FOREIGN COMPANIES LAMENT IMPEDIMENTS TO

C O N F I D E N T I A L SECTION 01 OF 03 ALGIERS 000628 SIPDIS SIPDIS DOE PLEASE PASS TO SECRETARY BODMAN E.O. 12958: DECL: 05/07/2017 TAGS: ENRG EPET EINV ECON AG SUBJECT: FOREIGN COMPANIES LAMENT IMPEDIMENTS TO HYDROCARBON INVESTMENT IN ALGERIA REF: 06 ALGIERS 01769 Classified By: Deputy Chief of Mission Thomas F. Daughton; reasons 1.4 (b),(d). ¶1. (C) SUMMARY: Representatives of foreign oil companies operating in Algeria are increasingly voicing concern about the ambiguously worded -- and apparently hastily drafted -- amendments to Algeria's hydrocarbon legislation in effect since the beginning of the year. Although Sonatrach has begun taking oil liftings from foreign operators to pay the new taxes, foreign companies still do not fully understand how these duties are being calculated. An independent financial analysis indicated that the new regulations would negatively impact the bottom line of all foreign energy companies operating in Algeria, and most profoundly the three that were the first to develop Algeria's hydrocarbon sector. One foreign operator told us that according to its analysis, the new taxes have made Algeria a less profitable operating environment than Venezuela -- without taking into account the question of the sanctity of Algerian contracts. Foreign operators also consider the brain drain and resultant bureaucratic slowdown caused by the reorganization of Algeria's energy regulatory agencies as having a deleterious impact on investment. Others have faulted Algeria's "baossem" bidding process, which Energy Minister Khelil implemented following his tenure at the World Bank as a means to increase transparency, as having contrarily increased corruption while giving Algeria a shoddy physical infrastructure likely to stunt the energy sector's long-term development. End Summary. NEW LAW'S OPAQUE CALCULATIONS: LESS PROFITABLE THAN VENEZUELA -------------- ¶2. (C) Foreign energy companies operating in Algeria are increasingly voicing concern about the amendments to Algeria's hydrocarbon legislation that came into effect earlier this year. Most criticism has centered on the windfall profits provision, which applies a production tax on a company's production as soon as oil surpasses USD 30 per barrel. The 2006 amendments noted that this tax could range from five to 50 percent, which international oil companies (IOCs) presumed would be applied on a graduated basis and apply only to revenues over the USD 30 threshold. However, the initial correspondence that the IOCs have received from the Algerian government suggests that the tax is instead a flat 50-percent assessment. One company representative equated this system to the old stamp tax regime that once existed on real estate in the U.K. In other words, once the price of oil passes from USD 29.99 to USD 30.00, the extraordinary profits tax kicks in and the 50-percent production tax takes effect. It appears to apply then to all revenues, rather than just those above the threshold, although the exact formulas remain unclear. Various energy companies we spoke to claimed not to fully understand how these duties are being calculated; they commented that the texts were ambiguously written and apparently hastily prepared. Nonetheless, Anadarko Petroleum told us that Sonatrach has begun taking its liftings -- which Anadarko claims to own under contract -- to pay the new taxes, which are retroactive as of August 2006. ¶3. (C) An independent financial analysis prepared by a British energy consultancy and shared with us in private indicates that all foreign companies operating in Algeria would be adversely impacted by these new duties. Since most contracts signed in Algeria since the 1990s have profit-limiting provisions, the study estimates that this change is likely to have the most profound impact on a few contracts -- currently belonging to Anadarko Petroleum (U.S.),ENI (Italy),and Maersk (Denmark) -- that were signed early in Algeria's hydrocarbon development in the late 1980s (reftel). These affected contracts of those three firms could lose between a third and almost half of their value. The study predicted that the value of other IOCs' investment, in comparison, would drop between 3 and 21 percent, resulting in a net drop of 23 percent, or USD 6.9 billion. UNCERTAINTY OF CONTRACTS -------------- ALGIERS 00000628 002 OF 003 ¶4. (C) Foreign energy operators have stressed that Algeria's cavalier attitude to contracts has had just as negative impact on the opportunities for future investment as the new taxes have, albeit one that's harder to quantify. One Halliburton executive based in the oil producing center of Hassi Messaoud told Econoff in mid-April that the Algerians had developed an attitude whereby they considered signed contracts to be a starting point for negotiations. Anadarko, similarly, expressed uncertainty about investing in the El Merck fields until the taxation issue is resolved. ¶5. (C) Another major U.S. energy firm, which expressly requested its case not be raised directly by Secretary Bodman with Minister Khelil at this time because its negotiations with the Algerians are ongoing, told us that it had recently encountered similar contractual problems regarding change of ownership. Under a 1987 Algerian law, a foreign company must notify the Ministry of Energy if it plans to sell any of its holdings; if there is no response within three months, the deal goes through automatically. Historically, this procedure was accomplished at the working level, involved little more than a rubber stamp, and required little if any transfer costs provided the new owner continued operations as specified in the pre-existing contract. In this particular case, however, the Ministry of Energy informed the company 10 months after its notification that in order for the transfer of ownership to be approved, the company would be required to pay a USD 20 million lump sum, waive any claims against the windfall profits tax, provide a parent company guarantee for the sale, and establish an abandonment escrow account that would revert any forfeited holdings to Sonatrach. ¶6. (C) The greatest sticking point for this firm, however, was the ministry's demand that it repay under its "gross negligence and woeful misconduct" clause for the "lost" revenue that was the result of equipment failure last year, when production ceased for three months. The company noted that these revenues were hardly "lost," as they remained in the ground to be extracted at a future date. As a result, it is currently disputing Algeria's claim that it pay a USD 150 million fee, which would set what it feels to be a dangerous precedent regarding equipment failure for its operations worldwide. When company representatives approached Minister Khelil about the transfer, he said he "might just take the blocks, pay what he thinks they're worth, and sell them to the Europeans who are interested." He reportedly then commented "that it may be discriminatory, but I am the Minister and I can do it." BUREAUCRATIC IMPEDIMENTS, BRAIN DRAIN INCREASING -------------- ¶7. (C) Concurrent with the uncertainties about taxation and the sanctity of contracts has been an increasingly bureaucratic and technically lacking regulatory environment, which the new hydrocarbon legislation aimed to improve. One Anadarko engineer told us that ALNAFT -- the new agency established under the hydrocarbon amendments responsible for awarding energy contracts -- has merely added a new layer of bureaucracy but that all of the same people are making decisions. Brain drain in the Ministry of Energy and Sonatrach has created enormous staffing troubles at ALNAFT and its sister agency, ARH, which is responsible for health and environmental matters. Regulators with sufficient experience are leaving to work as independent energy consultants or take higher paying positions outside of Algeria, such as in the Persian Gulf. BAOSSEM BIDDING WOES -------------- ¶8. (C) An American owner of a drilling company who has worked in Algeria for the last 15 years told us that one of the biggest impediments to development in Algerian energy infrastructure has been its "baossem" bidding process. Energy Minister Khelil imposed the system based on his 20-plus years of experience in the World Bank. Under baossem, every bid that is put out for tender receives both a technical and a financial score. Baossem obligates the government then to choose automatically the lowest bid that meets the base technical requirements. New technologies tend to be systematically undercut as a result. The system, he ALGIERS 00000628 003 OF 003 remarked, has given Algeria a shoddy physical infrastructure likely to stunt the energy sector's long-term development. In the end, the drilling company owner lamented, the Algerians have "gotten what they've paid for." ¶9. (C) Meanwhile, citing the East-West highway project that was awarded on a similar basis, the drilling company owner emphasized that the system had hardly rid Algeria's bidding process of corruption. Former Sonatrach representative to OPEC Dr. Abderrahmane Hamrour underscored this point to Econoff in mid-April. Hamrour, who stressed his close contacts with Sonatrach CEO Meziane, said that he had been offered a job to work with Minister Khelil but demurred because of what he suspected were his corrupt practices. (Note: Khelil has thus far remained relatively immune from the scandal engulfing Brown Root Condor, the Sonatrach-Halliburton joint venture under investigation for corruption. However, rumors continue to swirl in Algiers that he is likely to get caught up in the scandal over BRC's no-bid contract for the deluxe new headquarters of the Ministry of Energy. End Note.) COMMENT -------------- ¶10. (C) As the driving force for the original 2005 hydrocarbon law, Khelil once seemed intent on opening up Algeria to robust foreign investment that would force Sonatrach to evolve into a commercial competitor or risk losing business. After President Bouteflika pushed through amendments that restored, and in some ways enhanced, Sonatrach's de jure preeminence in Algeria's hydrocarbon development, Khelil bluntly told Ambassador last September that the amendments had been made for strictly political reasons and were beyond his control. Thus, Khelil's about-face on Algeria's hydrocarbon legislation, including his recent public endorsements of the windfall taxes, has come as something of a surprise. Some of his rhetoric may reflect an effort to keep his job or maneuver for a better one, or perhaps simply embody the bravado that comes from being the minister who oversees the golden goose of the Algerian economy. It was under Khelil's stewardship of the ministry, after all, that the country witnessed the staggering rise in its foreign exchange holdings that enabled it to pay off its international debt. Given the current political climate, Khelil's harsh guidance to U.S. firms may also reflect an effort to foil his perceived close relations with the U.S. (Two of his children live in the U.S. and Khelil owns a house in Potomac, Maryland.) ¶11. (C) That being said, it may be that Algeria's energy policy is completely driven by the military/intelligence "Pouvoir" (power),in which case Khelil's advice at the end of the day is moot. Similarly, if the conspiracy theories about Khelil's involvement in corrupt practices are true, all bets are off. But as an old hand at the World Bank and a onetime champion of greater competitiveness in Algeria's energy sector, Khelil should understand the necessary enablers for sustainable private investment and the critical role foreign firms have played in Algeria's energy development -- not to mention the dangers of overly heavy-handed state intervention. U.S. energy companies in Algeria have lamented to us that their message is not getting through. As the Ministry of Energy has thus far rebuffed Ambassador's March 10 official request to discuss these points with Khelil, Secretary Bodman's planned meeting with him poses an excellent opportunity to voice these festering concerns. FORD