Published on Wednesday 15th June 2016
What is the legislation applicable to oil and gas activities in your country? Is it federal or state legislation, or both?
Oil and gas regulation in Venezuela is the responsibility of the federal government. Neither state nor municipal governments have the power to regulate or tax oil or gas activities. Crude oil (liquid hydrocarbons and associated gas) are regulated in the Organic Hydrocarbons Law (the Hydrocarbons Law), and regulations thereunder. Gas (gaseous hydrocarbons) is regulated in the Organic Gaseous Hydrocarbons Law (the Gas Law) and regulations thereunder.
There is also an Organic Law that reserves to the Venezuelan state assets and services related to primary oil activities (the Oil Contractor’s Law), which reserves to the state the assets and services connected to the primary oil activities previously carried out directly by Petróleos de Venezuela, SA (PDVSA), Venezuela’s state-owned oil and gas holding company, and its affiliates, and which had been outsourced to third parties. Specifically, the assets and services subject to the Oil Contractor’s Law are:
The Ministry of Popular Power for Petroleum (the Ministry of Petroleum or the Ministry) has the power to determine, via a resolution, specifically which assets and services fall under the reservation set forth in the Oil Contractor’s Law.
Are oil and gas activities carried out by the state or a state-owned agency or national oil company?
Upstream or “primary oil activities”, as defined in the Hydrocarbons Law, are reserved to the state which may carry them out directly or through entities in which the state controls more than 50 per cent of the equity; these entities are known as mixed companies. Primary oil activities are: oil exploration, production, gathering, transportation and initial storage.
Hydrocarbons reservoirs belong to the state. Title to hydrocarbons passes at the well-head to the corresponding concessionaire namely, PDVSA, PDVSA Petróleo, SA (PDVSA’s Venezuelan operating subsidiary) or the corresponding mixed company.
Oil and derivatives distribution (commercialisation) is also reserved to the state, who may also distribute oil and derivative products directly or through mixed companies. Note that the Hydrocarbons Law allows the marketing of natural hydrocarbons only to wholly owned state companies. Therefore, mixed companies producing “natural hydrocarbons” can only sell their production to PDVSA.
Midstream or refining activities in new refineries may be legally carried out by private enterprises, for which a licence is required. Existing refining assets and activities are reserved to the state.
Currently, there are no private entities (eg, entities that are majority-owned by private parties) undertaking refining activities in Venezuela. It is not currently anticipated that there will be any private refineries in the foreseeable future. This is because the government has announced that its future oil and gas plans will be carried out through mixed companies.
Is oil and gas a regulated business that can only be carried out by companies that are licensed or that receive government concessions to operate?
All activities related to oil, even if carried out by mixed companies, require a concession. All activities related to gas require either a concession, referred to as a “licence”, which is required for exploration, production, and transportation, or a permit, which is required for gas distribution. The main difference between a licence and a permit is that, unlike a concession, upon expiration of a licence, the assets deployed in the licensed activity revert to the state in exchange for no compensation, since the value of those assets are deemed to have been amortised during the life of the licence.
Identify the regulatory agencies charged with regulating oil and gas activities in your country and describe the role each agency plays in regulating such activities.
The Ministry of Petroleum is the entity with oversight over the oil and gas industry. The national gas entity (Enagas) has some oversight and regulatory powers over the gas sector, but it is mainly an advisory and technical body.
Are all hydrocarbons in your country deemed to be originally owned by the state? If so, when does ownership transfer to the extractor or buyer of the hydrocarbons?
Hydrocarbon reservoirs belong to the Republic, therefore the reservoirs fall under a regime of public ownership, being inalienable and indefeasible.
How are oil and gas exploration and production rights or concessions granted? Is there more than one method for granting such rights (ie, concession and joint exploration agreements) or co-existing regimes applicable to different exploration or production areas?
They are granted by the Republic through the Ministry of Petroleum and require approval by the National Assembly. Joint exploration agreements or some other type of association agreements are not specifically contemplated under the law.
Is there a public bidding or similar process for oil and gas exploration and production licences? If so, is it open to foreign companies and investors?
Are there any minimum local content requirements related to international bidding processes?
Generally, there are no minimum local content requirements related to international bidding processes. This matter is normally handled on a case-by-case basis under the conditions issued for the bidding processes. Normally, if the bidding process involves a highly specialised service, the local content will not be a requirement.
Are there any restrictions on foreign participation in such rights or concessions or in companies holding any such rights?
Are there any restrictions on the participation in such rights or concessions by state-owned entities or local national oil companies?
Privately owned national companies (that are not wholly owned by the state which are free to perform “primary” oil and associated gas activities) are subject to the same restrictions explained with respect to the foreign participation. Therefore, they may hold less than 50 per cent stake in a mixed company. See question 9.
Are companies or consortia that are awarded exploration and production rights given priority to operate and exploit the corresponding oil and gas fields? If so, how is such priority structured and documented?
As previously explained, the state either directly, or through mixed companies, is awarded exploration and exploitation concessions. Under the law only the mixed companies (or companies wholly owned by the state) will be the “operating company”. Therefore, the operating company will be controlled by the state.
What rights does the holder of an exploration and production licence or concession have to the hydrocarbons discovered during exploration and subsequently produced?
Please see question 5.
May a holder of an exploration and production licence or concession transfer such right?
Any such transfer requires approval from the Ministry of Petroleum.
Who has title to assets imported to develop and produce hydrocarbons, including any technology or expertise provided by foreign participants in the local oil and gas sector?
The mixed company or the contractor, provided that its activities are outside the scope of the oil contractor’s law.
How are federal, state and local governments recompensed for granting companies rights or concessions to conduct oil and gas exploration and production?
The federal government is compensated via royalties, which are paid by the mixed company to the state at a rate of:
May companies or consortia that hold oil and gas exploration and production rights compulsorily acquire property or rights of way to carry out exploration or production activities? Are these compulsory acquisitions governed by special judicial or administrative proceedings?
Both the Organic Hydrocarbons Law and the Gas Law have provisions of compulsory takings and easements that basically allow for an expedited taking, easement, or a right of passage while negotiations or litigation is pending with the owner.
Are natural gas exploration and production activities regulated separately or subject to the same regulation applicable to oil exploration and production? Are there different royalties or other government charges payable by companies that conduct natural gas exploration and production activities?
Gas exploration and production activities are regulated by the Gas Law. This is a separate law from the Hydrocarbons Law, which governs oil exploration and production activities. Gas exploitation is subject to a royalty equivalent to 20 per cent of produced volumes.
Do foreign ownership restrictions apply to the oil and gas sector in your country?
No, existing restrictions are applicable to the private sector in general, regardless of nationality.
Are there any minimum domestic participation rules or any labour law rules relating to domestic and foreign workers?
Not more than 10 per cent of a company’s total workforce can be foreign. In addition, foreign workers’ aggregate compensation may not exceed 20 per cent of the Venezuelan portion of an employer’s workforce. These restrictions are not specific to the oil or gas sector, they are applicable in Venezuela to all companies that employ more than 10 persons.
Are there any limitations on vertical integration in the oil and gas industry in your country?
There are currently no restrictions on vertical integration in the oil sector.
Vertical integration requires authorisation from the Ministry of Petroleum in the gas sector.
Are oil and gas activities carried out through incorporated entities with limited liability or by consortia or other types of unincorporated joint ventures? Are joint venture partners jointly and severally liable for the obligations undertaken in connection with such activities?
Currently, oil activities are carried out through mixed companies, which are corporations with limited liability in which the Venezuelan government, through Petróleos de Venezuela, SA (PDVSA) or a subsidiary, generally owns 60 per cent of the capital stock, the remaining 40 per cent is owned by private companies. The 60/40 split has been applied as a matter of policy even though the Hydrocarbons Law permits private participation of up to 49 per cent.
In the past, oil activities where conducted through unincorporated joint ventures (for example the Cerro Negro project, which was transformed into a mixed company in 2007). Consortium members are joint and severally liable for the project’s obligations because consortia have no legal personality and do not have limited liability.
Investments in the gas sector have been undertaken via corporations or other entities with limited liability.
May oil and gas reserves be pledged or encumbered to secure the repayment of debt? How?
In theory it could, but in practice it is very cumbersome and politically sensitive. Specifically, oil and gas may not be encumbered to secure indebtedness while in the reservoir. This is because while underground, the hydrocarbons belong to Venezuela and are consequently not susceptible of being encumbered.
Title is transferred at the wellhead to PDVSA, more specifically to PDVSA Petróleo, SA (the PDVSA subsidiary in charge of upstream activities in Venezuela) or to the mixed company.
Some financings in the oil sector have been structured as advance prepayment facilities for oil exports. However, PDVSA has not recently pledged oil. Such a pledge, under certain circumstances, could raise negative pledge issues for PDVSA as well as for the Republic.
Can oil and gas rights that are subject to a lien be sold or transferred freely by the secured creditor? What issues, if any, do secured creditors face in enforcing liens on oil and gas rights?
Any such transfer requires approval from the Ministry of Petroleum.
Is oil and gas output freely exportable in your country? Are there any limits or quotas applicable to oil and gas production? Is there access to export pipelines? What licences are required for oil and gas exports? Are duties or tariffs applicable?
Crude exports may only be carried out by PDVSA, its subsidiaries and affiliates and mixed companies. Venezuela is a member of OPEC, therefore Venezuela generally abides by the production limits and quotas applicable to oil production and export quotas set by OPEC. There are no export pipelines in Venezuela.
Are prices for oil and gas set or fixed by the government?
The Ministry sets the prices for gasoline, diesel, propane, methane and other derivatives for the domestic market.
Are oil and gas exports taxed under the general income tax regime or is there specific hydrocarbons tax legislation?
Oil and gas companies are subject to taxation under general tax laws with certain specific rules, and additionally they are subject to taxes and contributions set forth in the Hydrocarbons law, as follows:
Income Tax (Income Tax Law)
Oil and gas companies must pay income tax at a flat rate of 50 per cent. However, companies exclusively engaged in the refining of hydrocarbons or the upgrading of heavy and extra-heavy crude oil are subject to the regular corporate tax rate of 34 per cent.
Value Added Tax (VAT Law)
VAT applies the import and sale of goods, as well as to the provision of services. The current rate is 12 per cent. Exports are subject to a 0 per cent VAT rate. Exporters are entitled to recover the VAT paid on purchases. Sales of hydrocarbons by-products in Venezuela are exempted from VAT.
Large Financial Transactions Tax (FTT Law)
Legal entities designated as special taxpayers by the Venezuelan tax authorities are subject to the Large Financial Transactions Tax (FTT). The FTT is levied on transactions (i) involving payments through banking or financial accounts, and (ii) other forms of payments outside the banking system. The FTT rate is 0.75 per cent.
Payments carried out by state-owned or mixed companies are exempted from FTT under the FTT Law.
Royalty (Hydrocarbons Law)
Oil and gas companies must pay a royalty levied at a 30 per cent rate on the volume of extracted hydrocarbons, which can be paid in kind or in cash, at the option of the Venezuelan government. The 30 per cent rate can be reduced by the Venezuelan government to 20 per cent in case of mature reservoirs or extra heavy crude oil from the Orinoco belt.
Surface Tax (Hydrocarbons Law)
Oil and gas companies must pay a surface tax calculated at the annual rate of 100 tax units per each square kilometre of fraction thereof. This tax is determined based on the concession area not under production, with an annual increase of 2 per cent for five years and 5 per cent in subsequent years.
Extraction Tax (Hydrocarbons Law)
Oil and gas companies must pay an extraction tax calculated at a rate of one third of the value of all the liquid hydrocarbons extracted from an oil field (from the same base established for royalty calculation).
Fuel Consumption Tax (Hydrocarbons Law)
Oil and gas companies must pay a fuel consumption tax, equivalent to 10 per cent of the value of each cubic metre of hydrocarbon-derived product consumed as fuel oil in their operations, calculated based on the final sale price to the final consumer and if such product is not sold in the national market, calculated by the Ministry of Oil and Mining.
Exports Registration Tax (Hydrocarbons Law)
Exporters are subject to an Export Registration Tax calculated at a rate of 0.1 per cent of the value of all hydrocarbons exported from a port in Venezuela (based on the sales prices of these hydrocarbons). Article 14 of the windfall profits tax law caps the price for calculation of the export registration tax at US$70 per barrel.
Additional Royalty (Hydrocarbons Law)
Oil and gas companies must pay an additional royalty of 3.33 per cent on the value of the volume of crude extracted from the site.
Special Advantage (Hydrocarbons Law)
Oil and gas companies must pay on a yearly basis the difference between: 50 per cent of the value of the hydrocarbons extracted from the area of operation and the additional royalty payments made (including the additional royalty described above), as well as the income tax or any other taxes based on income (gross or net), plus the 1 per cent social investment of profits before taxes. The amount of this “special advantage” will be zero if the sum of all previous components is higher or equal to 50 per cent of the value of the hydrocarbons extracted.
Windfall tax (Special Contribution on Extraordinary Prices of the International Hydrocarbons Market Law)
Venezuela has a windfall profits tax for “extraordinary” and “exorbitant” prices, which applies: (i) if the monthly average of the international prices for the Venezuelan liquid hydrocarbon basket is higher than the price set forth by the National Budget Law of the corresponding tax year, but is equal to or lower than US$80 per barrel, a tax rate of 20 per cent will be applied on the difference between the two prices; (ii) 80 per cent if the prices are between US$80 and US$100; (iii) 90 per cent if the prices are between US$100 and US$110; and (iv) 95 per cent for prices over US$110.
Social Investment Payment
Oil and gas mixed companies’ terms and conditions generally provide for a social investment payment equal to 1 per cent of their earnings before taxes, and the so-called “shadow tax” triggered in case that the fiscal take does not reach at least 50 per cent of gross profits after applying royalties, taxes and other levies; thus, the Oil and gas company must pay the difference between this threshold and the fiscal take.
In addition to the specific taxes and contributions applicable to the oil and gas industry, Oil and gas companies are subject to the following special contributions: (a) science and technology contribution (1 per cent of gross profits); (b) anti-drugs contribution (1 per cent of net profits); and (c) sports contribution (1 per cent of net profits).
Do special environmental rules apply to oil and gas exploration and production?
The general Venezuelan environmental regime is applicable to oil and gas companies. In addition, there are special regulations issued by the Ministry of Petroleum that are specific to the oil and gas sectors.
Are environmental regulations in your country consistent with any international standards?
Venezuela’s Criminal Environmental Law, which is one of the general laws that make up the framework of Venezuelan environmental law, is generally considered as more stringent than those of other countries in the region but less stringent than those of the United States or western Europe.
Specifically, to comply with the aforesaid law companies must take many environmental measures that generally include monetary allotments for atmospheric emissions control, treatment and disposal of solid and toxic waste, treatment of industrial wastewater, treatment of oil-tainted residues, contingency plans for oil spills and other emergencies, and for environmental impact studies.
Must companies that participate in the oil and gas industry obtain special environmental or other government permits (other than licences or concessions to carry out oil and gas exploration and production) to operate in your country?
Oil and gas companies must obtain environmental permits and registrations to operate in Venezuela and in certain cases prepare environmental impact studies.
Does the government (including any development banks or agency) provide financing, subsidy or other support to companies undertaking oil and gas exploration or production?
There is currently no general policy enacted by the government to provide financing, subsidies or other financial support to companies undertaking oil and gas exploration or production.
Are there any tax stability or similar regimes available to foreign investors undertaking investment in the oil and gas industry in your country?
Tax stability agreements are permitted under Venezuelan law. However, so far there have been no tax stability contracts entered into by Venezuela and private investors.
Are oil and gas activities generally protected under bilateral investment treaties entered into by your country?
Yes, oil and gas activities are protected under bilateral investment treaties entered into by Venezuela, which has entered into bilateral investment protection treaties with: Argentina, Barbados, Belgium, Luxembourg, Bolivia (not yet effective), Canada, Chile, Costa Rica, Cuba, Czech Republic, Denmark, Ecuador, France, Germany, Lithuania, Paraguay, Peru, Portugal, Spain, Sweden, Switzerland, the United Kingdom and Uruguay. Venezuela terminated the BIT with the Netherlands.
Are there any dispute resolution systems specific to the oil and gas industry? Does state immunity apply in such disputes?
There are no dispute resolution systems specific to the oil and gas industry.
In joint ventures, PDVSA has accepted arbitration clauses under ICC rules, but the governing law has always been Venezuelan law and the place of arbitration has been Venezuela.
Pursuant to Venezuelan law, neither PDVSA, nor its affiliates, nor any of their properties located in Venezuela, have immunity from suit, set-off, or any other legal process or action filed against them (whether the action has been commenced through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise). However, pursuant to article 97 of the Law of the Office of the Attorney General of Venezuela an attachment prior to judgment, attachment in aid of execution, execution or otherwise, on properties located in Venezuela that are affected to the rendering of a public service, such as oil and gas distribution and transportation, must be stayed for a period of 45 days after notice is given to the Venezuelan Attorney General pursuant to which the Venezuelan government may take any action in order to avoid interruption of the services, including taking possession of such assets if such attachment endangers the continuity, quality or security of the services provided. If the Attorney General does not notify the court about the provisional measures taken by the Venezuelan government to avoid discontinuance of the service within such 45-days of notice, the court may continue with such enforcement or foreclosure.
PDVSA and its affiliates have accepted to submit to the jurisdiction of New York and UK courts, but only in financing transactions.
Do anti-corruption rules apply to the oil and gas industry?
The Venezuelan Anti-Corruption Law is applicable to PDVSA, its subsidiaries and to mixed companies.
Has your jurisdiction adopted any legislation or regulations governing the exploitation of shale gas (fracking)? Are any special licences or environmental permits required for such activities?
Venezuela has not adopted specific provisions concerning the exploitation of shale gas.
Has your jurisdiction adopted any legislation or regulations governing ultra-deep-water exploration or drilling activities? Are any special licences or environmental permits required for such activities?
Venezuela has not adopted specific provisions concerning ultra-deep-water exploration or drilling activities.
Have there been any recent material amendments to the laws, rules or regulations governing hydrocarbon exploration and exploitation? Have any new laws, rules or regulations governing hydrocarbons exploration and exploitation been passed in your jurisdiction?