قابلیت اعمال قراردادهای مشارکت در تولید در ایران: تحلیلی بر ملاحظات قانونی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
انتخاب نوع قرارداد یکی از مهم ترین تصمیمات کشورهای میزبان برای ارتباط تجاری با شرکت های نفتی بین المللی است. در همین راستا، به منظور جلب و جذب سرمایه گذاری خارجی، باید قراردادی انتخاب شود که در برگیرنده منافع طرفین باشد و با قوانین آمره کشور میزبان نیز تعارض نداشته نباشد. از آنجایی که در اقلیم کردستان عراق، با وجود رژیم مالکیتی یکسان با ایران، برخلاف کشور ما، از الگوی قراردادی جذاب «مشارکت در تولید» استفاده شده و سبب جلب و جذب سرمایه گذاری خارجی در آن اقلیم شده است، در این تحقیق قوانین و مقررات مرتبط با مالکیت منابع نفت و گاز در دو کشور بررسی شده است. همچنین به این مسئله می پردازیم که آیا این قوانین با قراردادهای مشارکت در تولید در تعارض هستند یا خیر. با توجه به بررسی صورت گرفته، قراردادهای مشارکت در تولید با رژیم مالکیتی حاکم بر منابع نفت و گاز در ایران و عراق تعارض نداشته و درخصوص واگذار نشدن مالکیت منابع نفت و گاز در قراردادهای مزبور، باید به سه عنصر مرتبط با بهره برداری از منابع نفت و گاز شامل حقوق معدنی، حقوق استخراج و حقوق اقتصادی توجه کرد. همچنین هیچ کدام از حقوق مزبور در قراردادهای مشارکت در تولید، به پیمانکار منتقل نمی شود.Applicability of Production Sharing Contracts in Iran: an Analysis of legal Considerations
Choosing the type of contract is one of the most important decisions of the host countries for commercial relations with international oil companies. In this regard, in order to attract foreign investment, a contract should be chosen that includes the interests of the parties and with the laws of the host country. Also there is no conflict. In the Kurdistan region of Iraq, despite the same ownership regime as Iran, unlike our country, an attractive contract model, production Sharing, has been used, and it has attracted foreign investment in that region. In this research, the laws and regulations related to the ownership of oil and gas resources in two countries and whether they are in conflict with production sharing contracts or not have been investigated. According to the examination of production Sharing contracts do not conflict with the ownership regime governing oil and gas resources in Iran and Iraq, and regarding the non-transfer of ownership of oil and gas resources in the aforementioned contracts, attention should be paid to three elements related to the exploitation of oil and gas resources, including: mineral rights, extraction rights, and economic rights. In addition, none of the aforementioned rights in the production Sharing Agreement are transferred to the contractor. Keywords: Production Sharing, Iraq, Iran, Applicability 1. Introduction Carrying out oil and gas activities, such as upstream activities including: exploration, development and production and Midstream activities including: storage, trading and transportation of oil and gas and downstream activities including: oil refining, marketing and petrochemical production in the oil and gas industry, takes years and requires huge costs and a high level of experience and technology that most governments or national companies do not have. Considering that carrying out the above-mentioned operations and accepting all its risks alone is not possible for many governments with oil and gas resources, and considering that most of the mines are located in developing countries and these countries are in dire need of oil revenue for economic growth and development. In this regard, it is necessary for the government or a national company to establish a business relationship with one or more foreign companies. One of the important issues for establishing the aforementioned relationship is the contract. The main upstream contracts of the oil and gas industry are divided into three categories: concession contracts, sharing contracts, and service contracts. Each of these contracts has a history in Oil Reserves countries, including Iraq and Iran, which are developing countries in need of attracting foreign investment. A: Concession contracts, the use of this contractual method has a history in most Oil Reserves countries in the world. The history of concession contracts in Iraq dates back to a time when the country was part of the Ottoman Empire, and in 1914, the first oil concession was granted by Azam Osmani to the Turkish Oil Company, but World War I prevented its implementation. In Iran, the first concession contract was concluded in 1858 with the English company "Hotz" for the exploration and exploitation of oil resources. The contract did not achieve the desired result despite drilling several wells on Qeshm Island. (Mirtorabi, 2006, p. 42) B: sharing contracts, the aforementioned contractual system was formed for the first time in Iran and Egypt's oil industry. (Mughraby, 1966, p. 62) The 1957 Petroleum Law introduced and prescribed sharing contracts in Iran for the first time, bypassing the concession contract model, and the first contract concluded based on the aforementioned contractual model in our country was the contract with the Italian company Agip Mineraria in 1957. (Collection of Oil, Gas and Petrochemical Laws and Regulations, 2002, pp 299-327) The use of this contractual model in the Iraq's oil industry was authorized by Law No. 97 of 1967. According to Article 3, Paragraph 2 of the aforementioned law, the National Iraqi Oil Company was authorized to enter into partnerships with international oil companies to extract and exploit fields that were outside the scope of concession contracts. C: Service contracts in Iraq, the first service contract in 1968 was concluded between the National Iraqi Oil Company and Arup Company for the exploration and exploitation of part of the oil resources located in the south of the aforementioned country. Despite oil production in the operational area in 1976, Arup Company withdrew from the aforementioned contract in 1979 in return for receiving compensation. Iran is one of the pioneers of the oil industry in using service contracts in the upstream sector. This contract model was used even before it was prescribed by the legislator. With the explanation is that the first service contract was signed in 1965 between the National Oil Company and the French group Arup. This is while the 1974 Iranian Petroleum Law, which prescribed the aforementioned contract model, was approved eight years later. It is worth mentioning that the contracts concluded must not conflict with the mandatory laws and regulations in the host country. because of the contracts concluded in our country are not attractive to foreign investors, and on the other hand, in the Kurdistan Region of Iraq, due to the same ownership regime as Iran, an attractive contractual model of production sharing is used and this has led to the development of oil and gas resources, the attraction of foreign investment, and the entry of large international companies such as the Norwegian company "DNO" in the tawke oil field, the Genel Energy and China's Sinopec companies in the Taq Taq oil field, and the Dana Gas Company in the Khor Mor gas field. Therefore, the laws and regulations of Iraq and Iran for implementing production participation contracts will be examined by answering the question: What are the legal considerations for implementing production sharing contracts in Iran and Iraq? 2. Methodology In this research, we tried to collect and gather information from the primary sources (including laws, regulations, contracts, etc.) and secondary sources (such as books and articles, theses, research reports, etc.) in scientific research data centers, official and reputable websites, libraries, and similar resources. We have chosen Iraq for comparison because, like Iran, it is a developing country with a republican political system and is in need of attracting foreign investment. Considering that Iraq has a similar ownership system to Iran and that an attractive production sharing contract model has been used in the Kurdistan Region of that country, in this regard, first the laws and regulations of Iraq for the implementation of the aforementioned contracts and then the laws and regulations of Iran have been examined. 3. Results and Discussion Contracts used in the oil and gas industry of countries must not conflict with their laws and regulations. In this regard, one of the important issues for choosing contractual models is the ownership of oil and gas resources. In Iraq, the civil law of the country in question does not directly address the ownership of oil and gas resources, but it states that the owner of the land can fully benefit from it and it also extends to what is above and below the ground. However, Iraq Constitution, according to Article 111, considers oil and gas resources to belong to the public. Therefore, according to the emphasis of the constitution, public ownership governs the oil and gas resources of that country. Production sharing contracts do not conflict with public ownership of oil and gas resources. Regarding the non-transfer of ownership of oil and gas resources in the aforementioned contracts, attention should be paid to three elements related to the exploitation of oil and gas resources, including mineral rights, extraction rights, and economic rights. As can be seen from the aforementioned names, mineral rights relate to the time when minerals are underground in their original state, extraction rights relate to the rights to extract minerals from the underground, and the rights related to minerals after extraction are economic rights. It should be noted that none of the aforementioned rights in production sharing contracts are transferred to international oil companies, but rather the aforementioned rights belong to the host country, and according to the law, the said country transfers some rights to the national oil company, and the said company, in order to exercise sovereignty, enters into contracts with contractors on behalf of the government to carry out exploration, development, and production operations in the name of the national oil company of the host country. 4. Conclusions and Future Research Considering that in Iran, contracts concluded in the oil and gas industry have not been very successful in attracting and absorbing foreign investment, the reason for this is that the foreign oil company, which is actually the default loser of the contract, does not have the necessary motivation to implement the win-win and optimal project, and since production sharing contracts in Iraq, despite the dominance of public ownership, are used in the Kurdistan Region of that country and have led to the development of oil and gas resources and also the attraction of investment in that region. Therefore, it is suggested that the aforementioned contracts, which are suitable for attracting and absorbing foreign investment, be used in our country. Encouraging private sector compliance with ethical data handling practices through incentives and penalties. Promoting cross-sectoral collaboration between government agencies, tech companies, and advocacy groups to ensure a holistic approach to child data protection. Conducting periodic assessments and revisions of child data protection policies to keep pace with technological advancements and emerging threats. Enhancing international cooperation to adopt best practices from global data protection frameworks and ensure seamless integration into Iran’s legal landscape. By adopting these measures, Iran can create a safer digital landscape for children, ensuring their fundamental right to privacy is protected in the evolving digital age. Addressing legislative gaps and fostering a culture of data privacy awareness will ultimately empower children to navigate the digital world securely and responsibly.
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