African Natural Resources Agreements: Stabilisation Tricks and Traps for the Unwary
In Africa, legal certainty has been a much craved ideal by investors in the natural resources sector. A key feature of legal certainty in long-term natural resources contracts is to make sure that if new laws are passed or existing laws amended which adversely affect the sponsor, compensation is paid for such changes. When natural resources prices are rising companies are often prepared to take a robust commercial view on the stabilisation risks. It is often seen as falling in the catastrophic risk category but unlikely to occur. However, with the current challenges in oil and gas and commodities in world markets and the global competition for capital, the strength and enforceability of contractual stabilisation covenants in long-term natural resources contracts in Africa in an increasingly risk-adverse world are ever more important. While there is always much debate over the fiscal package in natural resources deals, the stabilisation provisions rarely receive the attention they merit. How to value contractual stabilisation legal protections against more easily quantified fiscal provisions remains an anathema. What is clear is that companies will be well served to devote attention to stabilisation clauses as the temptation for African governments to tweak laws in the face of dwindling revenues can become overwhelming. This article looks at stabilisation issues in African natural resources contracts (in the context of a change of law by a host government) and how best to enhance the chances of a successful and legally binding stabilisation clause drawing on examples from throughout the African continent.