The
Attorney
General
of
Ghana
is
trying
desperately
to
spin
serious
embarrassment
to
the
Republic
of
Ghana
in
an
international
tribunal
using
all
the
tools
in
his
propaganda
toolkit.
On
16th
August
2021,
two
investors
in
Ghana’s
petroleum
sector,
Eni
(an
Italian
multinational)
and
Vitol
(a
Swiss
multinational)
filed
notice
under
the
UNCITRAL
rules
of
its
intention
to
pursue
international
arbitration
in
response
to
directives
issued
to
it
by
the
government
of
Ghana
that
it
felt
breached
its
petroleum
agreement
with
the
country.
Eni-Vitol
had
come
to
the
conclusion
that
the
political
context
in
which
these
directives
were
issued
made
it
impossible
for
it
to
obtain
fair
hearing
and
justice
in
the
domestic
jurisdiction.
The
origin
of
the
controversy
The
government
of
Ghana
had
ordered
it
to
merge
its
oil
field,
which
had
been
successfully
producing
oil
for
a
number
of
years,
after
investments
exceeding
$6
billion,
with
an
oil
block
next
door
that
has
never
produced
oil
and
seen
in
total
roughly
$100
million
of
investments.
Furthermore,
the
government
wanted
Eni-Vitol
to
also
hand
over
roughly
55%
of
the
combined
entity
to
the
owner
of
the
said
oil
block
next
door.
Ghana’s
domestic
laws
allow
the
government
to
do
this.
However,
petroleum
exploration
and
production
constitute
an
international
domain
in
which
certain
global
business
and
technical
logics
operate
and
have
operated
for
many
decades.
Whilst
the
Ghanaian
courts
have
been
focused
purely
on
what
the
law
allowed
the
government
to
do,
and
were
inclined
to
rely
on
the
curious
technical
testimony
of
the
country’s
national
oil
company
(GNPC),
the
truth
of
the
matter
is
that
there
are
international
standards
in
these
matters
and
any
investor
coming
into
any
country
to
invest
billions
of
dollars
will
ensure
that
they
also
have
the
protection
of
international
law
and
technical
regimes.
Given
the
sheer
amount
of
money
they
stood
to
lose
(reckoned
in
billions
of
dollars),
it
came
as
no
surprise
when
Eni-Vitol
decided
to
take
their
case
internationally.
We
have
discussed
the
issues
at
length
elsewhere
In
a
previous
essay
on
this
site,
I
have
chronicled
carefully
the
history
of
the
controversy
in
significant
detail.
In
another
essay
I
laid
out
the
basis
of
my
argument
that
GNPC’s
technical
testimony
in
this
instance
was
procured
by
political
pressure
as
it
simply
didn’t
hold
water.
As
the
reader
would
no
doubt
notice
from
these
essays,
civil
society
organisations
(CSOs)
in
Ghana
engaged
in
the
petroleum
sector,
especially
IMANI
and
ACEP,
have
exhaustively
examined
the
matters
in
the
controversy
and,
with
deep
patriotic
concern,
warned
the
government
that
its
actions
in
the
attempted
forced
“unitisation”
of
the
two
offshore
petroleum
sites
are
completely
against
the
national
interest.
In
this
short
essay,
we
shall
show
why
the
tribunal’s
final
decision
given
this
week,
and
the
consequences
of
the
unjustified
“forced
unitisation”
directives,
are
all
highly
embarrassing
for
Ghana
and
completely
detrimental
to
the
country’s
reputation
and
economic
position.
The
case
against
the
government
of
Ghana
When
Eni-Vitol
filed
its
arbitration
notice,
the
government
of
Ghana
initially
didn’t
even
bother
to
submit
a
detailed
response.
Eni-Vitol
nonetheless
proceeded
to
present
their
joint
statement
of
claim.
At
the
heart
of
their
case
is
the
simple
fact
that
Ghana
is
trying
to
force
them
to
merge
a
highly
valuable,
and
proven,
oil
field
with
another
one
that
has
not
yet
been
properly
assessed,
to
international
standards,
in
order
to
determine
if
there
is
even
any
oil
in
place.
In
the
circumstances,
such
an
attempt
amounts
to
a
pure
ruse
to
seize
a
large
part
of
a
highly
lucrative
asset
and
hand
it
over
to
another
business
without
any
sensible
foundation.
International
law
frowns
on
unjust
expropriation
of
foreign-owned
assets
under
different
guises.
If
the
government
was
genuinely
interested
in
merging
the
fields
purely
because
it
wishes
to
improve
efficiency,
it
would
first
focus
on
ensuring
that
the
other
business
owning
the
“greenfield”
block
undertakes
the
proper
technical
investigations
to
confirm
if
indeed
there
is
oil
on
that
block,
and
what
quantity
exactly.
This
is
at
the
heart
of
the
whole
matter.
In
fact,
carefully
analysed
from
that
perspective,
Ghana
itself
STOOD
TO
LOSE
if
a
merger
was
forced
between
a
lucrative
and
fertile
oil
block
and
a
potentially
infertile
and
valueless
one
since
the
merger
will
affect
Ghana’s
own
holdings
in
both
blocks,
which
were
not
uniform
at
the
time
of
the
proposed
merger.
In
my
earlier
essay,
referenced
above,
I
lay
out
the
various
scenarios
in
which
both
Eni-Vitol
and
Ghana
would
lose
massive
amounts
of
money
if
the
unitisation
proceeded.
The
only
beneficiary
would
have
been
the
owner
of
the
block
next
door,
the
optimistically
named
“Afina
field”.
The
question
that
has
never
been
properly
addressed
is
why
the
government
of
Ghana
was
willing
to
go
to
such
lengths
to
benefit
the
Afina
owners,
even
to
the
detriment
of
its
own
economic
position
and
international
reputation.
In
light
of
its
position
on
the
matter,
what
specifically
did
Eni-Vitol
want
the
international
tribunal
to
do
for
them?
Below
are
the
reliefs
they
were
seeking,
produced
in
full.
A
careful
reading
of
the
reliefs
should
show
that
the
bulk
of
Eni-Vitol’s
expectations
are
in
the
nature
of
a
declaration
that
the
government’s
directives
for
forced
unitisation
are
unlawful
and
unjustifiable
and
should
not
proceed
in
the
manner
the
government
had
sought
to
bring
them
about.
That
really
is
it.
The
tribunal,
even
per
the
Attorney
General’s
own
atrociously
uncandid
summary,
has
declared
the
government
of
Ghana’s
attempt
and
approach
at
forced
unitisation
to
be
in
breach
of
its
petroleum
agreement
with
Eni-Vitol
and
therefore
unlawful
and
unjustified.
Simple!
The
government’s
attempt
at
defending
its
actions
What
was
the
government’s
principal
defense
at
the
tribunal
and
how
does
it
square
with
how
the
Attorney
General
is
attempting
to
spin
the
outcomes
of
the
proceedings?
The
government’s
super-expensive
international
lawyers
summed
up
its
case
in
the
paragraph
below
found
in
the
opening
of
its
statement
of
defense.
(“Claimants”
in
the
text
extract
refers
to
Eni-Vitol.)
Government
of
Ghana’s
primary
aim
in
paying
for
these
expensive
lawyers
to
fight
its
baseless
cause
at
arbitration
was
to
get
the
tribunal
to
agree
with
its
approach
to
the
forced
unitisation.
The
government
knew
that
its
case
was
not
in
the
national
interest
The
Ghanaian
government
did
not
only
want
the
tribunal
to
agree
with
its
inherently
disordered
and
self-detrimental
approach
to
the
merger,
which
would
have
damaged
the
interests
of
its
own
citizens,
they
also
wanted
the
tribunal
to
find
the
investors
guilty
of
breaching
their
agreement
with
Ghana
by
not
lying
down
and
rolling
over
immediately
they
were
asked
to
hand
over
a
juicy
chunk
of
their
asset
to
another
business.
The
true
mindset
of
the
government’s
agents
in
this
matter,
especially
the
Attorney
General
who
instructed
these
lawyers,
is
exposed
by
paragraph
49
of
the
government’s
statement
of
defense.
What
that
paragraph
simply
says
is
that
in
the
end
even
if
the
merger
leads
to
losses,
Ghana
is
the
ultimate
bearer
of
those
losses
and
so
why
is
Eni-Vitol
sweating?
Such
a
deeply
unpatriotic
and
reckless
argument
to
make!
The
government,
egged
on
by
the
Attorney
General,
believes
that
it
can
proceed
with
technically
reckless
actions
in
Ghana’s
petroleum
sector,
actions
that
will
impose
losses
on
the
citizens
of
the
country,
with
no
consequence
at
all.
What
it
is
essentially
saying
here
to
investors
is
that,
“why
are
you
crying
more
than
the
bereaved?
We
are
willing
to
bear
the
losses.”
In
fact,
the
government
spends
the
overwhelming
proportion
of
its
defense
arguing
against
“commerciality”
as
an
important
logic
in
any
regulatory
directive
that
affects
the
economic
structure
of
a
petroleum
transaction
in
which
Ghana
is
involved.
It
attempts,
in
breathtaking
elaborateness,
to
make
the
case
that
even
if
the
Afina
block
does
not
have
any
oil,
it
is
fine
to
merge
it
with
the
oil
producing
Sankofa
–
Gye
Nyame
field
(the
one
in
which
Eni-Vitol
have
majority
interest)
even
though
the
inevitable
result
will
be
the
dilution
of
economic
returns
for
both
Ghana
and
Eni-Vitol,
and
even
if
the
only
one
who
stands
to
benefit
is
the
third-party
private
business
next
door.
The
disorganised
logic
of
the
government’s
case
Perhaps,
in
a
belated
recognition
that
their
longwinded
arguments
making
the
case
that
commercial
logic
is
irrelevant
and
all
that
matters
is
the
discretion
of
government
ministers,
the
government’s
expensive
lawyers
began
to
moderate
their
tone
somewhat
when
it
came
to
defending
the
decision
of
the
government
to
award
54.5%
of
the
merged
field
to
the
private
owner
of
the
next-door
Afina
block.
What
they
are
saying
here,
in
essence,
is
that
the
precise
allocation
of
acreage
in
the
combined
block
is
still
in
the
works.
The
illogicality
of
that
argument
is
inherent
in
fact
that
any
such
decision
has
to
be
based
on
knowledge
of
how
much
oil
is
in
the
separate
blocks.
Without
knowing
how
much
oil
each
party
is
in
essence
“bringing
to
the
combined
table”,
there
is
no
technically
sound
way
to
divvy
up
the
combined
block.
Since
determining
“commerciality”
is
how
you
confirm
that
the
owner
of
the
non-producing
oil
block
is
bringing
anything
to
the
table
at
all,
the
hollowness
of
this
belated
concession
about
the
exact
split
of
the
combined
field
becomes
crystal
clear,
laid
side
by
side
with
the
claim
that
commerciality
is
an
irrelevant
factor.
After
all
this
turning
and
twisting,
how
did
the
government
want
the
tribunal
to
rule?
Ghana’s
counter-claims
offer
a
good
view.
Ghana
wanted
the
tribunal
to
punish
Eni-Vitol
The
government
also
wanted
damages.
Yes,
it
wanted
to
be
paid
by
the
investors
for
the
pleasure
of
being
robbed
of
their
petroleum
assets.
After
these
brazen
demands,
the
government
proceeded
to
list
its
requested
reliefs.
The
government
failed
to
secure
any
of
its
principal
reliefs
The
judges
at
the
tribunal
must
have
had
a
good
laugh.
But
deep
down
they
were
not
amused.
The
government’s
punitive
claims
against
Eni-Vitol
were
totally
dismissed.
By
even
the
twisted
accounts
of
the
Attorney
General,
it
is
clear
that
the
tribunal
did
not
so
much
look
at
them
twice.
Whilst
the
Attorney
General
is
celebrating
the
decision
of
the
tribunal
not
to
award
large
damages
against
Ghana,
and
its
instructions
for
Ghana
to
only
pay
half
of
the
arbitration
costs,
the
truth
is
that
the
government’s
attempt
to
get
the
tribunal
to
sympathise
with
its
positions
was
wholly
unsuccessful.
Eni-Vitol
on
the
other
hand
got
what
they
mostly
set
out
to
achieve:
a
ruling
by
an
international
tribunal
that
the
government’s
conduct
is
unlawful,
on
the
basis
of
international
standards
and
a
more
expansive
reading
of
the
country’s
own
laws.
The
tribunal
ruled
in
Ghana’s
interest
In
the
end,
though,
especially
for
us
in
civil
society,
what
matters
is
that
the
citizens
understand
clearly
that
the
international
tribunal
was
on
their
side
and
their
government
was
acting
in
ways
that
would
have
considerably
damaged
their
interests.
Ghana
had
to
issue
sovereign
guarantees
and
tap
the
World
Bank’s
guarantee
facility
in
order
to
get
the
Eni-Vitol
field
operational.
Extract
from
a
Ghanaian
parliamentary
briefing
on
the
Sankofa
–
Gye
Nyame
project
(“Eni-Vitol
field”)
The
Eni-Vitol
field
is
now
the
major
supplier
of
gas
for
the
country’s
power
plants.
Ghana
obtains
significant
revenues
from
its
equity
stake
in
the
field.
Forcing
this
lucrative
project
into
a
poorly
thought
through
merger
with
an
unproven,
greenfield,
block
would
have
caused
massive
disruption,
undermined
the
commercial
viability
of
the
whole
enterprise,
and
therefore
ultimately
eroded
the
benefits
of
the
producing
and
proven
asset
to
the
people
of
Ghana.
It
is
very
likely
that
the
Eni-Vitol
would
have
stopped
gas
production
and
plunged
Ghana
into
dumsor
should
the
situation
had
persisted
down
the
path
it
was
on.
Ghana
has
already
suffered
because
of
the
government’s
actions
Already,
the
needless
controversy
over
the
forced
unitisation
has
cost
Ghana
dearly.
The
development
of
major
oil
discoveries
such
as
Eban
and
Akoma
have
stalled.
There
is
evidence
that
some
major
international
oil
companies
have
been
looking
askance
at
the
country
since
the
government
began
this
ill-fated
expropriation
agenda.
Ghana
hasn’t
brought
a
new
oil
field
onstream
for
years
(Jubilee
South-East
doesn’t
really
count
as
it
is
merely
the
extension
of
an
existing
field).
Oil
output
and
state
revenues
from
petroleum
have
been
declining
steadily
and
steeply.
Someone
must
be
held
accountable
The
Attorney
General’s
conduct
in
failing
to
properly
advise
the
country,
in
promoting
a
baseless
position
in
an
international
forum,
in
opting
to
engage
hyper-expensive
lawyers
costing
this
country
millions
of
dollars,
and
in
the
end
failing
to
secure
any
of
the
principal
reliefs
sought
by
Ghana
is
atrociously
bad
on
its
own.
Seeking
to
spin
such
a
disastrous
outcome
as
a
victory
is
simply
disreputable
and
ought
not
to
pass
without
strong
words
from
civil
society
and
the
citizenry.
As
a
starting
point,
citizens
and
civil
society
activists
should
demand
complete
transparency
in
respect
of
all
monies
paid
to
the
likes
of
Foley
Hoag.
We
are
also
hearing
that
White
&
Case,
which
partners
a
politically
exposed
local
law
firm,
had
a
role
to
play
at
some
point.
If
true,
how
much
did
they
earn?
Were
these
expensive
legal
fees
to
luxury
law
firms
a
factor
in
the
government’s
doggedness
to
pursue
a
matter
completely
in
conflict
with
the
public
and
national
interest?
In
addition
to
the
strong
and
inexplicable
urge
to
divert
public
and
paid-up
investor
stakes
in
Sankofa
–
Gye
Nyame
to
a
private
business?
What
a
shame!
Explore
the
world
of
impactful
news
with
CitiNewsroom
on
WhatsApp!
Click
on
the
link
to
join
the
Citi
Newsroom
channel
for
curated,
meaningful
stories
tailored
just
for
YOU:
https://whatsapp.com/channel/0029VaCYzPRAYlUPudDDe53x
No
spams,
just
the
stories
that
truly
matter!
#StayInformed
#CitiNewsroom
#CNRDigital