Energy
ExxonMobil-Seplat Deal: When a Regulator Misinterprets the Law
Article by Josiah Adewale
To say that the mixed news coming from the federal government of Nigeria over President Muhammadu Buhari’s consent to the acquisition of the entire ExxonMobil, Delaware, USA’s shares in Mobil Producing Nigeria Unlimited (MPNU) by Seplat Energy Offshores Limited, a wholly-owned subsidiary of Seplat Energy Plc., is a serious cause for worry for the global business community is to state obvious.
Nigeria is probably the only country in the world that could allow this game by the Nigerian National Petroleum Corporation Plc. (NNPC) and the Nigerian Upstream Petroleum Regulatory Commission (NUPRC) over a $1.3 billion transaction, which also includes up to $300 million contingent consideration.
A statement by Special Adviser to the President on Media and Publicity, Mr. Femi Adeshina, said the approval was predicated on the deal’s extensive benefits to the Nigerian energy sector.
It read: “In his capacity as Minister of Petroleum Resources, and in consonance with the country’s drive for Foreign Direct Investment in the energy sector, President Muhammadu Buhari has consented to the acquisition of Exxon Mobil shares in the United States of America by Seplat Energy Offshore Limited.
“ExxonMobil had entered into a landmark Sale and Purchase Agreement with Seplat Energy to acquire the entire share capital of Mobil Producing Nigeria Unlimited from ExxonMobil Corporation, Mobil Development Nigeria Inc., and Mobil Exploration Nigeria Inc., both registered in Delaware, USA.
“Considering the extensive benefits of the transaction to the Nigerian Energy sector and the larger economy, President Buhari has given Ministerial Consent to the deal.
“The President, in commitment to investment drive in light of the Petroleum Industry Act, granted consent to the Share Sales Agreement, as requested by the parties to the transaction, and directed that the approval be conveyed to all the parties involved.
“ExxonMobil/Seplat are expected to carry out operatorship of all the oil mining licenses in the related shallow water assets towards production optimisation to support Nigeria’s OPEC quota in the short term as well as ensure accelerated development and monetisation of the gas resources in the assets for the Nigerian economy.
“President Buhari also directed that all environmental and abandonment liabilities be adequately mitigated by ExxonMobil and Seplat”.
Misinterpreting the law
Surprisingly, hardly had the President’s ink dried than the NUPRC openly countermand his assent in a bizarre move that has discomfited global business community and set tongues wagging.
In insisting that the earlier veto by the NNPC remained, Buhari’s consent notwithstanding, NUPRC Chief Executive, Gbenga Komolafe, cited provisions of the Petroleum Industry Act (PIA) 2021, which he claomed, conferred on the Commission powers of sole regulator of the upstream subsector.
“As it were, the issue at stake is purely a regulatory matter and the Commission had earlier communicated the decline of Ministerial assent to ExxonMobil in this regard. As such, the Commission further affirms that the status quo remains.
“The Commission is committed to ensuring predictable and conducive regulatory environment at all times in the Nigerian upstream sector.
“Let me just put it simply, as a Commission, we work strictly in line with the position of the law, and basically we don’t react on the basis of news making the rounds, but we work strictly in line with the law.
“And by virtue of the provisions of the petroleum industry act, under section 95, subsection 10, 14 and 15, the commission’s powers in these regards are clearly stated.
“So, regarding the issue, my clarification will just be an affirmation that the position of the Commission stands in respect of the decline of the assets (sale), without prejudice to any other position.
“So, the position of the Commission as the authority involved in the regulation of the upstream, which had earlier been communicated to Mobil, stands. As far as the commission is concerned, nothing has changed. The status quo remains as far as we are concerned,” he insisted.
But NUPRC referencing to Section 95 of the PIA as guiding ministerial consent is wrong because the PIA does not apply to the MPNU assets, which are OML assets. OMLs are still guided by the Petroleum Act (PA), and the MPNU’s OML assets are yet to be converted to PIA regime and Buhari exercised the powers of the Minister under the PA. Section 303 (1) of the PIA unambiguously provides that the PIA does not apply to unconverted OPLs and OMLs until the OPLs and OMLs come up for renewal.
Even at that, whereas Section 95 (15) of the PIA 2021, which NUPRC gleefully quotes provides that “A holder of a petroleum exploration licence shall not assign, novate or transfer his licence or any right, power or interest without prior written consent of the commission”, Section 95 (8) expressly provides that “Where the consent of the minister is granted in respect of the application for a transfer, the Commission shall promptly record the transfer in the appropriate register.”
So, industry stakeholders are understandably at a loss as to where NUPRC derives its powers to override the Minister’s consent.
Playing NNPC’s script
Obviously NUPRC is acting NNPC’s scripts. It is recalled that the NNPC had in a May 2022 letter to ExxonMobil by its Group Managing Director, Mele Kyari, said the transaction could not be consummated as it wanted to exercise its right of first refusal in the June 28, 1990 Joint Operating Agreement (JOA) with ExxonMobil.
To make good its threat, the NNPC in July dragged ExxonMobil to a Federal high Court in Abuja, asking the Court to order that a dispute had occurred between the parties over pre-emption rights, or to order them to take the matter to arbitration, quoting a statement from Seplat. It obtained an order of interim injunction baring ExxonMobil “from completing any divestment”.
However, a cursory look at the JOA in question shows that right of first refusal applied only to divestment of Participating Interest, not in a case where a company wants to sale its shares to a third party.
Article 19.4 of the JOA provides: “Subject to sub-clauses 19.1 and 19.2, if any Party has received an offer from a third Party, which it desires to accept, for the assignment or transfer of its participating hereunder (the “Transferring Party”), it shall give the other Party prior right and option in writing to purchase such Participating Interest as provided in sub-clauses 19. 4.1 to 19 .4.2”.
Sub-clause 19. 4.1 states: “The Transferring Party shall first give notices to the other Party, specifying therein the name and address of the aforementioned third Party and the terms and conditions (including monetary and other consideration) of the proposed assignment and transfer”.
Also, sub-clause 19 .4.2 provides: “Upon receipt of the notice referred to in Sub-clause 19. 2.1, the other Party may within thirty (30) days thereafter, request in writing the assignment and transfer of such Participating Interests to it, in which event the assignment or transfer shall be made to it on the same or equivalent terms”.
However, the JOA, in Article 1 (24), defines Participating Interest as “the undivided percentage interest from time to time held by the parties in the concession (s), the joint property and rights and obligations under this agreement…”
The question is: did NUPRC or NNPC make any efforts to ascertain from the Presidency the reasons Buhari overruled them on the matter? This becomes pertinent as findings show that the Attorney General of the Federal and the Legal Department of the Ministry of Petroleum Resources (NUPRC’s and NNPC’s supervising ministry) were of the view that the transaction followed the law and consequently advised the President to consent to the deal, as manifestly, MPNU’s Participating Interest in the respective OMLs and the JOA were not offered for sale.
The deal was for the acquisition of shares owned by third parties that are shareholders in MPNU.
It is either the NNPC and NUPRC do not understand the law or they are being mischievous with the law, for It is a given in law that the shareholders of a company are distinct from the company, just as the company is a distinct or separate person in the eyes of the law?
Precedents, implications to Nigeria
Meanwhile, precedence and propriety do not support the NNPC and NUPRC’s position and actions. They are also worried about its grave implications to Nigeria’s already gloomy investment environment.
On Tuesday, an oil and gas industry analyst and publisher of Africa Oil and Gas Report, Toyin Akinosho, decried the impropriety of NUPRC’s public spat with the Presidency, saying it was needless, spoke of poor organisation, and was definitely sending wrong signals to the investment world.
“ExxonMobil simply wants to leave the shallow waters; and other companies have left. So, there have been precedents in terms of how companies have left by handing over their entire shareholding in that particular country.
“ExxonMobil is not selling its segment in the OMLs. They are basically selling MPNU the way Ashaland sold Ashland, the way ConocoPhillips sold its entire shares to Oando, the same way Eland Oil and Gas sold to Seplat and this same government approved it.
“As far as I know, the President Buhari has signed off on ExxonMobil-Seplat transaction, the Attorney General has signed off on it. So, when NUPRC says it is not in compliance with Nigerian laws, I really don’t understand where that is coming from”, he stated.
In May, an Energy Law expert, Bloomfield, Ayodele Oni, warned that truncating the ExxonMobil-Seplat deal could cause the likes of TotalEnergies looking to also divest some of its assets to be discouraged from going into negotiations.
Likewise, the Group Chairman/CEO at International Energy Services Limited, Dr. Diran Fawibe, had warned that “the cancellation will give the wrong signal to the international community”.
Chasing rats while the house burns
As the controversy rages, Nigerians on social media have wondered why NUPRC and NNPC fiddles when the industry is going south under their watch. Oil theft has worsened to 400,000 barrels per day. Fuel consumption per day has spiked from about 30 million litres per day in 2015 to a bogus 100 million litres amid long cues and sometimes adulterated supplies. Resource-gobbling subsidy has virtually rendered Nigeria bankrupt. NNPC’s has been unable to remit a dime to the Federation Account for months.
Yet both NNPC and NUPRC have been so preoccupied with scuttling a deal they should actually promote and find it difficult to encourage prolific indigenous oil and gas firms to boast Nigeria’s sagging production.
It is high time Mr. President calls them to order and salvage the ExxonMobil-Seplat transaction to save the nation further pains, embarrassments and loss of investors’ confidence.
Adewale, an energy analyst writes from Lagos
Energy
AVEVA Unveils Key Learnings from its 2023 Sustainability Progress Report and first AVEVA Industrial Intelligence Index
AVEVA, a global leader in industrial software, launches AVEVA’s 2023 Sustainability Progress Report and the first edition of the AVEVA Industrial Intelligence Index at London Tech Week 2024 where the company advocates for an ethical and impact-driven AI aimed at increasing creativity and efficiency for a more sustainable world.
AVEVA 2023 Sustainability Progress Report: key learnings
In 2023, AVEVA continued to make progress on its core ESG framework objectives, including enabling the sustainable transformation of industry through its software, modelling environmental stewardship and ethical best practice, and fostering an inclusive workplace culture where every employee feels engaged and empowered to learn and grow.
This fourth edition of the report is AVEVA’s first publication of ESG data and workstream advancements aligned to a calendar year reporting period. It details progress made in 2023 to AVEVA’s three key pillars: Technology handprint, Operational footprint, and Inclusive culture.
Technology handprint
“Beyond our efforts to reduce our own carbon footprint, we recognize that our biggest opportunity to make a positive impact and accelerate our journey towards NetZero is through our core products, digital solutions that can help industries improve efficiency, circularity, traceability and resilience” declared Lisa Wee, Global Head of Sustainability, AVEVA.
With this regard, the company has developed a green new logo program that has supported in the first six months the deployment of clean tech activities for 25 customers. In addition, with 13 new case studies quantifying the reduction of emissions AVEVA software enables for customers, the company demonstrates how it walks the talk through tangible achievements contributing to sustainability. Last but not least, hackathons run in 2023 generated 80 sustainability-led technology ideas for future innovations.
2023 also saw the launch of AVEVA’s Sustainability Accelerator program the purpose of which is to advance sustainability use cases and capabilities across the company’s portfolio and partner ecosystem, including via AVEVA’s industrial intelligence platform, CONNECT.
“AVEVA’s Sustainability Accelerator program aims to enable faster uptake of existing sustainability solutions across the industrial landscape, while we continue to invest in product capabilities and partnerships that will push out the frontiers of sustainability innovation for industry” said Joana Mainguy, Director of Sustainability in charge of the program.
Finally, AVEVA has pioneered a new standard for green software: since the end of 2023, 31% of its portfolio has built-in power consumption measurement technology.
Operational footprint
In 2023, AVEVA met 4 out of the 15 2025 ESG targets including 93% reduction in scope 1 and scope 2 emissions through a combination of measures: the company procured 100% of renewable electricity in all global markets as per RE100 criteria, reduced its overall fleet of 21% over the year, and counted hybrid or electric vehicles for 25% of the remaining fleet. Notable achievements related to upstream emissions include a 36% decrease in purchased goods and services and a 49% decrease in business travel emissions. The latter goes beyond our 2025 ESG goal of a 20% reduction.
Regarding the scope 3, AVEVA has integrated e-waste data in the inventory under the waste category to report another significant achievement: “Our initial target of diverting 5 tons of e-waste from landfill in 2025 was surpassed by 22.75 tons in 2023. 100% of e-waste sent to our disposal partner is now diverted from landfill,” explained Lisa Wee.
Inclusive culture
AVEVA’s commitment to developing a workplace environment where all employees feel included and are treated with dignity and respect is also highlighted in the report.
“Globally, with 39.9% of new hires, 29% of managers and 26,5% of leaders being women, AVEVA has significantly increased gender representation in 2023 and will continue in this direction to raise these numbers to 50% of new hires, 40% of managers and 30% of leaders by 2030. Besides, we have reached our goal of less than 1% pay equity, and it currently stands at 0.5%”,commented Lisa Wee with enthusiasm. In addition, AVEVA demonstrated its commitment to society donating £ 310,000 to causes supported by AVEVA employees’ communities around the world.
AVEVA also achieved key milestones in regions: In the US, the company has developed a partnership with two Historically Black Colleges and Universities (HBCUs) for an ‘AVEVA Scholars Program. Spanning three years, the program includes scholarships and immersive onsite experiences, ultimately paving the way for talented Black scholars in Engineering and Computer Science to join the AVEVA team upon graduation. The pilot will kick-off mid-June 2024 and count 12 students.
AVEVA INDUSTRIAL INTELLIGENCE INDEX REPORT: A 2-in-1 publication to report on industrial needs and to give guidance on existing solutions through inspiring examples of successful and sustainable digital transformation:
At London Tech Week 2024, AVEVA launched its first annual AVEVA Industrial Intelligence Index:
“AVEVA has been supporting the industrial world for more than half a century. Listening to our customers’ needs and understanding their challenges is how we innovate and develop tailored solutions that will help them cope with current and future challenges. With more than 25 000 customers across all industries, we have built a unique expertise. Today I’m delighted to introduce our first AVEVA Industrial Intelligence Index Report. Our ambition is to issue this report every year to help C-suite executives, business unit leaders, and strategic decision-makers leverage industrial intelligence and succeed in the digital age, with inspiring insights about how industries transform towards a more sustainable future” declared Caspar Herzberg, AVEVA CEO.
Drawing on research conducted with 500 global industry executives across Europe, North America and Asia Pacific, this first edition gives valuable and actionable insights into the power, manufacturing, infrastructure, and chemicals industries. Including comments from AVEVA’s experts and leaders, the report unveils macro trends and describes the forces that drive change and innovation. It also presents case studies showcasing successful digitalization initiatives, and strategies for driving innovation and efficiency to chart a course towards a more sustainable and profitable future.
- Joanna Mainguy will steer strategies for sustainability innovation across AVEVA’s portfolio and partner ecosystem, furthering ESG targets for 2025 and beyond
AVEVA, a global leader in industrial software, driving digital transformation and sustainability, today announced the appointment of Joanna Mainguy as Sustainability Accelerator Director.
Joanna’s appointment testifies to AVEVA’s dedication to strengthening the company’s sustainability impact in line with advancing global climate commitments.
As Sustainability Accelerator Director, Joanna Mainguy will focus exclusively on sustainability solutions and strategies to accelerate innovation that will help AVEVA’s customers to achieve their net-zero targets.
She will look at how AVEVA leverages current market and customer analysis to inform its in-house development team, advise on new customer collaborations and on how AVEVA should grow its partnership network and M&A pipeline to reflect its sustainability priorities.
Joanna will lead the implementation of a sustainability solutions plan tailored to meet the most pressing needs of AVEVA’s industrial customers on low-carbon transition, circularity and resilience, via an integrated product, marketing and sales approach. She will work closely with AVEVA’s portfolio, business area and R&D leads to continue to develop new sustainability capabilities and drive collaboration on go-to-market initiatives that support industry with contributing to an accelerated energy transition and shift to a circular economy.
Joanna was formerly Industry Director, EMEA, for Energy & Sustainability at Microsoft, where she led strategic engagements with major energy providers and supported the energy transition with digital solutions. She has worked across the entire energy value chain and has more than 15 years of experience in process industries and the energy sector, including work for major system integrators, software and energy companies.
Lisa Wee, Global Head of Sustainability, AVEVA, said: “We are excited to welcome Joanna to AVEVA. She will bolster our mission to enable faster uptake of existing sustainability solutions across the industrial landscape, while in parallel we continue to invest in product capabilities and partnerships that will push out the frontiers of sustainability innovation for industry. At AVEVA we look to lead by example on sustainability and we achieved a 93% reduction in Scope 1 and 2 emissions last year. We aspire to help our customers better leverage digital solutions to realize their own ambitious sustainability targets early, and Joanna brings a wealth of experience to help support this.”
Commenting on her appointment, Joanna Mainguy, Sustainability Accelerator Director, AVEVA, said: “I am delighted to join AVEVA at such a pivotal time in its sustainability innovation and growth trajectory. I look forward to working with AVEVA teams and customers to continue to grow the sustainability benefits that can be achieved with AVEVA software. I am also keen to work closely with our partners to drive further positive change at scale, since we know addressing the climate crisis will continue to require expanded collaboration”.
AVEVA actively embeds sustainability into its core product strategy with specific capabilities in its software portfolio.
AVEVA’s software enables organizations to connect and contextualize key sustainability data with artificial intelligence and human insight, enhancing their agility, resilience and sustainability in order to help drive responsible use of the world’s resources.
AVEVA’s 2023 Sustainability Progress Report reveals significant progress across all three pillars of the company’s sustainability framework, encompassing product strategy, operations and culture.
In pursuit of meeting the targets of 20% (unconditional) and 47% (conditional) greenhouse gas emission reduction as contained in the Nationally Determined Contribution under the Paris Accord signed by the President Bola Ahmed Tinubu administration, the NNPC Ltd/TotalEnergies Joint Venture has achieved zero routine gas flare in all its assets.
According to a statement signed by Olufemi Soneye, Chief Corporate Communications Officer, NNPC Ltd., this feat was announced on Thursday during an inspection tour of OML 100 in South-eastern Niger Delta, off Port Harcourt, by a joint NNPC Ltd and TotalEnergies Team to ascertain the success of the OML Flare Reduction Project launched in December 2023.
The NNPC Ltd/TotalEnergies Joint Venture, which is the concession holder of four leases, had hitherto achieved zero routine flaring across OML 99 (2006), OML 102 (2014), and OML 58 (2016), leaving OML 100 as the only lease with routine flaring going on.
The significance of this achievement is that the last routine flare volume of about 12MMscf/d (twelve million standard cubic feet per day) of gas has now been eliminated giving rise to a greenhouse gas emissions reduction of about 341KtCO₂e/yr.
The achievement is an outcome of a programme introduced by the NNPC Ltd to galvanize action towards achieving the zero routine flare by 2030 across its portfolio of assets.
It is also a testament to NNPC Ltd’s prioritization of sustainability anchored on the ‘first R’ of its 5R Strategy (Reduce, Replace, Renew, Re-plant, Repurpose), as it strives to reduce its carbon footprint.
Work is ongoing across all other assets within NNPC Ltd’s Upstream Directorate to ensure that all assets achieve zero routine flaring by 2030 or earlier.
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