Argentina: Energy Overview

Last Updated: 16 August 2004
Article by Damián Díaz

Relevant political, legal and business-related events took place in the energy sector in Argentina during 2004.

Introduction

2004 will not be an ordinary year for Argentina from an energy standpoint due to certain political matters that resulted in major surgeries within the oil & gas sector. The final resolution of the long-discussed Stamp Tax issue over offer letters, the new regime for assessment and payment of royalties or the creation of the state-owned Energía Argentina Sociedad Anónima –Enarsa–, along with the current energy crisis, and the different consequences of all these factors modified the energy map and applicable legal frameworks.

POLITICAL ISSUES

Stamp Tax, Final Defeat Of The Uncertainty

From a political standpoint, maybe the most relevant fact was the final resolution of the issue dealing with the gravability with Stamp Tax of the agreements for consideration entered into through offer letters accepted by performance. Although considered a remarkable defeat for the provincial governments, it was somehow compensated with the new regime for the assessment and payment of oil & gas royalties, another debatable matter between the oil & gas producers, the oil & gas provinces and the Federal State, enhanced after the devaluation of the Argentine Peso vis-à-vis the US Dollar.

In April 15, 2004, the Federal Supreme Court of Justice put an end to the intention of the oil & gas producing provinces’ tax bureaus to collect Stamp Tax over the aforementioned kind of agreements, by setting forth the requirement of an "instrument", under the terms of Law 23,548 of Tax Federal Co-Participation, as a sine qua non condition in order to allow the application of Stamp Tax. These tax claims represented huge contingencies for the oil & gas companies, which in most cases included previsions in their balance sheets covering these liabilities. The judicial decisions issued by the Federal Supreme Court of Justice in this regard entailed, for the provincial tax bureaus, the impossibility to actually collect the amounts claimed in this concept, hence benefiting the oil & gas companies by eliminating the resulting tax contingencies and clarifying the applicable rules.

New Regime For Assessment Of Royalties

On May 2004 the Federal Secretariat of Energy issued Resolution 435/2004, which established a new regime of information, assessment and payment of royalties for oil & gas companies awardees of exploitation concessions and exploration permits. In a nutshell, Resolution 435/2004 granted full powers to the provincial governments and the Federal Energy Secretariat to determine the wellhead prices they deem correct for purposes of assessment and payment of royalties. Although the oil & gas companies may challenge the wellhead prices established by the provinces and the Federal Energy Secretariat, pursuant to Resolution 435/2004 such challenge must be made before the latter (which has sent out clear signs of being on the same side as the provinces) and does not prevent the collection of royalties by the oil & gas producer provinces, even through judicial collection measures.

The Creation Of A State-Owned Energy Company: Enarsa

Another political highlight of 2004, closely related to the current natural gas-focused energy crisis, was the announcement, by the Federal Government, of the creation of Enarsa, the new state-owned energy company that, as informed, shall actively participate in all steps of both oil & gas upstream and downstream, as well as in the generation, transportation and distribution of electric energy and all other types of energy, such as coal, nuclear energy and hydrogen. As reported, Enarsa’s equity would be owned 53% by the Federal State, 12% by the oil & gas producing provinces, and the balance 35% would quote in a stock market.

Reportedly, one of the goals of Enarsa would be to become a balancing player to equilibrate the supply and demand of energy-related goods and services across the country, for the double purpose of providing the Federal Government with a price-control tool that would also battle potential antitrust situations. Moreover, Enarsa would also boost the offshore exploration and exploitation in Argentina, mainly in the Austral basin, to which effect it was announced that the Brazilian oil & gas heavy-weight Petrobras would contribute with technical assistance and share its offshore experience with Enarsa to the enterprise. In fact, as stems from the bill of law of creation of Enarsa, all oil & gas offshore areas not subject to exploration permits and/or exploitation concessions at the time of entry into force of said law would be automatically awarded to Enarsa.

The creation of Enarsa was highly criticized by diverse sectors both from politics and the energy aerea. One of the most criticized features of Enarsa was its broad scope of action, which covered all steps of all kinds of energy. In the view of Enarsa’s critics, set aside the fact that there exists no other energy state-owned company in the world with a corporate goal as broad as Enarsa’s, this broadness of acting would turn Enarsa into a non-efficient company. It was also pointed out by Enarsa’s critics, among other reasons, that Enarsa lacks clear investment and business plans and that no provisions for external auditing procedures were made.

Provincial-Owned Energy Companies

Jointly with Enarsa, the government of the austral province of Tierra del Fuego also publicly announced the creation of a provincial-owned company that would be engaged in the production and commercialization of hydrocarbons. Allegedly, this company’s corporate goal would be broader than Enarsa’s, since, along with the oil & gas-related activities, it would engage also in mining, electric energy, fishing and tourism activities.

Last, the province of Buenos Aires also created a provincial-owned company related to the hydrocarbon industry denominated Buenos Aires Gas S.A., which is in charge of the distribution of natural gas to certain specific small towns located in the province of Buenos Aires. The main reason for the creation of Buenos Aires Gas S.A. was the reluctance of Camuzzi Gas Pampeana S.A., in charge of the distribution of natural gas in that region, to incur in the necessary expenses to extend the distribution of natural gas to certain small towns distant from the main distribution lines.

Regional Policies

Other events that should be mentioned for their political relevance are the regional energy-focused interactions between Argentina and their Latin-American neighbors. In a nutshell, Argentina imported natural gas from Bolivia, fuel oil from Venezuela and electric energy from Brazil, all of this in an effort to mitigate the energy crisis currently undergoing.

LEGAL ISSUES

During 2004 the energy-related legal rules issued by the pertaining authorities dealt, mostly, with the energy crisis in order to minimize the adverse effects derived thereof by tackling the diverse flaws of the applicable energy legal frameworks. Here follows an overview of the most relevant rules issued during this year in this regard.

The Natural Gas Market

In February 2004 the Federal Executive Branch issued Decree 180/2004 establishing the creation of a trust fund to finance the extension of the natural gas transportation and distribution system attempting to avoid possible supply shortages during the austral winter months (boreal summer). In order to achieve more transparent activities associated with the rendering of public utilities service and granting a broader access to operation and commercial information, Decree 180/2004 also set forth the creation of the Gas Electronic Market, which will allow market agents to use information related to gas purchases and sales, transportation, and distribution, and which shall coordinate, in a centralized and exclusive manner, all the transactions related to daily or immediate-term gas markets (spot markets), and natural gas transportation and distribution secondary markets.

In that same month, the Federal Executive Branch also issued Decree 181/2004, instructing the Federal Secretariat of Energy to agree with the natural gas producers an adjustment of the natural gas price in the point of entry to the transportation system acquired by the natural gas distributors, and to implement the necessary mechanisms for the protection of the customers of the gas distribution companies that acquire natural gas directly from the natural gas producers (commercial by-pass). Said agreement was finally entered into by and between the Federal Secretariat of Energy and the natural gas producers on April 2004, and approved by Resolution 208/2004, issued by the Ministry of Federal Planning, Public Investments and Services.

Later, in March 2004 the Federal Secretariat of Energy and the Federal Under-Secretariat of Fuels imposed restrictions on natural gas exports (which occur, mainly, to Chile) to ensure the domestic supply of natural gas. In fact, through Resolution 265/2004, the Secretariat of Energy (i) set forth the suspension of exports of natural gas surplus necessary for the assurance of the domestic supply, (ii) established the suspension and revision of the former procedure for the approval of natural gas exports, and (iii) instructed the Federal Under-Secretariat of Fuels to elaborate of the Program for the Rationalization of Exports and Use of Transport Capacity, which, if needed to supply the domestic market, would include cuts in transport and gas volumes and generation of electric power for export purposes.

The Federal Under-Secretariat of Fuels elaborated such program in March 2004 through Decision 27/2004, which, among others, guaranteed the supply to certain natural gas users, governed the cuts of natural gas exports, the applicable procedures and regimes of priorities to such effect, and the responsibilities of the natural gas producers and transporters. However, in June 2004 the Federal Secretariat of Energy issued Resolution 659/2004, whereby it approved the Complementary Program of Supply to the Domestic Market of Natural Gas, currently in force, in replacement of the one established by Decision 27/2004, mentioned above, to be applied in case the injection of natural gas per basin results lower to the natural gas demand, including the demand of the thermal centrals that results necessary to avoid a shortage of the electricity public service.

Finally, in order to prevent potential collapses during the austral winter, in June 2004 the Federal Secretariat of Energy issued Resolution 657/2004 to regulate the regime of cuts in the supply of natural gas and set forth a contingency program for the natural gas distributors in case the natural gas transportation and distributions system enters into a situation of emergency. Pursuant to Resolution 657/2004, the distributors must first cut the supply of natural gas to the companies that have interruptible services, starting with the companies that pay the lowest prices, and only then proceeding to cut the supply of natural gas of the companies that have non-interruptible services (firm services) but that have agreed to assign certain volume of natural gas during a certain period of time.

Program For The Rational Use Of Energy

Another tool to attempt to minimize the effects of the natural gas shortage crisis was the Program for the Rational Use of Energy launched by the Federal Secretariat of Energy on April 2004 through Resolution 415/2004. In a nutshell, this Program aims to encourage the residential and commercial users to reduce, or at least not increase, the consumption of natural gas with relation to their consumptions in 2003, in order to obtain greater natural gas surplus for their use in industrial activities.

Amendment To The Legal Framework Of Tax And Hydrocarbon Exports

In May 2004, through Resolutions 335/2004, 336/2004 and 337/2004, the Federal Secretariat of Energy amended the legal framework of the Tax on Hydrocarbon Exports, created by the Federal Legislative Branch in February 2002 through the Law of Economic Emergency and Amendment of Exchange Regime, by modifying the restrictive list of hydrocarbons and their by-products which exports are subject to this tax, hence broadening the scope of exports levied by the Tax on Hydrocarbon Exports, and increasing the applicable tax rates. A few days after, through Decree 645/2004, the Federal Executive Branch went a step further by including within the frame of this tax the exports of gaseous natural gas, liquated natural gas, gaseous butane and certain other gases, which exports have never been levied by the Tax on Hydrocarbon Exports since its creation.

Moreover, on August 2004 the Federal Energy Secretariat issued Resolution 532/2004 establishing a progressive increase of the Tax on Hydrocarbon Exports applicable over exports of crude oil depending on the WTI crude price per barrel quoted at the New York Mercantile Exchange. Through this Resolution, the current 25% rate might be increased up to 45% when the WTI barrel exceeds US$45. Allegedly, this increase was decided as a consequence of the escalating of the WTI crude price per barrel and in order to prevent local inflation.

BUSINESS ISSUES

Despite the current energy crisis, the continuous claims of the energy companies to the Federal and provincial governments (including several claims filed before the International Centre for Settlement of Investment Disputes –ICSID– within the World Bank), and many other factors that from an objective standpoint may endanger the attraction of new foreign investments and increase the existing ones, the oil & gas companies, both local and foreign, are currently expanding their businesses in Argentina and investing considerable sums of money in the enhancing of their upstream and downstream activities.

Investments In Upstream

As stems from public information provided by oil & gas companies and the pertaining governmental agencies, the largest percentage of the investments projected for the next years is focused in the offshore exploration and exploitation, which activity has been hardly ever developed in Argentina and is currently deemed to blossom within the next years.

The joint venture composed by Total Austral, Wintershall and PanAmerican Energy informed the prompt commencement of the exploitation of the offshore natural gas fields Aries and Carina, located in the Austral Marina basin, which implies a future investment of US$144M that should be added to the US$256M already invested in this project. These fields would have an initial expected production varying between 4Mm3/day and 5Mm3/day, further increasing to a maximum expected of 12Mm3/day (90% destined to the domestic market), and would represent reserves covering more than two years of the natural gas consumption of Argentina. These two fields are expected to begin their production by May 2005.

PanAmerican Energy’s investment in this regard is part of the US$91,3M investment budgeted for 2004, which represents an increase of 47% compared to the 2003 investments, being the balance devoted, mainly, to the development of the Cerro Dragón field, located in the Golfo San Jorge basin.

Total Austral would also commence the exploration of the Géminis field, located in the Austral Marina basin, distant almost 70km from the Tierra del Fuego shore, through the drilling of a first exploratory well, which would imply an aggregate investment of US$25M, that should be added to the US$24M incurred into in order to import the necessary drilling equipment. With its partners PanAmerican and Repsol-YPF (by far the largest oil & gas company acting in Argentina and the number one in oil & gas production, which committed before the Federal government an investment of US$ 5.670M for the next five years), Total Austral will also start exploration works in the field CAM 46, near the Tierra del Fuego shore, with an initial investment of up to US$10M. A similar investment is projected by Repsol-YPF and PanAmerican for the field CAM 40.

In that same basin, Repsol-YPF and its partner Sipetrol, the local subsidiary of the Chilean state-owned Empresa Nacional del Petróleo de Chile –ENAP–, would invest US$70M for drilling four production wells from the fixed offshore platform located in the Poseidón field at the Austral Marina basin in order to begin the exploitation. .

The Brazilian giant Petrobras, probably the foreign company that invested more money in Argentina during the last two years, mainly through the acquisitions of the local assets of Devon Energy –Petrolera Santa Fe–, and the (then) local giant Pérez Companc, and definitely the leader in offshore production, has recently filed before the Federal Secretariat of Energy a proposal for the development of geophysical studies in two offshore fields, located in the Colorado Marina basin, distant 150km from the maritime shore of the province of Buenos Aires.

Other investments were channeled through M&A transactions within the oil & gas industry, such as the Canadian PetroAndina Resources that recently opened its offices in Argentina and closed the acquisition of the local assets of Venoco Patagonia. With its new partners in the acquired fields, Repsol-YPF and Petrobras, PetroAndina Resources announced the launching of a program of exploration and exploitation for the development of certain fields located in the Neuquén basin.

Similarly, Vintage Oil Argentina, a subsidiary of the US-based Vintage Petroleum, recently increased its presence in Argentina through the investment of US$36.4M for the acquisition of the local assets of the Canadian Rio Alto Explorations, which included, among others, Bella Vista Oeste, an important field located in the Golfo San Jorge basin.

Finally, in that same basin, Repsol-YPF and Pioneer Natural Resources Argentina, the local subsidiary of the giant US-based company Pioneer Natural Resources, announced the initiation of offshore exploration in an unexplored field distant 350km from the maritime shore of the province of Buenos Aires. Such project would entail an investment of US$15M in concept of seismic works during 2005 and US$30M for the first exploratory well to be drilled in 2006.

Investments In Downstream

Other considerable investments took place in the downstream, where Total Austral (as operator of the joint venture with Wintershall, PanAmerican Energy and Repsol-YPF) recently inaugurated a new plant of natural gas compression and increased the capacity of the natural gas treatment plant in the Aguada Pichana field, located in the Neuquén basin. Said works, which required an investment of US$44M, increased the capacity of production of natural gas of this field from 8Mm3/day to 13.5Mm3/day.

In the same Neuquén basin, Pioneer Natural Resources Argentina recently inaugurated the expansion of its gas plant in the Loma Negra field. This work meant a US$32M investment, which is part of the US$900M budgeted for 2004, that includes the construction of the Portezuelos-Loma Negra gas pipeline. Reportedly, this facility, jointly with the expansion of the Aguada Pichana plant and the Transneuquino gas pipeline recently inaugurated by Repsol-YPF entails an additional injection of natural gas at the Neuquén basin of 10Mm3/day.

The Venezuelan state-owned Petróleos de Venezuela S.A. –PDVSA– has reported its intention to open up to 500 points of sale of liquid fuels in Argentina. PDVSA’s goal would be achieved under the umbrella of the recent energy-focused agreement entered into by and between the governments of Argentina and Venezuela, through which Enarsa might also exploit oil wells in Venezuela.

Gas Transportation

Regarding the natural gas transportation system, the Federal Government announced the agreement reached with the two existing natural gas transporters whereby they would invest more that US$600M in order to increase the transportation capacity in 6Mm3/day. Concretely, Transportadora de Gas del Sur S.A. would invest US$228M to increase its capacity in 2.9Mm3/day, and Transportadora de Gas del Norte S.A. would invest US$185M to increase its capacity in 2.8Mm3/day.

Also, the government of the province of Neuquén proposed the construction of a new pipeline from the Neuquén basin to the province of Buenos Aires (Neuba III), and the construction of an interconnection gas pipeline connecting Gasandes and GasPacífico cross-border gas pipelines, which extend from Argentina to Chile.

The local Techint Group set forward a project to build an interconnection gas pipeline between Bolivia and the city of Santa Fe, on the eastern region of Argentina. The proposal has not yet been accepted by the Government and negotiations to settle bidding terms and conditions are still being carried out. The project is valued in almost US$1,000M and the Federal Government is expected to contribute with almost US$300M.

Conclusion

The turmoil triggered by the crisis of December 2001 / January 2002 and the consequences derived therefrom, including economic, social and legal uncertainty, placed Argentina on the verge of collapse from a foreign investment standpoint. However, only a few years after perishing in the flames, Argentina is, just like the Phoenix bird, notoriously and rapidly rising anew from the ashes of its previous existence and it is definitely heading, jointly with its Brazilian heavy-weight neighbor, towards a leading position in Latin America.

For that reason, both the local and foreign players within the energy industry are accompanying the Argentine development and are evidencing confidence in the future of Argentina.

This article was contributed by Damián Díaz, associate at the Tax and Energy departments of the law firm Beretta Kahale Godoy based in Buenos Aires, Argentina.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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