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1 Setting the Legal and Policy Framework

Stage 1:
Setting the Legal & Policy Framework

Setting the Legal and Policy Framework refers to the need for a country to formulate clear policies and strategies that both attract FDI and benefit the country.

Government Policies and Strategies Legislative and Regulatory Frameworks Sector-Wide Analyses
2 Pre-Negotiation

Stage 2:
Pre-Negotiation Stage

The Pre-Negotiation Stage refers to the period during which a government identifies a particular project or investment and conducts feasibility studies and impact assessments.

Feasibility Studies Impact Assessments Tender Process and Financial Structure
3 Contract Negotiation

Stage 3:
Contract Negotiation Stage

The Contract Negotiation Stage refers to the actual negotiation of investment contracts between a government and an investor.

Prepare for the Negotiation Assemble a Negotiation Team Develop a Negotiation Position Contract Negotiation
4 Contract Implementation and Monitoring

Stage 4:
Implementation & Monitoring Stage

The Implementation and Monitoring of the Investment Stage refers to the period during which an investment project is developed and operated pursuant to the terms of the investment contract.

Monitoring Implementation Grievance Mechanisms

Roadmap

Negotiate the Contract - Draft, Negotiate and Review Contractual Provisions

Content of this page:

An effective and smooth negotiation is one where both parties are on an equal footing in terms of access to information, technical expertise and an understanding of the available options.

A contract which is well-drafted, responsive to changing circumstances and fair to both parties is most likely to be sustainable and mutually beneficial to both parties.

Key Tools At This Stage

Useful Resources

Stabilization Clauses

Stabilization Clauses and Human Rights Go to resource

  • Date:  2009
  • Sector:  Extractive Industries, Land & Agriculture
  • Source:  IFC

A study on the impact of stabilization clauses in investment contracts that affect a state's action to implement its international human rights obligations.

Negotiations

A Good Deal Better? Uganda's Secret Oil Contracts (Plus Economic Model) Explained Go to resource

  • Date:  2014
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  Global Witness

Global Witness has analysed and made public two “production sharing agreements” signed by the Ugandan Government and international oil companies in February 2012. They determine what share of oil revenues the Government of Uganda will get and almost every aspect of its relationship with the oil companies. This is the first time this information has been made public.

Their analysis shows that the Ugandan Government has succeeded in negotiating a better financial deal in these contracts compared with older contracts – for which it should be congratulated. But there are some significant weaknesses that still need to be addressed. The contracts lack some important human rights and environmental safeguards. This is of particular concern given the unique habitats of the oil region in Uganda which sits on the border with the Democratic Republic of Congo and the Nile River.

To see how Uganda’s oil money will be shared and evaluate the new contracts against the old contracts see the Revenue Infographic. You can also download Global Witness' open source Economic Model, the first of its kind, which can be updated when new information becomes available or adapted for other countries’ contracts. A guide is also available here.

50 Pieces of Advice to an Official who is Engaged in the Negotiation of Mining Contracts Go to resource

The governments of resource rich countries have a responsibility to be well prepared and knowledgeable in contract negotiations for natural resource extraction and long-term 
land leases – not just for the sake of securing a balanced financial deal, but to promote high standards in labour and human rights, environmental protection, health, safety, transparency and fiscal management.

This handbook provides fifty pieces of advice to ensure good governance, capacity building and sustainable development for resource rich countries.

ABC’s of Petroleum Contracts: License-Concession Agreements, Joint Ventures, and Production-Sharing Go to resource

  • Sector:  Extractive Industries, Oil & Gas
  • Source:  OpenOil

This documents takes a more detailed look at the differences and similarities between different types of oil contracts that the governments of resource rich countries can make with international and national oil companies.

Guidance Note on the Tax Aspects of Negotiation and Renegotiation of Contracts Go to resource

The purpose of this note is to provide an overview of some of the tax and fiscal related issues developing countries face in the negotiation and possible renegotiation of long term natural resource contracts. It will also provide some additional perspective on the negotiation and renegotiation process. This is intended to help developing country policy makers and administrators, and to provide information to other stakeholders, on both substantive and procedural approaches to agreements between such countries and the investors they seek to attract in the development of their potential oil, gas, and mineral resources. Background contained in this note will provide a broader context for options and approaches available in negotiating long term contracts.

How to Negotiate an Oil Agreement Go to resource

This document identifies the key areas on which governments should focus during their negotiations of oil agreements. It provides guidance regarding: who should be negotiating, over what issues, with what informational environment, and with what time horizon.

Features such as contract structure are also examined and a set of especially tricky issues are discussed, including accounting standards; the role of social projects; health and environment concerns; stabilization clauses; and contract termination provisions.

IISD Guide to Negotiating Investment Contracts for Farmland and Water Go to resource

  • Date:  2014
  • Sector:  Land & Agriculture
  • Source:  IISD

The IISD Guide to Negotiating Investment Contracts for Farmland and Water is a legal and policy tool for governments and communities that are involved in negotiating investment contracts with foreign investors. The guide focuses on a particular type of contract involving long-term leases of farmland. Part I, Preparing for Negotiations, is designed to assist in the preparatory phase. Part 2, Model Contract, is structured like an investment contract for the lease of farmland and proposes model provisions.

IISD Handbook on Mining Contract Negotiations for Developing Countries Go to resource

  • Date:  2015
  • Sector:  Extractive Industries, Mining, Oil & Gas
  • Source:  IISD

Many governments lack the experience or human resources to prepare effectively for a negotiation, and are unable to make the investments needed to overcome these difficulties. Yet without preparing properly, there is little hope of achieving the desired national and community objectives. This guide provides a comprehensive approach that allows governments to set priorities and address critical issues in the preparation process.  It will assist governments in developing internal capacity and understanding where outside experts can best help. The guide addresses the process before negotiations begin, where the hard work gets done to lay the groundwork for a successful negotiation.

Mining Contracts: How to Read and Understand Them Go to resource

A book created to highlight strong contract clauses and explore how others could be improved. It goes beyond legal considerations to explore the policy questions and company interests underlying contract provisions—issues that are crucial for understanding and negotiating contracts, and for monitoring their enforcement.

Available in English and French

Oil Contracts: How to Read and Understand Them Go to resource

  • Date:  2012
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  OpenOil

Walk-through guide on oil contracts: what they are, who participates in them, how the revenues should be handled and divided, what the different impacts of an oil project are, what its role is in fostering economic development, and how disputes between parties can be resolved.

Principles for Responsible Contracts: Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations: Guidance for Negotiators Go to resource

  • Date:  2011
  • Sector:  Extractive Industries, Infrastructure, Land & Agriculture, Mining, Oil & Gas
  • Source:  UN Human Rights Council

A guide that sets out and explains 10 principles that can help guide the integration of human rights risk management into contract negotiations.

WBG Report on Recommended PPP Contractual Provisions Go to resource

Public-Private Partnerships (PPPs) are now being used in many countries to develop infrastructure projects. Typically, PPP transactions are based on a network of complex legal agreements – however, at the center of each transaction there is normally a PPP Contract, in the form of a concession agreement or similar document, between a government or other public entity (the Contracting Authority) and a private company or a consortium of companies (the Private Partner). 

Given the variety of PPP transactions globally, the different legal systems which exist in various countries, and the need to have ‘tailor-made' provisions to deal with the individual characteristics of specific projects, it follows that the development of comprehensive PPP agreements on an international basis is likely an unrealistic goal. However, there may be merit in focusing on certain contractual provisions dealing with particular legal issues encountered in virtually every PPP Contract, such as the issues of force majeure, termination rights, dispute resolution, etc. The purpose of this Report is to present and discuss ‘recommended’ language in respect of a selection of these typically encountered provisions. 

Fiscal Tools

A Good Deal Better? Uganda's Secret Oil Contracts (Plus Economic Model) Explained Go to resource

  • Date:  2014
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  Global Witness

Global Witness has analysed and made public two “production sharing agreements” signed by the Ugandan Government and international oil companies in February 2012. They determine what share of oil revenues the Government of Uganda will get and almost every aspect of its relationship with the oil companies. This is the first time this information has been made public.

Their analysis shows that the Ugandan Government has succeeded in negotiating a better financial deal in these contracts compared with older contracts – for which it should be congratulated. But there are some significant weaknesses that still need to be addressed. The contracts lack some important human rights and environmental safeguards. This is of particular concern given the unique habitats of the oil region in Uganda which sits on the border with the Democratic Republic of Congo and the Nile River.

To see how Uganda’s oil money will be shared and evaluate the new contracts against the old contracts see the Revenue Infographic. You can also download Global Witness' open source Economic Model, the first of its kind, which can be updated when new information becomes available or adapted for other countries’ contracts. A guide is also available here.

NPV model to analyze PSAs/PSCs or Concessionary Arrangements Go to resource

The website offers an economic model that estimates expected cash flows for an upstream petroleum project (petroleum exploration, development and production). Host governments can use it to increase their understanding of the revenue they can expect from the project at each stage.

Railway Reform: Toolkit for Improving Rail Sector Performance (2011) Go to resource

  • Date:  2011
  • Sector:  Infrastructure
  • Source:  PPIAF

Provides an easy-to-use resource on the rail industry—what it is and what it does best—and provides an experience-based set of best practices to aid in the planning and execution of railway reforms. Professionals and practitioners who could benefit from this toolkit include government policy makers, legislators, regulators, railway management personnel, international financial institutions, and other stakeholders-including railway customers and employees—who seek improvements in railway financial and operational performance.

The toolkit is now available in English and Russian.

Contractual Terms

A Good Deal Better? Uganda's Secret Oil Contracts (Plus Economic Model) Explained Go to resource

  • Date:  2014
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  Global Witness

Global Witness has analysed and made public two “production sharing agreements” signed by the Ugandan Government and international oil companies in February 2012. They determine what share of oil revenues the Government of Uganda will get and almost every aspect of its relationship with the oil companies. This is the first time this information has been made public.

Their analysis shows that the Ugandan Government has succeeded in negotiating a better financial deal in these contracts compared with older contracts – for which it should be congratulated. But there are some significant weaknesses that still need to be addressed. The contracts lack some important human rights and environmental safeguards. This is of particular concern given the unique habitats of the oil region in Uganda which sits on the border with the Democratic Republic of Congo and the Nile River.

To see how Uganda’s oil money will be shared and evaluate the new contracts against the old contracts see the Revenue Infographic. You can also download Global Witness' open source Economic Model, the first of its kind, which can be updated when new information becomes available or adapted for other countries’ contracts. A guide is also available here.

ABC’s of Petroleum Contracts: License-Concession Agreements, Joint Ventures, and Production-Sharing Go to resource

  • Sector:  Extractive Industries, Oil & Gas
  • Source:  OpenOil

This documents takes a more detailed look at the differences and similarities between different types of oil contracts that the governments of resource rich countries can make with international and national oil companies.

Energy Charter Model Agreements for Cross-Border Pipelines and Electricity Projects Go to resource

  • Sector:  Extractive Industries, Infrastructure, Oil & Gas
  • Source:  Energy Charter

The Energy Charter Conference welcomed the work of the Energy Charter Secretariat, with the valuable assistance of the Legal Advisory Task Force in preparing and updating Model Agreements as a set of non-legally-binding guidelines for the negotiation of cross-border projects.

These have been developed with a view to providing interested parties to energy-related projects with a neutral and non-prescriptive starting point for negotiations, and thus, facilitating project-specific talks. This work was done with the help of a professional consultant and with the valuable assistance of the voluntary Legal Advisory Task Force. The Model Agreements were prepared based on best international practices and with the aim of reflecting as much as possible the interests of the different parties concerned.

This work began with the preparation of Model Agreements for Cross-Border Pipelines (Pipeline Model Agreements, or PMAs), which were released in 2004 following the approval of the Energy Charter Conference. Subsequently, the PMAs were revised and updated; this second edition was published in 2008.

The Secretariat then developed Model Agreements for Cross-Border Electricity Projects (Electricity Model Agreements, or EMAs) and, as a supplement to EMAs, the Market and System Inter-Operability Agreement Guidelines for Cross-Border Electricity Projects (Guidelines to Electricity Model Agreements, or GEMA).

Currently, the Secretariat is working on an Investment Model Agreements (IMAs).

Guide to Extractive Industries Documents - Mining Go to resource

A guide that describes the common provisions that are included in mining contracts and provides some examples of key provisions.

Guide to Extractive Industries Documents - Oil and Gas Go to resource

  • Date:  2013
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  Allen & Overy LLP

Provides an overview of how oil and gas agreements are structured: their common provisions, key terms in their negotiation, and the areas to cover in the negotiation process. This offers an investor-friendly introduction to how contracts in this industry are drafted.

How to Negotiate an Oil Agreement Go to resource

This document identifies the key areas on which governments should focus during their negotiations of oil agreements. It provides guidance regarding: who should be negotiating, over what issues, with what informational environment, and with what time horizon.

Features such as contract structure are also examined and a set of especially tricky issues are discussed, including accounting standards; the role of social projects; health and environment concerns; stabilization clauses; and contract termination provisions.

How to Negotiate the ‘Right’ Petroleum Contract Go to resource

  • Date:  2012
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  UNDP

A brief and clear introduction to the main issues to be considered when drafting a petroleum contract: type of agreement to enter into, taxes to apply, stabilization clauses to include, termination conditions, and so on. It can also serve as a guide for other large-scale investment projects.

For a power point presentation on the content of the paper, see here.

IISD Guide to Negotiating Investment Contracts for Farmland and Water Go to resource

  • Date:  2014
  • Sector:  Land & Agriculture
  • Source:  IISD

The IISD Guide to Negotiating Investment Contracts for Farmland and Water is a legal and policy tool for governments and communities that are involved in negotiating investment contracts with foreign investors. The guide focuses on a particular type of contract involving long-term leases of farmland. Part I, Preparing for Negotiations, is designed to assist in the preparatory phase. Part 2, Model Contract, is structured like an investment contract for the lease of farmland and proposes model provisions.

IISD Handbook on Mining Contract Negotiations for Developing Countries Go to resource

  • Date:  2015
  • Sector:  Extractive Industries, Mining, Oil & Gas
  • Source:  IISD

Many governments lack the experience or human resources to prepare effectively for a negotiation, and are unable to make the investments needed to overcome these difficulties. Yet without preparing properly, there is little hope of achieving the desired national and community objectives. This guide provides a comprehensive approach that allows governments to set priorities and address critical issues in the preparation process.  It will assist governments in developing internal capacity and understanding where outside experts can best help. The guide addresses the process before negotiations begin, where the hard work gets done to lay the groundwork for a successful negotiation.

Investment Contracts for Agriculture: Maximising Gains and Minimising Risks Go to resource

This joint IISD, World Bank and UNCTAD discussion paper marries two substantial bodies of research to show how investment contracts can be set up to promote sustainable development. It presents the top five positive outcomes and the five downsides from private sector investments in large-scale agricultural projects. The paper also proposes legal options to maximizing the main positive outcomes and minimizing the main downsides through better drafting of contracts between investors and governments for the lease of farmland.

Legal and Regulatory Issues Concerning Public-Private Partnerships Go to resource

  • Sector:  Infrastructure
  • Source:  PPIAF

The Legal Framework Assessment provides a summary of key areas of a host country's existing laws that will need to be reviewed when a government embarks on an infrastructure project, particularly one involving the private sector.

In addition, checklists, model bid documents, examples of legislative provisions relevant to infrastructure PPP projects, and financing mechanisms for PPP projects are provided.

Available in English, French, and Spanish.

Mining Contracts: How to Read and Understand Them Go to resource

A book created to highlight strong contract clauses and explore how others could be improved. It goes beyond legal considerations to explore the policy questions and company interests underlying contract provisions—issues that are crucial for understanding and negotiating contracts, and for monitoring their enforcement.

Available in English and French

Model Mining Development Agreement 1.0 Go to resource

MMDA 1.0 is a collection of examples from existing mine development agreements and other materials that are designed to help negotiators and drafters by stimulating them to think about some of the difficult issues of legality, fairness, and balance presented by large foreign natural resource investment, particularly in developing countries. On one hand, MMDA 1.0 may be useful as an agenda for negotiating such an investment. On the other hand, MMDA 1.0 may be useful to the lawyers tasked with drafting an agreement for such an investment.

Available in English, French, Portuguese, Russian and Spanish.

Natural Resource Contracts: A Practical Guide Go to resource

The goal of this guide is to explain common topics that are addressed in natural resource contracts and to provide suggestions for improving contracts that are vague or unfavorable to host countries.

The guide also includes references to additional resources that will be useful for advocates who want to learn more about particular topics and issues.

NRGI Reader | Extractives-Linked Infrastructure: Exploring Options for Shared Use of Infrastructure Projects Go to resource

This reader comes from a series of 20 short, illustrated overviews of key topics in the extractives sector. Together they serve as a robust introduction for the lay reader to fundamental issues and concepts in oil, gas and mining sector governance. They contain helpful figures and infographics, and each reader has a standard format: key messages, concepts, case examples, and a final set of practitioner-orientated questions to ask.

OGP: Disclosing Contracts in the Natural Resource Sector Go to resource

The Open Government Partnership (OGP) is an opportunity for governments to improve their commitment to contract transparency by making commitments around the proactive disclosure of oil, gas, and mining contracts. This brief aims to provide an overview of current standards and practices, and outline concrete examples of contract disclosure in action. 

Oil Contracts: How to Read and Understand Them Go to resource

  • Date:  2012
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  OpenOil

Walk-through guide on oil contracts: what they are, who participates in them, how the revenues should be handled and divided, what the different impacts of an oil project are, what its role is in fostering economic development, and how disputes between parties can be resolved.

OpenOil Repository of Oil Contracts Go to resource

  • Sector:  Extractive Industries, Oil & Gas
  • Source:  OpenOil

A growing repository of oil contracts from over 55 countries.

OpenOil: Public Interest Financial Modeling of Extractive Industry Projects Go to resource

  • Date:  2015
  • Sector:  Oil & Gas
  • Source:  OpenOil

This document describes the importance of financial models for extractives industries. 

It includes explanations about what models are for, what they can and cannot do, and the relation between modelling and transparency. 

 

Principles for Responsible Contracts: Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations: Guidance for Negotiators Go to resource

  • Date:  2011
  • Sector:  Extractive Industries, Infrastructure, Land & Agriculture, Mining, Oil & Gas
  • Source:  UN Human Rights Council

A guide that sets out and explains 10 principles that can help guide the integration of human rights risk management into contract negotiations.

Railway Reform: Toolkit for Improving Rail Sector Performance (2011) Go to resource

  • Date:  2011
  • Sector:  Infrastructure
  • Source:  PPIAF

Provides an easy-to-use resource on the rail industry—what it is and what it does best—and provides an experience-based set of best practices to aid in the planning and execution of railway reforms. Professionals and practitioners who could benefit from this toolkit include government policy makers, legislators, regulators, railway management personnel, international financial institutions, and other stakeholders-including railway customers and employees—who seek improvements in railway financial and operational performance.

The toolkit is now available in English and Russian.

ResourceContracts.org - An Oil and Mining Contracts Database Go to resource

  • Sector:  Extractive Industries, Mining, Oil & Gas
  • Source: 

A searchable database of oil and mining contracts, agreements and key terms.

Risk Allocation in Oil and Gas Contracts Go to resource

  • Date:  2011
  • Sector:  Extractive Industries, Oil & Gas

This paper analyses various standard clauses to apportion liability in the oil and gas industry. The issues touched upon are indemnity, exclusion of liability, and limitation of liability. It offers a discussion and explanation of each as well as examples from model contracts, and tips on how to negotiate, draft, and interpret each type of clause.

Safeguarding land tenure rights in the context of agricultural investment Go to resource

This guide has been developed in response to concerns regarding large-scale land acquisitions and the need to increase investment in agriculture. The guide supports application of the Voluntary Guidelines on the Responsible Governance of Tenure for Land, Fisheries and Forests in the Context of National Food Security at the national level by providing technical guidance on how to safeguard tenure rights in the context of agricultural investments, including in land. It aims to provide additional guidance to government authorities engaged in the promotion, approval and monitoring of investments at all stages of the investment cycle. The guide also serves as a reference for implementation of the Principles for Responsible Investment in Agriculture and Food Systems endorsed by the Committee on World Food Security (CFS) in October 2014 (CFS, 2014).

Safeguarding land tenure rights in the context of agricultural investment Go to resource

Ce guide a été développé en réponse aux préoccupations face aux acquisitions des terres à grande échelle et à la nécessité d’augmenter les investissements agricoles. Le guide soutient l’application des Directives volontaires en fournissant des recommandations techniques permettant de protéger les droits fonciers dans le contexte des investissements agricoles, y inclus ceux à emprise foncière. Il vise notamment à fournir des recommandations supplémentaires aux autorités gouvernementales engagées dans la promotion, l’approbation et le suivi des investissements dans toutes les phases du cycle d’investissement. Ce guide peut également servir comme outil de référence pour la mise en œuvre des Principes pour un investissement responsable dans l’agriculture et les systèmes alimentaires, approuvés par le Comité de la sécurité alimentaire mondiale en 2014.

WBG Report on Recommended PPP Contractual Provisions Go to resource

Public-Private Partnerships (PPPs) are now being used in many countries to develop infrastructure projects. Typically, PPP transactions are based on a network of complex legal agreements – however, at the center of each transaction there is normally a PPP Contract, in the form of a concession agreement or similar document, between a government or other public entity (the Contracting Authority) and a private company or a consortium of companies (the Private Partner). 

Given the variety of PPP transactions globally, the different legal systems which exist in various countries, and the need to have ‘tailor-made' provisions to deal with the individual characteristics of specific projects, it follows that the development of comprehensive PPP agreements on an international basis is likely an unrealistic goal. However, there may be merit in focusing on certain contractual provisions dealing with particular legal issues encountered in virtually every PPP Contract, such as the issues of force majeure, termination rights, dispute resolution, etc. The purpose of this Report is to present and discuss ‘recommended’ language in respect of a selection of these typically encountered provisions.