Iraq, including technical service contracts for producing fields and production service contracts for development and producing fields under which the contractor is not entitled to any share of production, but can elect to have the service fee paid in kind in oil;^[47]
• production sharing agreements in the KRG,^[48] under which the contractor is entitled to a share of production to recover the costs of petroleum operations and a proportion of remaining production, which is shared with government;
• exploration and production sharing agreements in Qatar, or, particularly in respect of gas projects, development and production sharing agreements;^[49] and
• historically, risk service ‘buy-back’ contracts in Iran, but more recently, contracts have been modelled on the Iran Petroleum Contract, a new generation of upstream oil and gas contract that is more incentivising to foreign investors.^[50]

The terms of these agreements vary significantly across states and, in some cases, within states themselves. They will generally, however, contain some form of dispute resolution clause.

The type of dispute resolution clause will vary depending on the relative strength of the parties and their sophistication and experience in dealing with disputes. For the most part, dispute resolution clauses in energy-related contracts typically provide for some form of arbitration.^[51]

Arbitration of energy disputes in the Middle East

Types of arbitration

The precise nature of the arbitration agreements contained in the contracts between states or their NOCs, and the relevant counterparty, is often confidential. In the Middle East, few states make their model agreements, or the agreements once entered, publicly available. As a result, it is not possible to identify specific and clear trends in relation to arbitration agreements in energy contracts related to the Middle East. However, some documents are publicly available. From these, a preference for arbitration under the ICC is evident.^[52] Disputes arising in the construction, engineering and energy sectors historically generate the largest number of ICC cases at a global level. The trend was confirmed in 2020. Out of 946 arbitration cases registered, 167 were energy cases, accounting for approximately 17.6 per cent of all ICC cases.^[53] However, parties to energy agreements are not only choosing ICC arbitrations. In 2020, 16.7 per cent of the London Court of International Arbitration (LCIA)’s total cases consisted of parties from MENA, of which energy and resources disputes constituted 26 per cent of the LCIA’s total caseload.^[54]

Energy arbitrations involving Middle Eastern parties or otherwise relating to the region are also commenced through the investor-state dispute settlement processes found in bilateral or multilateral investment treaties (BITs and MITs). Currently, there are 632 BITs in the Middle East, of which 467 are in force.^[55] Arbitrations under the ICSID Convention and the UNCITRAL Arbitration Rules are the most preferred options for investor-state disputes.^[56]

Three notable MITs for the region are the Organisation of Islamic Cooperation Agreement of Promotion, Protection and Guarantee of Investments (the OIC Agreement), the Arab League’s Unified Agreement for the Investment of Arab Capital in the Arab States (the Arab League Agreement) and the Energy Charter Treaty (ECT). Both the OIC Agreement^[57] and the Arab League Agreement^[58] provide that, in certain circumstances, disputes relating to them shall be resolved through arbitration. Neither agreement specifies any arbitral institution or rules. To date, there have been 16 reported arbitrations relating to the OIC Agreement, with the latest case brought by a Lebanese company over a major 640 megawatt oil-fired power plant in Baghdad, against Iraq,^[59] and six relating to the Arab League Agreement.^[60]

The ECT is notable for its lack of Middle Eastern state signatories. From the region, only Jordan and Yemen are contracting parties to the ECT. However, Iran, Iraq and the UAE have signed the International Energy Charter,^[61] which is often seen as the first step towards acceding to the ECT.^[62] If more states from the Middle East do sign the ECT, a spike in the number of investor-state disputes brought against Middle Eastern states can be expected.^[63]

Trends

Arbitration, the energy industry and the Middle East are all undergoing significant changes. Some likely key trends are discussed below.

Increasing ties to the relevant state jurisdiction

There is an increasing desire among states and state-owned entities to ‘localise’ arbitration clauses where possible. The extent to which this localisation of arbitration clauses will occur in practice will depend, in large part, on the nature of the deal, the parties and their relative bargaining power. An example of this localisation is found in Egypt’s model concession agreement. This model agreement requires that disputes are either dealt with in the Egyptian courts or, in respect of certain matters between the Egyptian General Petroleum Company and the relevant contractor, resolved through arbitration according to the rules of the Cairo Regional Centre for International Commercial Arbitration (CRCICA) and, unless otherwise agreed by the parties, the place of the arbitration will be Cairo. This requirement to use either the national courts of Egypt or arbitration under CRCICA shows a clear intent by the Egyptian government to link the dispute resolution mechanism to its own state.

Jordan’s model production sharing agreement also demonstrates a desire to localise arbitrations. Unlike Egypt’s model agreement, Jordan’s model production sharing agreement does not require the use of any domestic arbitral institution and refers to the ICC Arbitration Rules. It does, however, require that any arbitration be seated in Amman, Jordan, such that the Jordanian arbitration law is applicable and the Jordanian courts have supervisory jurisdiction over the arbitration.

In Saudi Arabia, a high order issued by the president of the Council of Ministers on 19 January 2019 declared that government bodies and state-owned companies that wish to settle their disputes with foreign investors through arbitration, and who have the necessary approvals to do so, should ensure that the arbitration is conducted within Saudi Arabia at the Saudi Center for Commercial Arbitration (SCCA) or at another licensed Saudi arbitration centre.^[64]

As NOCs and governments in the Middle East become more familiar with arbitration and more confident in their dispute resolution choices, it is likely that this trend towards the localisation of arbitration will continue in respect of energy arbitrations in the region.

Enhancing the appeal of international arbitration in the region

At the same time as wanting to localise their arbitration clauses where possible, some states in the Middle East are taking significant steps to increase the appeal of arbitration in their respective jurisdictions.

Legislative changes

In the UAE, ‘onshore’ arbitration is governed by Federal Law No. 6 of 2018 (the Federal Arbitration Law), which came into force on 16 June 2018. The Federal Arbitration Law replaced the 15 articles of the UAE Civil Procedure Code, articles 203 to 218, which had previously governed arbitrations seated in the UAE. Based on the UNCITRAL Model Law, this law has had the effect of modernising the UAE’s arbitration framework and, in many ways, bringing it in line with international standards. The Federal Arbitration Law applies to any arbitration seated in ‘onshore’ UAE (unless otherwise agreed by the parties), including any arbitrations already on foot when the law came into effect.^[65] One of the significant changes brought about by the Federal Arbitration Law is the inclusion of express provisions relating to interim measures.^[66]

The financial free zones in the UAE, which are empowered to create their own specific legal and regulatory framework in respect of all civil and commercial matters,^[67] continue to flourish. One financial free zone, the Dubai International Financial Centre (DIFC), has its own system of laws based on common law. Where there are gaps in the DIFC law, or where there are conflicts, English law applies. In particular, the DIFC has its own arbitration law, DIFC Law No. 1 of 2008, as amended by DIFC Law No. 6 of 2013.^[68]

The Abu Dhabi Global Market (ADGM) is another financial free zone with its own common law legal system^[69] and an independent court system.^[70] The ADGM has incorporated English common law and certain English statutes into its own legal system.^[71] Like the DIFC, the ADGM has its own arbitration law, the ADGM Arbitration Regulations 2015, as amended by Amendment No. 1 of 2020.^[72] The 2020 amendments to the ADGM Regulations in 2020 serve to modernise the arbitration regulations by, among others, providing the ADGM Court the power to order interim measures, allowing proceedings to be conducted virtually, allowing tribunals to summarily dispose of parties’ claims and/or defences, and providing provisions aimed at regulating third-party funding agreements.^[73]

There have also been notable legislative changes in Qatar. In 2017, Qatar introduced a new arbitration law that applies to all arbitrations taking place in Qatar.^[74] Based on the UNCITRAL Model Law, Qatar’s new arbitration law modernises the previously outdated arbitration legislation and aligns it with international standards. The new arbitration law clarifies the position in respect of interim measures, just as the UAE’s Federal Arbitration Law does.^[75]

In 2018, the Iraqi government announced its intention to accede to the New York Convention.^[76] In November 2019, the Cabinet of Iraq approved a recommendation to expedite the legislation on Iraq’s accession to the New York Convention,^[77] which subsequently entered into force in Iraq in February 2022. Given that this is a recent development, it is yet to be seen how the Iraqi courts will apply the principles of the New York Convention.^[78] Nevertheless, this is a significant step taken towards improving perceptions of Iraq as an arbitration-friendly jurisdiction and may well result in an increase in energy arbitrations connected to Iraq.

Saudi Arabia has made a sustained effort over the course of the past decade to make itself a more arbitration-friendly jurisdiction. In 2012, Saudi Arabia passed a new arbitration law issued under Royal Decree No. M/34, and, in 2013, enacted a new enforcement law pursuant to Royal Decree No. M/53. In 2016, Saudi Arabia established the SCCA, and, in 2017, enacted executive regulations aimed at clarifying certain key provisions of the arbitration law. As mentioned above, Saudi Arabia issued Royal Decree No. 28004 on 19 January 2019, encouraging all government entities and state-owned companies to settle their disputes with foreign investors through arbitration, making specific mention of SCCA in particular as a first option.^[79] Thereafter, in April 2020, the Commercial Franchise Law came into force in Saudi Arabia. This piece of legislation expressly gives parties the option to arbitrate their disputes arising out of franchise agreements, among other dispute resolution forums.^[80] These moves have signalled Saudi Arabia’s increased acceptance of international arbitration as a forum to resolve disputes in which parties and disputes relate to Saudi Arabia.

Arbitral institutional progress

As well as legislative changes, arbitral institutions in the region have continued to develop such that it is becoming more realistic for parties to choose to localise their arbitration clauses in energy contracts to the region in this manner as well.

On 14 September 2021, the UAE issued Decree No. 34 of 2021 concerning the Dubai International Arbitration Centre (DIAC) (the Decree).^[81] The Decree abolished the Emirates Maritime Arbitration Centre and the DIFC Arbitration Institute (which was the entity that had entered into a joint venture with the LCIA to operate the DIFC-LCIA Arbitration Center), seeking to establish a single unified arbitration forum in Dubai, namely under the DIAC. Pursuant to the Decree, all arbitrations seated in ‘onshore’ Dubai would be under the purview of the Dubai courts and all arbitrations seated in ‘offshore DIFC come under the purview of the DIFC courts. The Decree provides that all arbitration agreements referring to DIFC-LCIA Arbitration Rules remain valid prior to its effective date (ie, 20 September 2021), but the DIAC will replace the DIFC-LCIA in administrating the disputes arising out of such agreements.^[82] On 25 February 2022, the DIAC’s new Board of Directors and Trustees^[83] approved the long-awaited DIAC Arbitration Rules 2022. These rules came into effect on 21 March 2022 and, unless the parties agree otherwise, govern all arbitrations submitted to the DIAC from this date.

The ADGM contains the ADGM Arbitration Centre, which does not administer arbitrations but provides a state-of-the-art hearing centre open to all arbitrations regardless of the institutional rules that govern the underlying arbitration^[84] and has also enacted a set of arbitration guidelines that parties can use for their proceedings.^[85] In 2021, the ICC opened up its fifth case management office in the ADGM.^[86]

In Saudi Arabia, the SCCA has made substantial progress. From its launch in 2016, it has dealt with claims amounting to over 375 million Saudi riyals with parties from France, the United Kingdom, the United States and Germany.^[87] Although still in its early stages, considering the amount of state support that the SCCA is receiving, and the dominance of the energy sector in Saudi Arabia, the Saudi courts are increasingly reluctant to set aside awards, indicating Saudi Arabia’s clear intention to promote arbitration in tandem with the pro-arbitration support of its judiciary. Indeed, between 2017 and 2021, of the 107 motions that were initiated to set aside awards before the Saudi courts, 94 per cent of these motions were dismissed and only 6 per cent were accepted.^[88]

The Bahrain Chamber for Dispute Resolution (BCDR) has also seen an accelerating growth in its caseload, clinching the prestigious 2021 GAR award for Regional Institution that Impressed.^[89] As of 2021, the value of the claims that it reportedly had managed since its establishment exceeded US$6.2 billion, and there were 57 new cases submitted to BCDR in the 12-month period prior to July 2021: 41 to the BCDR Court and 16 to the BCDR-AAA (its partnership with the American Arbitration Association), all of which represents a 16 per cent increase of BCDR’s cumulative caseload.

Third-party funding

Historically, the provision of third-party funding (TPF) in respect of disputes where the substantive or procedural laws pertain to the Middle East or where enforcement actions could be carried out in the Middle East, be it in litigation or arbitration, has not been common.

However, this position is changing. The recent global changes towards TPF of disputes, the rise of the use of arbitration in the Middle East, the development of certain parts of the Middle East as arbitration-friendly jurisdictions and the ever-increasing cost of international arbitration, all point to a likely increase in the use of TPF for Middle East-focused international arbitrations. In view of the potential amount of recovery for funders, energy arbitration and construction arbitration pertaining to energy projects are expected to remain particularly attractive to funders.

The DIFC has already made some provisions in respect of TPF^[90] and, in April 2019, the ADGM issued its litigation funding rules.^[91]

Areas of dispute in the energy sector

The nature and scope of the rights and obligations of the parties pursuant to the underlying contracts between them will continue to form the basis of energy arbitrations related to the Middle East. While the disruption to the global economy caused by covid-19 will be the predominant feature of energy disputes in the short to mid-term, the region will continue to see disputes on the scope of rights and obligations in respect of payment (including take-or-pay clauses), stabilisation clauses, local content requirement clauses, price review clauses, termination rights and force majeure clauses. Some of the factors that will likely impact on future energy disputes within the region are discussed in further detail below.

Covid-19

As nations reel from the effects of the pandemic, it is likely that covid-19 will have a continued, albeit reduced, reverberating impact on the energy sector. In recognition of the disruption caused by covid-19 to parties’ contractual obligations, the Saudi Supreme Court issued Decision No. M/45 on 23 December 2020 confirming that the pandemic should be considered as an ‘emergency situation’ when it is not possible for a party to fulfil a commitment or implement a contractual obligation without incurring unusual losses. In line with the respective provisions of the civil code laws in the region, parties can also avail of force majeure if the performance of their contractual obligations has become wholly impossible due to the pandemic, rather than merely excessively onerous. While the former would result in extinguishing parties’ obligations completely, the latter may result in a moderation of the parties’ obligation to the extent that the tribunal deems reasonable, at its discretion.^[92] Both of these legal provisions are likely to be extensively relied upon and invoked by disputing parties in energy arbitrations in the region post covid-19. Disputes where parties attempt to attain relief from their contractual obligations by invoking force majeure, termination provisions, frustration and change in law are still likely to continue in the coming year.

Covid-19 also delayed or led to the cancellation of expansion plans of NOCs in the region. QatarEnergy, for example, pushed back its North Field LNG Expansion Project by up to six months due to the pandemic.^[93] With the recent award of the engineering, procurement, construction and installation contract to McDermott, this project is expected to increase Qatar’s LNG production capacity from 77 to 126 million tons per annum through the North Field East and North Field South expansion projects, with the first LNG expected in 2025.^[94]

Similarly, Aramco previously delayed large expansion projects at the Marjan oil and gas field which has recently kicked-off with Chinese Offshore Oil Engineering Company (COOEC) starting fabrication works.^[95] The Berri gas plant project’s expansion plan remains in delay in an attempt to tighten Aramco’s capital spending.^[96]

In Kuwait, the impact of covid-19 led to the government’s decision to cancel plans to construct the Al Dabdaba solar plant to be developed by the Kuwait National Petroleum Company, although there are reports that this suspended project will now be merged with an existing plant.^[97] In tandem with delays of expansion plans, social distancing measures may also result in slower progress on ongoing construction and infrastructure projects in the energy sector, which will likely to lead to disputes between subcontractors and contractors on account of such delays.

The global economic recession triggered by covid-19 led to a decrease in oil prices for a period of time. The knock-on effect of the tighter finances of the oil-producing and oil-exporting countries in the region during this time was discernible. For example, Saudi Arabia’s prioritised efforts to combat and mitigate the effects of covid-19 towards its citizens, residents and businesses meant that it was not able to offer financial assistance to Lebanon’s deteriorating economy, as initially planned.^[98] This resulted in Lebanon defaulting, for the first time in history, on a US$1.2 billion bond payment.^[99] Jordan could have potentially followed this trend, but was timely assisted by the International Monetary Fund’s four-year Extended Fund Facility programme of US$1.3 billion.^[100] Notwithstanding the various financial packages offered, the economic crisis of the hard-hit countries could worsen in the post covid-19 recovery period, likely leading to an uptick in disputes in the region.

Politics

The current political context will continue to shape the basis and form of future Middle Eastern energy arbitrations.

The recent rapprochement between Qatar and Saudi Arabia, the UAE, Egypt and Bahrain on 5 January 2021 from the political situation that commenced in July 2017 is likely to have a positive impact in serving to reduce potential disputes between Qatar and the other nations involved in the diplomatic crisis. This is especially true in circumstances where Qatar had continued to export LNG to these states and the region throughout the crisis.^[101]

Other political developments that have also affected the energy industry in the Middle East and may lead to disputes include the continuing conflict in Syria^[102] and the civil unrest in Iraq.^[103]

Prior instability in the region has led to energy-related arbitrations. For example, three Indian companies successfully brought ICC proceedings against Yemen and its Ministry of Oil and Minerals in relation to force majeure declarations that they made as a result of the Arab Spring protests in Yemen.^[104] Investor-state claims have also been made in relation to regional instability. For example, in 2019, a UAE investor, Trasta Energy, commenced arbitration against Libya’s National Oil Corporation claiming that Libya failed to protect its investment in an oil refinery during the Arab uprising.^[105] Trasta Energy alleges that Libya’s National Oil Corporation applied discriminatory crude oil prices and permitted the ‘misuse’ and looting of the refinery, including the provision of crude oil to government troops during the revolution.^[106] A decision on this case is still pending, although an ICC tribunal recently issued an award against Trasta Energy in a case that was brought by it against Libya’s National Oil Corporation under a shareholders’ agreement, deciding in favour of Libya’s National Oil Corporation.^[107]

The recent Russian invasion of Ukraine has led to a spike in oil prices in the region as sanctions against Russia have made it increasingly difficult for Russia, as producer of about 7 per cent of global oil supplies, to find buyers for its oil.^[108] The conflict between Russia and Ukraine has driven oil prices to above US$100 per barrel, at pre-August 2014 levels. It remains to be seen whether top oil producers, including those in the region, such as Saudi Arabia and the UAE, will ramp up their oil production and supplies in a bid to ease oil prices and stabilise the market.^[109] The recent OPEC meeting on 2 March 2022 provides some insight: the 23 OPEC+ members simply stated that they would increase output by an agreed 400,000 barrels per day in April, although there was no mention of the ongoing conflict in Ukraine in their final document.^[110]

Until then, the higher oil prices remain, posing risks to oil-importing countries that are already in difficult economic conditions. The number of projects that are not able to reach completion in these countries will also increase, as will disputes arising out of those uncompleted projects that have no other financing options.

The resolution of ongoing border disputes will also have an effect on future energy relations and disputes. The unresolved maritime border dispute between Israel and Lebanon has made oil exploration in the disputed area impossible.^[111] A similar dispute between Saudi Arabia and Kuwait was drawn to a close in December 2019, which enabled the renewed production of 500,000 barrels of crude per day.^[112]

Some of the biggest deals to emerge from the recent normalisation deal signed between the UAE, Bahrain and Israel (‘Abraham Accords’) have been in the energy sector. For example, Mubadala Petroleum, which is ultimately owned by Abu Dhabi’s sovereign wealth fund, purchased a 22 per cent stake in Israel’s Tamar offshore natural gas field from an Israeli firm, which was required to sell its stake due to the government’s push for increased competition in the power sector.^[113]

Sanctions

The withdrawal of the United States from the Joint Comprehensive Plan of Action (JCPOA) in 2018 led to the reimposition of US sanctions on Iran that same year. The sanctions included, among other things, prohibitions on the purchase of petroleum, petroleum products or petrochemical products from Iran, conducting or facilitating any significant financial transactions with the Central Bank of Iran or any other Iranian financial institution, and investments in or dealings involving Iran’s energy industry.^[114]

With the recent lifting of the sanctions against Iran by the US in a bid to revive the JCPOA in February 2022,^[115] it is likely that steps will be taken by other members of the JCPOA to reverse the economic impact caused by these sanctions.

Infrastructure development

The infrastructure required to service the levels of oil and gas production coming from the Middle East is vast. Power plants, offshore platforms, drilling rigs, LNG terminals and trains, oil and gas pipelines, refineries, transport vessels and roads are all integral parts of the energy infrastructure. Infrastructure requirements for coal and renewable developments are also significant. Issues relating to the time, costs, quality and scope of the works with respect to energy-related infrastructure projects and the subsequent decommissioning of these projects have consistently led to arbitrations. In particular, questions relating to the design and construction of facilities are issues that frequently emerge in such disputes. For example, in 2018, QatarEnergy’s subsidiary, Barzan Gas Company, brought ICC arbitration proceedings against Hyundai Heavy Industries regarding alleged problems with the pipeline that Hyundai had installed, which has since been settled.^[116] Where infrastructure, such as pipelines, cross international borders, the complexity of the project increases due to the need for the participation or consent of multiple states.

Environmental issues

Climate change and other environmental concerns are having an increasing impact on the energy industry. Climate change-related disputes (both commercial and investment),^[117] including disputes related to increased environmental regulation, will likely increase. Bahrain has already faced a claim in respect of the construction of the state’s first recycling plant in which it alleged, among other things, that the construction company failed to obtain the necessary environmental permits.^[118]

Environmental concerns have also arisen in a large deal signed as a result of the Abraham Accords between an Israeli state-owned company and a joint venture with Emirati and Israeli owners providing for crude oil from the UAE to be unloaded from tankers in the Israeli port of Eilat and moved across Israel in an existing pipeline to the Mediterranean coast and on to Europe. Following the announcement of the deal, environmentalists petitioned Israel’s Supreme Court to block the agreement deal, citing ecological risks to Eilat’s coral reefs. In December 2021, in response to the petition, the Israeli government announced that it would cancel the deal.^[119]

Disputes may also arise from transitions within the oil and gas industries to address environmental challenges. Among other things, it is likely that disputes may arise in or involving Middle East parties connected to carbon capture and storage (CCS) technology. The UAE boasts the world’s first commercial-scale industrial CCS project in Abu Dhabi^[120] and in Saudi Arabia, Aramco has set up a pilot project that uses CCS technology.^[121] The increased application of CCS in the region may result in disputes, especially in the context of transboundary CCS projects.^[122]

In addition, disputes in or involving Middle East parties connected to carbon trading schemes may also develop. In 2019, the Dubai Regulatory Committee for Petroleum Products Trading was formed and, in 2018, Saudi Arabia announced plans to launch its own carbon trading scheme.^[123] The use of such schemes in other parts of the world has already resulted in disputes relating to over-registration, issuance or revocation of carbon credits, decisions and disagreements over bookkeeping and the erroneous transfer of credits;^[124] accordingly, it is not unlikely that similar disputes may arise in relation to any Middle East-based carbon trading schemes that are developed.

Technology

The energy industry, like many others, is being reshaped by new technologies. The pace at which the industry is adopting these technologies varies. In the Middle East, many key participants in the energy industry have been keen supporters and adopters of emerging technologies.

ADNOC in particular is keen to promote and adopt technological change. Working with IBM, ADNOC has piloted a block chain-based automated system to track quantities and financial values of the transactions among ADNOC’s operating entities.^[125]

Aramco has similarly embraced technology. One of its subsidiaries, Saudi Aramco Energy Ventures (SAEV), is dedicated to investing in companies that develop technologies that are of importance to Aramco.^[126] In 2019, SAEV invested in Data Gumbo, a company that developed a blockchain platform to streamline smart contracts and reduce disputes relating to payments, among other things.^[127]

Considering the focus on technology in the energy industry in this region, an increase in the number of technology-related energy disputes is to be anticipated. In particular, a mismatch in expectations from parties to these sorts of deals^[128] may well lead to disagreements that result in arbitrations.

Belt and Road Initiative

China’s Belt and Road Initiative (BRI) is having a significant impact in the Middle East.

Energy makes up a significant part of the China’s trade and investment in the Middle East.^[129] In 2019, for example, China State Construction Engineering Cooperation Middle East signed a deal with Petrofac Emirates to work on phase two of ADNOC’s Qushawira Field Development.^[130] In the same year, China National Offshore Oil Company signed an agreement with ADNOC relating to upstream exploration and development, refining and the LNG trade.^[131]

China’s energy investments do not just relate to oil and gas. In 2019, it was announced that a coal power plant was under construction in Dubai and would be owned, pursuant to a joint venture, by Dubai Electricity and Water Authority, Saudi Arabia-based ACWA Power, China’s Harbin Electric and the Silk Road Fund.^[132] Financing is said to have come from, among others, the Industrial and Commercial Bank of China, Bank of China, Agricultural Bank of China, China Construction Bank and the Silk Road Fund.^[133]

Chinese firms also dominate Iraq’s oil sector, a key economy for Iraq, with Beijing consuming at least 40 per cent of Iraq’s crude exports, making Iraq the third-largest exporter of oil to China.^[134]

It is inevitable that there will be some disputes resulting from these economic ties. Notwithstanding China’s obvious commitment to mediation as a form of dispute resolution,^[135] it seems likely that some of these disputes, which will likely relate to large-scale cross-border projects, will result in international arbitrations. In addition, certain arbitral institutions have positioned themselves to be well-placed to administer BRI-related arbitrations. For example, the ICC, which now has a case management office in the region in the ADGM, has created a Belt and Road Commission to support BRI disputes.^[136]

Financing energy projects

In this region, both governments and the private sector play a significant role in financing energy projects. Financing related to energy projects will continue to be the subject of arbitrations in the region. This is particularly the case where finance is provided through complex arrangements by multiple and international parties. Moreover, novel forms of financing for energy projects in the region are emerging. For example, a UAE solar utility company based in Dubai was able to raise approximately US$700,000 through a Middle East-based crowdfunding platform.^[137] These platforms, especially in the early period when investors and owners are exploring new ground, are likely to lead to disputes.

Conclusion

Energy and the Middle East has been and will remain synonymous for the foreseeable future. The underlying nature of Middle Eastern energy disputes will likely remain, for the most part, the same, albeit the triggers may be different. The continued impact of covid-19, coupled with the overarching political climate, will translate to companies in the energy sector operating under heightened risks.

Notes