بند تجدید نظر در قیمت در قراردادهای فروش گاز طبیعی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
در حال حاضر، داوری های مربوط به شروط تجدیدنظر در قیمت در قراردادهای خرید و فروش گاز طبیعی، از حیث مبلغ مورد اختلاف و میزان خواسته، بالاترین رتبه را در میان سایر دعاوی تجاری بین المللی به خود اختصاص داده اند. رسیدگی صحیح به این گونه دعاوی مستلزم برخورداری از تخصص و درک عمیق تجاری در کنار دانش حقوقی است. ممکن است، غفلت از این ضرورت به نتایجی فاجعه بار و پیش بینی ناپذیر برای هریک از طرفین منجر شود. بسیاری از اختلافات رخ داده و آرای داوری که از منظر طرفین، نامنتظره و خارج از قصد و اراده ایشان صادر شده اند، علاوه بر سایر عوامل مؤثر تجاری، متأثر از وجود ابهام در نگارش و تنظیم بند تجدیدنظر در قیمت نیز بوده اند .این پژوهش با رویکردی کاربردی و تحلیلی در پی آن است که با تأمل در رویه داوری های موجود و بررسی نمونه بندهای تجدیدنظر در قیمت، ضمن تحلیل چالش ها و اختلافات رایج در تفسیر و اجرای این بندها، به مؤلفه هایی بپردازد که باید در تنظیم چنین بندهایی برای کاهش ابهامات و اختلافات احتمالی، مورد توجه قرار گیرند. ازجمله این مؤلفه ها می توان به موارد زیر اشاره کرد: ضرورت تصریح قصد و اراده طرفین در خصوص شرایط و اصول حاکم بر قیمت گذاری در زمان انعقاد قرارداد و اهمیت حفظ آن در مرحله تجدید نظر قیمت و همچنین تعیین دقیق فرایند تجدیدنظر در قیمت از حیث معیارهای محرک، مبنای قیمت تعدیلی و چارچوب صلاحیت و اختیارات داوران در امر تعدیل قیمت. با این حال، باید همواره در تنظیم بند تجدیدنظر در قیمت، تعادلی ظریف میان انعطاف پذیری لازم برای مواجهه با شرایط پیش بینی ناپذیر بازار و ساختار تجویزی بند قراردادی برقرار شود.Price Revision Clause in Natural Gas Sales Contracts
Introduction Based on statistics published by the Stockholm Arbitration Institute, a significant percentage of the cases filed at this center relate to disputes arising from natural gas sales contracts. The main issues in these disputes generally include non-payment of gas price, failure by the seller to deliver gas, and requests for price revision. Currently, arbitrations concerning price revision rank at the top of international commercial disputes in terms of the amounts claimed. The sums in dispute in these cases often start from hundreds of millions of dollars and, in many instances, reach into the billions. Consequently, arbitrators tasked with resolving these disputes face a very heavy and complex responsibility. The subject of these arbitrations is the review of the contractual price, which fundamentally lies within the parties’ will and agreement. Effective and fair adjudication of such disputes requires, in addition to legal knowledge and arbitration experience, a deep commercial understanding and familiarity with the nature of the market; otherwise, the arbitrator’s decision may lead to outcomes that are not only unexpected but also economically and commercially very harmful and challenging. Setting an appropriate price to ensure economic stability in long-term gas sales contracts plays a vital role. Although there are various models and methods for gas pricing, two main mechanisms dominate in the modern international natural gas markets: oil-indexation and hub-based indexation. In long-term contracts based on oil-indexation, given that over the contract term the conditions of the oil and gas markets may diverge, the economic balance of the contract may be disrupted. Therefore, such contracts often include a price review or revision clause. Since 2008, a set of downward factors affecting natural gas prices has changed market conditions to the extent that almost all buyers have sought to renegotiate and revise the pricing basis of their contracts. These developments, in turn, have significantly increased international arbitration claims related to gas price revisions. Although with the gradual and increasing shift from oil based indexation to hub-based indexation in Europe, the number of disputes concerning price revision in this region has decreased, it should be noted that the issue of natural gas price revision until recently has been primarily a European phenomenon. By studying the evolutionary trend of these arbitrations in Europe, forward-looking assessments can be made for other regions— particularly Asia, where gas markets closely resemble European market conditions from about two decades ago. These markets, still in transition, remain highly dependent on oil-product-based indexation for natural gas pricing. Generally, traditional price revision mechanisms have been accompanied by ambiguities regarding the framework of the review process and the scope of arbitrators’ powers. The consequences of neglecting the details of these mechanisms were clearly demonstrated in the Atlantic LNG and Gas Natural case.In this case, the arbitral tribunal ultimately introduced a new pricing mechanism that fundamentally did not align with the parties’ intentions. When deciding on price revision, arbitrators usually adopt one of two approaches: the evolutionary approach, in which the original transaction and its initial economic balance serve as the basis of analysis, and the tribunal aims to restore the contract’s economic equilibrium to the original state agreed upon by the parties; or the revolutionary approach, where arbitrators revise the price with less or no regard to the original status and balance of the contract. The economic balance of a gas contract is determined through pricing arrangements and price formulas on one side, and the value of the gas— including flexibility clauses and the value of the seller’s service obligations such as supply assurance and gas quality—on the other. Generally, parties intend for the price review clause to be a tool to restore the economic balance of the contract in the future rather than to modify it. The choice between the evolutionary or revolutionary approach by the arbitral tribunal depends on the wording and provisions of the price review clause, which may embody a combination of both approaches. No price revision clause can be considered a “standard” clause, as different parties have different commercial practices and each accepts business risks in a unique way. However, despite the differences in the structure and content of these clauses—whether very brief or detailed and extensive—it can be said that three main elements are generally included: 1) the occurrence of a triggering event, such as a specified level of change in one or more markets; 2) the establishment of a negotiation process and, if negotiations fail, the provision of a dispute resolution mechanism, which is usually arbitration; 3) the rules for price revision and the method of applying the revised price. Mastery of drafting price revision clauses and providing clear and comprehensive guidance regarding the principles and limits of arbitrators’ powers in this field can play a crucial role in reducing the risks arising from the interpretation and enforcement of these clauses. Hypothesis and Research Questions This article, based on the assumption that the significant volume of disputes related to price revision in gas sales contracts and the issuance of unpredictable awards are influenced not only by commercial factors but also by legal and contractual risks, aims—within the framework of examining potential disputes arising from the price revision process and relying on arbitration awards and sample related clauses—to answer the main question of whether it is possible, through intelligent management of challenging provisions such as the price revision clause and by utilizing an efficient contractual model, to reduce the likelihood of disputes and prevent the parties from facing unexpected awards. Furthermore, the article addresses the following subsidiary questions: 1. What are the key considerations for accurate valuation in gas contracts, and how does the price revision clause interact with other commercial provisions within the contract? 2. Is the primary purpose in price revision clauses to restore the original economic balance of the contract or to amend it? 3. To what extent should an effective price revision clause be mandatory versus flexible? 4. What are the considerations concerning the arbitrators’ jurisdiction over contract amendment, modification of the pricing mechanism, and disruption of the contract’s original economic balance during price revision? Necessity of Research The close relationship between energy and international affairs over the past two centuries has created specific paradigms on the global stage and has undeniably linked national security with international developments. Accordingly, energy and national security are considered two inseparable and interconnected concepts. Since the beginning of the twenty-first century, a new paradigm in the energy sector has been emerging, influenced by technological advancements, environmental issues, access to fossil fuel resources, and the growth of global demand. Among these trends, the increase in the share of natural gas from 23.7% in 2011 to a projected 28% in 2030 highlights the growing importance of this energy source and its rising global demand. Natural gas is now recognized as a strategic commodity in the global market, playing a significant role in generating power and security for producers within political economy dynamics, and serving as a lever to exert influence over buyers and their behavior—even in political arenas. A precise understanding of the various dimensions of natural gas, especially disputes related to its pricing—which is one of the most critical components of relevant contracts—can play an important role in maintaining and strengthening this strategic position. Research Methodology and Purpose This research is of an applied nature, employing a descriptive-analytical methodology. In this study, by examining gas and LNG sales contracts and their relevant clauses, as well as arbitration awards, an effort has been made to extract the conditions, general and specific principles, and common practices related to price revision. Through analyzing these elements, the position and regulatory framework of price review clauses in gas sales contracts are clarified. The method of collecting resources and conducting evaluations has primarily been based on library research. In this context, attempts were made to utilize all relevant domestic and foreign sources as much as possible, with the majority of the references consisting of foreign materials, including books, articles, reports, and sample gas sales contracts. Considering the author’s more than fifteen years of experience in negotiations, drafting, and examining challenges arising from the execution of gas sales contracts in Iran’s oil and gas industry, along with access to pertinent resources such as gas sales contracts, the main objective of this research is to build upon valuable preliminary studies through an empirical approach based on the analysis of contract clauses and related disputes. While observing confidentiality considerations, it seeks to frame the challenges related to the price revision process and corresponding solutions, including how to draft an effective price revision clause. The outcome is intended to serve as a useful and practical reference for research and for the development of efficient contractual models by executive agencies. Given the scarcity of significant Persian-language sources in this field and the fact that previous studies—hampered by limited access to contracts—have not thoroughly analyzed the content of price revision clauses in gas sales contracts, this study presents its findings using an innovative and empirical approach. These findings, based primarily on the evaluation of several price revision clauses, including one from an Iranian gas sales contract with a foreign party, offer a valuable resource for those interested in this area.
Conclusion Generally, from the perspective of the contracting parties, initiating a process that grants arbitrators—who are often legal experts—the authority to revise the contract price, which is the most critical commercial element in long-term gas sales contracts, can be a cause for concern. However, by establishing a clear framework for the price revision process through transparent clauses and providing explicit guidance, this risk can be significantly mitigated. Most price revision clauses set out the procedural and substantive conditions of the process; nonetheless, due to structural differences among gas sales contracts, a clause that is effective and appropriate in one contract may not necessarily suit another. Each contract possesses unique commercial characteristics and varying degrees of flexibility. Moreover, the principal interests, bargaining power, positions of the parties, and the market situation at the time of negotiation differ from contract to contract. Therefore, the price revision clause should not be drafted in isolation as a standalone provision but should be negotiated as part of a broader transaction and in connection with other contractual terms. Among the important considerations in this regard is the accurate valuation of the contract, which is significant not only at the time of conclusion but also during the price revision stage. The nominal contract price does not always reflect its true value and may be lower on paper due to factors such as a “take or-pay” clause or price set-off against other costs (e.g., transportation fees). Another key point is the impact of commercial terms and the degree of flexibility on the contract price; in contracts with favorable commercial conditions and high flexibility, the agreed price level is generally higher. The economic balance of the contract is primarily determined through pricing arrangements and the price formula on the one hand, and the value of gas— including flexibility and the value of the seller’s service obligations such as continuous supply and gas quality—on the other. This balance is typically one that the parties seek to maintain during the price revision phase. In this context, providing information regarding the fundamental philosophy of pricing, the factors to be considered in the new price, risks allocated to the parties at contract formation, the market basis for price changes, and other necessary information within the relevant clause can substantially assist in preserving the initial economic equilibrium at the time of price revision. Another key consideration is the precise definition of the price revision process framework, both in terms of procedural requirements (such as price revision notice and mandatory negotiation periods) and substantive requirements (such as specifying the triggering event and the price revision criteria). Furthermore, clearly delineating the arbitrators’ jurisdiction— covering the permissible approach, the scope of price changes, and the possibility of altering the price index—is of particular importance. In the absence of an efficient and effective price revision clause, the risk of disputes and encountering unpredictable awards increases sharply. Nevertheless, a suitable balance must always be maintained between the clause’s flexibility to respond to unforeseen circumstances and its degree of prescriptiveness. In cases where there is concern about the clause becoming unenforceable due to excessive detail, the use of phrases such as “to the extent possible” can ensure that the process remains executable under all conditions.
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