The Oil and Gas Law Review: Ghana

Introduction

i Historical overview

The upstream oil and gas activities in Ghana involve the exploration, development and production of hydrocarbons. These activities are undertaken in five sedimentary basins within Ghana's territorial area. These are the Tano Basin and Cape Three Points Basin in the Western Region (mostly referred to together as the Western Basin), the Saltpond Basin in the Central Region, the Accra/Keta Basin and the Inland Voltaian Basin.2 The Western Basin, Saltpond Basin and Accra/Keta Basin are all offshore and have been explored. The Inland Voltaian Basin is onshore and has seen some exploration activities.3

The exploration of hydrocarbons in Ghana dates as far back as the late-seventeenth century. The first recorded hydrocarbon exploration was undertaken by West Africa Oil and Fuel Company in 1896.4 From 1905 to 1925, other companies such as Société Française de Pétrole, African and Eastern Trade Corporation and Gulf Oil Company did some work in the territory.5 By independence in 1957, 21 wildcats had been drilled for exploration. Key among these was the first offshore discovery by Signal-Amoco Consortium in the Saltpond Basin, named the Saltpond Field, which started production in 1978. Production from the Saltpond Field peaked at 4,500 barrels of oil per day during its production stages and was shut down in 1985. By the mid-1980s, the total well count in Ghana (onshore and offshore) was 54.6

ii Legislative overview

In the mid-1980s, the government introduced the first legislative framework for upstream oil and gas activities in Ghana. Three main pieces of legislation were enacted by the government to regulate the sector. Chief among the reforms was the passage of the Ghana National Petroleum Corporation Act 1983 (PNDCL 64), which established the Ghana National Petroleum Corporation (GNPC) as the national oil corporation to champion state activities in the upstream sector. In addition, the Petroleum (Exploration and Production) Law 1984 (PNDCL 84) was enacted to regulate exploration and production activities and provide the framework for engagement of international oil firms by the government to undertake petroleum operations. Lastly, the Petroleum Income Tax Law 1987 (PNDCL 188) was passed to regulate taxation in the upstream oil and gas sector. PNDCL 84 and PNDCL 188 have so far been repealed.

The Fourth Republican Constitution, which came into force in 1992, provides that 'every mineral in its natural state in, under or upon any land in Ghana, rivers, water course throughout Ghana, the exclusive economic zone, any area covered by the territorial sea or continental shelf in the Republic of Ghana is the property of the Republic of Ghana and is vested in the President on behalf of, and in trust for the people of Ghana'.7 As a check on the powers of the President to control and manage the resources on behalf of the people of Ghana, the Constitution requires parliamentary approval for all transactions involving the grant of a right for the exploitation and production of natural resources in Ghana. The Constitution further mandated the establishment of specific commissions to be responsible for the regulation and management of the utilisation of the natural resources and the coordination of the relevant policies.

In furtherance of its constitutional mandate, the Parliament of Ghana enacted the Petroleum Commission Act 2011 (Act 821), which established the Petroleum Commission as a regulator to oversee and coordinate activities in the upstream petroleum industry.8 In addition, the Petroleum Revenue Management Act 2011 (Act 815) as amended by the Petroleum Revenue Management (Amendment) Act 2015 (Act 893), was enacted to provide the framework for management and use of petroleum revenues. In 2016, the Petroleum (Exploration and Production) Act 2016 (Act 919) (the E&P Act) was passed to replace the PNDCL 84 as the primary legislation for the regulation of petroleum activities in the upstream sector. Also, the Income Tax Act 2015 (Act 896) as amended, which repealed PNDCL 188, provides a regime for the taxation of income of entities engaged in the sector. To support the implementation of the key laws in the sector, various regulations, guidelines and policies have been developed for the sector. These include the following:

  1. Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204);
  2. Petroleum Commission (Fees and Charges) Regulations 2015 (LI 2221);
  3. Petroleum (Exploration and Production) (Measurement) Regulations 2016 (LI 2246);
  4. Petroleum Exploration and Production-Data Management Regulation 2017 (LI 2257);
  5. Petroleum (Exploration and Production) (Health, Safety and Environment) Regulations 2017 (LI 2258);
  6. Petroleum (Exploration and Production) (General) Regulations 2018 (LI 2359);
  7. Petroleum (Exploration and Production) (General) (Amendment) Regulations 2019 (LI 2390);
  8. Petroleum Hub Development Corporation Act 2020 (Act 1053);
  9. Income Tax Regulations 2016 (LI 2244);
  10. Energy Sector Strategy and Development Plan;
  11. Gas Master Plan;
  12. Gas Pricing Policy Guidelines to the Petroleum (Exploration and Production) (Measurement) Regulations;
  13. Guidelines for the formation of joint venture companies in the upstream petroleum industry of Ghana (March 2016);
  14. Guidelines on Submission of Proposed Contracts to the Petroleum Commission (23 February 2018); and
  15. Oil and Gas Insurance Placement for the Upstream Sector.

iii Industry and foreign investment overview

The establishment of the national oil corporation, GNPC, the Petroleum Commission and the passage of the above legislation have laid a strong foundation and provided a robust framework for the management of activities in the industry. PNDCL 84 provided the initial framework for engagement of potential investors in the upstream sector by setting out the minimum terms and conditions of the contractual framework for such engagements. In furtherance of standardisation of the framework, the country has adopted a model petroleum agreement based on international best practice to attract investment in the sector.9 To date, approximately 16 operators are engaged in petroleum operations under 18 petroleum agreements executed between the GNPC, the government, international oil companies (IOCs) and indigenous Ghanaian companies (IGCs). The E&P companies that have been attracted to Ghana's upstream sector include Kosmos Energy, Vitol Upstream Tano, Lukoil, Tullow, Anadarko, ENI, Aker Energy, AGM Petroleum, Springfield Energy, Heritage E&P, Sahara Energy, Eco Atlantic, Amni International and ExxonMobil. These investments have resulted in deepwater offshore exploration activities.

The first significant deepwater oil discovery in Ghana was in 2007 by Tullow Oil, Kosmos Energy, Anadarko Petroleum and EO Group in the offshore Tano/Cape Three Points Basin of the Ghanaian continental shelf, christened the Jubilee Field. The Jubilee Field is a unitised field located 65km offshore, south-east of Takoradi in the Western Region of Ghana between the Deepwater Tano and West Cape Three Points blocks. The Jubilee Field is currently held by GNPC and a consortium of IOCs in the following proportions: Tullow Oil (35.48 per cent), Kosmos Energy (24.08 per cent), Anadarko (24.08 per cent), GNPC (13.64 per cent) and Petro SA (2.73 per cent).10 The field is operated by Tullow Oil as the mandated operator and has proven reserves of approximately three billion barrels.

The success of the Jubilee Field has immensely reduced the perceived risk involved in investing in upstream oil and gas activities in Ghana resulting in increased exploration activities in the Basin leading to over 26 other discoveries offshore the Western Basin. The key discoveries include:

  1. Tweneboa-1 (2009), Tweneboa-2 (2010), Enyenra (formally Owo) (2010), Ntomme (2012) and Wawa (2012) in the Deepwater Tano block;
  2. Mahogany Deep (2009), Teak-1, Teak-2 (2011) and Akasa (2011) in the West Cape Three Points block;
  3. Sankofa-1 (2009), Gye Nyame-1 (2011) and Sankofa East (2012) in the Offshore Cape Three Points;
  4. Paradise-1 (2011), Hickory North-1 (2012), Pecan (2012), Almond-1 (2012), Beech-1 (2012), Cob-1 (2013), PN-1 (2013) and Pecan South 1A (2019) in the Deepwater Tano Cape Three Points block;
  5. Akoma 1X in Cape Three Points Block 4 (2019);
  6. Afina-1X in West Cape Three Points Block 2 (2019);
  7. Nyankom-1X in the South Deepwater Tano block (2019); and
  8. Eban 1X in Cape Three Points Block 4 (2021).

In May 2013, the plan for the development of the Tweneboa, Enyenra and Ntomme (TEN) fields, which cover an area of more than 800km², was approved by the government. Production commenced from the TEN fields, and first oil was delivered to the FPSO (floating production storage and offloading vessel) John Atta Mills in August 2016.

In 2012, ENI announced the first oil and gas discovery in the Offshore Cape Three Points (OCTP) block, also located in the Tano Basin. Through its Ghanaian subsidiary, ENI operates the Sankofa and Gye-Nyame fields with its partners Vitol Upstream Ghana Limited and GNPC. The project is located approximately 60km offshore west coast of Ghana and is estimated to hold about 41 billion cubic meters of non-associated gas and 500 million barrels of oil. Commercial operations commenced with the flow of first oil from the Sankofa Gye Nyame oilfields to the FPSO John Agyekum Kufuor in July 2017. Gas production commenced in June 2018, and the field is expected to produce 180 million cubic feet of gas per day for 15 years.11

On 23 September 2017, the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) gave its judgment in a Dispute concerning delimitation of the maritime boundary between Ghana and Ivory Coast in the Atlantic Ocean (Ghana/Ivory Coast). The litigation was originally commenced by Ghana in Germany at the ITLOS by an application initiating arbitral proceedings under Annex VII of the United Nations Law of the Sea Convention (the Convention) after Ivory Coast began laying claim to some offshore oil concessions and adjoining seabed being developed and exploited within Ghana's territory.12 Ivory Coast, in February 2015, had filed for preliminary measures urging the tribunal to suspend all activities on the disputed area until the definitive determination of the case. Following legal and technical representations by both countries on 29 and 30 March 2015, the ITLOS Special Chamber in Hamburg, Germany ruled in April 2015 that ongoing projects in the disputed fields, including the US$7.5 billion TEN project, could proceed while the substantive case was being dealt with. Ghana was ordered not to start new explorations within the disputed area. The Special Chamber finally concluded that there is no tacit agreement between Ghana and Ivory Coast to delimit their territorial sea, exclusive economic zone and continental shelf both within and beyond 200 nautical miles. It rejected Ghana's claim that Ivory Coast is estopped from objecting to the 'customary equidistance boundary' and further concluded that there is no relevant circumstance in the present case that would justify an adjustment of the provisional equidistance line. Accordingly, the Special Chamber ruled on the relevant delimitation line for the territorial sea, the exclusive economic zone and the continental shelf within 200 nautical miles.13

Following the ITLOS ruling in 2017, Tullow received notification from the government to recommence drilling in the TEN fields, and a multi-year incremental drilling programme started in 2018, seeking to ramp up production from the TEN fields to utilise the full capacity of the FPSO and sustain this over a number of years.

Again, in October 2017 the government approved the Greater Jubilee Full Field Development Plan, allowing Tullow and its joint venture partners to prepare for a multi-year incremental drilling programme that integrates the nearby Mahogany and Teak discoveries in the West Cape Three Points Block with the Jubilee Field.

From 2013 to date, at least 14 exploration licences have been issued to other players in the industry, including Heritage Oil, AGM Petroleum, Britannia-U, Sahara Energy Fields, Camac Energy, ExxonMobil and Springfield. New discoveries made include Wawa (Tullow), Odum, Mahogany Deep, Teak and Akasa (Kosmos Energy) Paradise, Hickory North, Almond, Beech, Cob, Pecan PN-1, Pecan South 1A, Pecan 4A, Nyankom and Afina. The latest discovery, announced in July 2021, was in the Eban 1X well drilled by ENI in the Cape Three Points (CTP) Block 4.

In October 2018,14 the government launched the country's maiden oil and gas licensing bid rounds, with six blocks, all in Tano/Cape Three Points (Western Basin), being placed on offer.15 The bidding round attracted multinational oil companies such as ExxonMobil, British Petroleum, Eni/Vitol, China National Offshore Oil Corporation, Qatar Petroleum, Aker Energy, Cairn Energy, Global Petroleum Group and First E&P. Sixteen oil and gas companies were initially selected in early 2019 to participate in the final stage of the oil and gas licensing round. Three of the oil blocks (2, 3 and 4) were selected to undergo a competitive bidding process while two blocks (5 and 6) were to be undertaken by direct negotiations. Block 1 was, however, reserved for the GNPC. Two companies were disqualified, one for bidding for the block reserved for GNPC and the other for not meeting financial obligations. Also, ExxonMobil and British Petroleum later withdrew from the contest without assigning reasons. On 27 June 2019, the government announced the winners for blocks 2 and 3 as First E&P Ltd/Elandel Energy Ghana Ltd and Eni/Vitol, respectively, who are currently negotiating the terms of petroleum agreements.

In March 2019, Aker Energy announced the submission of an Integrated Plan of Development and Operations (PDO) for the Deepwater Tano / Cape Three Points (DWT/CTP) block to the Minister of Energy for approval. The proposal presented an overall plan for a phased development and production of the resources in the DWT/CTP contract area, starting with the Pecan field, the largest discovery in the contract area with tiebacks of future potential discoveries.16 Based on feedback from the Minister of Energy and other relevant stakeholders, Aker Energy commenced work on a revised PDO with a target to take a final investment decision (FID) on the Pecan project in 2020. However, the FID for the Pecan field development project was placed on hold, and the project was postponed as a result of the effects of the covid-19 pandemic on oil and gas operations as well as the decline in oil prices. Aker Energy has recently announced that the revised Pecan PDO with a robust development concept with a US$30 break-even, is scheduled to be submitted for approval by the end of 2021.17 First oil for Pecan is anticipated to occur in 2024.

In 2019, Parliament approved the amendment of a petroleum agreement entered into by the state for the first time since the commencement of petroleum activities in Ghana. Aker Energy and AGM Petroleum successfully renegotiated the terms of the petroleum agreements for the Deep Water Tano Cape Three Points and the South Deep Water Tano blocks. The justification for the amendments, among others, included the need to restore the economic balance of the agreement because of changes in circumstances, such as changes in legislation and the effects of the Ghana–Ivory Coast maritime border dispute.

In March 2021, Tullow Oil Ghana announced the injection of US$4.4 billion into its oil fields in Ghana over a 10-year period. The investment will be channelled towards the drilling of more than 50 new oil wells and the installation of additional subsea infrastructure on the Jubilee and Tweneboa, Enyira and Ntomme (TEN) oilfields as part of its Ghana Value Maximisation Plan, its comprehensive plan to deliver maximum value for Ghana as well as stakeholders.18

iv Developments in gas

In 2011, the Ghana Gas Company Limited (GGCL) was established by the government as a private limited liability company with responsibility for building, owning and operating infrastructure required for the gathering, processing, transporting and marketing of natural gas resources in the country. To ensure the safe and optimal use of natural gas, associated gas and natural gas liquids (NGL) from the oil fields, GGCL entered into an engineering, procurement, construction and commissioning agreement with SINOPEC in 2012 for the development of the Western Corridor Gas Infrastructure Development Project. The first phase of the project was commissioned in September 2015 and consists of an offshore pipeline, an onshore pipeline, a gas processing plant and an NGLs export system at Atuabo in the Western Region of Ghana. At full capacity, the facility is expected to produce 107 million standard cubic feet of lean gas, 500 tonnes of LPG, 80 tonnes of pentane and 45 tonnes of condensates daily.19 The project is currently connected to the gas infrastructure to the West Africa Gas Pipeline following the completion of the initial phase of the Takoradi–Tema Interconnection Project (TTIP) otherwise known as the West African Gas Pipeline reverse-flow project (the Project). Ghana's TTIP has been linked to the offshore West African Gas Pipeline (WAGP), which transmits gas from Nigeria to customers in Benin, Togo and Ghana (west to east transmission). The Project aims to reverse-flow gas from the Western Region of Ghana to the Tema power enclave (east to west transmission). The successful execution of this scope of the Project paves the way for the smooth flow of gas from the Western Region of Ghana to Tema in the Greater Accra Region for use by the various gas offtakers in the Tema-Accra power and industrial enclave. The TTIP will initially be able to transport a maximum of 1.7 million cubic metres per day from Ghana's Aboadze terminal to power plants at Tema. According to the CEO of GNPC, GGCL's ability to supply gas for a stable production of electricity means that the cost of electricity to the final consumer will now be relatively lower as compared to the use of heavy fuel oil or diesel as fuel for electricity generation. Also, the cost of production for local companies, especially in the manufacturing and mining sectors, will reduce significantly to enable them to become more competitive. The Project has also doubled the capacity of GGCL to transport the GNPC's gas to feed critical national power generation facilities sited in the western enclave. Again, gas users in the Accra–Tema region are assured of relatively more reliable gas supply through the TTIP.20

On 4 July 2018,21 ENI, the operator of the OCTP Integrated Oil and Gas Development Project, announced the start of gas production from two of the four deep-water subsea wells connected to the FPSO John Agyekum Kufuor in the Sankofa field. The OCTP project was completed in 2019 with an oil processing capacity of 58,000 barrels per day and a gas processing capacity of 5.93 million standard cubic metres per day for at least 15 years. Natural gas production flows through a dedicated 63km natural gas pipeline to an onshore receiving facility in Sanzule on the coast. Currently, more than 50 per cent of gas supply to thermal power plants is from the OCTP project.

GNPC and Quantum Power, a pan-African energy infrastructure investment platform, have signed a heads of terms agreement for the construction and operation of the liquefied natural gas (LNG) storage, regasification and delivery facilities at Tema, Ghana. The Tema LNG project, which is the first in sub-Saharan Africa, is expected to have the capacity to receive, store, regasify and deliver, at steady state, about 3.40MMtpy of LNG, equivalent to 500MMscfgd supply over 1.7 million tonnes of gas annually.22 In January 2021, the floating regasification unit (FRU) arrived in Ghana for the Project. The LNG is expected to be supplied by Royal Dutch Shell under a long-term supply contract with GNPC.23

Legal and regulatory framework

The Constitution of Ghana vests all untapped natural resources, including oil and gas resources, in the President of Ghana for and on behalf of the people of Ghana. The right to explore and develop such resources is subject to a petroleum agreement or licence granted by the government (acting through the Ministry of Energy) and approved by Parliament. Initially, petroleum activities in Ghana were regulated under the Ghana National Petroleum Corporation Act, which constitutes an establishing instrument of the national oil corporation, and the Petroleum Income Tax Act 1987 (PNDCL 188). However, owing to increased activities in the upstream oil and gas sector after the commercial discoveries in the Western Basin, various regulatory reforms were initiated. This resulted in the enactment of the Petroleum Commission, the E&P Act, which provides an overarching framework, and the Petroleum (Local Content and Local Participation) Regulations enacted to ensure local participation in the sector given the increase in the activities of foreign-owned entities in the sector, among others. There is also the Petroleum Revenue Management Act, which governs the use of petroleum revenue accruing to the state from petroleum exploration. These laws are in addition to other regulations, directives and guidelines issued to guide operations in the sector.

The primary laws governing the upstream oil and gas sectors are the E&P Act and its regulations, the Ghana National Petroleum Corporation Act, the Petroleum Commission Act and a taxation regime under the Petroleum Income Tax Act24 and the Income Tax Act as amended.25

i Domestic oil and gas legislation

The main legislation relating to the upstream oil and gas sector is as follows.

The Ghana National Petroleum Corporation Act 1983 (PNDCL 64)

The first major activity to set the stage for regulatory reform of the upstream sector was the establishment of the GNPC under PNDCL 64. The GNPC is established as the national oil corporation charged with the responsibility to explore, develop, produce and dispose of hydrocarbons.

The law also mandated the GNPC to advise government on oil and gas matters and to promote the exploration and orderly development of the petroleum resources of Ghana. In effect, the GNPC was created as a regulator and operator performing both regulatory and commercial functions under the supervision of the Ministry of Energy. At the earlier stages, the GNPC led the effort to acquire data to establish Ghana's reserves potential and also led efforts to market the potential to IOCs interested in investing in the upstream sector in Ghana. However, the dual roles played by GNPC created conflict in the upstream sector as it seems to be a regulator and a player in the sector. This conflict, or potential conflict, was addressed in later regulatory reform, with the passage of the Petroleum Commission Act 2011 (Act 821), which transfers the GNPC's regulatory functions to the Petroleum Commission. Currently, the GNPC is a commercial operator and the holder of government interests in petroleum operations in Ghana. It is also the national aggregator of natural gas from upstream operators to service the local market. Under the Petroleum Revenue Management Act, a specific percentage of the net cash flow from the carried and participating interests of the state is ceded to the GNPC to fund its operations.

The Petroleum (Exploration and Production) Act 2016 (Act 919)

The E&P Act is the main legislation that regulates the grant of licence for upstream oil and gas activities, and regulates the exploration, development and production of petroleum in Ghana. The act, in line with the Constitution, provides that petroleum existing in its natural state within Ghana is the property of Ghana and is vested in the President on behalf of the people of Ghana. The act also permits the Minister to grant rights and enter into agreements for the exploration and production of oil and gas subject to the ratification of such rights or agreements by Parliament. The act further mandates the Minister and the Petroleum Commission to develop regulations on safe construction, health and safety, product standard, reference maps for oil blocks, competitive bidding and terms and conditions of petroleum agreements.

Except in the case of the GNPC, any person who intends to engage in the exploration, development and production of petroleum can only do so in accordance with a petroleum agreement entered into between that person and the government of Ghana and the GNPC. Under the act, a petroleum agreement can only be entered into after an open, transparent and competitive public tender process. However, the Minister may, on stated grounds, enter into a petroleum agreement without going through a tender process.

The Act mandates the Minister to prepare a reference map showing areas of potential petroleum fields within Ghana divided into numbered areas (blocks). Subject to rights granted to other entities under petroleum agreements entered into, the GNPC has the right to undertake exploration, development and production of petroleum over the blocks declared by the Minister as open for petroleum operations. Prior to exploration activities, the GNPC or the contractor must submit to the Minister for approval a development plan in respect of a petroleum field to be developed directly by the GNPC or the contractor, as the case may be.

The essential terms and conditions that must be in a petroleum agreement are prescribed under the E&P Act. The Act prohibits the assignment of petroleum agreements, directly or indirectly, without the written consent of the Minister. The essential provisions of the act cover the following:

  1. the power of the Minister to open an area for petroleum activities;26
  2. the power of the Minister to close an area or redefine the boundaries;27
  3. that petroleum agreements must be entered into in accordance with an open, transparent and competitive public tender process;28
  4. the power of the Minister to grant a petroleum reconnaissance licence for a period of not more than three years renewable for another two years;29
  5. the right to review terms and conditions of the petroleum agreement owing to material change in circumstances;30
  6. the right of the Minister to approve an operator before the execution of a petroleum agreement;31
  7. the pre-emptory right of the GNPC to acquire the interest of a contractor under a petroleum agreement within 90 days of notification of intention to dispose of interest;32
  8. any borrowing exceeding US$30 million for the exploration, development and production is subject to the approval of Parliament and must comply with the Petroleum Revenue Management Act 2011 (Act 815);33
  9. the right of a contractor to submit a proposal to relinquish a contract area or part of a contact area;34
  10. the minimum work and expenditure obligations to be fulfilled by the contractor during the initial exploration period;35
  11. transfer to the GNPC of physical assets purchased, installed, constructed by the contractor for petroleum operations and the cost of which is included in the exploration of expenditures;36
  12. the requirement of a permit for exploration drilling and an annual permit for the production of petroleum;37
  13. the requirement of a licence to install and operate facilities for the transportation, treatment and storage of petroleum;38
  14. the establishment of a petroleum register for petroleum agreements, licences, permits and authorisations;39
  15. the right of the Minister to require a licensee, contractor or subcontractor to provide security for the fulfilment of its obligations under an agreement;40
  16. the establishment of a local content fund;41
  17. pollution damage, liability of the polluter;42
  18. payment of income tax in accordance with the laws of Ghana except as modified in the agreement;43
  19. payment of royalties;44 and
  20. payment of a bonus to Ghana.45

The Act also prescribed specific terms that must be provided in the petroleum agreements. These include:

  1. the right of GNPC to hold an initial participating carried interest of at least 15 per cent for exploration and development;
  2. the GNPC has the option to acquire an additional participating interest as determined in the petroleum agreement within a specified period of time;
  3. the petroleum agreement must be for a term not exceeding 25 years subject to ability of the Minister to extend;
  4. change of ownership of contracting party is subject to consent of the Minister or Commission; and
  5. the GNPC has the pre-emptive right to acquire interest of contractors.

The general requirements for petroleum activities under the act include:

  1. the standard of operations in conducting petroleum activities;46
  2. supervision and inspection;47
  3. data and information obtained by a licensee, contractor or subcontractor as a result of petroleum activities are property of Ghana;
  4. maintaining records of data and information in Ghana;
  5. provision of information upon request by the Minister;
  6. the use of Ghanaian goods and services;48 and
  7. the local content plan.49

The Petroleum Commission Act 2011 (Act 821)

As part of the regulatory reform following the commercial discovery of oil and gas, the Petroleum Commission was established under the Petroleum Commission Act as the upstream petroleum regulator with the object to 'regulate and manage the utilisation of petroleum resources and to coordinate the policies in relation to them'.50 Essentially, the act establishes the Petroleum Commission to perform the regulatory functions previously performed by the GNPC under the PNDCL 84.

Petroleum Hub Development Corporation Act 2020 (Act 1053)

In October 2020, the Parliament of Ghana passed the Petroleum Hub Development Corporation Act, which establishes the Petroleum Hub Development Corporation (PHDC) as the entity responsible for creating a petroleum and petrochemicals hub (the Hub) in the country. The functions of the PHDC include:

  1. planning and implementation of strategies for the development of the Hub;
  2. assisting companies that seek to operate in the Hub to acquire the relevant licences and permits from the relevant regulatory bodies;
  3. coordinating and facilitating investment in the Hub;
  4. facilitating availability of industry-ready workforce to drive growth of the Hub; and
  5. ensuring participation of Ghanaians in technical and managerial functions of the companies operating within the Hub.

The estimated cost of the Hub is US$60million and it is expected to be constructed in the Western region of Ghana.51

Petroleum (Local Content and Local Participation) Regulations 2013 (LI 2204)

Pursuant to Act 821, the Petroleum (Local Content and Local Participation) Regulations were passed in July 2013 to, among other things, 'promote the use of local expertise, goods and services, businesses and financing in the petroleum industry value chain and their retention in the country'.52 The regulations focus on ensuring the maximum participation of indigenous Ghanaians, increasing local capacity and also safeguarding the interest of foreign participants in the oil and gas sector.

The regulations apply to contractors, subcontractors, service providers, licensees and allied entities in the petroleum sector.53 The regulations provide minimum thresholds for indigenous equity participation in petroleum activities.54

A key provision under the regulations is the requirement of 5 per cent indigenous participation in petroleum agreements.55 This is, however, subject to negotiation and the approval of the Minister. Service providers in the sector must have a minimum of 10 per cent Ghanaian ownership.56 Other provisions include the requirement for the development and approval of local content plans, which must at the minimum include sub-plans on employment and training, research and development, technology transfer, legal and financial services.57 In respect of legal services, operators are required to use the services of only Ghanaian lawyers or law firms for legal services required in Ghana.58 The oil companies are required to submit regular reports on their levels of compliance to the local content committee, which is set up to oversee the implementation of the regulations and to ensure measurable and continuous growth in local content in the petroleum sector.59

Petroleum (Exploration and Production) (General) Regulations 2018 (LI 2359) as amended

LI 2359 came into force in June 2018. The regulations provide for the procedures and conditions for the grant of a petroleum agreement including qualification requirements, terms and conditions for open and competitive tendering procedures and direct negotiations. The regulations mandate the Minister acting in collaboration with the Commission as well as other relevant agencies to prepare a strategic assessment plan for the opening up of areas for petroleum activities.60 It also indicates that the initial participating interest of the GNPC in relation to exploration and development shall be a carried interest, and in the case of production operations, an additional participation interest.61 Other relevant provisions include the procedure for licensing62 and the criteria for grant of licences,63 change of ownership64 and operating standards under a petroleum agreement.65

In December 2019, LI 2359 was amended by the Petroleum (Exploration and Production) (General) (Amendment) Regulations 2019 (LI 2390). LI 2390 has eliminated the requirement for ministerial approval of joint operating agreements (JOA) and amendments. Contractors and the GNPC or its subsidiary are required to enter into a JOA where the GNPC acquires a commercial interest in the petroleum agreement on the terms agreed by the parties.66 LI 2390 further empowers the Commission to extend the size of a development and production area by determining that a prospect or accumulation outlying the commercial discovery is made part of the development and production area.67 Also, contractors are now required to submit an annual work programme and budget to the Joint Management Committee for an initial approval and then submit to the Commission for final approval.68 LI 2390 also lays down the general requirement on the issuance of performance bond or guarantee for the fulfilment of the obligations of a contractor, subcontractor or licensee in respect of petroleum operations.69

The Petroleum Exploration and Production-Data Management Regulation 2017 (LI 2257)

The regulations apply to the reporting and management of petroleum data obtained from the conduct of petroleum activities within Ghana. This includes the receipt, interpretation and analysis of petroleum data, provision of a safe environment for storage of petroleum data submitted, efficient management of the data and the documentation and reporting for information related to acquisition and submission of petroleum data. The purpose of these regulations is to specify the format, content and standards required for the preparation and submission of geological, geophysical and production data related to petroleum activities to support efficient exploration of petroleum resources in Ghana.70

The Petroleum (Exploration and Production) (Health, Safety and Environment) Regulations 2017 (LI 2258)

LI 2258 applies to all petroleum operations. Among others, it aims to prevent the adverse effects of petroleum activities on health, safety and the environment and promotes high standards of health and safety. It provides the minimum health and safety requirements applicable to contractors, subcontractors and other players within the industry. The key regulations relate to design and operation of facilities, systems and equipment, maritime facilities, load-bearing structures, drilling and well systems, emissions and discharges, decommissioning, risk analysis and emergency preparedness and reporting.71

The Petroleum Revenue Management Act 2011 (Act 815) as amended72

This Act was also enacted after the Jubilee Fields discovery to provide a regime for the collection, allocation and management of petroleum revenue in a transparent, accountable and sustainable manner for the benefit of the citizens of Ghana. The Act establishes a number of funds – the Petroleum Holding Fund,73 the Ghana Stabilisation Fund74 and the Ghana Heritage Fund75 – and indicates how revenues accruing from petroleum operations to the state are to be disbursed and utilised. All the funds created under the act are public funds76 and may not be encumbered or used to provide credit or collateral for the state or private entities.77 The Act also prohibits borrowing against petroleum reserves.78

The Petroleum Revenue (Amendment) Act 2015 (Act 839) was enacted to amend the Petroleum Revenue Management Act 2011. The amendment provides for the allocation of funds to the Ghana Infrastructure Investment Fund for the purposes of infrastructure development,79 the establishment of the Investment Advisory Committee80 and other related matters.

Petroleum (Exploration and Production) (Measurement) Regulations 2016 (LI 2246)

LI 2246 came into force in November 2016 for the main purpose of ensuring that an accurate measurement and allocation of petroleum forms the basis for the determination of revenue that accrues to the parties to a petroleum agreement. It applies to the planning, design, testing, calibration, operation and maintenance of metering systems as well as equipment and methods for measuring the quantities of oil and gas produced, transported and sold. The Petroleum Commission is mandated under this regulation to supervise and inspect metering and allocation systems from the design to operation stage. These regulations also permit an authorised agency to place a seal on export valves downstream of a metering station to prevent offloading of petroleum without authorisation.81

Petroleum Commission Fees and Charges Regulations 2015 (LI 2221)

These regulations provide the framework for determining the applicable fees to be paid by participants in petroleum activities to the Petroleum Commission for various activities, including permitting third-party access over a facility that is owned by a contractor, registration of assignment of interest or transfer of shares, and registration of encumbrances over participating interest in petroleum agreements. Other costs include expenses and costs incurred by the Petroleum Commission in conducting its regulatory and supervisory services as well as fees for extension of exploration working periods and appraisal periods.82

ii Regulation

Government of Ghana (through the Ministry of Energy)83

The 1992 Constitution vests all petroleum resources in the president of Ghana as the head of the executive branch of government.84 The presidency expresses its ownership and control over oil and gas activities through the Ministry of Energy. The mandate of the Ministry of Energy includes the formulation, implementation and monitoring of national policies for the sector.85 The Ministry is the driver of government policy and has the overall responsibility to provide policy direction on oil and gas matters based on advice from the Petroleum Commission.86

The Ministry receives applications from prospective contractors, negotiates terms of petroleum agreements and grants the right to explore, develop and produce oil and gas products. It is also responsible for granting consent for the transfer of petroleum rights and resolving disputes between the Petroleum Commission and contractors (prior to resorting to other dispute resolution options).87

Parliament

The 1992 Constitution requires all petroleum agreements to be ratified by Parliament.88 Parliament may also exempt particular transactions or agreements from ratification.89 These exemptions must be supported by the resolution of at least 75 per cent of the members of Parliament.90

Petroleum Commission

As indicated above, the Petroleum Commission is established under Act 821 as an upstream petroleum regulator. The functions of the Petroleum Commission include:

  1. promoting planned, well-executed, sustainable and cost-efficient petroleum activities;
  2. recommending to the Minister national policies on petroleum activities;
  3. monitoring compliance with national policies, laws, regulations and agreements;
  4. complying with health, safety and environmental standards in petroleum activities;
  5. promoting local content and local participation in petroleum activities; and
  6. receiving applications and issuing permits for specific petroleum activities.91

iii Treaties

Ghana became a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) on 9 April 1968. It is also a signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which was ratified on 13 July 1966 and entered into force on 14 October 1966. Under the Alternative Dispute Resolution Act 2010 (Act 798), a foreign arbitral award is enforceable by the court if it is satisfied, inter alia, that the award was made under the New York Convention or other international convention ratified by Parliament.

In addition, the enforcement of foreign judgments in Ghana is based on the doctrine of reciprocity. On this basis, final judgments from Brazil, France, Israel, Italy, Japan, Lebanon, Senegal, Spain, the United Arab Emirates and the United Kingdom are enforceable in Ghana. For countries that do not have reciprocity, a fresh action must be instituted on the basis of the foreign judgment.

Further, Ghana has signed bilateral investment treaties (BITs) with over 25 countries; however, only eight of these BITs have been ratified. Countries with which Ghana has ratified BITs are China, Denmark, Germany, Malaysia, the Netherlands, Serbia, Switzerland and the United Kingdom.92

In respect of taxation, Ghana has signed and ratified double taxation agreements with the Netherlands, Mauritius, Czech Republic, Switzerland, Belgium, Denmark, France, Germany, Italy, South Africa and the United Kingdom.93

Licensing

The E&P Act mandates the award of petroleum licences through competitive bidding and direct negotiations with potential investors.94 Hitherto, the majority of petroleum agreements were awarded by direct negotiations although there were few awarded through competitive processes developed by the Ministry of Energy, the GNPC and the Petroleum Commission. Under the current regulatory framework, there is strong emphasis on the award of petroleum agreements through competitive tendering although the Minister of Energy still has power to award blocks without a competitive tender albeit within defined circumstances and in a fair and transparent manner. The key processes for a licensing round by competitive tender include the following:

  1. publication of an invitation to tender or invitation for direct negotiations by the Minister of Energy;95
  2. submission of expression of interest;96
  3. formal invitation to tender;97
  4. submission of bids;98
  5. decision on bids;99
  6. negotiations;100 and
  7. entry into petroleum agreements.101

An expression of interest among others shall include general corporate information of the interested person, the specific block of interested, a preliminary geological prospectivity of the area, financial and technical capabilities and the bidder's objective for engaging in petroleum activities in Ghana.102 The formal invitation to tender will state the nature of blocks on tender, the timeline for the tender process, applicable fees, information on access to data and bidding documents, etc.103 Bids submitted by interested investors must conform to the terms of the tender documents and will include notarised corporate documents of the bidder, nationality and corporate structure, areas of interest, the proposed work programme, fiscal terms, rate of return, carried interest for the state, local content levels, performance security and strategy to meet the policy objective of the bid round.104 Bids are evaluated on the basis of their responsiveness to the bid requirements and objective criteria prescribed by law, including rate of proposed royalty, bonus, knowledge transfer plan and health and safety.105 Bids are required to be opened publicly, and a list of participating bidders is to be published in the gazette, national newspapers and the website of the Ministry of Energy. Following the evaluations, all bidders will be notified of the outcome of the tender and the details of the winners formally published in the gazette, national newspapers and the website of the Ministry of Energy. The preferred bidders are invited to negotiate the terms of the petroleum agreement. The Minister's petroleum agreement negotiation team usually comprises senior officials from the Ministry of Energy, Petroleum Commission, the GNPC, the Attorney General's Department, the Ghana Revenue Authority and other advisers and consultants as required. At the close of negotiations, the draft petroleum agreement is submitted to Cabinet for approval and then to Parliament for ratification. A petroleum agreement is effective and enforceable only when parliamentary ratification is secured.

To complement awards by competitive tender, the Minister of Energy is also empowered to initiate direct negotiations with a qualified body corporate for a petroleum agreement without competitive tender. This option may be adopted where:

  1. only one interested investor expresses interest in a block after an invitation to tender;106
  2. all or part of the area offered for tender in the competitive bidding process has not become the subject of a petroleum agreement but the Minister determines that it is in the public interest for that area to be subjected to a petroleum agreement; and
  3. the Minister, in consultation with the Petroleum Commission, determines that direct negotiations represent the most efficient manner to achieve optimal exploration, development and production of petroleum resources in a defined area.107

To facilitate negotiations towards the award of a petroleum licence, the Ministry of Energy has developed the Model Petroleum Agreement (MPA), which is regularly updated to reflect changes in existing legislation. The MPA is the basis of negotiating new petroleum agreements with prospective contractors. The key terms of the MPA include the following:

  1. introduction of reporting and disclosure obligations of the contractor to the Commission;
  2. incorporation of the contractor in Ghana;
  3. the area of activity;
  4. the exploration period of up to seven years;
  5. state benefits including carried and paid interest, additional oil entitlement, income tax, rental of government property and surface rent;
  6. contractor benefits, including the right to receive, remit, keep and utilise freely abroad all the foreign currency obtained from the sales of the petroleum; the right to request payment for sale of its oil entitlement in foreign currency;
  7. restrictions on assignment (subject to consent of the Minister);
  8. conditions for relinquishment;
  9. obligations of the contractor, including time for notification of discoveries, commencement of appraisal programmes and submission of development plans;
  10. the Commission's oversight of petroleum operations such as approval of work programme and budget prepared and submitted by the Commission;
  11. establishment of a joint monitoring committee between the contractor and the Commission to review, approve, reject or request modifications of the work programme of the contractor, audit the cost of operations, procurement processes, employment contracts made by the investor;
  12. content of development plans including a plan for utilisation of associated gases;
  13. sharing, measurement and pricing of crude oil;
  14. conditions for use and flaring of natural gas;
  15. conditions for discovery and production of natural gas;
  16. environmental safety provisions including the regulator's right to inspection and emergency reporting;
  17. title to equipment;
  18. relinquishment and decommissioning;
  19. local content (procurement of goods and services, contribution to training); and
  20. dispute resolution (mandatory 30-day period for consultation and negotiation, arbitration under the Arbitration Institute of the Stockholm Chamber of Commerce, Stockholm, Sweden).

The term granted under a petroleum agreement is not to exceed 25 years and may be terminated ahead of term in accordance with the terms of the petroleum agreement. The conditions for early termination include:

  1. relinquishment and surrender of the entire contract area;
  2. failure to give notification of a discovery after the maximum exploratory period;
  3. contractor's failure to commence operations within the time limit for commencement;
  4. submission of false information to the Petroleum Commission;
  5. assignment of rights without the consent of the Minister;
  6. insolvency or bankruptcy of the contractor; and
  7. material breach of the contractor's obligations.

Production restrictions

The total production of oil and gas is shared among the parties in accordance with the petroleum agreement under which the operations are made. Once the compulsory provisions of the E&P Act on the various payments to be made and interest due to the GNPC have been met, there are no restrictions on the distribution of production.

A contractor is entitled to export all its crude oil entitlements under a petroleum agreement. However, where there is an emergency affecting the local supply of crude oil, a contractor may be required by the Minister to sell all or part of its entitlement to the government. This provision has been translated into the MPA, which imposes an obligation on the contractor to support the domestic supply to ensure that crude oil available to the GNPC and the government is sufficient to meet the domestic requirements. Crude oil supplied to meet this requirement shall be priced at the weighted average of the world market prices of comparable crude oils sold at arm's-length transactions for the month of delivery and adjusted for quality, location, etc., and expressed in US dollars.

Under the MPA, the price of crude oil delivered is determined by whether or not it is sold or otherwise disposed of in an arm's-length transaction. Where the transaction is conducted at arm's length, the price shall be the amount actually realised by the contractor. Otherwise, the price shall be determined by reference to world market prices of comparable crude oil sold in arm's-length transactions for export in the major world petroleum markets, and adjusted for oil quality, location and conditions of pricing, delivery and payment.

Assignments of interests

The E&P Act prohibits the direct or indirect transfer of interests in petroleum agreements (in whole or in part) to third parties without the prior written consent of the Minister.108 This restriction applies to both contractors and subcontractors.109 The Act also prohibits the transfer of 5 per cent or more of the shares in a contractor or subcontractor's company to a third party without the consent of the Minister and Petroleum Commission, respectively.110 The Minister may impose conditions for approval of the assignment.111 This provision is further reflected in the MPA, which goes further to add that consent shall not be unreasonably withheld or delayed and may be given subject to conditions deemed appropriate by the Minister or the Petroleum Commission. At all times, the GNPC has the first right of refusal where a contractor intends to dispose of its interest in a petroleum agreement.112

Tax

Taxation of activities in the upstream oil and gas sector is regulated under the Petroleum Income Tax Act, the Income Tax Act as amended and the Income Tax Regulations. Corporate income tax is assessed at 35 per cent of the chargeable income or as provided in the taxpayer's petroleum agreement.113 The prevailing rate in recent petroleum agreements is 35 per cent.

Corporate income tax is calculated net of all expenses that are incurred in the petroleum operations and approved by the Petroleum Commission and the Ghana Revenue Authority as petroleum costs.114 The allowable deductions include rental fees, royalties, interest on fees and loans, expense on maintenance, repair or alteration of machinery, debts directly incurred in the conduct of petroleum operations, contributions to pension or provident funds approved by the Petroleum Commission, capital allowance (determined by the law) and losses from the previous year of assessment.115 Expenses that are not allowed are stated under the act;116 these include research and development expenditure, bonus payments made in respect of the grant of the petroleum licence and expenditure incurred as a consequence of a breach of a petroleum agreement.

Taxation of subcontractors and sub-subcontractors are generally regulated in the Petroleum Agreement, the applicable tax laws or both. This ranges from 5 per cent to 15 per cent for subcontractors and 3 per cent to 20 per cent for sub-subcontractors for the supply of goods, works and services in respect of petroleum operations.

Employees of petroleum operators are subject to personal income tax at varying rates depending on their nationality and income.117 Petroleum agreements may also provide some exemptions for foreign employees working in Ghana for periods under 183 days.118 Other taxes that are typically exempted under petroleum agreements are value added tax (VAT), customs and import duties and taxes associated with importation of equipment for petroleum operations. These tax exemptions are subject to parliamentary approval as provided under the Constitution.119

Environmental impact and decommissioning

The E&P Act and the MPA require strict compliance with the Environmental Protection Agency Act 1994 (Act 490), the Environmental Assessment Regulation 1999 (LI 1652) and best environmental practices in the international oil and gas industry.

i E & P Act

This Act requires a licensee or contractor that operates a petroleum facility to submit a decommissioning plan to the Minister for approval not more than five years and not less than two years before the date on which the petroleum facility is to permanently cease operation or before the expiry of the licence or relevant petroleum agreement.120 The Act also requires a licensee or contractor to establish a decommissioning fund as prescribed.121 In the event of abandonment of a well, the contractor is required to submit an immediate notice of intention to abandon the well to the Commission.122 Thereafter, the contractor must treat and plug the abandoned well with the prior written approval of the Commission and in a manner consistent with international best practices and as approved by the Commission.123 A contractor or licensee who is under an obligation to implement an approved decommissioning plan is strictly liable for any loss or damage caused in connection with the decommissioning of the facility or the implementation of the decommissioning plan.124

ii Environmental Protection Agency (EPA) Act 1994 (Act 490)

This Act grants the EPA the mandate to formulate policy on the environment, prescribe standards and guidelines and issue environmental permits and pollution abatement notices. The Act also empowers the EPA to request an environmental impact assessment (EIA) prior to the grant of permits for any activity that may adversely affect the environment, which includes exploration, development and production of oil and gas.125

iii Environmental Assessment Regulations 1999 (LI 1652) as amended (2002)

Under Act 490, all activities that have the potential to adversely affect the environment must be subjected to environmental assessments.126 These regulations provide the requirement for all the different assessments to be undertaken. These include the following:

  1. preliminary environmental assessments;127
  2. EIAs;128
  3. environmental impact statements;129
  4. environmental management plans;130
  5. environmental certificates;131 and
  6. environmental permitting.132

In addition to the LI 1652, the EPA has issued several guidelines to regulate the EIA process. The key guidelines relating to oil and gas activities are the EPA Guidelines for Environmental Assessment and Management in the Offshore Oil and Gas Development (2010), the Dispersant Importation and Use Guidelines and the Oil Waste Management Guidelines and the Dispersant Policy. These guidelines require preliminary environmental assessments for small- to medium-impact scale undertakings and EIAs for field development and production activities.

The E&P Act requires the GNPC and contractors to restore affected areas and to remove items with the potential to damage the environment at the end of the petroleum operation.133 The activities required to be undertaken include plugging abandoned wells.134 Contractors are required to submit detailed decommissioning plans as part of a development plan for approval.135 Under the petroleum agreements, the obligation for decommissioning is placed on the contractor, who must submit annual reports to the EPA for reviews and monitoring. Contractors are also required to create a decommissioning fund as prescribed in the development plans to finance the decommissioning process during the life of the oil field.136

iv The role of the Ghana Maritime Authority

The Ghana Maritime Authority (GMA) was established under the Ghana Maritime Authority Act 2002 (630). It is the core government agency charged with the responsibility of monitoring, regulating and coordinating activities in Ghanaian waters and in the maritime industry. The GMA is responsible for ensuring a safe and secure marine environment and in charge of monitoring economic activities in Ghanaian waters, including oil and gas activities.137 To ensure the safety and protection of vessels, infrastructure and other assets within Ghana's maritime jurisdiction, the GMA is mandated under the Ghana Shipping (Protection of Offshore Operations and Assets) Regulations 2012 (LI 2010) to issue permits for operation, location and movement of mobile offshore drilling equipment.138 Other activities that require a GMA permit are the operation of vessels, siting of installations and storage facilities and the laying of pipes, cables, equipment and all structures and devices on the seabed or in an area within Ghana's maritime jurisdiction.139

The GMA is also the implementing agency of Ghana's obligations as a member of the International Maritime Organization (IMO) as detailed in the establishment instrument of the GMA.140 Accordingly, it is responsible for ensuring compliance with the design, construction and equipment requirements of the Code for the Construction and Equipment of Mobile Offshore Drilling Units 1979 (IMO Resolution A.414 (XI) as amended by MSC/Circ. 561) (the 1979 Mobile Offshore Drilling Unit Code) and has in force a Mobile Offshore Drilling Unit Certificate (1979), or the Code for the Construction and Equipment of Mobile Offshore Drilling Units 1989 (IMO Resolution A.649 (16) as amended by MSC/Circ. 561 and Resolution MSC.38 (63) (the 1989 Mobile Offshore Drilling Unit Code) and has in force a mobile offshore drilling unit certificate (1989).141

Foreign investment considerations

i Establishment

Under the E&P Act, a contractor in a petroleum agreement is required to be incorporated in Ghana.142 Therefore, a foreign investor must incorporate an entity in Ghana to enter into a petroleum agreement. The entity is also required to open a bank account and maintain an office in Ghana with a representative who has the authority to bind the contractor.143 A branch of a foreign entity cannot be a party to a petroleum agreement.144 Subject to providing all the relevant documentation, a local entity may be incorporated within 10 working days. The entities with foreign ownership are required to register with the Ghana Investment Promotion Centre prior to commencement of operations.145

ii Capital, labour and content restrictions

As discussed above, the Petroleum (Local Content and Local Participation) Regulations (LI 2204) regulate local content in the upstream sector. Significant provisions include the following requirements:

  1. minimum of 5 per cent indigenous participation (other than GNPC) in petroleum agreements;146
  2. minimum of 10 per cent Ghanaian ownership in service providers to be increased to 50 per cent in five years and 60–90 per cent after 10 years;147
  3. minimum targets for areas such as front-end engineering design (FEED), fabrication and construction, materials and procurement, well drilling services, marine operations and logistics services and transportation, supply and disposal services;148
  4. submission of a local content plan showing how priority will be given to local goods and services and use of local professionals and a training plan;149
  5. an employment and training sub-plan;150
  6. a research and development sub-plan;151
  7. a technology transfer sub-plan;152
  8. a legal services sub-plan;153 and
  9. a financial services sub-plan.154

LI 2204 places an obligation on contractors to hire more Ghanaians over time and develop plans for attaining almost 100 per cent indigenous employment within 10 years of starting petroleum operations.155 The employment of staff (Ghanaians and expatriates) in the oil and gas sector is also regulated under the Labour Act and the Pensions Act.

iii Anti-corruption

Since assuming its regulatory role in 2011, the Petroleum Commission prioritised the need to improve the public perception about the upstream sector by increasing consultation and transparency in the sector. In its regulatory role, the Commission monitors compliance with national law on anti-corruption and bribery. Foreign entities are also monitored by other public agencies for compliance with foreign anti-corruption legislation that has extraterritorial effect, such as the Foreign Corrupt Practices Act of the US and the Bribery Act of the UK.

Until recently, a key concern was transparency in the process of the award of petroleum rights. To resolve this, the E&P Act and the recently passed LI 2359 provide mandatory rules on competitive tendering and direct negotiations to ensure that all future petroleum rights are awarded in a fair, open and transparent manner. As already discussed above, these tendering processes were followed by the government in the recent licensing round. The E&P Act also provides for the establishment of a public register of all petroleum agreements, which has been set up by the Petroleum Commission.156 Also, the variation of terms in the various petroleum agreements have raised concerns relating to fairness and transparency.

The introduction of an anti-corruption warranty clause in recently negotiated petroleum agreements is expected to pave the way for even further reforms in transparency in the grant of petroleum rights. The clause requires contracting parties to certify compliance with the anti-corruption laws of Ghana, their countries of incorporation as well as the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the United States of America Foreign Corrupt Practices Act 1977 and the United Kingdom Bribery Act 2010.

Current developments

i Impact of covid-19 on the upstream sector

Along with other oil-producing countries in sub-Sahara Africa, the Ghanaian oil and gas industry was hit hard by the covid-19 pandemic and the collapse in oil prices in 2020. The impact was felt across all activities in the industry value chain. Overall, average production from Jubilee, TEN and Sankofa Gye Nyame declined from 204,000 barrels per day to 186,000 barrels per day between March 2020 and March 2021.157 Disruptions in the global supply chain resulted in reduction in the capital expenditure for many projects. As such, the planned work programmes of operators had to be suspended, deferred or postponed. The following are noteworthy:

  1. Deepwater Tano/Cape Three Points – the indefinite postponement of operations by Aker Energy;
  2. South Deep Water Tano – the suspension of operations by AGM Petroleum;
  3. Central Tano Block: the postponement of drilling campaign by the operator, AMNI, scheduled for second quarter of 2020 to fourth quarter of 2020 or first quarter of 2021 impacting about 16 procurement contracts for support services;
  4. Cape Three Points Block 4 – Eni postponed the drilling of the Eban-1X well to the first quarter of 2021; and
  5. delays to the submission of the PDO for the Pecan Field (Aker) and completion of appraisal programme for Nyankom 1X (GM), Afina 1X (Springfield) and Akoma 1X (Eni).

ii Significant oil discovery in Eni Block 4, offshore Ghana

In July 2021, Eni announced a significant oil discovery in the Eban exploration prospect in the Cape Three Points (CTP) Block 4, offshore Ghana, which is operated by Eni on behalf of its joint venture partners Vitol, GNPC, Woodfields and GNPC Exploration and Production Company Ltd (GNPC Explorco). The Eban – 1X well is the second well drilled in CTP Block 4, following the Akoma discovery in 2019. Preliminary estimates place the potential of the Eban–Akoma complex between 500 million and 700 million barrels of oil equivalent in place. The Eban – 1X well is located approximately 50km off the coast and about 8km northwest of Sankofa Hub, where the John Agyekum Kufuor FPSO is located.

Due to its proximity to existing infrastructures, the new discovery can be fast-tracked to production with a subsea tie-in to the John Agyekum Kufuor FPSO, with the aim to extend its production plateau and increase production.158

iii Revision of development plan for Aker Energy's Pecan Field

Aker Energy in May 2021 indicated that it was set to submit a revised PDO to the government of Ghana in respect of its production in the Pecan Field by the end of 2021. In the revised PDO, Aker has opted for a staged development as well as a simplification of the technical aspects of production to reduce the break-even costs of the project from US$45 per barrel to US$30 per barrel. The revised PDO could lead to the Pecan Field being the fourth producing oil field in Ghana.159

iv Exit of ExxonMobil from Ghana

In May 2021, ExxonMobil announced plans to shut down operations in Ghana after entering into a petroleum agreement in 2018. ExxonMobil was the operator of the Deepwater Cape Three Points (DWCTP) block, in which it held 80 per cent interest together with GNPC (15 per cent) and Goil Offshore Ghana Limited (5 per cent).

ExxonMobil's investment was the first in Ghana following the landmark ruling from ITLOS in respect of the Ghana–Ivory Coast maritime border dispute in favour of Ghana.160

v Multi-well drilling campaign by Tullow Oil

In April 2021, Tullow Oil announced that it was embarking on an offshore multi-year, multi-well drilling campaign and had commenced drilling in the Jubilee Oil Field.161 Tullow contracted the Maersk Venturer for four years, which is expected to drill a total of four wells in 2021, consisting of two Jubilee production wells, one Jubilee water injector well and one TEN gas injector well.162

vi Unitisation of Eni and Springfield blocks

In April 2020, the Minister requested Eni and Springfield Exploration and Production Limited to commence the sharing of data towards a unitised development of their respective Sankofa and Afina blocks. The seismic data analysis presented to the Minister by GNPC and Springfield indicates that the Sankofa field, located in the Offshore Cape Three Points (OCTP) contract area, is suspected to extend into Springfield's West Cape Three Points Block 2 (WCTP2) contract area. Springfield subsequently instituted a suit against Eni, seeking the enforcement of the Minister's unitisation order. In June 2021, the High Court of Ghana in a ruling ordered ENI and its joint venture partner Vitol to set aside 30 per cent of all revenue generated from the Sankofa field, which will be paid into an interest-bearing escrow account until the final determination of the suit.163

vii Proposed GNPC acquisition of additional stakes in the two existing blocks

In July 2021, GNPC announced a plan to acquire significant interests in the Deepwater Tano/Cape Three Points and South Deepwater Tano blocks and set up a joint operator company together with Aker Energy.164 The announcement followed the approval of Parliament of the transaction concept and the grant of a mandate to the Ministers of Energy and Finance to negotiate the terms of the acquisition. The aim of the transaction is stated as ensuring the building of a competent national oil company with capacity to develop Ghana's hydrocarbons in the wake of the energy transition and the diversion of investment into renewable energy.165

viii Recent licensing rounds

As already discussed above, the government in 2018 announced plans to award licences for nine new oil blocks in the Western Basin. Six of the blocks were planned to be allocated through open public competitive tender, two through direct negotiations and one shall be reserved for the GNPC to explore in partnership with its chosen strategic partner. Following the successful conclusion of the first open round, the Ghana Negotiation Team constituted in June 2019 have been engaging First E&P Ltd/Elandel Energy Ghana Ltd and Eni/Vitol in negotiations towards the award of the two blocks with the approval of Parliament.166

In January 2020, GNPC applied to the Minister of Energy for authorisation to undertake exploration and production activities in the GH-WB-01 Block in the Tano basin of Ghana. This request obtained the approval of the Ministry of Energy and Cabinet and is currently awaiting parliamentary ratification to become effective.167

In August 2020, the Minister of Energy published an invitation to oil and gas companies for direct negotiations for petroleum exploration and production rights in respect of Block GH_WB_04 offshore of the Republic of Ghana. A similar invitation was issued in September 2020 in respect of 15 blocks in the Eastern Basin-Offshore Ghana. The outcome of these invitations is yet to be formally published.168

Footnotes

1 Ferdinand D Adadzi and Nana Serwah Godson-Amamoo are both partners at AB & David Africa.

2 National Energy Policy (February 2010), Ministry of Energy.

3 ibid.

5 National Energy Policy (February 2010), Ministry of Energy.

6 ibid.

7 Article 257(6) of the 1992 Constitution.

8 Prior to the establishment of the Petroleum Commission, the function was somehow performed by the national oil company in addition to its mandate as the national oil corporation.

9 National Energy Policy (February 2010), Ministry of Energy.

12 Judgment of the International Tribunal for the Law of the Sea, Year 2017 (23 September 2017); Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Ivory Coast in the Atlantic Ocean (Ghana/Ivory Coast).

13 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Cote D'Ivoire) Judgment, ITLOS Reports, 2017, p. 4.

15 ibid.

24 Only applicable to specific pre-2015 petroleum agreements with fiscal stabilisation clauses.

25 Income Tax (Amendment) Act, 2016 (Act 907).

26 Act 919, Section 7.

27 Act 919, Section 8.

28 Act 919, Section 10.

29 Act 919, Section 9.

30 Act 919, Section 20.

31 Act 919, Section 13.

32 Act 919, Section 18.

33 Act 919, Section 10(15).

34 Act 919, Section 22.

35 Act 919, Section 23.

36 Act 919, Section 19.

37 Act 919, Section 24.

38 Act 919, Section 38.

39 Act 919, Section 56.

40 Act 919, Section 58.

41 Act 919, Section 64.

42 Act 919, Section 83.

43 Act 919, Section 87.

44 Act 919, Section 85.

45 Act 919, Section 88.

46 Act 919, Section 10(14).

47 Act 919, Sections 50–55.

48 Act 919, Section 71.

49 Act 919, Section 63.

50 Act 919, Section 2.

52 LI 2204, Regulation 1.

53 LI 2204, Regulation 3.

54 LI 2204, Regulation 10.

55 LI 2204, Regulation 4.

56 LI 2204, Regulation 4(6).

57 LI 2204, Regulation 7.

58 LI 2204, Regulation 29.

59 LI 2204, Regulation 5.

60 LI 2359, Regulation 3.

61 LI 2359, Regulation 34.

62 LI 2359, Regulation 9.

63 LI 2359, Regulation 51.

64 LI 2359, Regulation 26.

65 LI 2359, Regulations 66–70.

66 LI 2390, Regulation 4.

67 LI 2390, Regulation 5.

68 LI 2390, Regulation 8.

69 LI 2390, Regulation 12.

70 LI 2257, Regulation 1.

71 LI 2258, Regulations 15, 49–67, 68, 72, 73–78, 147–148, 149–154, 155–160, 166–169.

72 The Petroleum Revenue (Amendment) Act 2015 (Act 839).

73 Act 815, Section 2.

74 Act 815, Section 9.

75 Act 815, Section 10.

76 Act 815, Section 42.

77 Act 815, Section 5.

78 ibid.

79 Act 815, Section 11.

80 Act 815, Section 10.

81 LI 2246, Regulations 1, 2 and 4.

82 LI 2221, Regulations 10, 11 and 16.

83 Formerly Ministry of Petroleum.

84 Article 257(6) of 1992 Constitution and Section 3 of Act 919.

86 ibid; Act 919, Section 94.

87 Act 919, Sections 10 and 16.

88 1992 Constitution, Article 268.

89 1992 Constitution, Article 268(2).

90 ibid.

91 Act 821, Section 3.

93 ibid.

94 Act 919, Section 10(3).

95 Act 919, Section 10(6).

96 Act 919, Section 10(7).

97 LI 2359, Regulation 9(1).

98 ibid.

99 ibid.

100 Act 919, Section 10(12).

101 LI 2359, Regulation 9(1).

102 LI 2359, Regulation 9(2).

103 LI 2359, Regulation 12(1).

104 LI 2359, Regulation 14(3).

105 LI 2359, Regulation 16.

106 Act 919, Section 10(8). Where the Minister receives more than one expression of interest, a formal open transparent and competitive public tender process must be followed. Otherwise, the Minister may commence direct negotiations with the interested investor.

107 Act 919, Sections 10(5) and (9).

108 Act 919, Section 16.

109 ibid.

110 Act 919, Sections 15 and 17.

111 LI 2359, Regulation 27(3).

112 Act 919, Section 18.

113 Act 896, First Schedule, Section 5.

114 Act 919, Section 67(1).

115 ibid.

116 Act 919, Section 67(2).

117 Act 896, First Schedule, Section 63.

118 MPA, Article 12.8.

119 1992 Constitution, Article 174.

120 Act 919, Section 43.

121 Act 919, Section 45.

122 Act 919, Section 46.

123 ibid.

124 Act 919, Section 48.

125 Act 490, Section 12.

126 ibid.

127 LI 1652, Regulation 3.

128 ibid.

129 LI 1652, Regulation 9.

130 LI 1652, Regulation 15.

131 LI 1652, Regulation 10.

132 LI 1652, Regulation 4.

133 Act 919, Section 47.

134 Act 919, Section 46.

135 Act 919, Section 43.

136 Act 919, Section 45.

137 Act 630, Section 2.

138 LI 2010, Regulation 8.

139 LI 2010, Regulation 10.

140 ACT 630 as amended, Section 2.

141 Ghana Shipping (Protection of Offshore Operations and Assets) Regulations, 2012 (LI 2010), Regulation 8.

142 Act 919, Section 70.

143 ibid.

144 ibid.

145 Act 865, Section 24.

146 LI 2204, Regulation 4(2).

147 LI 2204, First Schedule, Part 1.

148 LI 2204, First Schedule, Part 2.

149 LI 2204, Regulation 7.

150 LI 2204, Regulation 17.

151 LI 2204, Regulation 21.

152 LI 2204, Regulation 24.

153 LI 2204, Regulation 30.

154 LI 2204, Regulation 32.

155 LI 2204, First Schedule, Part 1.

162 ibid.

163 Ruling of the High Court in the matter of Springfield Exploration and Production Ltd v. Eni Ghana Exploration and Production Ltd and Vitol Upstream Ghana Ltd; Suit No. CM/BDC/0924/2020 (unreported).

165 ibid.

166 Ministry of Finance Annual Report on the Petroleum Funds for 2020 – presented to parliament on 12 March 2021.

167 ibid.

168 ibid.

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