sharing in governance of extractive industries

The Gulf oil spill and its aftermath is a good reminder of the challenges of regulating complex operations at the frontiers of knowledge and technology. There was a catalogue of regulatory failings as evidenced by the moratorium on deep water drilling in the Gulf of Mexico. That the pre-drill safety and environmental response documentation was apparently full of errors and yet was not picked up but the US regulator, the MMS is one demonstration of this. Remember also the PIper Alpha oil platform disaster in the UK North Sea in 1988 killed 167 people was attribuatble to US company Occidental. This led to a complete rethink of safety regulation in the UK (without any anti-USA retoric needed incidentaly). Maybe its part of the human condition that regulation on behalf of society falls behind profit driven technological advance and it takes a catastrophic event for society to take action. Witness the financial sector and its complex products. This is a timely reminder for all of us that good governance its not just about financial transparency and that oil field operations pose risks before any revenues are generated. If the US is incapable of competent regulation what chance does Ghana or Sierra Leone stand? Perhaps we need to have international technical regulations and a regulatory body that emerging producers can turn to for help?

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Do current international technical standards exist for deepwater off-shore drilling? This feeds into my curiosity regarding what regulators can actually do with language in a host government agreement that obligates the investor to use "good" or even "best international oil field practice for similar projects" when comparable projects do not exist?

Furthermore, for the international law experts in the group, what do you think of the US trying to retroactively increase the cap on damages? What can we imagine would happen if a Ghana or Sierra Leone tried to do the same thing?

Finally, in the US the anti-UK rhetoric is undoubtedly tied to mid-term elections and the pundits view that Obama has not gotten "angry" enough about the spill. But one can imagine similar pressures exist in every country near to elections (where there are elections). Does such rhetoric then put new regulatory measures at risk of being labeled "discriminatory"? It seems to me that if retroactive rules are now instituted in the US, coupled with Obama's rhetoric, the argument that this is pure and simple discrimination could have some legs in the right arbitral tribunal. Thoughts?
Keith makes another excellent point that I think bears repeating, that "good governance is not just about financial transparency". This is vitally important.



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