A REVIEW OF THE NEVER-ENDING OXY SAGA

C O N F I D E N T I A L SECTION 01 OF 03 QUITO 000106 SIPDIS DEPT PLEASE PASS TO USTR BENNETT HARMAN E.O. 12958: DECL: 01/13/2016 TAGS: EPET EINV ETRD ECON EC SUBJECT: A REVIEW OF THE NEVER-ENDING OXY SAGA Classified By: Ambassador Linda Jewell, Reasons 1.4 (b) and (d) ¶1. (C) Summary. Nearly six years after the GOE first refused to rebate VAT taxes to Occidental Petroleum (Oxy),we are not much closer to resolving the dispute. USG pressure, Oxy entreaties, and well-meaning GOE officials have produced some progress, but there have also been missteps and miscommunication that cast doubt on the ability to reach a solution soon. This negative situation could be swiftly reversed, but it will require political will from the GOE, which is always in short supply. There remains the possibility of a serious misstep by the GOE or Oxy leading to a disastrous expropriation scenario. End Summary. A Long and Winding Road -------------- ¶2. (SBU) In 2000, the SRI (U.S. IRS equivalent) decided that it no longer had to refund Value Added Taxes (VAT) to oil companies. After trying to resolve the case on its own, Oxy took advantage of the 2002 Andean Trade Preference Act (ATPA) renewal process to highlight the problem it was having with the GOE. During that renewal process (which led to the ATPDEA, or Andean Trade Promotion and Drug Eradication Act) the GOE and Oxy agreed to international arbitration to resolve the VAT issue. ¶3. (U) The international arbitrators decided in favor of Oxy in July 2004 and awarded Oxy $75 million (through December 2003). With interest and additional VAT rebates owed, the sum currently is about $140 million. Ecuador's Procurador General (U.S. Solicitor General equivalent) Jose Maria Borja immediately announced that he would appeal the decision to the Queens Court in London and investigate all of the private oil companies operating in Ecuador for contract compliance, beginning with Oxy. Weeks later he determined that Oxy had violated its contract in some 34 instances; the most serious charge was that Oxy transferred 40% of its block 15 operations to Canadian oil company EnCana without the required approval of the Minister of Energy. (Note: Oxy claims that farmout agreements, such as the one it signed with EnCana, are common in the oil industry, and that seeking the approval of the Minister is typically done at the end of the process, as Oxy did. End note.) ¶4. (U) According to the Procurador, these "serious" violations, most of which are failures to file papers on time and for which Oxy has paid fines, require the GOE to void Oxy's contract (declare caducity),seize its Ecuadorian assets and turn them over to state oil company PetroEcuador, without compensation to Oxy. Borja has apparently never investigated any of the other oil companies. After Borja's caducity call in August 2004, numerous groups (including leftists, the indigenous and several Congressional Diputados) jumped on the bandwagon to kick Oxy out and seize its assets, creating an increasingly politicized and difficult negotiating environment. ¶5. (C) Oxy has negotiated with GOE officials from the Presidency, the Ministries of Economy, Trade and Energy, PetroEcuador officials and special envoys of the two Ecuadorian presidents that have been in office since 2003. The latest effort was an initially secret negotiation with the current President of PetroEcuador Luis Roman and special emissary, now Ecuador's Permanent Representative to the UN, Diego Cordovez, both of whom were designated by President Alfredo Palacio. Palacio later disclosed the "secret" negotiations and negotiators to the press in a December 2005 magazine interview. Those negotiations looked until this week like they were about to bear fruit. Missteps and Miscommunication -------------- ¶6. (C) Minister of Energy Rodriguez was at first kept out of the secret negotiations that began in September. He was later included in them after threatening to resign under public pressure for perceived lack of action on Oxy. Still, he did bow to the public pressure (that included serious threats of criminal legal proceedings against him) and notified Oxy last November that Oxy was legally obligated to either remedy the alleged violations or explain its actions within 60 days. ¶7. (C) There are conflicting Ecuadorian laws about whether the 60 days refer to calendar or business days. Absent a clear legal finding, Oxy had planned to protect itself and file its response in line with the calendar day interpretation -- on January 13. But Palacio did not want Oxy's response to come before his January 15 State of the Republic address. Palacio told the Ambassador that if Oxy submitted its response this week, he "would have no choice but to declare caducity." He called Minister Rodriguez on January 11, in the presence of the Ambassador, and instructed Rodriguez to issue a letter to Oxy confirming the February 8 due date. The resulting letter was unsatisfactorily ambiguous, and we remain at this dangerous impasse. Oxy expected to receive a definitive response regarding the February 8 due date by noon on January 13. If it does not receive it, Oxy is prepared to file its response the same day. Apparent Deal Falls Through -------------- ¶8. (C) Oxy informed us on January 6 that President Palacio had agreed in December to a general settlement of about $1.4 billion over the remaining life of Oxy's contract. However, Oxy was concerned that the deal might be falling apart. Oxy learned through Rodriguez that Palacio had introduced an entirely new idea: for Oxy to buy and then cancel Ecuadorian debt as part of the settlement. He also wanted Oxy to pay considerably more up front and in cash. Oxy's deal amounted to roughly $230 million in up front money and the rest was to come from the dismissal of Oxy's VAT arbitration claim (about $140 million) and in contract adjustments over the remaining period (about 13 years) of Oxy's contract. ¶9. (C) Adding to the new problems, Oxy informed us on January 11 that the numbers used in its apparent December settlement, which were supplied by PetroEcuador President Roman, were highly optimistic in valuing Ecuadorian oil. They used a $50/barrel price for Ecuadorian crude when the current price is about $37/barrel. Using the lower figure, the value of the settlement over the life of the contract is closer to $800 million than the $1.4 billion figure that had been touted. ¶10. (C) In private meetings and telephone conversations with the Ambassador on January 11, Palacio said that the Ministry of Economy had raised legal and practical concerns about the debt scheme, but they also told him that the economics of the deal were not as lucrative as he had been led to believe. If the numbers did not improve, he said, he would have no choice but to declare caducity. He also said that he had never previously agreed to any settlement, as Oxy had been led to believe by Rodriguez, Cordovez and Roman. ¶11. (C) The Ambassador reminded Palacio of what was at stake. Ecuador was seeking to conclude an FTA with us, they would need our support in international financial institutions (stating she had just met with World Bank representatives that day),and that Oxy had a strong case against a declaration of caducity. All this was apart from any message that the GOE would be sending to investors, foreign and domestic, about the business climate in Ecuador. They agreed to closely follow the matter and encourage a negotiated settlement. What's Next? -------------- ¶12. (C) Oxy must file its response to the Minister of Energy no later than February 8 and perhaps as soon as January 13. Once that response is filed there will be renewed public calls for a declaration of caducity. The GOE is fully aware that the Oxy case must be resolved before a free trade agreement between our two countries would be sent to the U.S. Congress for approval. Oxy expects to receive a favorable decision by late March or April from the Queens Bench Court in London on the GOE appeal of the Oxy arbitration award. Officials in the Procurador's office have told Oxy that they want the matter resolved before then because they feel an adverse decision from the Court will make it easier for the arbitrators to rule in EnCana's favor on a similar VAT case against the GOE, which also exceeds $100 million. Comment -------------- ¶13. (C) Oxy, after numerous fits and starts, had been led to believe that it had a deal with the GOE. Clearly, it was mistaken and the parties are closer to the edge of a caducity declaration than they have ever been. It is better that the more realistic assessment of the settlement offer came to light before a deal was concluded. Once the public realized the illusory nature of the amount they would have held Palacio responsible which could have led to his downfall and made matters even worse for Oxy. The problem is now that the GOE has more unrealistic expectations and could demand the $1.4 billion settlement amount (or $1.5 billion, which "sounds better" according to Palacio) based on a more realistic pricing mechanism, and more up-front cash. A negotiated settlement is possible, but it will take lowered expectations and great political will by Palacio and he must be ready to take the heat that he will inevitably receive from various sectors of society. Thus far, he has not shown that he is up to that task. JEWELL