The suit instituted by the Nigerian Liquefied National Gas (NLNG) company against the Nigerian Mari-time Administration Safety Agency (NIMASA), pitted industry, the gas industry, against the administrator; business against the regulator.
The nutshells of the dispute are claims made by NIMASA against NLNG of the latter's obligations under the Nigerian Maritime Administration Act CAP N161, LFN 2007; a claim which NLNG denied, praying in its aid the Nigeria LNG (Fiscal Incentives, Guarantees and Assurances Act 2007). The details are in the public domain, including the fact of a NIMASA imposed blockade against the gas company's export channels leaving those not directly connected to it to watch on – Nigerians and foreigners alike. It suffices to say the picture was not attractive. Happily though, settlement talks have yielded positive results; the fractures in the relation-ship are all healed. The not so happy part is that the dispute has revealed deeper issues.
"Nigeria faces awakening as Mozambique's gas discoveries attract India, China others " (Business Day July 8, 2013) is a recent headline of one of the nation's daily newspapers; in fact such statements are almost a daily occurrence and in part prompting this piece. The article beneath the headline confirmed "...Mozambique appears to be having more competitive advantage against Nigeria as it is now attracting significant interest from international investors... keen to pump fund (s) into its gas scene". What about Nigeria we might ask?
The goals of the present administration to develop Nigeria's gas resources are not in doubt. The 2008 Gas Master Plan (GMP; rolled out by the late Yar'adua administration) is the road map; conveying an assurance that the nation is on track.
However whether Nigerians across the classes would attest to that claimed reality, is another matter altogether. Nigeria is more of a gas than an oil nation is a statement that has been made over and over; 187
trillion cubic feet (tcf) of gas; 600tcf of unproven reserves, the 8th largest gas reserves in the world; its reserves sufficient to meet the nation's needs (i.e., pro-ducing 8.0 billion cubic feet per day - Per George Osahon, DPR that Nigeria produces 8.0 billion cubic feet (bcfd) per day, utilizing 6.5 (bcfd) and flaring 1.4. Others put the monetary value of flared gas in the region of $2.5b annually – not to mention the environ-mental costs. ) etc, is common infor-mation. Yet it is not in contention that Nigeria is still to achieve in terms of its overall growth, includ-ing to develop its gas resources.
In essence, the picture emerging is of Nigeria lagging behind develop-ments taking place elsewhere. New (gas) markets are opening all the time. The landscape is chang-ing and the concerns are as regards Nigeria's future in relation to the same. In other words, has its once highly prized hydrocarbon assets lost their allure and are not as attractive (for investors)?
The comments of the newly appointed Direc-tor of Petroleum Resources, George Osahon, at the recent 2013 annual meeting of the Nigeria Gas Association (NGA; repre-sented by the Deputy Direc-tor DPR, Gas, Oliver Ok-paraojiako) under the theme "Petroleum Industry Bill (PIB): Analysing the challenges and opportunities on the gas value chain and solution for successful implementation in Nigeria" on July 10th that "At the prevail-ing market price of $3.50/1000 standard cubic feet, Nigeria may have been losing $1.7 billion yearly to underdevelop-ment, underutilization and flaring of gas resources" are apt to place the issue in context. "For the first time in years, country's oil and gas reserves were on the decline" are other comments attributed to him.
It adds little to the discussion to say our situa-tion has been compounded by the divestments in recent times of some oil & gas majors; the divestments of Shell, Total, in 2011/12 are by way of example. The latest is ConocoPhillips; it has exited the multi-billion 2003 Brass LNG project citing business strategies away from Nigeria as among its reasons for doing so. Meanwhile, an FID regarding the project's 7th Train is outstanding; putting the venture's future (in which Conoco holds a 17 percent share) in something of a precarious state (It is expected that the 7th train will inject into the sector in the region of $12 billion worth of FDI; not to mention revenue of around $3 billion that it is likely to generate). And although the Com-pany's versatile Chairman, Dr Jackson Gaius- Obaseki, a professional with an excellent track record remains upbeat and optimistic, other industry experts are not so sure.
Our situation is urgent we have been led to believe; [an argument ably presented by Olu-fola Wusu "With Shale Gas Emergence, Time to Up Our Game, and Fast!"]; that notwithstanding the GMP and wider policy statements [comments attributed to His Excellency, the President Goodluck Jonathan on his recent visit to China that increasing exploitation and utilization of shale gas by the united states and other advanced nations had made it more urgent for Nigeria to move faster towards diversification of its economy (Guardian July 12, 2013), lends a line of credibility to the arguments], something contin-ues to hinder a turnaround in our fortunes; the growth of our gas sector in particular.
It is easy to point to the usual suspects of (gas) pricing; unattractive fiscal terms, the issues tied to infrastructure, financing, etc. But whatever the hindrances might be, the consequences for Nigeria are all too obvious. Five years on and the GMP ostensibly having failed to impact the domestic market as expected (The market to (LNG) gas exports has fared significantly better), the question is whether the de-termination to commercial-ize our gas resources will ever be realized; in other words the roadmap against the actualities of the invest-ment landscape.
Project investment and risk are conjoined and, analyzing risk of an LNG gas project (from production to transmission, processing and storage, off-take through to end-users) aids to appreciate the breadth of the issues. Put differ-ently, and although there is nothing particularly ground breaking highlighting some of them, the fiscal regime, the market (demand) risk, competition, security; not to mention the many man-made problems (e.g. vandalism, theft), are all critical to an investors decision. It is against this that the spotlight inevitably turns again to the GMP. While the plan takes account of some of these risk factors (to trigger the devel-opment process; cognizance must also be taken of the (gas) legislative framework proposed under the PIB), the question why Nigeria still lags behind, remains to be answered.
As an energy source, gas remains promi-nent; the Paris based (IEA) forecasts gas demand as growing by 60% by 2030 but with supply growing by 100%. As nations position themselves to secure their energy needs and/or to achieve diversification agendas, demand for the re-source is driven forward. The comments of Mr. Talmiz Ahmad, an expert speaking recently at the Perchstone & Graeys India-Africa Business series in New Delhi, India, that "the extraordinary demand of energy now appearing in the continent [of which gas demands for a part]", makes the point. Yet despite its position in the world (gas) ta-bles, local and the international projections as regards FDI's to Nigeria, at best are tepid; predictions of Energy Aspects (oil analysts) that Nigeria is likely to lose out to Angola as Africa's "top oil producer" by 2014, cannot be ignored.
The Group Executive Director, Gas & Power, of the Nigerian National Petroleum Company (NNPC), Dr David Ige, for his part confirms all is well and on track with the GMP goals. He should know. At the 2013 oil and gas Free Trade Zone earlier this year, speaking through a representative, he confirmed the next four years would see gas infrastructure development into Nigeria of about $16billion; that the plan would deliver to meet not only the country's gas to power projects, an expansion of the LNG also featured in his comments and in highlighting the opportunities.
Yet others similarly positioned to know posit a less than certain picture. Mr Osahon again: "There is need to formulate policies that promote compe-tition, review the legal regulatory frameworks and create a strong and independent regulatory commission for the sector"; thus begging the question where really with the nations plans?
The GMP objective was to"...make Nigeria a major player in the international gas market as well as to lay a solid framework for gas infrastructure expansion within the domestic market...."; its components are threefold: the National Domestic Gas Supply obligations; Pricing Policy and Regulations and an Infrastructure blueprint. Space limits are the constraint to a detailed discussion of the related issues, save for the present to say that the plan notwithstanding, one of the major concerns of oil & gas producers about committing to Nigeria's domestic gas market (the focus to date being on the export market/LNG's in particular) has been projected returns; which investors contend are not guaranteed under the (pricing) terms pro-posed; categorization of the demand (for gas) sec-tor into three parts with a different (pricing) regimes applicable to each one. The Interna-tional Oil Companies (IOC's) have been par-ticular concerned to invest in the sector owing to the huge nature of the capital investment required but where the pricing of the end product (as regards the domestic market) in not entirely market driven unlike international gas prices.
In the context of any business decision the linkages of law, policy and commercial activity are well established. However, asked today to speak to the framework regulating production and gas use in Nigeria, few are be able to do so adequately; such is the state of our affairs. Al-though the Petroleum Industry Bill (PIB) prom-ises a resolution, it has not been signed. Busi-nessmen and those who guide are clear as to what Nigeria must do to step up its game and take its place among energy producing countries.
Visiting the NLNG site in June 2012, the ex-head of interim Government of the Federation, Chief Ernest Shonekan, concerned then about the delay with train 7 (and generally for the pace of LNG developments) called on the Federal Government to intervene. His comments: "... whatever might be delaying train 7, I call on government to step in and ensure that the construction of that train takes off immediately" The time is now"; such were the concerns then of the elder statesman. The situation however is at it was. We are no fur-ther forward. NLNG and NIMASA were always entitled to exert and protect their legal rights. That said however, there is a sense in which some disputes must be viewed differ-ently and in the overall interest of the nation, when government must intervene. The pro-jected train 7 output has already been commit-ted (the sale and purchase agreements in re-spect of its gas production; in some cases of 20-25 duration), yet the FDI to completion, as noted, still to be taken. The consequences of failure to finalize the same are best imagined.
NIMASA and the NNPC (holding a 49% share of the NLNG JV) state agencies. Given the public and international dimensions usually tied to these capital intensive capital projects, we submit that it is in Nigeria's interest to avoid (by all means) disruptions of the kind witnessed recently in NLNG.
We readily accept that the issues of that par-ticular dispute are not without their complexities; but whatever they might be, it is important to address them head-on; anything hindering our gas development must be removed. The success of key projects such as the revitaliza-tion of Nigeria's Power sector, are in many respects tied to a successful development of its gas sector. The difficulties highlighted by NIMSA v NLNG dispute must not repeat themselves. Absent a clear regulatory frame-work, commercialization of Nigeria's gas assets computer output.
The clear purpose of making such adaptations to our existing laws is to offer a means by which some or all the functions attributed to commerce in the paper-based medium can be validly performed in an electronic environment with the aim of promoting electronic businesses in Nigeria. Since the primary vehicle for e-commerce is the internet and information tech-nology, the Nigeria legal framework should be adapted to address both the commercial aspect of the transaction and its corollary technological issues. However, our statutes (written in some-what archaic language), continues to require conditions as to a written note and signing in respect of contracts.
Two central issues in e-commerce contracts are documentation and signa-ture. There are a number of specific statutory require-ments that certain contracts be evidenced in writing, and which also require a signa-ture. For example, Section 4 of the Statute of Fraud, 1677 states that proceedings to enforce a contract for sale of land can only be brought where the contract or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person's authorized agent. The courts have also held in a number of cases that an unsigned document is a worthless document. However, electronic commerce presents some peculiarities in this regards.
A first issue may be formulated as whether the use of emails may suffice as contracts in writing within the meaning of the Statute of Fraud and our various legislations on the subject; and secondly, whether an electronic mark will con-stitute a valid signature for the purpose of executing a contract.
With respect to the foregoing, one is generally inclined to interpret electronic signatures or marks in emails as sufficient to satisfy the traditional re-quirements of writing and execution. By section 93(2)(3), Evi-dence Act 2011, an elec-tronic signature in relation to a data message conven-iently satisfies any require-ment for a handwritten signature in so far as it sufficiently identifies an electronic record to the individual. The provision of Article 7 of the UNCITRAL model law on E-commerce 1996 is equally trite on this issue. Thus, for the pur-pose of establishing proof of electronic signa-ture, the use of passwords, identification, user-names etc may suffice. Hence, one may safely posit that electronic signatures for the purpose of execution are admissible in evidence pro-vided it is certified and incorporated in an electronic communication in the course of an e -transaction.
Remarkable strides at the regulation of e-commerce in Nigeria are still at the stage of draft Bills before the legislative houses. Some relevant Bills before the National Assembly are the Security & Information Protection Bill of 2010, Electronic Transactions Protection Bill of 2010 and the Electric Commerce (Provision of Legal Recognition) Bill, 2008 which is modeled after the UNCITRAL model law on e-commerce 1996.
There is a need to assure Nigerians of the au-thenticity, reliability and legality of electronic transactions. Public confidence in electronic transactions must be boosted and those entering into such transactions must be assured that the law will not discriminate against the sanctity of their agreements merely because it is in electronic form. This mandates an enabling legal environment on principal and ancillary issues surrounding electronic commerce or transactions. The Government should also go beyond creating laws, to activate utilization of electronic delivery platforms in its commercial interactions and for the delivery of government services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
