RESOURCE NATIONALISM IN KAZAKHSTAN: SOME

C O N F I D E N T I A L SECTION 01 OF 03 ASTANA 003379 SIPDIS SIPDIS STATE FOR SCA/CEN, EEB PLEASE PASS TO USTDA DAN STEIN ENERGY FOR EKIMOFF COMMERCE FOR HUEPER E.O. 12958: DECL: 12/27/2017 TAGS: PREL PGOV EPET ECON KZ SUBJECT: RESOURCE NATIONALISM IN KAZAKHSTAN: SOME DISTRESSING SIGNS, BUT INVESTORS STILL WAITING IN LINE REF: A. STATE 150999 B. ASTANA 2931 C. ASTANA 3226 D. ASTANA 2586 E. ASTANA 1240 Classified By: AMBASSADOR ORDWAY FOR REASONS 1.4 (B) AND (D) ¶1. (C) Summary: With a burgeoning self-confidence fostered by impressive economic growth, Kazakhstan is exercising tighter control over the exploitation of its natural resources. New laws,including an amendment to the law on subsoil use which allows for the termination of a subsoil use contract if the contractor's actions violate Kazakhstan's economic security interests, impact foreign investors. Kazakhstan is placing additional pressure on international energy companies by aggressively pursuing environmental and tax claims. Nevertheless, Kazakhstan is unlikely to foresake its international partners because it cannot exploit its largest oil and gas fields on its own. Moreover, Kazakhstani officials have thus far demonstrated an understanding that an overly nationalistic approach in the energy sector will negatively affect the country's effort to diversify its economy. End Summary. The Legal Framework: Changes Strengthen Kazakhstan's Hand -------------- -------------- ¶2. (C) Claiming that the conditions of previously signed contracts are too favorable to foreign partners, Kazakhstan has made several changes to its subsoil use laws to strengthen its position and that of the national oil and gas company, KazMunayGas (KMG). In October, President Nazarbayev signed into law an amendment to the "Law on Subsoil and Subsoil Use" which gives the Government of Kazakhstan (GOK) the power to terminate a subsoil use contract if it determines that the contractor's actions violate the national economic security interests of the country (Reftel B). The GOK has stated that only a "limited list of strategic objects" will be subject to the amendment, but has not yet publicly declared which projects will be defined as strategic objects. The Ambassador has received high-level assurances that the amendment will not be used against the consortium developing the Kashagan field. On November 30, Deputy Finance Minister Daulet Yergozhin told Charge that the amendments will not be used against any American company. He 
added, however, that the amendment will be used. (Ref C) (Comment: Post believes that the GOK introduced the amemdment primarily as protection against the perceived dangers of Chinese and Russian over-investment.) ¶3. (C) The GOK has also introduced several other laws in recent years to increase its control over Kazakhstan's natural resource sector. New laws on production sharing agreements (PSAs) and subsoil use, passed in 2004, stipulate that KMG must have at least a 50% stake in all new projects and act as a contractor in all new offshore PSAs. A January 2007 amendment to the "Subsoil Use Law" prohibits the assignment of subsoil use rights within the initial two years of the contract's effective date. The amendment also further tightens the GOK's application of local content requirements, mandating that companies meet local content benchmarks annually, rather than on the average over the lifetime of a project. Subsoil user entities are now required to submit an annual procurement program and to maintain a national register of goods, works and services consumed or supplied for subsoil use operations. Future Production: A Bigger Role for KMG, Leveraged Deals -------------- -------------- ¶4. (C) Kazakhstan has been increasingly assertive in pushing for an enhanced role for KMG in both existing and potential projects. The latest delays and cost overruns on the huge Kashagan project, the world's fifth largest field in terms of reserves, led Kazakhstani authorities in August to demand new PSA terms. Among the chief demands they have made to the ASTANA 00003379 002 OF 003 SUBJECT: RESOURCE NATIONALISM IN KAZAKHSTAN: SOME DISTRERRING SIGNS U INVESTORS STILL WAITI I`QinE**kaSHqWqn so~soj|qum m$an mjcrcgqg`"wv`hd"elr!LF)LGQQelQThe Ministry of Finance has indicated that it intends to increase its scrutiny of foreign oil companies. During an October bilateral meeting between the IRS and the Ministry of Finance's Tax Committee on a tax treaty issue, two Ministry of Finance officials appeared and introduced themselves as members of a "special unit" created to investigate foreign subsoil use companies. They asked the IRS for detailed information on Chevron. When the IRS refused, the "special unit" representatives responded that they intend to pursue Chevron aggressively and shift the burden to the company to prove that it adheres to all of Kazakhstan's tax regulations. The Ministry of Finance is also currently completing an inspection of Agip KCO's (Kashagan) compliance with Kazakh tax law. Deputy Minister of Finance Daulet Yergozhin told the media in November that the Ministry of Finance has several concerns about Agip activities. ¶7. (C) Kazakhstan's environmental authorities have also been more active in bringing claims against subsoil users. In 2006, the Ministry of Environmental Protection threatened to revoke Tengizchevroil's (TCO) operating license, claiming that TCO "violates the enviromental law regularly." In August 2007, the Atyrau regional environmental prosecutor's office made a claim against TCO for 74.4 billion tenge ($575 million) for alleged "systematic failure to comply with the requirements of safe sulfur recovery." The court reviewing the claim affirmed the violations but reduced the fine to 37 billion tenge. The Environmental Ministry has also waded into the Kashagan dispute. On November 5, Minister of Environmental Protection Nurlan Iskakov threatened to suspend the activities of Agip KCO, the consortium developing Kashagan, if it failed to present a plan for responding to environmental complaints. The very next day, Iskakov retracted his statement and announced that the Ministry had no intention to shutdown Agip's operations, Factors That Work Against Resource Nationalism: Ongoing Successes and Economic Diversification Plans -------------- - ¶8. (C) Despite troubles at Kashagan, Kazakhstan's energy sector is generally humming along to the satisfaction of both the Kazakhstanis and international investors, with several notable successes. Karachaganak, developed by a consortium of BG, Eni, Chevron, and Lukoil, is one of the largest projects in Kazakhstan, with investment of over $5.5 billion. The field holds over 1.2 billion tons of oil and 1.35 trillion cubic meters of gas. The giant Tengiz field, a joint venture currently owned by Chevron, ExxonMobil, KMG, and Lukoil, produces 300,000 barrels of oil a day, with plans ASTANA 00003379 003 OF 003 to double production in the near future. The TCO consortium has added $9 billion dollars to Kazakhstan's budget in taxes and royalties. GOK officials acknowledge that western technology and expertise has been instrumental at Tengiz and Karachaganak. ¶9. (C) President Nazarbayev has stated on numerous occasions that one of Kazakhstan's top goals is to join the ranks of the fifty most competitive countries. Kazakhstan already has the second highest per capita GDP in the former Soviet Union, and the country's GDP has grown by at least 9.4% per year in recent years. As part of its effort to join the fifty most competitive states, Kazakhstan is making a strong effort to diversify its economy with programs such as "The State Program 30 Corporate Leaders of Kazakstan" which aims to strengthen 30 leading companies and to involve them in breakthrough projects. To date, the GOK has demonstrated an understanding that attracting foreign investment in the non-extractive sector cannot be decoupled from its actions in the energy sphere. Comment -------------- ¶10. (C) In recent years, conditions have changed for foreign investors in Kazakhstan's natural resource sector. Kazakhstan now feels empowered by its growing economic might to reexamine terms of existing investment agreements and to drive a harder bargain with future investors. This trend will continue. ¶11. (C) Nevertheless, with money pouring in from the oil and gas sector and ambitious economic diversification plans dependent on a healthy investment climate, Kazakhstan is unlikely to tilt too far towards resource nationalism; the country has too much to lose. Kazakhstan's leaders understand this, but the U.S. should reinforce the message when necessary. ORDWAY