Oil prices have plunged in the last few months.  For example, Brent futures traded at over $110 per barrel in June, and fell below $85 last week.  This is a fall of over 20%, and the market price for crude oil is now at its lowest level since 2010.

Oil prices impact activities in the sector and, in particular, the investments that upstream operators choose to make.  Some means of producing oil cost more than others, and producers continually seek to reduce the marginal cost of production.  For example, as recently reported by the Financial Times, studies estimate that the median North American tight oil development needs a crude oil price of $57 per barrel to break even.  This threshold price compares to $70 per barrel one year ago.  The situation is similar for production from Canadian oil sands, for which the average break-even cost is reportedly between $63 and $65 per barrel.  A sustained drop in oil prices may provide a renewed focus on reducing costs and keeping these unconventional projects economically viable.

The implications for long-term projects with costs that cannot be scaled are potentially more worrying.  Certain projects — for example, oil field developments, pipeline transportation, or other investments tied to the price of oil, such as LNG liquefaction trains or re-gasification terminals — can be dependent on expected oil and gas prices.  When the oil price deviates outside of an anticipated range for an extended period of time, the economics of a project can change and it can create legal disputes (e.g., between co-venturers or between the investment company and supporting service providers).  A fluctuating oil price can also encourage a government to change the rules of the game, which can also lead to litigation.

There are ways of mitigating these risks.  When circumstances permit, some operators may try to include legal provisions in their contracts that anticipate potential changes in the energy markets, such as hardship clauses that shift some of risk of price changes to others.  Frequently, legal disputes center on how these provisions should be applied.  Depending on the law of the contract, there may also be legal doctrines that can be of assistance (e.g., bouleversement and imprévision, civil law concepts that can sometimes provide relief in the case of a supervening change in circumstances).  Stabilisation clauses and investment treaty protections can sometimes be relied on to remedy actions taken by the government.

In short, a falling oil price may be helpful for the global economy, but it can create unwanted headaches for participants in the oil and gas sector and, potentially, give rise to litigation.

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Photo of William Lowery William Lowery

William Lowery is an international arbitration and cross-border disputes lawyer who represents clients in high-stakes commercial and investment disputes across the nuclear, energy, mining, commodities, life sciences, pharmaceutical, and construction sectors. His practice focuses on complex international arbitration, arbitration-related litigation, award enforcement, and…

William Lowery is an international arbitration and cross-border disputes lawyer who represents clients in high-stakes commercial and investment disputes across the nuclear, energy, mining, commodities, life sciences, pharmaceutical, and construction sectors. His practice focuses on complex international arbitration, arbitration-related litigation, award enforcement, and strategic dispute resolution involving technically sophisticated industries, long-term supply arrangements, infrastructure projects, and politically sensitive cross-border claims.

He has represented clients in arbitrations governed by the ICC, AAA/ICDR, JAMS, LCIA, LMAA, SCC, SIAC, and UNCITRAL rules, as well as in ad hoc proceedings, expert determinations, court litigation related to the recognition and enforcement of arbitral awards and foreign judgments, and 28 U.S.C. § 1782 actions. His experience spans both commercial arbitration and arbitration-related litigation, allowing him to advise clients from pre-dispute strategy through final award and enforcement.

William is recognized by Who’s Who Legal as a “Future Leader” in commercial litigation and international arbitration. Clients have told Global Arbitration Review that he is an “excellent practitioner[]” who is “practical and measured” in providing advice and “extremely responsive.”

William is particularly known for his work in the nuclear industry, including disputes involving nuclear fuel supply, U3O8, enriched uranium, conversion services, sanctions-related delivery issues, and long-term fuel-cycle contracts. He has represented and advised uranium mining companies, nuclear fuel suppliers, commodities companies, brokers, and utilities in disputes concerning pricing, delivery conditions, sanctions, export licenses, non-performance, and project abandonment under long-term supply and conversion agreements. His experience includes disputes involving U3O8 supply agreements, enriched uranium delivery obligations, and related issues arising under New York law and other governing laws.

William also has substantial experience in energy disputes more broadly, including upstream oil and gas disputes, investment treaty claims arising from expropriation of energy assets, gas and LNG price review disputes, midstream disputes, insurance arbitrations, and disputes involving crude oil, LPG, and other energy commodities. His matters have included representing Ukraine’s state-owned oil and gas company, Naftogaz, in its investment treaty arbitration against the Russian Federation arising from the expropriation of oil and gas assets in Crimea, resulting in an award exceeding $5 billion; representing clients in gas and LNG price review disputes valued in the hundreds of millions of dollars; and advising on disputes involving long-term crude oil and gas supply contracts.

William also regularly represents clients in life sciences and pharmaceutical disputes, including royalty disputes, milestone payment disputes, manufacturing and supply disputes, and other complex commercial disagreements involving innovative and highly regulated products. His recent matters include representing a multinational biopharmaceutical company in an ICC arbitration concerning royalty deductions with more than $300 million at stake, representing a life sciences company in a SIAC arbitration to recover an unpaid milestone payment, representing a global biotechnology company in a JAMS international proceeding involving a CDMO’s obligation to mitigate damages in good faith, and advising an international pharmaceutical company an expedited ICC arbitration.

In addition, William has significant experience in mining disputes, commodity trading disputes, and disputes arising from long-term supply relationships in the natural resources sector. He has handled matters involving uranium supply, mining project construction, cross-border commodity sales, sanctions-related non-delivery claims, and complex pricing disputes involving state-owned counterparties, utilities, traders, and producers.

William has further developed a strong practice in construction arbitration and infrastructure-related disputes. He has represented clients in disputes arising from EPC contracts, turnkey design and construction contracts, highway rehabilitation and construction projects, mining project construction, drilling and shipbuilding contracts, and other major industrial and infrastructure developments in Latin America and elsewhere.

Photo of Jeremy Wilson Jeremy Wilson

Jeremy Wilson is co-chair of the firm’s International Arbitration and Disputes Practice Group. He advises and represents parties in investor-state matters, price review disputes, and commercial arbitrations, including in both ad hoc proceedings under the UNCITRAL Rules, and institutional arbitrations under the rules…

Jeremy Wilson is co-chair of the firm’s International Arbitration and Disputes Practice Group. He advises and represents parties in investor-state matters, price review disputes, and commercial arbitrations, including in both ad hoc proceedings under the UNCITRAL Rules, and institutional arbitrations under the rules of the ICC, SIAC, HKIAC, the SCC, the DIAC, and the LCIA, in venues around the world. Jeremy has particular experience and a proven track record advising clients in the energy, life sciences, media, and consumer brands sectors.

Chambers UK ranks Jeremy as a leading lawyer for International Arbitration, noting client comments that Jeremy “is an excellent advocate”, “legally knowledgeable, commercially astute, pragmatic and personable to boot”. Clients also comment on his “impressive analytical and tactical skills” as well as his “quick and thorough understanding of complex legal issues”, while market sources have noted that he is “excellent on the law.” Chambers also notes his industry expertise, stating that the “very accomplished and knowledgeable” Jeremy Wilson is particularly commended for handling arbitrations in the oil and gas industries. Legal 500 UK notes “Jeremy Wilson is brilliant. As an advocate he is superb – careful, lucid and sensible submissions, clearly backed by an immense amount of preparation. A well-deserved reputation of excellence.”

Lexology recognises Jeremy as a Thought Leader in Arbitration, and he has been showcased in Legal 500’s UK Arbitration Powerlist.