ConocoPhillips gets tongue-lashing from Justice Seepersad

The content originally appeared on: Trinidad and Tobago Newsday

Justice Frank Seepersad –

US energy giant ConocoPhillips received a tongue-lashing for the almost month-long delay in serving a court order giving it the right to enforce a $1.33 billion claim against Venezuela for past expropriations.

On June 25, Justice Frank Seepersad varied his original order, granted on May 27, setting timelines for ConocoPhillips to serve its action on Venezuela’s state-owned oil company, Petróleos de Venezuela, SA (PDVSA), and two subsidiaries.

The Houston-based ConocoPhillips now has until 4 pm on June 27 to serve the Venezuelan oil company with the English version of its application, and the court’s order and the translated Spanish version by 4 pm on July 9.

The revision of the judge’s order came after he was told the enforcement proceedings were not served because of the time it was taking to translate the more than 1,000 pages of documents. Seepersad’s order in May gave ConocoPhillips the green light to enforce its US$1.33 billion ($9.03 billion) arbitration award in Trinidad if it could establish there were assets held by the Venezuelans, or money owed to PDVSA by entities in TT.

The decision gave the US oil company the right to seize any compensation to Venezuela from joint gas projects with TT.

Supporting documents said ConocoPhillips intends to go after PDVSA for “relinquishing its rights in respect of the Dragon Gas Field and for the infrastructure it owns; and any consideration paid by the National Gas Company of TTto a PDVSA-related entity or Venezuela for ongoing supplies of gas.”

The judge’s order also gave the Venezuelan state companies seven days after they were served to challenge it and have it discharged.

The judge convened the sitting on June 25 and expressed concern that the court’s order had not been served on PDVSA and its subsidiaries.

Seepersad said when he issued the ex-parte order, he did so considering that a successful litigant was entitled to the spoils of their judgment, while noting that neither the cause of action nor the arbitration award took place in TT.

“The court also took judicial notice of the fact that the registration of the judgment debt in this jurisdiction had the potential to impact upon the ongoing energy partnership discussions between this Republic and the Bolivarian Republic of Venezuela relative to the Dragon gas project,” he said.

“The freedom to contract also imposes an obligation to exercise due diligence and to ascertain the bona fides of proposed contracting parties.

“On the face of the claimant’s application, there appeared to be no operative circumstance which prevented the registration of the award in this jurisdiction but natural justice mandates that the other side should be afforded an opportunity to be heard .

“This court will however not condone any abuse of its process nor will it tolerate its issued order being held over the head of the defendants like the sword of Damocles.”

Seepersad warned if the defendants were not served within the identified period, the court would be inclined to discharge its order.

“While onerous, the claimant has a responsibility. I am concerned an order with tremendous commercial consequences is in abeyance because it was not served…” the judge said.

In its application, ConocoPhillips said it “truly believes” there are assets belonging to PDVSA and the subsidiaries “within the court’s jurisdiction which can be used to satisfy some or all of the award.”

In the early 1990s, Venezuela created a new fiscal framework to induce foreign investment in its heavy oil projects in the Orinoco Belt and elsewhere.

ConocoPhillips helped Venezuela develop the Petrozuata, Hamaca and Corocoro projects by providing the government of Venezuela with industry-leading technology and substantial long-term investments.

However, in 2007, the Venezuelan government expropriated ConocoPhillips’ investments in their entirety without compensation, the company said in documents filed in support of its application to have the arbitral award recognised and registered in TT.

The arbitration award has been registered in other countries. Seepersad’s original order provided directions for service in several countries, including Venezuela, the US, France, and the UK, by hand and e-mail, as well as to the Venezuelan Embassy in TT.

ConocoPhillips was represented by Garvin Simonette, Sophia Vailloo, who will be joined by UK attorney Andrew Stafford KC and Merrick Watson of the British Virgin Islands.