Mastering Farm-In and Farm-Out Agreements – Key Insights from African Energy Week (AEW) 2024

A panel of experts at Africa Energy Week (AEW): Invest in African Energies 2024 emphasized the critical importance of stakeholder engagement and legal considerations in farm-in and farm-out agreements during a workshop titled, ‘Mastering Energy Investment Transactions in Africa’.

Moderated by Zion Adeoye, CEO and Managing Partner of CLG on Monday at the AEW: Invest in African Energies 2024 pre-conference session, the panellists shared insights into essential contractual arrangements in the oil and gas industry for facilitating exploration and development activities and allowing companies to share resources, risks and expertise.

Speaking during a Mastering Energy Investment transaction in Africa: a critical guide for general counsel masterclass, Jude Kearney, managing partner of Asafo&Co noted that there were several critical factors that played a role in allowing for meaningful engagement in farm-in farm-out agreements. “There are literally a thousand considerations a farmor or farmee must make before entering a transaction, but they must realize that they are not alone in their decision-making.”

“It is crucial to engage with local stakeholders – government, prospective service providers, potential employees – early to understand the market dynamics and expectations. This includes assessing local content requirements and corporate social responsibility expectations. The government is your ultimate stakeholder, as they hold the authority to approve or deny transactions,” Kearny added.

Participants underscored the necessity of thorough legal due diligence before entering negotiations. This includes understanding local laws, tax obligations and regulatory requirements to avoid potential pitfalls. Grace Yella, CLG director for tax and legal in Cameroon, emphasised starting with due diligence to lobby for favourable responses from government administrations.

Kearny concurred, “Consider policies that exist in some of the countries, such as Nigeria and South Africa, which have very strong local content regulations. If you are not aware of these regulations, and  have not considered them, then your contract is not perfect,” he added.

CLG Equatorial Guinea managing partner Manuel Oliveira agreed, adding that meeting these regulations were no longer a box-ticking exercise. “Local content is critical for these transactions, there are obligations regarding training local people and to give opportunities to local entities to participate in the economy,” he said, adding that local advisors were also able to navigate the complexities of legislation of this nature.

Tax considerations were also a focal point of the discussion. Daoudou Mohammad, Congo director of CLG, noted that understanding tax obligations is crucial, especially as regulations can change rapidly. Engaging tax consultants early could ensure compliance and identify potential exemptions.

As case study, Mohammad cited the oil and gas taxation decree in the Republic of the Congo having undergone several revisions, which significantly impacts how companies approach their investments and compliance strategies. In 2001, a decree was issued that provided tax exemptions for oil and gas activities, which were included in the terms and conditions of various contracts.

However, subsequent changes in government policy led to the issuance of a new decree that made these activities taxable. This shift raised concerns among investors about the stability and predictability of the regulatory environment. The decree was later suspended following constructive dialogue between government officials and tax operatives, indicating a willingness to find a compromise between government revenue needs and the interests of oil and gas entities.

Similarly, changes in Ghana’s oil and gas laws that affected previously favourable tax terms have also changed. “The new Production Sharing Contract focuses more on tax implications than legal terms, highlighting the need for tax experts to be involved in negotiations to avoid unexpected costs,” said Onyeka Ojogbo, CLG deputy managing partner.

“This evolving nature of tax regulations necessitates that companies remain vigilant about compliance to avoid unexpected liabilities, especially given that VAT is now applicable to oil and gas companies, although some activities may still be exempt,”  concluded Mohammad.

Distributed by APO Group on behalf of African Energy Chamber.