Stockholm Bombshell: The Implications of the Gazprom v. Naftogaz Arbitration

It is clear even from the first ruling that Naftogaz and Ukraine have been substantially strengthened and Gazprom Weakened.

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Almost all gas contract disputes between Gazprom and its customers have ended up with an amicable settlement between the parties. The German, French or Hungarian customers may push Gazprom on the pricing, Gazprom pushes back and ultimately everyone settles on a number they can live with-and each side claims victory. Rarely does either side actually intend to seek a final ruling from an arbitrator. However, when Gazprom launched its case against Naftogaz in the summer of 2014 the Russian aim was to push the case to a final arbitration ruling, and with that ruling cripple the Ukrainian company. Gazprom claimed the huge sum of $35 billion plus interest, amounting in mid-2017 to $44 billion, half Ukraine’s current GDP. The claim revolved around the take or pay clauses from the 2009 supply contract agreed in the shadow of the 2009 Ukraine-Russia gas crisis. Gazprom was confident that it would prevail. Much to its shock on the 31st May the Stockholm arbitration tribunal sided with Naftogaz and ruled that the take or pay clause was unenforceable. Although the tribunal has to yet rule on other parts of the Gazprom v. Naftogaz dispute, this central Gazprom claim has been struck out. With limited rights to appeal the ruling Gazprom has few possibilities to reverse the decision. By pushing the case to a final ruling Gazprom has forfeited all leverage over Naftogaz, strengthened the economy of Ukraine while undermining its own financial prospects.

The case against Naftogaz was launched by Gazprom in June 2014. The main claim revolved the alleged failure of Naftogaz to pay for natural gas under the terms of the take or pay clause of the 2009 supply contract. A take or pay clause requires the customer to either use the gas contracted for or pay for it if not used. This clause usually limits the ‘pay for in all cases’ element of the clause to a specific percentage of the total amount contracted. In this contract it was 80% of the 52 bcm that Gazprom agreed to supply Naftogaz. Naftogaz did not on a number of occasions from 2013 take the full amount of gas it was required to under the contract. At first sight the Gazprom claim appeared to be quite strong.

While as yet we do not know the details of the arbitration ruling we do know that the 2009 contract was agreed under circumstances where Ukraine and Naftogaz were put under considerable pressure to agree to the contract. In addition, the amounts of natural gas that Naftogaz agreed to take in 2009 was far more than Naftogaz could ever use. Furthermore, the contract included a destination clause which means that Naftogaz could not onsell the gas to third parties. In addition, the pricing mechanism linked resulted in Ukraine paying a far higher price for gas than EU states, even those in Western Europe, despite the significant additional transit costs to bring gas to France, the Netherlands and Germany. A further factor was that the natural gas price in the contract bore no relation to the prices on the gas hubs in the EU states, now increasingly the bench mark for European natural gas prices.

All of these factors clearly fed into the ruling of the Stockholm tribunal. In its first end of May ruling it held that the take or pay clause on which Gazprom’s $35 billion claim rested was unenforceable. It then also held that the destination clause, that prohibited the reselling of gas Naftogaz had bought from Gazprom to third parties, was unenforceable and that the pricing mechanism in future must reflect the pricing on the main European gas hubs.

Potentially for the harm caused by the application of the destination clause and the existing pricing mechanism Gazprom may be facing a damages award against it (which will be decided later on in the proceedings). However, the most significant issue is the striking out of the take or pay claim. This is an enormous relief for Naftogaz and Ukraine. At a stroke a $35 billion ($44 billion with interest) claim is struck out, removing a huge potential liability over the company. The way is now open to restructure Naftogaz and fully liberalise, on EU lines, the Ukrainian gas market. It also makes a liberalised Ukrainian gas market a much more attractive market for foreign investors to enter. Furthermore the removal of the shadow of the Gazprom liabilities strengthens Ukraine’s overall financial position, reducing the perception of sovereign risk and increasing the appetite of the capital markets for Ukrainian debt.

The next main stage of the arbitration case is the Naftogaz claim against Gazprom for approximately $30 billion. This claim was brought by Naftogaz following the June 2014 claim against it by Gazprom and is being dealt by the same tribunal panel. This claim surrounds the scale of fees that Gazprom should pay for transit of gas across Ukraine. The claim involves two principal elements. First, a claim that the transit price is too low. The second claim is that Gazprom was obliged under what are known as a ‘ship or pay’ clause to ship a certain amount of gas through the Ukrainian pipeline system. Under a ship or pay clause a failure to ship the full amount still results in a requirement to make a full contractual payment.

Clearly if Naftogaz were to win this claim, a claim which would amount to almost half Ukrainian GDP, this would further enhance Naftogaz and Ukrainian state finances. The success of this claim would also impose significant financial damage on Gazprom, undermine its financial stability and make it much more difficult for the company to raise capital. The claim would also be enforceable as Gazprom has extensive assets in the West which could if necessary be seized.

However, even if the tribunal does not rule wholly in Naftogaz’s favour Gazprom is in some trouble itself even from this initial ruling. The damage to Gazprom itself can be seen in the immediate fall in Gazprom’s share price following the announcement of the ruling. The prospect that none of the take or pay claim is recoverable will damage the company’s financing standing as major source of revenue has just evaporated. This fear of evaporating revenue will be reinforced by the prospect that defeat on the take or pay clause issue in the Naftogaz case may well encourage other companies across Central and Eastern Europe who have substantial take or pay debts with will now rely on the Naftogaz precedent to seek to challenge the legality of their own debts.

Furthermore, even without any more damages awards against Gazprom the case will make it more difficult for the company to raise capital for major infrastructure projects such as Nordstream 2. The scale of the difficulty of raising capital for Gazprom is likely to depend on how much the company is faced to pay out as the tribunal completes its rulings, expected by late summer and autumn 2017.

For Naftogaz, and Ukraine any significant awards will help improve both the corporate and state financial position, permitting a much more rapid advance to a more liberalised European style gas market. It very much appears to be the case that Gazprom by pushing the case into a tribunal and forcing a ruling has done much to liberalise the Ukrainian gas market on the European model, improve Ukrainian state finances, and ensure a far greater degree of Ukrainian independence and autonomy.

*Dr Riley has been an adviser to Naftogaz but took no part in the arbitration proceedings. This article was first published in Natural Gas World.

 

Making the Most of An Antitrust Brexit.

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Is there any Silver Lining in Brexit from an Antitrust Perspective?

Almost all of the commentary on Brexit from an antitrust perspective is negative. Its all about minimising the costs from duplication of merger assessments and the prospect of legal uncertainty. This is combined with a fear that in the process of Brexit British antitrust will lose its European antitrust moorings. The CMA it is feared will head off in the direction of MMC pre-1973 opaque public interest justifications for merger clearances and market investigations.

Is it possible however for the UK free of European regulatory structures to enhance in some respects the operation of its antitrust regime? And potentially could the UK become a regulatory laboratory for development of antitrust policy in Europe? The potential is that the British authorities could take Brexit and turn it into a win win for both Britain and the rest of Europe.

To give two examples. First, once free of the European regulatory structures the UK could seek to significantly enhance its criminal cartel regime. Greater use of plea agreements, director disqualification orders, an enhanced leniency regime and reshaping the civil procedures against companies so they followed immediately on the back of the criminal procedures seamlessly. The overall impact would be to create the most formidable anti-cartel regime in Europe. Given the economic footprint of the British economy (even post-Brexit) the British regulator would end up creating a significant additional deterrent effect against price-fixing cartels that would have a positive effect both in the UK and EU economies.

A second example would be to look again at the issue of exemption decisions in respect of the UK’s restriction of competition provision contained in Section 2 of the Competition Act 1998. Following the abolition of the notification and exemption system in respect of Article 101 in Regulation 1/2003 the UK followed suit and abolished its own notification and exemption system. The UK now has only a limited and little used opinion system.

There has always been a compelling argument that it was a mistake to abolish the notification and exemption system: That the real problem was the over-broad jurisdiction of Article 101. The old pre-2004 notification and exemption system was valuable in terms of legal certainty for business. Post-Brexit the British authorities could envisage bringing back a modernised notification and exemption system which would be  voluntary; where the scope of Section 2 was expressed in more limited terms than  the Commission’s traditional interpretation of the scope of Article 101 (or rather as would then have been Article 81) and would imposed a filing fee to limit the cost implications for the CMA in dealing with  exemption assessments.

This UK experimentation would give EU states the opportunity to see how a modernised notification and exemption system would work to everyone’s benefit. It also may give the UK a competitive advantage by help keeping some business on British shores, as some capital intensive businesses who desire legal certainty make base themselves in the UK to take advantage of exemptions granted by the CMA. However, for the exemption to be valuable in the EU, the CMA would still have to ensure its exemptions kept close to the accepted canons of EU antitrust law. Hence while a notification and exemption system may give the UK a competitive advantage it would also have the effect of helping to anchor Britain close to mainstream EU antitrust law.

*This article originally appeared as the leader in Competition Law Insight, 9th May 2017.

Nordstream 2: A Legal and Policy Analysis: A Brief Review So Far.

10fb193a9699b7d6b5d132f2fcca9d60My CEPS paper published in November examining the legal and policy issues surrounding Nordstream 2 has had over 3000 downloads and sparked significant debate. I will be discussing the legal issues surrounding Nordstream 2 at the upcoming Lennart Meri and Globsec conferences. There is an initial response from Nordstream 2 by Mr Lissek. To my mind however the most substantial response to my paper has been by Professor Kim Talus in his the Application of EU Energy and Certain National Laws of Baltic Sea Countries to the Nordstream 2 Pipeline Project

One of the main contentions is whether EU law applies to Nordstream 2. I find it difficult to see how one can argue as a matter of principle that EU law does not apply at least to the inland waters of the Member States, and their territorial waters, and possibly following the Habitats case to the exclusive economic zone. The key issue I would therefore argue is whether the EU energy law regime envisages the application of the regime to import pipelines. Professor Talus argues robustly and coherently that EU law energy regime is not envisaged as applying to import pipelines. This is clearly a much more compelling argument than that of some of the Nordstream lobbyists who seek to distinguish between import pipelines running on the seabed and those running on land. However, the difficulty with Professor Talus’s argument is that EU law has been applied already to two import pipelines Yamal, and Southstream. More recently parts of the Commission have been much more circumspect and the Legal Service of the European Commission produced a four page note seeking to argue that EU law may not apply to Nordstream 2. It is despite that note difficult to evade the reality that EU law has in fact been applied to import pipelines-and that the Union’s legal regime-in order to ensure uniform application of competitive conditions amongst all market operators requires to be substantially applied to both import and non-import supply pipelines.

 

Brexit: Causes and Consequences

eu-union-jack-flagsIn this new paper I argue (with Francis Ghiles) that Brexit is the most significant event in Europe since the fall of the Berlin Wall in 1989; that while some of the causes of Brexit are largely home grown, many of them are not and that the consequences are more likely than not to further fragment and divide Europe further absent a significant step up in the quality of leadership that has been provided over the last decade.

Dangerously for China its Market is a Potemkin Market

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In my new book The Potemkin Dragon I argue that China does not have a real market economy. Instead it has a sham or Potemkin market. At first sight this argument looks impossible to sustain. After all China has seen tremendous economic growth over the last forty years. It has gone from being a $170 billion economy in 1979 to a $10 trillion plus economy today. This economic miracle has lifted 800 million people out of poverty. Surely this only could be because China has a market economy?

It is true that all the formal institutions of a market economy are in place. China has a stock exchange, law courts, commercial codes, publicly listed and privately held companies and several antitrust agencies. Scratch the surface however and it becomes apparent that the Chinese market is unlike any other ‘market’ economy on earth. Take its largest stock exchange in Shanghai: 80% of the market by value is constituted by wholly or largely state-owned companies. Those companies in reality only trade a small percentage of their equity on the exchange. As a consequence, the Shanghai exchange cannot function as most Western exchanges do. A core part of a company’s valuation, namely who exercises corporate control is not factored into Chinese stock prices. Essentially share prices reflect liquidity and demand at any given time, encouraging a pure gambling mindset amongst traders.

The Shanghai exchange is just one example of the clash between market formalism and Chinese reality. Take most of the largest 100 plus state owned companies. These are not run by large arms-length partly privatised public companies such as France’s EDF. The largest 100 have one shareholder the State-Owned Assets Supervision and Administration Commission (SASAC). SASAC does not operate at arms length. It appoints and dismisses executives, assesses business plans and issues directions to the companies it owns. These are not small companies. Approximately half of SASAC’s stable of companies are in the global fortune 500. In all the market value of SASAC is put at some $6 trillion. SASAC also directs provincial and local SASAC’s which control a further 150,000 companies, some of which are also like China Bright Foods, are also major international companies, and together they have a market value of a further $10 trillion. There is a financial equivalent to SASAC in the Central Huijin Investment Ltd, which controls the top four tier one banks and nine of the ten top tier two banks. This level of control over the financial system allows the state to direct capital at will to state owned companies.

In addition to state control there is control by the Party. Through the Chinese Communist Party’s (CCP) Central Organisation Department (COD) several thousand posts in the State Owned Enterprises (SOEs), banks, state administration, media, universities are all appointed at the behest of the COD. Party-State control also flows deeply into the private sector. Every major private business will have a Party Committee where decisions will be made before the formal meeting of the Board of the company. Even if the Party Committee is not sufficient to ensure control of ‘private’ Chinese companies, Party-State control of the banks will convince even the most private entrepreneurs that fidelity to state and Party objectives is worthwhile in return for access to capital at fine rates. Furthermore, both the National Development and Reform Commission (NDRC) and the sectoral Chambers of Commerce maintain significant regulatory controls over SOEs and private businesses.

This system worked well enough in turbo-charging Chinese growth in past decades. Whilst not a market economy where price signals operate across the market and capital is allocated on the basis of an assessment of risk it did allow the state to direct capital to build the infrastructure and businesses to fuel the first stages of Chinese economic growth. However, this model is far less efficient when it comes to bringing on the next stage of economic development. China needs to shift to developing high value added innovative products, services and a consumption led economy. For this China needs to let real markets flourish. The CCP has to give up controlling much of the economy. Private businesses have to make their own decisions and capital has to be allocated on a commercial basis. In order for intellectual property rights to be secured and innovative markets to be developed, the rule of law has to be entrenched and independent courts established. However, the difficulty for the CCP is that to give up control on this scale would be to undermine its capacity to run the economy and society. Liberalisation would take away its main economic levers and threaten its hold on the country.

All of these pressures and conflicts can be seen in the reaction of the CCP to the 2008 economic crisis. The CCP reacted by pouring credits into the state sector, expanding the capacity of the SOEs to maintain employment levels and social peace. The consequence was that local government, central government and corporate debt exploded. That cumulative debt now stands at 283% of GDP, three quarters of which has been incurred since 2008. The DNA of the Chinese state kicked in: Use the SOEs, direct capital and maintain social peace and do not worry (for now) about the debt. However, as China becomes more and more indebted, ever increasing bursts of injections of cash from the state banks has less and less effect. Meanwhile innovative private firms who could be China’s future have far less access to capital and are undermined by state regulation and empowered SOEs.

The danger for China is that its economic future is strangled by its Potemkin market and the CCP’s underlying political logic for keeping the Potemkin market in being.

Recognising the Potemkin Dragon

 

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In my latest book The Potemkin Dragon: China a Danger to Itself and the World I argue that the Chinese Communist Party (CCP) not only runs a sham (Potemkin) market that has resulted in Westerners misunderstand the reality of the modern Chinese economy, but that its Potemkinite nature will undermine Chinese future prospects. In the next couple of weeks I will be running a series of articles on the impact of the Potemkin market on China and the world.