نشریه مطالعات حقوق انرژی
سال یکم شماره 1 (بهار و تابستان 1394)

History of oil contract and national movments always has been associated with remaining of ownership of oil and gas resources for host government and oil Companies that are reperesentative of Capital-exporting countries just have obligation against host government for their contractual obligations. These concerns have led to restrictions on ownership of foreign oil companies on oil and gas resources, particularly in the Middle East region (Lo, 2003, p30). Sovereignty of state on these resources is equal to prevention of explotation of other countries on these resources and it gives the owner of resources an exclusive right. In this paper by surveying Iran's regulations, international law, Arbitration awards and Opinions of religious jurists, finally we will see that all of these sources agree on the host government's ownership on these resources and for foreign companies also right to compensation is recognized.

Contract life cycle in the TEFCEL management is divided to the planning, formation, performance, monitoring and closing out. TEFCEL management of the contract requires the contract is comprehensively considered. In the contract life cycle all contractual risks should be identified and need to find all appropriate approaches. Identification, classification and management of contractual risks in the formation step are not easy but it should be done as possible as, so that all stages of the contract life cycle stages may not be influenced. For the purpose, this article tries to analyze legally these risks identification, classification and provide appropriate approaches for managing of them in the formation stage.

Governments as owners of minerals or guardians of national interests have many financial instruments (fiscal and non fiscal) to obtain the economic rent expected of the exploitation of oil and natural gas resources. As far as the fiscal means is concerned, mineral section and in the framework of our study here, petroluem and natural gas, make the special tax bases of different rates that in turn have a role in the formation of a fiscal system special to this section in some countries. Development of methods of taxation on oil enable some countries to get a huge share of the rent through taxation of operations run by private sector (domestic and international petroleum companies) with no direct governmental investment or risks. In Iran, because of the exclusive domonion and ownership of minerals by the government, the National Petroleum Company as operator of petroleum operations, has a special fiscal arrangement with the state. In this article we compare the Iranian petroleum fiscal regime with that of other countries.

Indirect expropriation has been studied in numerous arbitration awards regarding foreign investor’s claims against host states. By studying these claims, especially claims which have been awarded recently, one can extract two principles. The first principle is that some general regulations can amount to indirect expropriation, meaning that as a general principle general regulations do not amount to indirect expropriation except if they are enacted in an unreasonable manner. The second principle which the tribunals applied is that the necessary requirement for expropriation is neutralization of use of investment, meaning that at least one of the essential components of the property rights must have disappeared and a mere loss in value of the investment, even though important, is not an indirect expropriation. The said principles which are indeed explanation of the requirements for indirect expropriation, in studying the indirect expropriation claims are an innovation in their kind. The purpose of the present article is to assess the said principles.

Means of possession are specified in different legal systems; such means are considered very similar to each other in a holistic perspective. One of the means of possession, as referred to in the legal system of Iran in the first paragraph of Article 140 of the Civil Code, is acquisition of unclaimed property and reclamation of wasteland which, in comparison with Common law of the United States of America, is very similar to the rule of capture. In this study, the rule of capture in the common-law and acquisition in the Iranian legal system has been discussed; similarities and differences between these two terms have been examined and, at the end, it has been concluded that these two terms, despite their many similarities, do not coincide exactly with each other and are significantly different. The research method used is descriptive-analytical and the data were collected through scientific-library method.

The purpose of this article is to study how oil contracts deal with the issue of the environment. In this context, with a view to the history of oil contracts, since the traditional privileges namely up to the mid-twentieth century, it was found that environmental issues had not been raised in the contracts in this period of time and only one of the advantages had dealt with such issue which was itself incomplete and lacked a clear mechanism. Gradually, in the contracts which were concluded by the mid-twentieth century onwards, provisions regarding the protection of the environment were inserted therein and at the present time most of the oil contracts contain such provisions. In some contracts, there are detailed and specific commitments to environmental protection also related to dismantling of facilities and protecting the environment of indigenous peoples living in the area of operation; however, a study of different contractual patterns shows that the provisions of the contracts are mostly general and vague and, in many cases, they are not able to impose specific obligations applicable to investing companies. It seems that investee countries preferred the attraction of investment on environmental protection and in this respect they just mention some general rules.

The European Union council in 23 January of 2012, in direction to aggravate international pressures against Islamic Republic of Iran, decided to enact further economic restrictions against this country in energy section especially against importing oil from Iran to the state members of European Union. The reason of imposing sanction by EU against Iran is Iran’s non-compliance of NPT obligations and the potential connection between Iran’s revenues derived from its energy sector and the funding of Iran’s proliferation-sensitive nuclear activities due to the preamble of UN.S.C Resolution 1929. European Union referred to the responsibility of Iran according to 2001 international law commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, and prohibited imports of oil from Iran as a Countermeasure. But has Iran breached its NPT obligations? Have the European Union and its member states observed the preconditions of countermeasures against Iran according to international law commission Draft Articles on Responsibility of States for Internationally Wrongful Acts? In this article, the legality of European Union Countermeasure against Iran is considered by analyzing the Draft articles on the International Responsibility of States, and it is found that the European Union has observed none of the preconditions of countermeasures against Iran according to international law commission Draft Articles on Responsibility of States for Internationally Wrongful Acts.