The Nigerian petroleum industry established since the first significant crude oil find at Oloibiri in the Niger Delta in 1956 has steadily grown to be one of the largest oil and gas producer in Africa. Although Nigeria is widely known for its crude oil production, it is often referred to as a gas province with pockets of oil. This is evidenced by the fact that Nigeria's current recoverable oil reserves are estimated at 28.5 billion barrels, with an average of about 2.5 million barrels per day being extracted, while its associated and non-associated gas reserves are estimated to exceed 166 trillion standard cubic feet (tcf).
The industry is the major driver of the Nigerian economy, and the government of the Federal Republic of Nigeria regulates and actively participates in this industry through its national oil company, the Nigerian National Petroleum Corporation (NNPC).2 The industry is in itself divided into three major sectors – the upstream, midstream and the downstream sectors.
The upstream sector, the most active sector of the Nigerian petroleum industry, is largely export-focused and until recently dominated exclusively by international oil companies. The Nigerian government's marginal fields licensing regime3 and its content development drive4 has led to increased participation of indigenous oil companies in the petroleum industry.
The midstream and downstream sectors are dominated by indigenous players. Both sectors, excluding liquefied natural gas (LNG), are significantly underdeveloped as Nigeria's refineries are currently producing approximately 10 million litres of petroleum products per day, which is remarkably low when compared with Nigeria's daily consumption of about 35 million litres per day. As a result, there is heavy reliance on the importation of petroleum products in the downstream sector, which, until May 2016, were heavily subsidised by the government. However, in an apparent move towards deregulation of the downstream sector, the government has removed and, in some cases, minimised subsidy on petroleum products. It is noteworthy that these 'executive actions' are presently not backed by any regulation or legislation.
As indicated earlier, LNG is one aspect of the midstream sector that has continued to record progress, having successfully developed six operational LNG trains with the development of train seven in progress. Underpinned by the Nigerian Gas Master Plan (NGMP), Nigeria is set to experience significant growth in the largely untapped gas sector and consequently in the power sector – now fully privatised and estimated to have the potential to consume 36tcf of gas annually. In recent times, there has also been an increased drive to build gas markets in Nigeria, which is propelled by the approval of the Nigeria National Gas Policy. As stated in the policy, the intention of the government is for natural gas exports to continue; however, it will be consistent with Nigeria's aspiration for domestic gas market development. In addition, renewal of licences and leases will be subject to a commitment by the licensee or lessee to the development of the discovered gas resources within the licence or lease area for domestic or export projects, as applicable, and within a specified time frame.
II LEGAL AND REGULATORY FRAMEWORK
i Domestic oil and gas legislation
The legal framework regulating the oil and gas sector in Nigeria covers a broad range of legislation. The bedrock of the legislation is the Constitution of the Federal Republic of Nigeria, which vests ownership of mineral resources, including oil and gas, exclusively in the federal government5 and further confers on the federal government exclusive powers to make laws and regulations for the governance of the industry.6
Key legislation includes:
- the Petroleum Act and the Schedules and Regulations made pursuant to it – providing the framework for the licensing of oil and gas companies to engage in activities connected with the exploration, production and transportation of crude oil;7
- the Petroleum Profits Tax Act8 – providing the framework under which the federal government obtains revenue from oil and gas operations by way of signature bonuses, royalties and taxes;9
- the Deep Offshore and Inland Basin Production Sharing Contracts Act10 – according tax relief incentives to oil and gas companies operating in the Deep Offshore and Inland Basin areas under PSCs;11
- the Associated Gas (Reinjection) Act;12
- the Nigerian National Petroleum Corporation Act13 – establishing the NNPC and empowering it to participate directly in petroleum operations on behalf of the federal government;
- the Environmental Impact Assessment (EIA) Act14 – providing the framework for assessing the impact of oil and gas projects on the environment;15
- the Federal Inland Revenue Service (FIRS) Establishment Act 2007 – detailing the statutory powers of the FIRS to collect all taxes, fees, levies, royalties, rents, signature bonuses, penalties for gas flaring, depot fees, including fees for oil prospecting licences, oil mining licences, etc.;16
- the Education Tax Act17 – providing for the imposition of annual taxes at 2 per cent of assessable profits on oil and gas companies for the development of Nigeria's educational sector;
- the Niger Delta Development Commission (Establishment) Act18 – requiring the payment to the Commission by oil and gas companies of 3 per cent of their annual budgets for the development of the Niger Delta from where oil and gas is exploited;19
- the Nigerian Oil and Gas Industry Content Development Act 2010 – providing a framework for promoting participation of Nigerians in the industry and laying down minimum thresholds for Nigerian content utilised by the industry;20
- the Nigerian Extractive Industries Transparency Initiative Act 2007 – providing the framework for transparency and accountability by imposing reporting and disclosure obligations on all oil and gas companies upon requirement by NEITI of revenue due to or paid to the federal government;21
- the Oil Pipelines Act;22 and
- the Oil in Navigable Waters Act.23
The Petroleum Industry Bill (PIB) is a potential game changer if enacted. The PIB aims to harmonise all the legislation in the oil and gas industry and significantly restructure the industry, particularly the functions of the various regulatory agencies, with a view to eliminating overlaps. To ease its enactment into law, the previous highest legislative house (eight Assembly) further unbundled the PIB into four smaller pieces of legislation delineated as follows:
- The Petroleum Industry Governance Bill (PIGB): This bill deals mainly with the governance and institutional framework for the petroleum industry;
- The Petroleum Industry Fiscal Bill: This seeks to establish a robust fiscal framework that ensures the development and exploitation of petroleum resources in a rational and sustainable manner;
- The Petroleum Industry Administration Bill: The purport of this bill is to create a legal framework for the administration of upstream licences and leases; provide regulations for the organisation of the midstream operations and gas market and set out the procedures for administration of licencing and operations of the downstream; and
- The Petroleum Host Community Bill: The bill provides a legal framework for cost and benefit share among the government, oil and gas companies and host communities.
In 2017, the Federal Executive Council approved the Nigerian Petroleum Policy (NPP) and the National Gas Policy (NGP). The overarching objectives of the NPP and the NGP is to set policy goals, strategies and an implementation plan for the introduction of an appropriate institutional, legal, regulatory and commercial framework to resolve the barriers currently affecting the petroleum sector and attract investment into the gas sector respectively. A third policy yet to be approved is the National Petroleum Fiscal Policy, which aims to provide a fiscal framework for Nigeria's oil and gas industry.
iv Regulatory authorities
The Federal Ministry of Petroleum Resources has primary responsibility for policy direction and exercises supervisory oversight over the industry. The Minister of Petroleum Resources (the Minister) issues regulations, guidelines and directives pursuant to the Petroleum Act and other enabling laws.24 The Department of Petroleum Resources (DPR) is responsible for the day-to-day monitoring of the petroleum industry and for supervising all petroleum industry operations. Other regulators and agencies include: the Federal Ministry of the Environment (FME), NNPC, the NCDMB (Nigerian Content Development and Monitoring Board) and the National Oil Spill Detection and Response Agency (NOSDRA).
Nigeria is a signatory to the International Centre for Settlement of Investment Disputes Convention (ICSID). Where investment disputes arise between the government of Nigeria and a foreign investor and the parties are unable to come to a compromise as to the means of dispute resolution, in the absence of any bilateral or multilateral treaty between Nigeria and the investor's country on dispute resolution, the applicable rules would be the ICSID Rules.25 Nigeria is also a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.26 On 16 May 2017, Nigeria ratified the Paris Climate Change Agreement and subsequently signed on to the Global Gas Flaring Partnership (GGFR) principles for global flare-out by 2030 while committing to a national flare-out target by 2020.
Bilateral investment treaties with China (18 February 2010), Finland (20 March 2007), France (19 August 1991), Germany (20 September 2007), Italy (22 August 2005), Republic of Korea (1 February 1999), the Netherlands (1 February 1994), Romania (3 June 2005), Serbia (7 February 2003), South Africa (27 July 2005), Spain (19 January 2006), Sweden (1 December 2006), Switzerland (1 April 2003), Taiwan (7 April 1994) and the United Kingdom (11 December 1990) are in force27 while bilateral investment treaties with Algeria, Austria, Bulgaria, Canada, Egypt, Ethiopia, Jamaica, Kuwait, Morocco, the Russian Federation, Singapore, Turkey, Uganda and the United Arab Emirates have been signed and are awaiting ratification.28
The licensing regime under the Petroleum Act provides for the following licences.
i The oil exploration licence (OEL)
This is a non-exclusive licence that permits a licensee to explore for petroleum in the licence area. The OEL does not confer a right to an oil prospecting licence (OPL) or oil mining lease (OML). It is granted for one year and is renewable upon satisfaction of certain conditions.29
ii The oil prospecting licence (OPL)
This grants the licensee the exclusive right to explore and prospect for petroleum and allows the licensee to carry away and dispose of petroleum won during prospecting operations subject to fulfilment of obligations imposed under the Act,30 by the Petroleum Profits Tax Act31 or other law imposing tax on petroleum. The duration is determined by the Minister and for onshore areas and shallow waters is five years,32 inclusive of any period of renewal, while an OPL for Deep Offshore and Inland Basins is 10 years.33
iii The oil mining lease (OML)
This is granted only to the holder of an OPL upon satisfaction of all conditions of the licence or the Act and having discovered oil in commercial quantity (currently defined as a flow rate of 10,000bpd). The lease confers on the holder the exclusive right to search for, win, work, carry away and dispose of petroleum within the specified acreage for a period of 20 years. This may be renewed subject to the fulfilment of prescribed conditions.
IV PRODUCTION RESTRICTIONS
Restrictions on the production of oil and gas in Nigeria are as contained in the OPEC's annual production allocations. Nigeria became a member of OPEC in 1971 and has since then been bound to comply with production restrictions imposed on each member country. Nigeria's OPEC crude oil production allocation has fluctuated between 1.3 million bpd34 and 2.5 million bpd35 since the 1980s. Subject to the restrictions mentioned, parties to any exploration and production arrangements are entitled to lift their portion of production provided that they meet all their tax and royalty obligations.
ii Restriction on exports
The Ministry of Commerce has primary responsibility for issuing export permits, including permits for the export of petroleum products. There are generally no restrictions on exports for oil. However, the National Domestic Gas Supply and Pricing Regulations 2008 introduced restrictions on gas exports as it requires every producer to allocate a specific volume of its gas production to domestic utilisation. This is known as the domestic gas supply obligations (DGSO). DGSO volumes are set by the Minister.
iii Sale of production (crude oil) into the Nigerian market
An oil marketing company seeking to market Nigerian crude must first obtain a crude oil licence (COL). The NNPC Guidelines for Lifting of Nigerian Crude 2003 (the Guidelines) lays down the procedure and requirements for obtaining the COL. The company is required under the Guidelines to submit an application (accompanied by its audited accounts for the last three years, date of establishment, facilities, major markets, volumes traded in the last three years, number of employees, company objectives, other relevant information) to the NNPC. The company must also meet the following requirements to be eligible to apply:
- have a minimum annual turnover of US$100 million and a net worth of at least US$40 million;
- own a refinery or sales outlet;
- be an established and globally recognised oil and gas marketer with evidence of operations and of volumes of crude handled in the last three years; and
- provide a US$1 million performance bond, among other contractual arrangements.
Shortlisted applicants are considered on the basis of successful economic intelligence reports in respect of the outlined requirements, following which they may be granted the COL and awarded a crude oil allocation contract that entitles them to lift crude, sell to refineries, refine for export or refine for sale of refined products into the Nigerian market.
iv Price setting
The price at which crude oil is sold in Nigeria is unregulated. The NNPC is, however, responsible for setting the price for federal government crude. This price is known as the official selling price. The NNPC uses the Dated Brent-Forties-Oseburg-Ekofisk crude grade as a marker to determine the prices for the different grades of Nigerian crude.
V ASSIGNMENTS OF INTERESTS
i Right to assign
The holder of an OPL or OML may assign his or her interests to other persons either in part or whole, subject to the consent of the Minister.36 The Act specifically provides that 'without the prior consent of the Minister, the holder of an oil prospecting licence or oil mining lease shall not assign his licence or lease, or any right, power or interest therein or thereunder'. The Regulations37 include the word 'takeover' in addition to an 'assignment', with reference to applications to the Minister for the 'assignment or takeover' of an OPL or OML. Until recently there was controversy as to whether the Minister's consent was required for the indirect transfer (via a corporate restructure) of petroleum interest; however, a court of first instance decided that these transfers require the Minister's consent.38 The decision has been appealed, and this position is not settled under current legislation. However, the PIB is attempting to resolve this confusion by providing that a takeover, merger or acquisition, including a change of control of a parent company outside Nigeria, shall be deemed an assignment within Nigeria and shall require the Minister's consent.39
Other than the foregoing, the Petroleum Act allows the government to acquire interests in any licence or lease upon paying adequate compensation to the licensee or leaseholder.40
ii Application for assignment
An application for the assignment of a licence or lease or interest in such licence or lease is made in writing to the Minister, accompanied by fees prescribed by the Minister and all other prescribed information in respect of the assignee and on such terms as the Minister may decide. The Minister may decline consent where he or she is not satisfied that the proposed assignee is of good reputation, has the required technical and financial capacity to effectively carry out its obligations and in all other respects, is acceptable to the federal government.41
The major challenge with respect to assignment of interest is a lack of clear guidelines for the exercise of the Minister's discretion, which has led to some measure of arbitrariness and uncertainty. A notable example of inadequate guidelines is the absence of any timeline for the exercise of the Minister's powers to grant consent or otherwise.
The principal Act governing the taxation of petroleum operations in the upstream sector in Nigeria is the Petroleum Profit Tax Act (PPTA)42 as amended. Downstream gas operations are taxed under the Companies Income Tax Act.43
i Highlights of fiscal provisions under the PPTA
Current rates under the PPTA are as follows:
- 85 per cent on onshore operations (but 65.75 per cent44 of the chargeable profits for the first five accounting periods of a new company);
- 50 per cent on offshore operations in territorial waters and continental shelf area up to and including 1,000m water depth;
- 50 per cent investment tax credit (ITC) for PSC signed before 1999. Companies operating under a PSC with NNPC can claim ITC as an offset against tax in accordance with the provisions of the PSC.45 The ITC rate applicable to the contract area shall be 50 per cent flat of the chargeable profit for the duration of the PSC;46 and
- 50 per cent investment tax allowance for contracts signed post-1999.
ii Petroleum investment allowance rates
The following petroleum investment allowance rates applicable are:
- onshore operations – 5 per cent;
- operations in territorial waters and continental shelf area up to and including 100m water depth – 10 per cent;
- operations in territorial waters and continental shelf area between 100m and 200m of water depth – 15 per cent; and
- operations in territorial waters and continental shelf area beyond 200m of water depth – 20 per cent.47
iii Other applicable taxes
The NDDC48 tax requires the payment to the Commission of 3 per cent of the total annual budget of any oil-producing company operating, onshore and offshore, in the Niger Delta Area; including gas processing companies for the development of the region.49 The Education Tax Act provides for the imposition of annual taxes at 2 per cent of assessable profits on oil and gas companies for the development of Nigeria's educational sector. Royalty is also charged at a graduated rate of zero per cent in areas beyond 1,000 metres water depth to 20 per cent in onshore areas of operations The National Petroleum Fiscal Policy provides a flat royalty rate of 5 per cent to small fields. Royalties can be paid in cash or by delivery of an equivalent volume of petroleum.
iv Tax authority
The Board of Inland Revenue50 of the Federal Inland Revenue Service is the policymaking body that administers matters of federal tax and has exclusive jurisdiction over petroleum taxation in Nigeria.51
v Incentives applicable to the gas sector
Section 11 of the PPTA sets out provisions as to the incentives available for utilisation of associated gas. Although the primary purpose of these incentives is to encourage companies already carrying out petroleum operations to utilise rather than flare the associated gas encountered in the course of oil production, these incentives are also applicable to non-associated gas-utilisation52 projects. The incentives53 are allowable expenses for upstream operations (investment for separating crude oil and gas from a reservoir into usable products are treated as part of oil field development and therefore treated as an allowable expense); and investment in gas infrastructure (treatment of capital investment on facilities equipment to deliver gas in usable form as part of capital investment for oil development, therefore, is tax deductible).
VII ENVIRONMENTAL IMPACT AND DECOMMISSIONING
There are several laws and regulations that prescribe standards and measures to be taken by operators in the industry to prevent and control pollution incidental to petroleum operations. These laws prescribe penalties for defaulters such as fines, terms of imprisonment and damages. Some of these laws also establish specialist agencies with primary responsibility for monitoring and enforcing environmental policies. In addition, the Minister is empowered to make regulations from time to time for the prevention of pollution54 from petroleum operations. Key laws and regulations are:
- the Mineral Oils (Safety) Regulations;
- the Oil in Navigable Waters Act;
- the Oil Pipelines Act;
- the Environmental Guidelines and Standards for the Petroleum Industry (EGASPIN);
- the Petroleum Refining Regulations;
- the National Oil Spill Detection and Response Agency (Establishment) Act;
- the Environmental Impact Assessment Act;
- the Associated Gas Re-Injection Act;
- the Harmful Waste (Special Criminal Provisions, etc.) Act;55 and
- the Flare Gas (Prevention of Waste and Pollution) Regulations 2018.
Regulatory agencies with responsibility for environmental regulation are the DPR, the FME and the NOSDRA. The DPR sets standards for environmental safety and good oilfield practices in the industry, monitors and enforces compliance of industry operators while the FME is responsible for the regulation and administration of the environment including administering EIAs relating to oil and gas projects. The NOSDRA carries out surveillance on oil exploration to ensure compliance with all existing environmental legislation, particularly in the detection of oil spills and responding to such situations.
i Key environmental approvals necessary for the oil and gas activities
Some environmental approvals necessary for oil and gas activities include:
- the EIA: This is a mandatory prerequisite for operations in the upstream sector of the petroleum industry.56 In conjunction with the DPR, the FME is responsible for the approval of EIA reports that must be prepared by project proponents or initiators;
- licences and permits: Operators are required to obtain the necessary permits from the DPR for all aspects of oil-related effluent discharges from point sources (gaseous, liquid and solid), and oil-related project development; and
- the Minister's approval: The approval of the Minister is specifically required for certain activities, for instance, decommissioning projects and gas flaring57 (where the Minister is satisfied that utilisation or reinjection is not appropriate or feasible in a particular field or fields).58
ii Legal framework for decommissioning
The primary legislation governing decommissioning in Nigeria is the Petroleum Act and the Petroleum (Drilling and Production) Regulations made pursuant to the Act. The written permission of the Director of Petroleum Resources is required for the decommissioning of oil wells.59 The dumping of harmful waste from decommissioned material is a criminal offence punishable under the Harmful Waste (Special Criminal Provisions, etc.) Act. Nigeria is signatory to some international conventions creating certain obligations with respect to decommissioning. These include:
- the Geneva Convention on the Continental Shelf 1958 (the Geneva Convention);60
- the United Nations Convention on the Law of the Sea 1982 (UNCLOS); and
- the London Dumping Convention 1972.
EGASPIN (2002)61 also introduces new offshore decommissioning provisions that mirror the International Maritime Organisation 1989 guidelines (i.e., that oil platforms sited in less than 100m water depth and weighing less than 4,000 tonnes (excluding the deck and superstructure) must be completely removed and after 1 January 2003 and that no installation can be placed on the Nigerian Continental Shelf or Exclusive Economic Zone unless it is designed for complete removal).
Contractual decommissioning responsibilities for offshore assets are also provided for the in the 2000 and 2005 model production sharing contracts (PSCs). These PSCs provide for a fund for decommissioning purposes. In the 2005 PSCs the responsibility for decommissioning rests with the international oil company. However, the 1993 PSCs do not provide for offshore decommissioning and these are the operative PSCs in Nigeria.
VIII FOREIGN INVESTMENT CONSIDERATIONS
The Companies and Allied Matters Act62 (CAMA) provides that, except for companies exempt from local registration, any foreign investor that intends to carry out business in Nigeria must incorporate a Nigerian entity.63 Furthermore, the Petroleum Act does not envisage the grant of licences to foreign registered companies, and in practice, no licence has been awarded to such companies. Accordingly, it is safe to conclude that only a Nigeria-registered company can be granted a licence to carry out oil and gas business in Nigeria.
Timing and procedure for the establishment of a Nigerian company
The procedure for establishment of a Nigerian entity for the purposes of oil and gas operations is as follows:
- incorporation of the entity with the Corporate Affairs Commission;
- registration of the company's tax obligations with the FIRS;
- registration with the Nigerian Investment Promotion Commission (NIPC)64 (for companies with foreign participation); and
- registration with the DPR for a permit. Permits are granted in the general, major or specialised categories depending on the nature of services the entity intends to carry on in the industry.
The process for establishing a Nigerian entity and making the vehicle operationally ready will take an average of three to four months subject to the availability of the required information and supporting documentation as requested by the relevant agencies.
ii Capital, labour and content restrictions
A company investing or doing business in Nigeria may import capital for these purposes. The Nigerian Investment Promotion Commission (NIPC) Act65 and the Foreign Exchange (Monitoring and Miscellaneous Provisions) (FOREX) Act66 allows a party to do so through an authorised dealer (i.e., a commercial bank so designated by the Central Bank of Nigeria), in currency that is convertible into naira at the official foreign exchange market.
Employment of expatriate personnel by a Nigerian company
Under Nigerian law, priority is given to employment of Nigerian workers. However, where it can be shown that there are no qualified Nigerians to occupy a position, a company may employ expatriates to fill those positions. In order to qualify for an expatriate quota, a company must have a minimum share capital of 10 million naira.
The Nigerian Oil and Gas Industry Content Development Act 2010 (the Local Content Act) sets out the framework to ensure the participation of Nigerians in the petroleum industry. For the purpose of Nigerian content, the Local Content Act defines a Nigerian company as one registered in accordance with the CAMA with a minimum of 51 per cent equity held by Nigerians. Other salient points to note on local content include:
- Nigerian independent operators shall be given first consideration in the award of licences in all projects for which contracts are to be awarded;67
- compliance with the provisions of the Act and promotion of Nigerian content development is a major criterion for the award of licences, permits and interests in the industry;68
- first consideration is to be given to services provided by Nigerians and to goods manufactured in Nigeria. Nigerians are also to be given first consideration for training and employment;69
- operators are required to submit a Nigerian content plan demonstrating compliance with the requirements of the Act;70 and
- entities operating within the industry are to retain the services of Nigerian legal practitioners or a firm of practitioners with offices in Nigeria.71
Efforts to curb corruption in the Nigerian oil and gas industry led to the establishment of the Nigerian Extractive Industries Transparency Initiative (NEITI) in 2004. NEITI, under its enabling law72 is charged with the task of promoting transparency and accountability in the management of Nigeria's oil, gas and mining revenues, to engender due process, and ensure accurate reporting and disclosure by all extractive industry companies of revenues due to or paid to the federal government. Its governing body, the National Stakeholders Working Group (NSWG) is responsible for policy formulation, programmes and strategies to implement the NEITI's mandate.
Nigeria also has the Freedom of Information Act 2011, which compels public officials to furnish information on matters of public interest at the request of any member of the public, the Economic and Financial Crime Commission Act, the Independent Corrupt Practices Commission Act, the Money Laundering (Prohibition) Act and other anti-corruption legislation.
IX CURRENT DEVELOPMENTS
i Flare gas commercialisation
Pursuant to the objectives of the Nigerian Gas Flare Commercialisation Programme (NGFCP) and the provisions of the Flare Gas (Prevention of Waste and Pollution) Regulations, 2018, which is to ultimately ensure a national gas phase-out by year 2020 to facilitate the optimisation of gas use in Nigeria, the government announced the first bid round for the gas flare commercialisation process in 2019. In addition, the DPR issued four guidelines outlined as follows:
- Guidelines for Grant of Permit to Access Flare Gas: These seek to provide direction for the competitive bidding process to be conducted by the federal government and set the criteria for granting permits to access flare gas to Nigeria-registered companies to enable them take flare gas at any flare site on behalf of the Nigerian government;
- Guidelines for Flare Payments: The Guidelines define the accounting procedure for flare payments for the producer at production facilities in respect of flared and vented gas.
- Guidelines for Flare Gas Measurement, Data Management and Reporting Obligations: These stipulate the general procedures for putting in place a gas flaring and venting accountability system in Nigeria, which includes, among others, data measurement, accounting, registration and reporting; and
- Guidelines for Producer's Associated Gas Utilisation Project: These set out the process applicable for granting permits to access flare gas to producers for producers' approved flare out projects in order to take flare gas at any flare site on behalf of the Nigerian government.
ii Petroleum Industry Bill (PIB)
With the dissolution of the eight Assembly following the end of its tenure, the passage of the age-long PIB discussed earlier, which is set to provide an all-encompassing legal and regulatory framework for the Nigerian petroleum industry and attract more investment into the country, suffered yet another major setback. The eighth Assembly had disaggregated the PIB into four smaller pieces of legislation to expedite its passage and in fact passed the PIGB, one of the smaller pieces of legislation before the end of its tenure. Notwithstanding the foregoing, the nation is optimistic that the ninth Assembly will accelerate the passage of the PIB with priority given to the PIGB as promised by its President.
1 Israel Aye is senior partner (energy and commercial transactions), Laura Alakija is partner (energy and natural resources and corporate law), OlaOluwa Duntoye is managing associate and Uche Odigili is associate (energy and commercial transactions, corporate/commercial law and regulatory compliance) at Primera Africa Legal.
2 The NNPC has 13 subsidiaries, among other ventures, through which it fulfils all of its commercial and statutory functions.
3 Introduced through Paragraph 16A of the First Schedule to the Petroleum Amendment Act – giving the president (and the licensee) the right to farm out any marginal field that has not been in production for at least 10 years.
4 Through the Nigerian Oil and Gas Industry Content Development (NOGICD) Act 2010.
5 Constitution of the Federal Republic of Nigeria 1999 (as amended, CFRN) Section 44(3). See further, Petroleum Act, Cap P10, Laws of the Federation of Nigeria (LFN) 2004, Section 1(1).
6 CFRN, Item 39, Second Schedule, Part 1.
7 Petroleum Act Sections 2, 4 and 9.
8 Cap P 13, LFN 2004.
9 ibid., Sections 9, 20, 21–23, 56.
10 Cap D3, LFN 2004.
11 ibid., Sections 3, 4 and 5.
12 Cap A 13, LFN 2004. Cf. Petroleum Profits Tax Act, Section 12.
13 Cap N123, LFN 2004. See particularly, Sections 5, 6 and 10.
14 Cap E12, LFN 2004.
15 ibid., Section 2 and Paragraph 12 of its Schedule.
16 See FIRS Establishment Act, Sections 2, 25 and 68. Consider also Value Added Tax Act 2007, Section 10A(2) by which the oil and gas companies are obligated to charge and collect VAT and remit the same to the Federal Inland Revenue Service.
17 Cap E4, LFN 2004.
18 Cap N86, LFN 2004.
19 ibid, Section 14(b).
20 See particularly, NOGICD Act Sections 11 and 106.
21 See particularly, NEITI Act Section 3.
22 Cap O7, LFN 2004.
23 Cap O6, LFN 2004.
24 See Petroleum Act, Sections 8 and 9.
25 See NIPC Act, Section 26(3).
26 See Arbitration Act, Cap A18 LFN 2004, Sections 51 and 52 and 2nd Schedule, which incorporates with slight modifications the United Nations Commission on International Trade Law Model Law 1985.
27 See www.unctad.org/sections/dite_pcbb/docs/bits_nigeria.pdf (accessed: 9 September 2014 at 02:21pm).
29 Paragraph 3, First Schedule to the Petroleum Act.
30 Paragraph 7, ibid.
31 Cap P13, LFN 2004.
32 Paragraph 6, First Schedule to the Petroleum Act.
33 Section 2, Deep Offshore and Inland Basins Production Sharing Contracts Act.
34 OPEC, Annual Statistical Bulletin 2013, p. 10.
35 Member Countries' Crude Oil Production Allocations, Available from www.opec.org/opec_web/static_files_project/media/downloads/data_graphs/ProductionLevels.pdf.
36 First Schedule, Paragraph 14, Petroleum Act and Regulation 4 of the Petroleum (Drilling and Production) Regulations (the Regulations).
37 Regulation 4(b) of the Regulations.
38 Moni Pulo Limited v. Brass Exploration FHC/L/CS/835/11.
39 See PIB, Section 194(1) and (2).
40 Paragraph 35, First Schedule, Petroleum Act; Section 44 CFRN; NNPC & A.G Federation v. Famfa Oil Limited, unreported as Suit No. SC 71, 2008 delivered on 12 May 2012.
41 Section 16, Petroleum Act.
42 CAP P13 LFN 2004.
43 CAP C21 LFN 2004.
44 Section 21(2) PPTA.
45 Section 22(1) PPTA.
46 Section 22(2) PPTA.
47 Paragraph 4 and Table II of 2nd Schedule of PPTA.
48 The Niger Delta Development Commission.
49 See Section 14(b) NDDC Act.
50 Established and constituted in accordance with Section 1 of the Corporate Income Tax; See Section 2 PPTA.
51 The jurisdiction covers Nigerian territorial waters, continental shelf and Exclusive Economic Zone (EEZ).
52 Section 12 of the PPTA.
53 Subsection 2 further provides for conditions for the incentives.
54 Section 9(1)(b)(iii) of the Petroleum Act.
55 Cap H1 Laws of Federation of Nigeria 2004.
56 Sections 4, 21 and 24 of the EIA Act.
57 Under the Environmental Regulations WEF 1 January 1984, pursuant to the Associated Gas Reinjection Act, 1979.
58 Section 3 of the Associated Gas Reinjection Act, 1979.
59 Article 36 of the Petroleum (Drilling and Production) Regulations, Article 32 of the Petroleum Refining Regulation.
60 Geneva Convention on the Continental Shelf, Article 5.
61 EGASPIN, 327.
62 Cap C20, LFN 2004.
63 Section 54(1), CAMA.
64 Section 20 NIPC Act, Cap N117, LFN 2004.
65 Sections 20, 21, and 24, NIPC Act.
66 Sections 12, 13 and 15, FOREX Act. Cap F34, LFN 2004.
67 Section 3(1), Local Content Act.
68 Section 3(3), ibid.
69 Section 10(1), ibid.
70 Section 7, ibid.
71 Section 51(1), ibid.
72 The NEITI Act 2007.