브라질 석유자원개발의 법률제도와 개정논의에 대한 소고

Abstract

This paper examines the on‐going debate over petroleum law revision since the recent discoveries of the pre-salt oil in ultra‐deep waters in Brazilian offshore. To understand better of core issue on debate it introduces the history of legal system on petroleum in Brazil analyzing constitutions and related legislations, and analyzing regulatory framework including contractual forms which are applied in Brazil. After the discoveries the National Petroleum Agency (ANP) withdrew the pre-salt fields from the licensing round. On July 18, 2008, President Lula instituted an inter‐ministerial commission to study and propose the necessary changes to the legislation with respect to petroleum exploration in the pre-salt area. The commission has been reviewing oil exploration models in other countries including Russia, Venezuela, Iran, Norway and the United States, however, without any conclusion until now. It appears that commission supports the adoption of a mixed model, one for pre-salt reserves applying a production‐sharing contract, and another for all other area with the existing concession contract. New state oil company would be created to administer the production‐sharing contract and a new state fund to invest in social and educational programs. This idea will lead to change the current regulatory framework with the revision of the petroleum law (law n. 9478/97). Unions, civil organizations and even left‐wing factions within the Workers’ Party (PT) are supporting Lula to use new oil wealth to improve social welfare. However, there are strong argument against these ideas supported by intellectuals and industries. They argue that the government can receive more revenues from the pre-salt production and that with these revenues the government can create a sovereign fund to invest in social welfare programs without changing current legal framework and a creation of a new state oil company. As the current federal Constitution dictates that all hydrocarbons belongs to the state, the nationalist rhetoric that “the petroleum is ours” to revive the 1940s’ campaign is more political purpose rather than economic and social purpose as the government argues. In fact, the creation of a new state oil company and introduction of a production‐sharing contract implies a series of legal, political and practical complications. The proposed contract is difficult to administer comparing to the current concession agreement. The more complicated one is a creation of a new state oil company which needs the reform of the Petroleum Law in the National Congress, implying automatically long time dialogue among political parties and a new negotiation among the federal, state and municipal governments to form a agreement on the distribution of royalties which will come from pre-salt oils. It is sure that there will be a change to the current legal and contractual framework for oil exploitation and production. However, as political purposes are dominating this change, long time dialogue and debate will prevail in Brazil. This paper suggests that Lula’s intention is a recuperation of his political color on that he has been criticized by left‐wing side for his following to neoliberal economic programs instituted by Henrique Cardoso. Still, it is very probable that the change of legal framework will not be drastic as Lula needs balance between investment and political purpose.