The Oil and Gas Law Review: Trinidad and Tobago

Introduction

Trinidad and Tobago (T&T) has a mature petroleum industry. The first oil well was drilled in 1857 in the vicinity of T&T's Pitch Lake in La Brea. The first successful well was drilled in 1866 in Aripero, and commercial oil production is recorded as having begun in 1902 near the Pitch Lake.2 Until the mid-1950s, petroleum exploration was land-based. In 1954, exploration moved offshore into the East Coast marine areas resulting in significant discoveries.3 Marine exploration now extends into the deep.

Petroleum rights in T&T are owned by the state (public petroleum rights) or by private persons (private petroleum rights). Prior to 30 January 1902, the original grants of real estate by the state included all sub-surface rights not expressly reserved by the state. This effectively vested private persons with petroleum rights. Thereafter, the state reserved all sub-surface rights. Public petroleum rights are vested in the state and exercisable by the President. They exist in state lands, private lands where the sub-surface rights have been reserved to the state and all marine areas. It is not uncommon for private petroleum rights owners to dispose of their surface rights and retain the subsurface petroleum rights.

T&T is the most industrialised nation in the Caribbean and is one of the wealthiest because of its oil and gas reserves. The exploitation of hydrocarbons dominates its economy. The availability of historically inexpensive natural gas as feedstock has facilitated a well-developed petrochemicals sector. T&T is one of the world's largest exporters of ammonia with 11 ammonia plants, seven methanol plants with an eighth under construction, two urea plants, nitric acid, ammonium nitrate, urea ammonium nitrate, melamine plants and a dimethyl ether plant under construction. It is one of the largest exporters of liquefied natural gas in the world, with a four-train liquefaction facility. In late 2018, T&T's last functioning oil refinery was shut down by the state-owned Petroleum Company of Trinidad and Tobago Limited (Petrotrin) following a government decision to restructure Petrotrin's refining and exploration and production business.

Owing to a historical lapse in exploration activity (which resulted in a decline in reserves) and falling oil prices (exacerbated further by the covid-19 pandemic) the T&T economy has faced hardships in recent years. Gas shortages in prior years have also affected the petrochemical sector though this issue appears to have been addressed in the short to medium term with increased gas production in 2018 and 2019. Unfortunately, some decline has been experienced in 2020. While an increase in oil prices is apparent, natural gas prices remain volatile for the near future as the covid-19 pandemic continues to evolve. Gas pricing in the domestic market has also in recent times become a contentious issue between downstream manufacturers and the state gas supply company, the National Gas Company of Trinidad and Tobago Limited (NGC).

Legal and regulatory framework

i Domestic oil and gas legislation

The petroleum industry is governed primarily by the Petroleum Act (the Act) and the Petroleum Regulations (the Regulations). Together, they address the grant of exploration and production licences (E&P licences) and production sharing contracts (PSCs) for upstream onshore or offshore exploration and production and several other petroleum operations.

The term 'petroleum operations' is widely defined under the Act; it includes petroleum exploration and production but excludes petroleum mining or extraction from shales, tar sands, asphalts or like deposits. The Act and the Regulations do not address specific gas-related issues, nor do they address unconventional petroleum exploration (such as fracking or shale gas). As a result, specific gas-related issues are normally dealt with by more detailed provisions included in the relevant PSC or E&P licence.

It is an offence under the Act for petroleum operations (whether relating to public or private petroleum rights) to be conducted without a licence. The fine for failing to obtain a licence is currently TT$500,000, and in the case of a continuing offence, TT$50,000 for every day in which the offence continues.

ii Regulation

The Minister of Energy and Energy Industries (the Minister) is the primary regulator of the petroleum industry and performs his or her functions through the Ministry of Energy and Energy Industries (MEEI). Petroleum operations also trigger other general regulatory requirements overseen by other regulators; for example, health, safety and environment (HSE) regulation.

The Minister, subject to the directions of the T&T Cabinet, is charged with the general administration of the Act (which together with the Regulations govern his or her powers and duties). He or she is responsible for, inter alia, regulating the petroleum industry, enforcing the provisions of the Act/Regulations, granting, revoking, varying and enforcing concessions and granting ancillary rights to concession holders.

iii Treaties

T&T is a member/signatory to several trade and investment treaties, the most notable of which is the Caribbean Community (CARICOM). CARICOM's main pillars are to promote economic integration, foreign policy coordination, human and social development and security within the Caribbean.4 CARICOM has entered into several free trade agreements (FTAs) on behalf of its members with third states, following which T&T implemented these FTAs into its domestic legislation.

T&T has also entered into bilateral investment treaties (BITs) with several countries designed to encourage favourable conditions for investors of those countries to make investments in T&T.5 These BITs also require each party to grant investors of the other party terms no less favourable than those that it grants to investors of any third state in similar circumstances.

Many of these BITs are not incorporated into T&T's domestic laws; therefore, T&T courts will not enforce them. BITs, however, typically specify dispute resolution mechanisms including international arbitration. Petroleum investments would normally be considered an 'investment' within a BIT, and if these investments were negatively affected by the government of T&T, the aggrieved foreign investor may seek to enforce its rights (or have its country do so) under the relevant BIT through the specified dispute resolution procedure.

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 was incorporated into T&T's domestic law by the Arbitration (Foreign Arbitral Awards) Act. The Convention relating to the International Centre for Settlement of Investment Disputes was also incorporated into T&T's domestic law by the Investment Disputes Awards (Enforcement) Act. These statutes are designed to accelerate the enforcement process for arbitral awards in comparison with the slower procedure required at common law.

T&T has concluded several double taxation treaties that either reduce or completely mitigate the taxes imposed by the home treaty country on residents of the other treaty country.6

Licensing

Upstream concessions are granted by the state under: (1) PSCs; (2) public E&P licences (which relate to public petroleum rights); (3) private E&P licences (which relate to private petroleum rights); and (4) exploration licences. Where a concession relates to acreage that covers both public and private petroleum rights, the MEEI typically issues a single public E&P licence. The concessions at (1) to (3) will include a minimum exploration work programme (MEWP), but its extent will vary between concessions. Rights in marine areas are now managed primarily by PSCs but a fair amount of marine acreage remains subject to public E&P licences.

An E&P licence confers the exclusive right to prospect for and dispose of petroleum in the licensed area. PSCs give similar exclusive rights in respect of a defined contract area. Neither confer ownership of any petroleum in strata. Exploration licences give a non-exclusive right to explore within the licensed area and are now seldomly issued.

Because the state does not own private petroleum rights, prior to any application to the Minister for a private E&P licence, the applicant must obtain the consent of the title holder (generally through an oil mining lease) and evidence thereof must be supplied to the Minister for verification.

Applications for E&P licences must be made in writing to the Minister, who then publishes them in the Gazette and at least one local daily newspaper to allow opportunity for public objection. An application fee of TT$500 is payable. If the application is in order, the Minister will decide the application after considering any objections.

Public petroleum rights are exercisable by the President, but the Minister is responsible for determining the areas to be made available for petroleum operations. The President in his or her discretion can, however, select an area to be subject to a competitive bidding process. The Minister must then publish a Competitive Bidding Order in the Gazette and at least one local daily newspaper outlining, inter alia, the bid procedure, the available blocks and the bid assessment criteria.

Competitive bid rounds are standard for marine blocks. This process was also utilised in 2013 for certain onshore blocks. Successful bidders are selected by the Minister after analysis of the bids in accordance with the evaluation criteria (and the MEEI's internal benchmarks) and in consultation with the Minister of Finance. PSCs have occasionally been awarded by the Minister out of round, where there were no acceptable bids and the MEEI requested a bidder (seemingly the bidder closest to the internal MEEI benchmark) to submit a revised bid.

Public E&P licences are granted for the initial term of six years, and where a commercial discovery is made, they can be renewed for a maximum term of 25 years, with further successive five-year extensions. Extensions of the initial term are possible in the absence of a commercial discovery where the Minister considers that continued exploration will enhance the identification or evaluation of reserves and the extension is in the public interest.

In addition to production royalties, E&P licences tend to incorporate a combination of the following fiscal obligations including performance guarantees for the agreed MEWP, treasury deposit in cash, payment of all other applicable duties, taxes, charges or fees, annual surface rents, minimum payments for the licensed area, an escrow account for pollution remediation and abandonment of facilities and wells, annual training contributions for nationals, annual research and development payments, annual scholarships, signature bonus, technical equipment bonus, environmental bonus and production bonus. Relinquishment of portions of the licensed area is also required by the Regulations. Licensees are liable, without limitation, for all damage caused as a result of their negligent actions or those of their subcontractors and are required to indemnify the Minister without limitation for resulting third-party claims brought against him or her.

Private E&P licences are granted for a term of 20 years and subject to renewals for successive periods of 20 years. Private licensees are not required under the Regulations to provide bonds or guarantees. The Minister, however, has included these obligations in private E&P licences in the past. Production royalties are not payable to the Minister because the petroleum rights are privately owned. Private E&P licences, in comparison with the public E&P licences, tend to contain less onerous fiscal terms. The obligations normally include the payment of all applicable taxes, duties, charges and rents, a bond or guarantee for the abandonment of wells, escrow account for pollution remediation and abandonment of wells, annual contributions for training of nationals and additional monetary deposits. Otherwise, they are roughly similar to public E&P licences.

PSCs have an initial exploration term and successive extensions similar to public E&P licences. However, the initial term is usually divided into shorter phases and proceeding from one phase into the other is dependent on satisfactory performance of the agreed MEWP for each phase. PSCs typically provide for specific guarantees with respect to the MEWP and work obligations undertaken in subsequent phases, a general third-party or parent company guarantee for the breach of any obligation under the PSC, and a letter of undertaking from a financially, technically and legally competent parent company that it will provide the contractor with the technical and financial resources as are required to meet its obligations under the PSC. Specific relinquishment provisions are also provided for in each PSC. The exact percentage to be relinquished and the timelines for such relinquishment vary, and the Minister has the discretion to vary these requirements. Cash flows generated under PSCs come from the sale of petroleum by the contractor and are distributed between the Minister and the contractor in accordance with agreed cost recovery petroleum and profit petroleum splits, which are typically biddable. Cost recovery is not applicable to all revenues and defined accounting rules and procedures (with rights of audit) are specified in PSCs.

The majority of existing PSCs are 'tax paid' contracts where the Minister undertakes to pay the contractor's taxes and other payments out of his or her share of profit petroleum and gives an indemnity from all other payments to and levies by the treasury or the government (including royalties) whether or not existing at the date of the PSC, save for specified financial and tax obligations. Consequently, the tax regime applicable to upstream operations ought not to affect contractors directly. The tax obligations directly payable by the contractor typically relate to payroll taxes, stamp, import and excise duties and in some cases withholding tax. The Minister's contractual undertaking or obligation to pay the contractor's taxes is not fully supported by formal legislation and in those cases that undertaking or obligation to pay under the PSCs' 'tax paid' provisions arguably does not strip the Revenue of its entitlement to pursue the contractor, though this has not, as far as we are aware, ever happened in practice.

Termination provisions in E&P licences and PSCs can be triggered as a result of breach or pursuant to the normal expiry of the term or via voluntary relinquishment prior to its expiry. Items of material breach prompting a right of termination in E&P licences and PSCs include failure to perform the MEWP and other work obligations and failure to obtain the prior consent of the Minister to an assignment. Termination on this basis usually first requires the giving of notice and the opportunity to remedy. E&P licences may also provide for ministerial termination where the licensee fails to make any required payments, fails to pay any arbitral awards, becomes bankrupt or insolvent or makes a wilful misrepresentation in its E&P licence application.

Production restrictions

Subject to any contrary requirements in the E&P licence, a licensee has a general right to export petroleum. However, the President reserves the right under the Act to take possession of production and in times of emergency to require further production from the licensee. The Minister can also direct producing licensees to have their production refined locally though this is no longer practicable with the close of T&T's last oil refinery in 2018. PSCs tend to address the issue of exportation in more detail, and the contractor's right to export natural gas is more restricted. Marketing arrangements for any natural gas are subject to the Minister's approval, and the contractor must demonstrate to the Minister that the price of the natural gas at the measurement point represents the fair market value obtainable. Any proposed export project for natural gas is subject to the discretion of the Minister. Apart from the restrictions on natural gas exportation, the contractor has a general right to export petroleum subject to the government's right of requisition in times of war or national emergency with compensation.

Assignments of interests

The Minister's prior written consent must be obtained for any assignment or transfer of an interest under an E&P licence and for the issue of a sublicence by a licensee. Failure to obtain consent renders an assignment or transfer null and void (at least against the Minister) and exposes the E&P licence to forfeiture by the Minister. A written application for consent must be made to the Minister with a fee of TT$100, and provision of the same information in respect of the proposed assignee or transferee as required for an application for the E&P licence. This restriction is not, however, sufficiently wide to prohibit transfers by virtue of changes in control.

Historically, PSCs tended only to restrict the actual assignment of the PSC or an interest therein, and contractors under PSCs have often disposed of their interests by way of a sale of shares in the special purpose company used as the contractor entity to enter into the relevant PSC. In recent years, the MEEI has expanded the definition of the term 'transfer' under PSCs in an effort to ensure that disposals of the special purpose contractor entity by a sale of shares or a change in control will qualify as a transfer. We have not seen any E&P licences incorporating similar language. Under modern PSCs, the Minister now reserves the right to impose a transfer fee upon the transfer of the PSC (or an interest therein) based on the value of the transfer consideration. This transfer fee will not apply if stamp duty has been paid on the transfer.

Tax

Apart from certain taxes applicable to all companies, petroleum companies involved in production operations are subject to the following separate taxation regime.

Petroleum profits tax (PPT) is payable at a rate of 50 per cent (35 per cent for deep water operations) and is the petroleum equivalent to corporation tax (which applies to other companies). Outgoings and expenses (other than capital allowances) are determined and deducted in accordance with normal income tax principles together with deductions for supplemental petroleum tax (SPT), petroleum impost (Impost), petroleum production levy (PPL) and royalty (each as explained below) to determine chargeable income.

SPT is charged on gross income from the disposal of crude oil. The only deduction permitted is royalty (including overriding royalty). A tax credit of 25 per cent of certain qualifying capital expenditure incurred is also applied as a deduction against the assessed SPT. SPT becomes payable when crude prices exceed specific thresholds on a sliding scale increasing with the price of crude and depending on the type of licence or PSC held. Effective 1 January 2021 for income years 2021 and 2022, the SPT trigger threshold for the small onshore producers was increased to US$75.01 or more per barrel while the threshold of U$50.01 remained in place for other operators.

Impost is to be paid by every E&P licensee in respect of petroleum won and saved at rates per barrel of crude oil and per million standard cubic feet of natural gas as specified by the Minister. The applicable rates are published annually. The last rate published (for the year ending 2019) was 44.1439764 cents per barrel of crude and 7.6110304 cents per million cubic feet of natural gas. The 2020 rates will be published in late 2021.

PPL is levied on every producer (the levy is prorated in accordance with a producer's percentage of the country's total production) in respect of any production business with a daily average production of over 3,500 barrels. The total levy is used to pay a subsidy to traders in the petroleum marketing business, which in turn supports a fuel subsidy for T&T consumers. The maximum charge that can be levied is 4 per cent of gross income from the production of crude oil. The subsidy is being gradually phased out and there has been substantial reform to this regime, albeit primarily geared towards the downstream.

Effective 1 January 2018, royalties are payable by public E&P licensees and PSC contractors at a rate of 12.5 per cent on the net volume of crude oil and natural gas won and saved from the licensed or contract area at fair market value. However, arguably, the existing tax paid or tax indemnified PSCs (which typically cover royalties) will prevail, and the Minister will continue to make these payments from his or her share of profit petroleum. However, the terms of each PSC will need to be considered, and it is possible that any financial hardships experienced upstream will be passed down to the downstream industry. In the most recent bid round, the PSC forms put forward expressly excluded the payment of royalty from the tax paid undertaking and indemnity provisions.

Unemployment levy (UL) is payable at the rate of 5 per cent of taxable profits of a person for a current financial year. Unlike PPT, no relief is given for losses brought forward.

Though under general tax law, a contractor is liable for T&T tax, depending on the nature of the PSC, the Minister contracts to pay the contractor's liability for PPT, SPT, UL, PPL, royalties, Impost and green fund levy (GFL). In addition, there are various capital and other allowances and incentives (including uplifts) available under the Petroleum Taxes Act and the Income Tax (In Aid of Industry) Act. Upstream companies are allowed relief for prior year tax losses of up to 75 per cent of taxable profits for PPT purposes. Losses can be carried forward indefinitely but there are no provisions for loss carry back.

Taxes of general application include the following:

  1. GFL (0.3 per cent of gross income);
  2. VAT (at 12.5 per cent on imports and T&T based commercial supplies save where exempt or zero-rated (natural gas and crude oil are zero-rated supplies));
  3. customs duties (at varying rates on imports according to the common external tariff);
  4. withholding tax on distributions and named species of payment to non-residents (at 5 per cent, 10 per cent and 15 per cent);
  5. PAYE, national insurance and health surcharge on emolument income paid to employees (the employer is responsible for deducting and remitting same to the Revenue);
  6. stamp duty (levied at varying specified statutory rates on various instruments); and
  7. property tax (this is a new tax and implementation is in process; it is payable on all land on an annual rental value basis (less deductions and allowances) at varying rates depending on whether the land is agricultural (1 per cent), residential (3 per cent), commercial (5 per cent) or industrial (6 per cent housed machinery and 3 per cent machinery not housed)).

Environmental impact and decommissioning

The Act and Regulations contain general provisions that are intended to protect the environment. The Regulations place obligations on licensees to execute operations so as not to unreasonably interfere with other activities in the area and to take care to avoid pollution of marine areas. Licensees are also required to take all reasonable precautions and safety measures to ensure that water resources are not damaged or contaminated by operations. Where a licensee fails to adopt appropriate measures for safety, health and welfare and for pollution prevention, the Minister may (upon the expiry of a default notice, where no emergency exists) execute such works and recover the costs and expenses from the licensee. The MEEI also inspects and monitors environmental quality and equipment used in areas with energy-related facilities. Recently, the liability for proper facility abandonment and for pollution remediation has become a matter of increasing concern, particularly for marine areas.7 This has resulted in express provisions concerning environmental remediation being incorporated into concessions. These usually involve the contractor/licensee making an environmental plan and setting up escrow accounts for the pollution remediation and the abandonment of facilities. The MEEI also normally requires contractors/licensees to undertake to comply with its National Oil Spill Contingency Plan. The Petroleum (Pollution Compensation) Regulations deal with onshore spills and a compensation process for redress where damage is caused to property, crops and other agricultural holdings.

The Environmental Management Act (the EM Act) together with its subsidiary legislation is the primary environmental law regulating upstream operations. The EM Act is focused on the implementation of laws and policies and a framework for the protection, conservation, use and management of the environment. It establishes the Environmental Management Authority (EMA),8 the principal environmental regulator with wide discretion over the kinds of action that it may take in the event of a spill of pollutants including petroleum. The Environmental Commission, a superior court of record sitting on appeals from EMA decisions, is also established under the EM Act. The EM Act regulates the release of various pollutants and exploration, production, refining and decommissioning operations. The EM Act's subsidiary legislation most pertinent to upstream operations include the Certificate of Environmental Clearance (CEC) Rules and the CEC (Designated Activities) Order under which CECs for various upstream activities (including exploration, production and decommissioning) are required before they can be started. The CEC process will also often require environmental impact assessments and a public consultation process. Other relevant rules include the Water Pollution Rules, Air Pollution Rules, Noise Pollution Rules and the new Waste Management Rules,9 which address approvals, registrations and permits for operations causing these types of pollution.

The Occupational Safety and Health Act (the OSH Act) applies to all 'industrial establishments'; this term includes vessels, offshore installations and any movable structure. The OSH Act is designed to revise and extend the law regarding the safety, health and welfare of persons at work and imposes duties and obligations on upstream operators to the extent that they employ persons working at industrial establishments. The Occupational Safety and Health Authority (OSHA) is charged with enforcing the OSH Act, and inspectors have the power to enter and inspect premises for the purposes of ensuring compliance. Apart from penalties for various offences, OSHA has the power to issue 'prohibition notices' that prohibit the use of premises until danger is removed and 'improvement notices' that require improvements to facilities to remove danger. Actions under the OSH Act are heard by the Industrial Court, which is a superior court of record established under the Industrial Relations Act. There are certain general duties owed by an employer to, among other things, ensure the safety, health and welfare at work of its employees, so far as is 'reasonably practicable'. Other specific duties pertain to protocols where hazardous chemicals or substances are present and to the actions to be taken in the event of accidents and occupational diseases. Occupiers (those in ultimate control of a facility) also owe duties, many of which are owed to employees. These include the formulation of a general policy on health and safety and the preparation of various emergency plans, the appointment of a safety practitioner and a duty to ensure that no unsafe structures exist. In addition, an occupier is responsible for managing the environment and protecting the public from dangers created by the operations of the industrial establishment.

Foreign investment considerations

i Establishment

Non-resident companies wishing to engage in upstream operations must establish a local place of business, branch or agency. Once a non-resident establishes a place of business in T&T, it must formally register itself as an external company within 14 days pursuant to the Companies Act by filing the appropriate Form 20 and supporting corporate instruments and declarations with the Registrar of Companies.

Non-resident companies can also incorporate either private limited or unlimited liability subsidiary companies. A name approval application must first be made, which typically takes around five working days. Following receipt of the name approval, non-resident companies classified as 'foreign investors' under the Foreign Investment Act must, prior to incorporation,10 file an administrative notice with the Minister of Finance setting out specified particulars. Thereafter, the relevant articles of incorporation, notices of directors, registered office and secretary are filed with the Registrar of Companies to effect the incorporation.

ii Capital, labour and content restrictions

There are no exchange controls on the negotiation of contracts, payment of obligations and holding of bank accounts in foreign currency. The Exchange and Control Act limits the purchase and sale of foreign currency to and by authorised dealers. There is no requirement for exchange control approval for foreign investments or the payments or repatriation of capital from T&T to a foreign country. However, T&T periodically experiences foreign currency shortages. The par value of the T&T dollar is floated against the US dollar and consequently against every other foreign currency.

Licensees are required under the Act to minimise employment of foreign personnel and train and seek employment of T&T nationals. The MEEI issued a Local Content & Local Participation Policy & Framework (the Local Content Policy) in 2004. It is very general. While it has not been passed into law, it is incorporated into PSCs and the more recent public E&P licences.

PSC contractors undertake open-ended obligations to observe the Local Content Policy as modified from time to time together with specific obligations regarding local content including maximising the use of local goods and services, business, employment of T&T nationals, advertising, financing, evaluating and awarding all tenders in T&T (except where special permission from the Minister is obtained), imparting to nationals business and technology expertise in all areas of the energy sector and preparing and submitting periodic local content reports to the Minister.

Non-nationals may only engage in employment in T&T for a single period not exceeding 30 days every 12 months. Otherwise, a work permit is obtained from the Ministry of National Security. The application is considered by the Work Permit Committee, which consists of various members of the Ministry of National Security, the Ministry of Labour and the MEEI (among others).

iii Anti-corruption

T&T received a score of 40 out of 100 in Transparency International's 2020 Corruption Perceptions Index and ranked 86th out of 180 countries.11 The Prevention of Corruption Act (the Prevention Act) is the main corruption legislation. The terms 'bribe' or 'bribery' are not defined, but a variety of actions are prohibited that would be regarded as offering or giving a bribe and seeking or receiving a bribe. Public and private sectors are subject to the Prevention Act, and it provides for offences involving the corrupt offering, promising, giving, soliciting and receiving of gifts, loans, fees, rewards and advantages. 'Consideration' is defined as including any valuable consideration of any kind, and so small grease payments are also prohibited. The use of an agent or third party (innocent or otherwise) in the commission of an offence will not allow the offender to escape criminal liability. Punishments for offences under the Prevention Act include fines, penalties, imprisonment and other forms of chastisement.

Other legislation with anti-corruption ramifications include: (1) the Proceeds of Crime Act, which requires, inter alia, the disclosure of information on the source of certain funds and obtaining certain business information from clients or business partners in specified transactions; and (2) the Integrity in Public Life Act, which, inter alia, regulates the acceptance of gifts by those in public office and public life and mandates the periodic disclosure of financial information by those in public office and public life to the Integrity Commission.

While confirmed cases of corruption in the petroleum sector are rare, in 2017 there was some speculation surrounding certain fake oil transactions involving Petrotrin and an upstream operator alleging discrepancies between the operator's actual oil production and delivery levels and purportedly inflated levels shown on invoices presented to and paid for by Petrotrin. In June 2021, an arbitral tribunal held that Petrotrin failed to establish any corrupt practices by the operator and the operator was entitled to compensation for wrongful termination of its agreement.12 It is yet to be seen whether this decision will be appealed by Petrotrin.13

Current developments

T&T recently mourned the loss of its Minister of Energy, the Honourable Franklin Khan, who held the energy portfolio since 2016. He has been succeeded by the Honourable Stuart Young.

T&T's petrochemical industry has thrived over the years, but it has faced some challenges because of gas supply shortages and gas pricing negotiations with NGC. These challenges appear to have been mitigated, at least in the short term, by the concerted efforts of the MEEI and the upstream operators, though some decline in gas production was experienced in 2020. In light of these challenges the government has hired a consultant to carry out an in-depth study and advise on a new gas strategy for the country. Publication of the gas strategy report is expected in the near future. In mid-2021, the Minister of Energy held separate discussions with Touchstone and BHP on their respective projects, which are all expected to increase gas supply.14 Shell has also announced the commencement of gas production from its Barracuda Project in the East Coast Marine Area in T&T.15 Further, despite the shuttering and suspended operations of several petrochemical plants in 2020, the future is showing some promise with the restart of Proman's M4 and M5 methanol plants in April 2021.16

As it concerns LNG production, the T&T government has been in discussions with the various private shareholders concerning the future of Atlantic LNG (the first of the four LNG trains), which are reported as being at a sensitive stage.17 While Train 1 is not in active production, there is some speculation (accompanied by reports in the media) that the plant will be mothballed in the near future.

Key industry players have highlighted the significance of the global and regional energy transition with several initiatives being explored locally, including the continued progression of a proposed solar power farm project involving BP and Shell. The Ministry of Energy has also established a Carbon Capture and Carbon Dioxide Enhanced Oil Recovery Steering Committee to manage the implementation of a CO2 EOR Project in Point Fortin.18

As a result of the government's restructuring of Petrotrin in 2018, Heritage Petroleum Company Limited is now vested with Petrotrin's exploration and production assets, Paria Fuel Trading Company Limited with terminalling assets and the Guaracara Refining Company Limited with refinery assets. The refinery has been put on the market; however, the government has, after protracted discussions, ultimately rejected the bid of its preferred bidder, Patriotic Energies and Technologies Co Ltd, a company ostensibly owned by the Oilfields Workers' Trade Union. What will take place with the refinery assets therefore remains to be determined.

Finally, we are also aware that the Ministry of Energy has invited stakeholder comments and is currently reviewing the existing Act and Regulations as well as T&T's petroleum fiscal terms with a view to making the jurisdiction more attractive to investment.

Footnotes

1 Jon Paul Mouttet is a senior partner and Lesley-Ann Marsang and Simonne Jaggernauth-Clarke are associates at Fitzwilliam, Stone, Furness-Smith & Morgan.

3 History of Petroleum Exploration in Trinidad and Tobago, Search and Discovery Article #70231 (2016), K M Persad and C Archie.

7 In terms of general marine-related legislation, the Continental Shelf Act makes it an offence where oil escapes into the sea in a designated area from a pipeline or otherwise (other than from a ship) as a result of any operations for the exploration of the seabed and subsoil or the exploitation of their natural resources and the Oil Pollution of Territorial Waters Act makes it an offence for a vessel to discharge oil into T&T waters. These statutes are, however, quite old with very small penalties and do not adequately address liability for marine-related petroleum pollution. T&T is also a party to several international conventions that are specific to oil spills, but several of these have not been incorporated into domestic law.

9 The Waste Management Rules, 2021 come into operation on 31May 2022.

10 This notice must also be filed prior to any share issuance by the company to a foreign investor. Consideration for such shares must also be paid for in an internationally traded currency through a licensed dealer of foreign exchange.

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