Leg­al Is­sues to Con­sider and Man­age in 2022/2023 2022 was a chal­len­ging year for many busi­nesses, in­clud­ing for those in the en­ergy sec­tor. 2023 looks to be just as de­mand­ing. Slow glob­al growth, the war in Ukraine, con­tinu­ing sup­ply chain chal­lenges as well as the after-ef­fects of the COV­ID-19 pan­dem­ic are some of the factors caus­ing dis­rup­tion to busi­ness.Here, we high­light some of the leg­al is­sues that a party do­ing busi­ness in the en­ergy sec­tor in a volat­ile mar­ket could ex­pect to en­counter, and how the risks may be man­aged. Sup­ply chain risk Cur­rent sup­ply chain short­ages and re­stric­tions, ex­acer­bated by la­bour and ma­ter­i­als cost in­fla­tion which con­tin­ue from the Cov­id-19 pan­dem­ic.Man­age risks by:Act­ively re­view­ing ro­bust­ness of sup­ply chain in a crisis (at all tiers). Ef­fect­ive force ma­jeure draft­ing and plan­ning.En­sur­ing there is suf­fi­cient se­cur­ity for de­liv­ery ob­lig­a­tions and car­ry­ing out reg­u­lar cred­it checks on sup­pli­ers.  Ter­min­a­tion risk Volat­ile mar­kets tend to res­ult in ad­di­tion­al ter­min­a­tion risks:Man­age risks by:Re­view port­fo­lio of key con­tracts for con­tracts at risk. Act­ively en­gage with coun­ter­parties to mit­ig­ate risk of ter­min­a­tion for es­sen­tial con­tracts.Util­ise ter­min­a­tion rights to es­cape oner­ous con­tracts. Coun­ter­party risk In­creased coun­ter­party in­solv­ency risk caused by mar­ket volat­il­ity.Man­age risks by:Con­duct­ing ef­fect­ive due di­li­gence.Car­ry­ing out de­tailed as­sess­ments on cred­it­wor­thi­ness.En­sur­ing fin­an­cial se­cur­ity in the event of in­solv­ency (on-de­mand bonds, let­ters of cred­it etc.). Gov­ern­ment in­ter­ven­tion The in­creas­ing ex­port or im­port-re­lated re­stric­tions im­posed by Gov­ern­ments.Man­age risks by:Con­sid­er­ing ful­fil­ment of con­trac­tu­al ob­lig­a­tions.Re­view­ing con­trac­tu­al rights and abil­ity to use al­tern­at­ive sources of sup­ply.Care­ful con­sid­er­a­tion of trade port­fo­lio. EPC ‘Hot mar­ket’ A per­fect storm of un­der sup­ply, over de­mand, in­fla­tion pres­sures, and leg­acy of the Cov­id-19 pan­dem­ic for the en­gin­eer­ing pro­cure­ment and con­struc­tion mar­ket will re­quire ef­fect­ive man­age­ment of:Prop­er as­sess­ment of abil­ity to de­liv­er at tender stage.Con­trac­tu­al dam­ages and in­cent­ives for ‘on time’ de­liv­ery.Man­aging pro­ject change. Sanc­tions Sweep­ing fin­an­cial glob­al sanc­tions as a res­ult of Rus­sia’s War on Ukraine may im­pact your busi­ness.Man­age risks by:Re­view­ing nex­uses to Rus­sia.Identi­fy­ing sanc­tions which ap­ply.Man­aging any busi­ness from a repu­ta­tion­al and ESG-based per­spect­ive, and con­sider al­tern­at­ive op­tions. Price volat­il­ity LNG spot price is at an all-time high, with po­ten­tial volat­il­ity in all com­mod­ity mar­kets.Man­age risks by:Care­ful con­sid­er­a­tion of counter-party non-de­liv­ery, force ma­jeure/ter­min­a­tion.Pre­par­ing for cir­cum­stances of an in­ab­il­ity to de­liv­er / ac­cept de­liv­ery and wheth­er any force ma­jeure clause ex­cuses per­form­ance.Check price re­view / re­open­er clauses in long-term agree­ments.Care­ful con­sid­er­a­tion of any im­pact on cost base and mar­gin calls. ESG trans­form­a­tion The drive to­wards net zero and ESG ex­pect­a­tions.Man­age risks by:Re­view­ing con­trac­tu­al ar­range­ments for car­bon neut­ral trad­ing and con­tract­ing.Con­sid­er­ing wheth­er counter-party net zero and / or ESG com­mit­ments have ad­equate rem­ed­ies in the event of breach.Man­aging reg­u­lat­ory changes and com­pany policies.

While world lead­ers have been gath­er­ing for COP meet­ings for dec­ades, what made COP26 per­haps par­tic­u­larly not­able is that the private sec­tor also gathered in force, and with a com­mit­ment and de­term­in­a­tion to be a key driver in the de­car­bon­isa­tion of the world’s eco­nom­ies.  In pre­vi­ous years, there have been mur­mur­ings from vari­ous cor­por­ates that to make so­cial or en­vir­on­ment­ally driv­en in­vest­ment de­cisions may not align with their fi­du­ciary duty to act in the in­terests of share­hold­ers. As share­hold­er act­iv­ism has driv­en the de­bate in­to board­rooms from above, this at­ti­tude is rap­idly re­vers­ing dir­ec­tion. While re­turns are gen­er­ally seen as lower in the clean sec­tor com­pared to, say, the oil & gas sec­tor, be­ing in­ves­ted in the green trans­ition is in­creas­ingly seen as a key route to pre­serving and pro­tect­ing share­hold­er value. At the same time, vol­un­tary and man­dat­ory cli­mate re­lated dis­clos­ures are align­ing the drivers for in­vestors across the board so that cap­it­al is in­creas­ingly driv­en by the met­rics they pro­duce.  This is be­ing re­flec­ted in, among oth­er things, the plum­met­ing cost of cap­it­al for green in­vest­ments. At the same time high car­bon in­tens­ive in­vest­ments, such as coal based pro­jects and busi­nesses, are strug­gling to se­cure fund­ing, with many fa­cing in­solv­ency. In­vest­ments in the en­ergy trans­ition, a key part of the green trans­ition, will prin­cip­ally take the form of M&A. The out­come of COP26 and the mo­mentum it has gen­er­ated means that European deal­makers in the en­ergy sec­tor will be even busier in 2022. Europe leads the world in the en­ergy trans­ition and the race to net zero is driv­ing near-re­cord levels of deal­mak­ing – not­ably in wind and sol­ar photo­vol­ta­ic gen­er­a­tion.At the same time, the en­ergy trans­ition is both ex­pand­ing and frag­ment­ing the en­ergy sec­tor. For many, it has tra­di­tion­ally been fo­cused on en­ergy gen­er­a­tion. The trans­ition is bring­ing to the fore less vis­ible tech­no­lo­gies. Everything from tra­di­tion­al hy­dro­power to grid-scale bat­ter­ies, elec­tri­fic­a­tion of trans­port and hy­dro­gen. It is also bring­ing in­to the mix sec­tors that have not tra­di­tion­ally been fo­cused on en­ergy, such as in­dus­tri­al de­car­bon­isa­tion, ship­ping and min­ing for the nat­ur­al re­sources needed for the en­ergy trans­ition. In par­al­lel with this, there is a huge and grow­ing story around en­ergy trans­mis­sion and dis­tri­bu­tion. Elec­tri­city net­works will need to ex­pand massively to fa­cil­it­ate elec­tri­fic­a­tion and new tech­no­lo­gies. They are also be­com­ing smarter with the use of di­git­al tech­no­logy to op­tim­ise the way power is dis­trib­uted, traded and con­sumed. Fur­ther, new types of net­works may provide in­vest­ment op­por­tun­it­ies for those look­ing for stable long term as­sets, such as hy­dro­gen and car­bon net­works.Against this back­ground, tra­di­tion­al fossil fuel-based play­ers are de­car­bon­ising their op­er­a­tions. For the oil and gas ma­jors, this means ac­quir­ing or sig­ni­fic­antly en­han­cing their cap­ab­il­it­ies in re­new­ables, in­clud­ing wind, sol­ar and hy­dro­gen, while sim­ul­tan­eously di­vest­ing se­lec­ted car­bon-in­tens­ive as­sets in re­sponse to mount­ing ESG pres­sures. This may be one of the reas­ons why 50% of re­spond­ents in our study point to dis­tress-driv­en deals as a top sell-side driver.Change is en­dem­ic in the en­ergy sec­tor, but the cur­rent trans­ition makes the years since lib­er­al­isa­tion of en­ergy mar­kets in the late 1980s seem al­most steady-state in com­par­is­on. Des­pite the mo­mentum and push for cap­it­al to be in­ves­ted in the en­ergy trans­ition, there re­main obstacles, not least the lim­ited pipeline of good qual­ity in­vest­ment op­por­tun­it­ies, con­tinu­ing con­cerns over lock­downs and COV­ID-19 vari­ants, fin­an­cing dif­fi­culties arising from po­ten­tially un­stable long term rev­en­ue streams and di­min­ish­ing rates of re­turn. Not­with­stand­ing these chal­lenges, our study finds that en­ergy sec­tor M&A will in­creas­ingly be an en­gine driv­ing cap­it­al in­to pro­pos­i­tions that match so­cial and polit­ic­al am­bi­tions for the green trans­ition. Key find­ings  En­ergy re­mains a premi­um as­set class for most in­sti­tu­tion­al in­vestors, with its per­form­ance dur­ing the pan­dem­ic and im­petus from COP26 fur­ther en­han­cing its at­tract­ive­ness75% of en­ergy com­pan­ies are con­sid­er­ing an ac­quis­i­tion and/or di­vest­ment in 2022Along­side premi­um as­sets, in some sub­sect­ors there are un­der­val­ued tar­gets driv­ing buy-side activ­ity, with sellers shed­ding dis­tressed as­sets as the sec­tor shifts in re­sponse to the en­ergy trans­ition45% think COV­ID-19 will be a ma­jor M&A obstacle in 2022, but this re­mains a flu­id situ­ation that can change rap­idly

While world lead­ers have been gath­er­ing for COP meet­ings for dec­ades, what made COP26 per­haps par­tic­u­larly not­able is that the private sec­tor also gathered in force, and with a com­mit­ment and de­term­in­a­tion to be a key driver in the de­car­bon­isa­tion of the world’s eco­nom­ies.  In pre­vi­ous years, there have been mur­mur­ings from vari­ous cor­por­ates that to make so­cial or en­vir­on­ment­ally driv­en in­vest­ment de­cisions may not align with their fi­du­ciary duty to act in the in­terests of share­hold­ers. As share­hold­er act­iv­ism has driv­en the de­bate in­to board­rooms from above, this at­ti­tude is rap­idly re­vers­ing dir­ec­tion. While re­turns are gen­er­ally seen as lower in the clean sec­tor com­pared to, say, the oil & gas sec­tor, be­ing in­ves­ted in the green trans­ition is in­creas­ingly seen as a key route to pre­serving and pro­tect­ing share­hold­er value. At the same time, vol­un­tary and man­dat­ory cli­mate re­lated dis­clos­ures are align­ing the drivers for in­vestors across the board so that cap­it­al is in­creas­ingly driv­en by the met­rics they pro­duce.  This is be­ing re­flec­ted in, among oth­er things, the plum­met­ing cost of cap­it­al for green in­vest­ments. At the same time high car­bon in­tens­ive in­vest­ments, such as coal based pro­jects and busi­nesses, are strug­gling to se­cure fund­ing, with many fa­cing in­solv­ency. In­vest­ments in the en­ergy trans­ition, a key part of the green trans­ition, will prin­cip­ally take the form of M&A. The out­come of COP26 and the mo­mentum it has gen­er­ated means that European deal­makers in the en­ergy sec­tor will be even busier in 2022. Europe leads the world in the en­ergy trans­ition and the race to net zero is driv­ing near-re­cord levels of deal­mak­ing – not­ably in wind and sol­ar photo­vol­ta­ic gen­er­a­tion.At the same time, the en­ergy trans­ition is both ex­pand­ing and frag­ment­ing the en­ergy sec­tor. For many, it has tra­di­tion­ally been fo­cused on en­ergy gen­er­a­tion. The trans­ition is bring­ing to the fore less vis­ible tech­no­lo­gies. Everything from tra­di­tion­al hy­dro­power to grid-scale bat­ter­ies, elec­tri­fic­a­tion of trans­port and hy­dro­gen. It is also bring­ing in­to the mix sec­tors that have not tra­di­tion­ally been fo­cused on en­ergy, such as in­dus­tri­al de­car­bon­isa­tion, ship­ping and min­ing for the nat­ur­al re­sources needed for the en­ergy trans­ition. In par­al­lel with this, there is a huge and grow­ing story around en­ergy trans­mis­sion and dis­tri­bu­tion. Elec­tri­city net­works will need to ex­pand massively to fa­cil­it­ate elec­tri­fic­a­tion and new tech­no­lo­gies. They are also be­com­ing smarter with the use of di­git­al tech­no­logy to op­tim­ise the way power is dis­trib­uted, traded and con­sumed. Fur­ther, new types of net­works may provide in­vest­ment op­por­tun­it­ies for those look­ing for stable long term as­sets, such as hy­dro­gen and car­bon net­works.Against this back­ground, tra­di­tion­al fossil fuel-based play­ers are de­car­bon­ising their op­er­a­tions. For the oil and gas ma­jors, this means ac­quir­ing or sig­ni­fic­antly en­han­cing their cap­ab­il­it­ies in re­new­ables, in­clud­ing wind, sol­ar and hy­dro­gen, while sim­ul­tan­eously di­vest­ing se­lec­ted car­bon-in­tens­ive as­sets in re­sponse to mount­ing ESG pres­sures. This may be one of the reas­ons why 50% of re­spond­ents in our study point to dis­tress-driv­en deals as a top sell-side driver.Change is en­dem­ic in the en­ergy sec­tor, but the cur­rent trans­ition makes the years since lib­er­al­isa­tion of en­ergy mar­kets in the late 1980s seem al­most steady-state in com­par­is­on. Des­pite the mo­mentum and push for cap­it­al to be in­ves­ted in the en­ergy trans­ition, there re­main obstacles, not least the lim­ited pipeline of good qual­ity in­vest­ment op­por­tun­it­ies, con­tinu­ing con­cerns over lock­downs and COV­ID-19 vari­ants, fin­an­cing dif­fi­culties arising from po­ten­tially un­stable long term rev­en­ue streams and di­min­ish­ing rates of re­turn. Not­with­stand­ing these chal­lenges, our study finds that en­ergy sec­tor M&A will in­creas­ingly be an en­gine driv­ing cap­it­al in­to pro­pos­i­tions that match so­cial and polit­ic­al am­bi­tions for the green trans­ition. Key find­ings  En­ergy re­mains a premi­um as­set class for most in­sti­tu­tion­al in­vestors, with its per­form­ance dur­ing the pan­dem­ic and im­petus from COP26 fur­ther en­han­cing its at­tract­ive­ness75% of en­ergy com­pan­ies are con­sid­er­ing an ac­quis­i­tion and/or di­vest­ment in 2022Along­side premi­um as­sets, in some sub­sect­ors there are un­der­val­ued tar­gets driv­ing buy-side activ­ity, with sellers shed­ding dis­tressed as­sets as the sec­tor shifts in re­sponse to the en­ergy trans­ition45% think COV­ID-19 will be a ma­jor M&A obstacle in 2022, but this re­mains a flu­id situ­ation that can change rap­idly

1. Cur­rent State of Hy­dro­gen Pro­jects in Singa­pore Singa­pore has tra­di­tion­ally been one of the key glob­al play­ers in the down­stream oil and gas in­dustry and en­ergy sec­tors. Des­pite its re­l­at­ively small...

After an ex­traordin­ary year of health and eco­nom­ic chal­lenges, the glob­al oil and gas sec­tor has an es­sen­tial role to play in the eco­nom­ic re­cov­ery. The same could how­ever be said of any eco­nom­ic re­cov­ery and ex­pan­sion over the past 100 years – dur­ing this time oil and gas com­pan­ies have provided most of the primary en­ergy that has fuelled huge eco­nom­ic growth. But this time does look dif­fer­ent. The oil and gas sec­tor will power eco­nom­ic re­cov­ery not just through oil and gas ex­plor­a­tion and pro­duc­tion, but also (and per­haps counter-in­tu­it­ively to some) through fa­cil­it­at­ing the trans­ition to a lower-car­bon eco­nomy and even­tu­ally a net zero fu­ture. This re­port presents a wide-ran­ging re­view of the role of oil and gas com­pan­ies in that fu­ture.