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Please contact customerservices lexology. Power sources include hydro around 30 per cent , natural gas-fired turbines 60 per cent , nuclear 5 per cent and other 5 per cent.
However, as of , Argentina has evolved from being a net energy exporter to a net importer; between and This was owing to government interference in the market. Supply of natural gas for aggregate demand is assured by i natural gas producers, ii a state-controlled entity CAMMESA for the supply of natural gas to the thermal power generators, and iii the shortfall, imported by a government agency circa 10 to 25 per cent of the aggregate demand, depending on the seasonal demand curve.
The current status of natural gas production is leading to an energy trade balance as a consequence of natural gas exports matching reduced demand for LNG imports on account of the current economic recession. Regasified gas from LNG and natural gas from Bolivia through a long-term supply contract are being resold by the above-mentioned government agencies at a loss to supply priority demand, or with pass-through costs to the industry.
CAMMESA is the former power exchange-turned-dealer, buying natural gas through seasonal auctions from producers on the electronic gas market MEGSA to supply it at a loss to thermal power generators before being compensated by the government for the lower price.
This pricing segregation contributed to a growing government deficit until , since reduced because of the fall in international energy prices — in this case, of imported LNG. The Hydrocarbons Law HCL states that the producers of hydrocarbons under exploitation concessions will freely market and sell crude oil as well as natural gas, subject to certain price guarantees in the case of restrictions imposed on the export of natural gas to meet domestic demand article 6 of the HCL.
As international prices for crude oil increased in , reaching the same level as local ones, the government announced that no prior control on crude oil imports and their by-products would be made from the end of onwards. At current prices, there is no sign of incentives for secondary or other enhancement recovery techniques on existing conventional, predominantly oil-producing fields, to counter 's decline of Argentine aggregate oil production of 7 to 8 per cent.
The general framework for offshore exploration permits grants:. The bidders with economic and technical satisfactory qualifications offered an access bonus, work commitments or investments to develop the prospect and compliance bonds and, if awarded, performance bonds.
For natural gas, the road has been bumpier. In a partial attempt to correct them, the Resolution was, however, based on prior resolutions adopted by the former government in excess of its regulatory powers. In a class action case, although it was limited to residential customers, the Federal Supreme Court annulled the pass-through of the upstream costs to tariffs details of the case are discussed below. Both power and natural gas distribution tariffs continued to experience increases to realign price-subsidised values with market prices.
But this extension is now reserved for the incremental production of the fields without taking into account their downward curve , or for new ones, as of onwards, confirming the adage that what is new today becomes old tomorrow in the eyes of a regulator. This is not the sole factor predicating the need for continuity in regulatory practices to assure an open market, because to transport gas to consumers a gas pipeline expansion is needed, which also requires long-term, firm shipping agreements with producers and with a stable demand at the end of the pipe.
In winter , the domestic gas pipelines reaching consumers reached their maximum capacity, leaving no room for open third-party access.
Thus, the project is subject to a two-tier legal framework:. However, this has restrictions linked to the periodic five-year check that the aggregate domestic supply continues to be assured, and subject theoretically to domestic demand on similar terms at the time five days of the approval request, in which case the domestic gas purchase by the interested party prevails. Long-range planning and stable rules are also necessary in this field.
Argentina, as the second largest holder of shale gas resources in the world swiftly becoming reserves, owing to fact the producers successfully navigated the steep learning curve necessary to achieve shale gas exploitation , will soon achieve a third of its overall natural gas production with shale gas.
It is, therefore, in an advantageous competitive position to i export gas to Chile and to Uruguay or Brazil through existing international gas pipelines that remained idle in the past decade because of domestic demand requirements in a government-led market and ii instal liquefaction plants to export LNG be it through two existing projects — by YPF and TGS — or through Chile, reaching the Pacific Ocean by setting up a liquefaction plant in that country.
This would also allow the rapid change of an import parity domestic price matrix to an export parity one, with a profound impact, as gas pricing in Argentina should develop in an open market, setting aside its current segmentation resulting from the coexistence of special shale gas programmes, imported LNG degasification and conventional gas price spread, on the one hand, and the converging of current price differentials according to destination to industrial, residential or thermal power generation.
One single market should define prices, where demand and supply meet. But this would require a leading role for a market of standardised term contracts for distributors, large customers and power generators.
It would also require similar reforms to the power sector to avoid opportunistic behaviour that could jeopardise the reliability of supply which also requires power capacity agreements and non-interruptible gas supply contracts to be put in place. Thus, spot markets in both the natural gas and power sector should be left as they are, to resolve the shortfall in contract suppliers, and not be established as the market through which the bulk of transactions would be effected.
This also requires security of supply to be considered and dispatch orders to be set in both sectors in accordance with objective rules. In conclusion, the shale revolution in the energy sector has the momentum to replace LNG imports to a great extent.
The exports hence should be to Chile and Brazil via Uruguay, through the existing international pipelines, and to any other destination, once the liquefaction plants are installed, together with new pipeline projects already under way the Gasoducto Litoral for an additional 1,km, connecting the Vaca Muerta shale gas area with the trunk gas pipelines , plus the increase in liquid processing of rich shale gas.
Big consumers industry, etc , with a capacity demand of over KW, must comply with the 8 per cent renewables quota with respect to their own overall power demand. Thus, a quota system segregates captive demand for renewables from the rest of the aggregate energy supply, and a forced choice between:. In effect, an individual default of the yearly quota of renewables consumption by each large industrial consumer, and the ensuing power consumption to match such deficit, from sources other than the renewables contracted out of the government offer mentioned in the first bullet point above, will be heavily penalised.
The government aims to resolve the intermittency of renewables, for which bidding was permitted with no commitment on capacity, by offering capacity back-ups for the pass-through of such contracts to large consumers at a price that will be the subject of separate bids, with unpredictable results. This would thus free the government from the heavy burden of sustaining these programmes as the price differential between the international price and the domestic market price would be substantially reduced.
Import parity is the ironclad law of markets, sweeping away economically and technically flawed concepts of reference prices by computing Henry Hub prices plus transport costs into the country liquefaction and transportation amounting each to a third of the LNG price , since LNG is a commodity whose spot prices vary depending on the availability of cargo. The shale and tight gas projects expect a soft landing into market prices that, when freed from regulatory measures, would reach import parity level, making them profitable.
The significant rapid decline in shale field exploitation and the need for continuing short-term investments requires stable rules to make a long-term forecast. Outline the current energy policy. Federal and provincial states have the eminent domain and collect legally capped royalties on the produced hydrocarbons of the subsoil and resources thereof in their respective territories.
Federal legislation sets forth the legal framework for the oil and gas upstream, midstream and downstream market, as well as for power, on account of its many inter-jurisdictional issues. The traditional legal framework under which s energy growth was ensured through deregulation and the ensuing privatisation of previously government-held entities and market-oriented policies is expected to be enforced again, by dismantling the maze of regulations from the s that created captive markets, segmentation of demand, price caps and subsidies to compensate for the resulting stagnation of the energy sector.
These regulations disfigured the legal framework they were supposed to be implementing. The path shown by the government till the end of by fixing a path for natural gas price increases for the next few years to reach import parity prices has been defined, though some solutions, described above, were taken on a provisional basis in contrast with long-range plans that would allow the oil and gas industry to forecast a full return to open market policies.
The confusingly dampening effect on tariffs of government-subsidised imported natural gas supply up to 25 per cent of the aggregate supply at lower-than-cost prices alters the domestic market signals, by means of the resale of imported gas at lower prices by the government, making for cheap energy, stimulating consumption and lack of efficiency.
The gradual increase in prices described above is not sufficient to envisage a strong investment surge in the sector, which should be made on the basis of a forecast of stable rules. In it, the interaction between both markets is analysed, and the proposal intends to show that a global approach to both is necessary, closing the circle between two entirely separate legal frameworks for natural gas and electric energy.
This decree aimed to regulate all the stages of exploration and exploitation of hydrocarbons as well as all other downstream activities, impose mandatory investment plans to the exploitation concession holders, ensure full disclosure of costs and prices, and other restrictions that run counter to the existing laws among others, the disregard of decrees under which the existing concessions were granted previously.
The — government, therefore, committed instead to a policy of returning to the original legal framework. It remains to be seen whether the significant effort by such federal government to restore market signals for attracting the necessary investment will not be altered. In particular, dismantling the price segmentation of natural gas and power generation prices and not merely by gradually increasing energy prices and tariffs , as well as the implied or express price caps; while building a market for medium and long-term contracts both for power and for natural gas , allows the passing-on of the resulting cost and the elimination of opportunistic behaviour.
The spot markets should be limited to purchases of their supply commitments under their term contracts by non-performing suppliers to remedy this shortfall with spot purchases from other producers. The following government since made a gradual increase in natural gas upstream prices and tariffs to correct this, but instead of leaving aside the former controls policy and making a clear transition to open market practices set forth in the Gas Law, it confusingly invoked the former regulations as a source of authority.
The doctrine emerging from the September Federal Supreme Court award that provisionally suspended a tariff and price hike is that as long as the legal framework requires open market principles, the government should issue regulations that respect the same, at least as a goal for the future. It should set forth clear measures to achieve such passage, steering away from provisional measures establishing such levels on a day-to-day basis.
The current HCL , which granted extensions of exploitation concessions, caps on government take and promises of standardisation of terms thereof, should be accompanied by a transparent market for the farm-ins that will be the basis of the market renaissance in new investments, especially owing to the dominant position of YPF regarding shale resources.
Describe any industry-standard form contracts used in the energy sector in your jurisdiction. The extended exploitation concessions are still operated with JOAs as initially used during the s, therefore as per the AIPN model of such time and in many cases, with partial incorporation of uncomplete formulas to address, for example, rights of first refusal, balancing, etc, a source for continuing conflicts , and eventually, requesting a financial or economic carry of the title holder, or a negotiated price, and possibly offering participation in the title as well, and with eventual sole risk provisions.
Alternatively, production-sharing or services contracts may be entered into with the holder of the concession, mixed with a carry. Farm-in agreements do and will play a significant role in participating in existing exploitation concessions and those to be extended, the holder of title to the concessions being:. Natural gas term supply agreements are influenced by the many interferences of the regulated market and to a categorisation of each of them as per the source and even the historic layer to which they corresponded in recent years, the government authority had established a priority of natural gas dispatch by each shipper, and exempted from such restrictions those supply contracts with incremental gas — exceeding a certain threshold, or of a non-conventional source — a source of disputes resulting from such restrictions and priority assignment.
A wide dispersion of gas supply agreements followed, with numerous amendments to previously made gas supply agreements, and supply to CAMMESA, to deliver such natural gas to thermal power plants in its name. CAMMESA was originally designated by law to broker the supply and demand of power, arbitrating between spot prices paid to power generators and seasonal tariffs paid by distributors, with the balancing contribution of a self-adjusted but now extinct because of the tariffs freeze compensation fund.
CAMMESA receives subsidies and imported gas from the government for supply to thermoelectric generators so that the latter are able to meet demand.
This role of CAMMESA is further strengthened by making it the purchaser agent of long-term renewable energy contracts under the Renovar plan, for new gas-fired power projects from the second quarter of and beyond, and as the counterpart for the new integrated projects to be submitted by interested parties.
All these programmes make CAMMESA the monopolistic purchase agent that will have to pass such energy acquisition costs to distributors and large customers, in an as-yet undefined energy matrix that will instead have to respect open market practices to gain the economic equilibrium of aggregate supply and demand.
The regulations that accumulated over the years were being changed to eliminate the burden of energy-related price distortions. This should provide a new opportunity to develop state-of-the-art, standard-term agreements for both gas and power supply, as the reconstruction of the energy balance will require open-season bidding for firms to supply long-term commitments at posted prices, in order to obtain investments to cover the current gap which until now has been filled by imported natural gas supplied at a loss by the government and restrictions on gas and power demand.
This term contracts system should supply the aggregate demand of distributors, and additionally should be used for medium-term contract supply to large customers, eventually traded on a term contracts' trade market.
This expansion will give new opportunities to sign contracts with third parties to make enhancements and ancillary extensions to optimise the current network of pipelines, gas distribution and power transmission.
As seen in 'Development', the to-date open question on markets to be mainly driven by term contracts, in both gas and power, is being analysed, but both the transition path and the final legal framework are pending. What rules govern contractual interpretation in non-consumer contracts in general? Do these rules apply to energy contracts? The new Civil and Commercial Law Code has updated the general guidelines for the interpretation of contracts:.
In Argentina, it would be difficult to identify whether there is a fiduciary duty obligation of the operator towards the other contract parties. It is, however, subject to a general duty of care, of common reliance, and of loyalty the above-mentioned new Code establishes this duty for administrators in general — article The conduct must at least be negligent to be subject to compensation for damages article As per article 1,, an anticipated waiver is not valid if it is against good faith or if there is a deliberate attempt to cause prejudice to the other party article 1, In general, the parties under their agreements can establish limitations to otherwise liability standards that could make them liable to the other parties, by exempting negligence to the extent no gross negligence is excluded, as it is deemed to be similar to wilful behaviour and hence not waivable.
Good practice should carefully forecast the effects of regulatory changes in the economic equilibrium of the parties, especially in areas prone to be hit by such changes, such as supply agreements both international — as could be the case for the renaissance of international export gas supply agreements and their limitations — and domestic, transportation and transmission ie, dispatch regulations altering existing shipping agreements, interruptible or non-interruptible conditions, third-party access rules, effect of offtake agreements altered by market regulations, declaration of emergency and urgency measures by the government, etc.
The general question of who is to blame for the allocation of risks is of paramount importance, as well as definitions regarding these events, extraordinary circumstances, the dividing lines between direct and indirect, and consequential damages, and rules for guidance in case of conflicts with the regulatory agencies or government whenever a joint venture is affected taxation matters, royalty determination, environmental standards and litigation, supply duties or price caps imposed through new laws, access restrictions, etc.
Mitigation duties are also essential, and are seldom considered as a part of the contractual duties between parties of the variety of contracts and associations. These aspects should be addressed in detail.
Are concepts of force majeure, commercial impracticability or frustration, or other concepts that would excuse performance during periods of commodity price or supply volatility, recognised in your jurisdiction? The definition of force majeure resulted from reference to sections and of the Civil Law Code of Argentina now article 1, of the Civil and Commercial Law Code , together with events that may be captured by a contractual definition.
According to common law, force majeure means any event or circumstance other than financial inability to perform that is beyond the reasonable control of the party claiming force majeure. The circle of events labelled as force majeure under common law coexists with the concept of force majeure stemming from the Civil and Commercial Law Code provision, also identified as an unforeseeable event, and will rule either expressly or by default if there is no clause to the contrary, as the parties may shift the burden of such events between them in any contract.
Under this section, both unforeseeable events and force majeure concepts are considered jointly. The other Civil and Commercial Law Code provisions refer to both concepts as if they were one, by using the terms interchangeably. The doctrine does not fully agree on the differences between one and the other case, the majority considering that one addresses unforeseen circumstances, while the other concept addresses the impossibility of avoiding such events that do not allow the performance under the contract.
The effect of such force majeure is expressed under section 1, of the Civil and Commercial Law Code, whereby the debtor will not be liable for damages and interests caused to the creditor because of lack of performance of the obligation, when these result from an objective and absolute impossibility, not attributable to the obliged party, unless article 1, the debtor would have committed performance regardless of such force majeure or, if this event would have occurred because of its fault or would have occurred when already in default, if this default had not been motivated by such fortuitous event or force majeure.
Doctrine and court precedents do not agree on the events that can be classified as force majeure, and several sections across the former Civil Law Code and Commercial Law Code did make reference, in specific contracts, to it by defining some of the consequences of a particular application of such concept.
To clarify the concept, the doctrine refers to comparative law, and thus includes: acts of God, similar to those defined under English law precedents; acts of the enemy, such as war and blockade; and sovereign acts, meaning a government resolution prohibiting, for example, foreign trade.
It is less clear whether the doctrine and court precedents support the idea that, for the concept to apply, extraordinary diligence should have been applied by the party claiming force majeure.
In general, some elements have been identified as requirements for force majeure.
First-step analysis: energy disputes in Argentina
Exact name of Registrant as specified in its charter. Translation of Registrant's name into English. Republic of Argentina Jurisdiction of incorporation or organization. Securities registered or to be registered pursuant to Section 12 g of the Act: None. Securities for which there is a reporting obligation pursuant to Section 15 d of the Act: None.
Please contact customerservices lexology. Power sources include hydro around 30 per cent , natural gas-fired turbines 60 per cent , nuclear 5 per cent and other 5 per cent. However, as of , Argentina has evolved from being a net energy exporter to a net importer; between and This was owing to government interference in the market. Supply of natural gas for aggregate demand is assured by i natural gas producers, ii a state-controlled entity CAMMESA for the supply of natural gas to the thermal power generators, and iii the shortfall, imported by a government agency circa 10 to 25 per cent of the aggregate demand, depending on the seasonal demand curve. The current status of natural gas production is leading to an energy trade balance as a consequence of natural gas exports matching reduced demand for LNG imports on account of the current economic recession. Regasified gas from LNG and natural gas from Bolivia through a long-term supply contract are being resold by the above-mentioned government agencies at a loss to supply priority demand, or with pass-through costs to the industry.