Category Archives: Ukraine

Ukraine suggests talks with Vanco even as government prepares its case

Ukraine’s government has expressed willingness to hold talks with Vanco, so long as the oil exploration company drops its international arbitration suit. At the same time, an analysis by Kommersant of the government’s case against Vanco suggests that Ukraine’s argument, which includes accusations of corruption, may hold up in court.

According to Deputy Justice Minister Yevgeniy Korniychuk speaking on July 30th:

“Our position is that we will immediately hold consultations with Vanco Prykerchenska Ltd., as soon as they suspend their suit.  We have turned to Vanco with a request – if they want to continue talks, at first it is necessary to suspend the suit for 60 days, and than we will talk.”

This suggestion is similar to one delivered by mail to Vanco right before the company became eligible to file arbitration proceedings.  At the time, the letter had been sent to Vanco International Ltd (VIL).  Korniychuk’s direct address to Vanco Prykerchenska Ltd. at his press conference on Wednesday may be a concession aimed at pulling both sides to the negotiating table.

However, it is clear that the government is against any involvement for VPL–which includes in its ranks VIL, Rinat Akhmetov’s DTEK, and two investment firms–in the future of the Black Sea shelf development.  According to Korniychuk, in the event of a amicable resolution, they would be willing to allow VIL to take part in some sort of project:

“We are not arguing the right of Vanco International, which won the competition [to sign the PSA], to develop the shelf.  They can return to it, though maybe with some other commecial terms.  But the shelf certainly won’t be developed by Vanco Prickerchensaka.”

In the past Vanco has stated its openness to hold negotiations, both during the 60 day period necessary before filing for arbitration, as well as during the beginnings of the proceedings themselves.

While Vanco may acquiesce to this pause for talks, they will likely grumble about it as well.  After all, the government was rather quiet during previous 60 day period, which was initiated by an official letter of complaint sent by Vanco to the government and meant to begin a dialog.

Should no settlement be reached and the case proceeds to the Stockholm arbitration court, it appears that Ukraine has a fairly solid argument on its side, according to Kommersant.

The government’s case, which was prepared in March by the law firms Astapov Lawyers and Barlow Lyde & Gilbert, has two prongs: the first concerns violations of Ukrainian law; the second alleges corrupt elements within the deal.

The first prong concentrates on the relationship between Vanco International and Vanco Prykerchenska, alleging that the transfer of the PSA from the former to the latter was against the law.  Indeed, this point has been one of the more questionable acts in the saga — how could VIL win the tender, negotiate and sign the PSA, and then pass off the deal to a separate entity that contains three new players?

Vanco has asserted it was within its rights to do so.  Ukraine’s case argues that this is against the law, saying that a separate agreement had to be reached first.

Other issues within this branch of the argument:

  • While Vanco International of Houston registered to particpate in the PSA tender, Vanco International of Deleware won it.  This allegedly violates article 7 of Ukraine’s law on production sharing agreements. Delaware has a listing for Vanco International Ltd in its corporations databse. Texas has a Vanco International Inc.  From what I’ve heard, Vanco has admitted that VIL is registered in Delaware, despite press reports placing it in Bermuda (the location of VPL) or the Virgin Islands.
  • Vanco International’s application was not submitted in full, violating a regulation concerning the tender.  This apparently includes “providing contradictory information regarding its whereabouts, ownership, jurisdiction and financial status.”  Besides the confusion over locations mentioned above, VPL was created with only $12,000 in initial capital, while pledging to invest about $330 million.  Vanco secured a letter from Citigroup saying the company would attract necessary funds by holding an IPO, but it turns out that this move was planned for VIL, not VPL.  Therefore, “in reaching the decision on determining the winner of the tender, the inter-agency commission was relying on misleading information, a violation of part 1, article 230 of the civil code.”
  • According to the PSA regulations, the company was apparently not allowed to have a stake higher in the production than 50%; the PSA signed by Vanco has it receiving 70% during one phase of production.
  • Part of the area granted to Vanco overlaps with the military training ground Chauda.  As such, Ukraine’s Defense Department should have been involved in the deal.  While the agreement apparently stipulated that Vanco would pay $37 million for the relocation of the training ground, the situation is still “inconsistant with the law on ensuring security of the state.”
  • According to point 34.13.1 of the PSA, which concerns double taxation, Vanco could avoid paying any taxes to Ukraine, thus dropping the government’s share of production.

The government appears to be slightly worried over how these violations will be accepted by the Stockholm court.  There is also the possibility that the joint investment protection agreement reached between Ukraine and Britain may be enacted, due to Bermuda’s status as a British protectorate.  This agreement is investor-friendly, shifting additional burden onto the government’s case.

In response to these worries, there is a second line of argument based on corruption within the deal.

After it emerged that DTEK is involved in the project, observers immediately began questioning if illegal influence could have affected the outcome.  (Actually, ever since the relatively little-known company Vanco won the tender, beating out some other heavy hitters, there have been suggestions that something has been going on behind the scenes.) DTEK is owned by Akhmetov, who is a member of the Party of Regions in parliament — the same party as Viktor Yanukovich, Prime Minister at the time the PSA was signed with the government.

The government’s case calls for two past employees of Vanco International, former vice president John Gorman and former head of production Gabor Tari, to give evidence in favor of Ukraine.  It’s fairly easy to guess the gist what that evidence may be, but for now, it’s just conjecture…

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Tymoshenko, Vanco offer wildly different stories on Black Sea project

Tymoshenko accused Vanco of shennanigans.(Note – 5/16/08: Updated with Vanco’s revelation of the involvement of Akhmetov’s DTEK and other investors below.)

Ukrainian Prime Minister Yulia Tymoshenko and American independent petroleum company Vanco Energy both held press conferences today outlying sharply contrasting images of Vanco’s Black Sea hydrocarbon development project and throwing the future of Ukraine’s deep-water oil and gas production into question.

Vanco signed a landmark production sharing agreement (PSA) with the Ukrainian government in October 2007 granting the company access to the 13,000 square kilometer Prykerchenska region off the Crimean coast. Tymoshenko and her government have been critical of the deal, however, asserting that the company lacks sufficient means to cover the necessary investment. That criticism culminated last Thursday when the Ministry of Environmental Protection revoked Vanco’s subsoil permit for Prykerchenska.

Vanco, in turn, has sent a formal letter of complaint to Ukraine’s Cabinet of Ministers, alleging that the government has been negligent in holding up its side of the PSA. If a mutually satisfactory resolution cannot be reached within 60 days, Vanco will be able to open arbitration proceedings against the government in Stockholm court.

In a press conference today, Tymoshenko stood by her previous assertion that Vanco’s representation in Ukraine, Vanco Prekerchensa Ltd. (VPL), is in fact an offshore structure registered to four female college students. She also asserted that VPL has only tens of thousands of dollars at its disposal, far from the billions eventually necessary for investment into a large-scale Black Sea project. Tymoshenko used the opportunity to lay blame at the feet of President Yushchenko, saying that the crooked deal happened under his watch and amounted to a “RosUkrEnergo-2.” She further justified her the revocation of the permit by suggesting Vanco was in current negotiations to sell off its activities to other companies, including Gazprom.

At a press conference earlier in the day, Vanco’s senior vice president Jeffrey Mitchell dismissed claims about the four students and expressed frustration at the government’s unwillingness to discuss the situation directly with the company. “Gene Van Dyke is absolutely the owner of Vanco,” he said. The practice of assigning a project to a country-specific subsidiary is “absolutely normal,” he added, pointing to the same practice in its African offshore projects. All such subsidiaries are connected by Vanco International Ltd. (VIL), itself a subsidiary of Vanco Energy.

Mitchell declined to expressly describe the ownership structure of VPL, but presumably its main shareholders are VIL and London-based JNR, the private investment vehicle for Nathaniel Rothschild. Vanco and JNR put forth a joint bid during the tender process in 2006 that resulted in the PSA after a year and a half of negotiations. JNR is likely playing the role of financier for the project. (Updated – see below.)

The only instance of four college-aged people associated with the deal, according to Mitchell, were the signatures of four accountants with Ernst & Young that helped with registration services–they are otherwise unconnected to any of Vanco’s activities.

As for questions about financial viability, Mitchell pointed out that the company was drilling two wells in Africa this year, one for about $65 million and the other for $40 million. The company is planning on investing $87 million in the Prekerchenska project this year, with about $60 million of that covering over 4,000 sq km of 3D seismic data collection. Following an open bid process, Vanco is currently negotiating with a seismic mapping firm with the aim of starting this fall. Collection and interpretation of the data is expected to take over a year and any delays could interfere with the company’s drilling plans.

Mitchell said Vanco was expecting to sign a contract for a drilling ship within the week, a process which includes a $30 million letter of guarantee. Drilling of the two wells is expected to cost about $140 million (about $1.2 million / day, 60 days per well), with the first one scheduled for the first quarter of 2010. Vanco is in the process of coordinating with Turkey and Petrobras, who will also be using the same ship for drilling in the Turkish section of the Black Sea. This cooperation is necessary to justify the expense in getting the ship, which will be the largest such drill rig in the world after it is completed in December 2009, through the Bosporus.

Should the government continue with its attempts to strip Vanco of its ability to work on the project, the company is prepared to use legal action to recoup sunk costs. This could potentially cost the Ukrainian government around $100 million. It would also delay any production in the Black Sea for years, as high demand for technically capable drill rigs complicates scheduling.

Tymoshenko also allegedly criticized the terms of the PSA, which she claimed gave Vanco a 90/10 revenue split. Vanco asserted that the ratio for the first phase of the project (until the company recoups its investments) is only 70/30 in favor of the company. Following that point, revenues will be split 50/50, though taxes and royalties are likely to shift that the figure closer to 35/65 in favor of the government. Mitchell claimed the terms of the PSA are more “pro-government” than about 70-80% of comparable deals worldwide and suggested that Ukraine’s inexperience with such agreements is leading to unfounded accusations.

Vanco is also frustrated that the government, by not seating its half of the inter-agency PSA coordinating committee, is interfering with progress on the project. The company is still awaiting approval from the government for its 2008 work program, submitted in February. Vanco has yet to receive even an acknowledgment of its receipt.

The company expressed further frustration that the battle against its activities is being waged through the press–Vanco only learned that its permit had been revoked through mass media reports. It is hoping that the formal complaint and threat of a lawsuit will finally force the government to confront the company with its issues and begin a discussion.

To me, four things suggest Tymoshenko’s crusade against Vanco is much more about publicity and popularity than on sound business sense:

  1. Her reliance on the press for communication as opposed to direct talks with the company.
  2. The current government’s obvious intention from the beginning to not cooperate with Vanco on the project, as suggested by the lack of an attempt at fulfilling any parts of the PSA.
  3. Tymoshenko drawing Yushchenko into the conflict, blaming him for much of the trouble despite the fact that he had absolutely nothing to do with the deal other than to be present when it was signed. The PSA was completely the result of Yanukovich’s cabinet.
  4. Her attempts to connect the issue to corruption in the gas sphere (another of her pet issues) by mentioning Gazprom, RosUkrEnergo and shadowy foreign-registered companies.

The sad part is, if they cannot reconcile, both Vanco and Ukraine will end up the eventual losers in this episode.

Update (5/16/08) – From today’s Kommersant (my translation):

Mr. Mitchel said [at a press conference yesterday] that JNR Eastern Investment Ltd. had intended to participate in Vanco Prykerchenska Ltd., but because the granting of the license and the signing of the PSA lasted 18 months, the company [JNR EIL] lost interest in the project.

[Instead] Mr. Mitchel explained that the composition of Vanco Prykerchenska Ltd is made up of his company [Vanco], Rinat Akhmetov’s Donbass Fuel and Energy Company [DTEK], Russian entrepreneur Evgeny Novitsky’s Shadowlight Investments Ltd, and the Austrian investment company Integrum Technologies Ltd [represented at the press conference by Gerhard Eckert], all on a parity basis.

While Integrum wouldn’t divulge whose interests it served, a UralSib analyst Kirill Chuiko told Kommersant that Integrum had in its time acted in the role of an investment intermediary for the Austrian oil [and gas] company OMV. [Edit: An OMV spokesperson responded to my inquiries regarding a possible connection by saying that “There is no connection between OMV and Integrum Technologies Ltd. at all.”]

And from UkrRudProm (my translation):

“Deutsche Bank (fulfilling the role of an intermediary) approached us, suggesting we participate in the project in the role of a financial investor,” explained Maxim Timchenko, general director of DTEK.

The government denied that the annulling of the license was aimed strictly against DTEK [a long-standing rival of Tymoshenko, including in the Dniproenergo affair]. The Minister of Environmental Protection Gregory Phylypchuk responded that, “Independent of which groups will be the investors, a beneficial investment climate will only appear when all the main players legalize their relations with the Ukrainian power [government].”

The government is still refusing the return the license to Vanco. The revelation of investors is seen as a way for Vanco to strengthen its position should the dispute go to court, depriving Ukraine of a “gotcha” moment.

The composition of investors is certainly interesting and it’s too bad that I missed this press conference…

Government revokes Vanco’s Black Sea hydrocarbon license

Vanco responded to Tymoshenko's criticism on its Black Sea shelf hydrocarbon project - From vancoenergy.com

On May 8th, Ukraine’s Ministry of Environmental Protection announced it was revoking Vanco Energy’s offshore exploration and production license for the Prykerchenska region of the Black Sea.

Vanco had signed Ukraine’s first ever hydrocarbon production sharing agreement (PSA) last October after a year and a half of intense negotiations, but growing criticism from Prime Minister Yulia Tymoshenko and her government had led to speculation that the deal may be canceled.

Ukraine is apparently willing to allow Vanco to reclaim its license should the terms of the deal be restructured. The company is refusing to reexamine the agreement, however, and is likely to take the issue to international courts.

Revoking the deal will likely push back any Black Sea production for years, while worsening an already jittery mood among international investors.

There is a press conference scheduled for Monday afternoon featuring Tymoshenko and her Ministers of Economics and Environmental Protection, with the revocation of the license as the likely topic. (I have requested permission to attend and will update accordingly. Update: I’m not enough of a journalist for their tastes, so cannot attend. However, I will be going to Vanco’s press conference earlier in the day. Updates from that to follow.)

The Houston-based Vanco was the surprise winner of a 2006 tender giving them exclusive rights to negotiate for the license on the 13,000 square kilometer Prykerchenska region off the Crimean coast. Ukraine’s Black Sea offshore zone is believed to contain massive amounts of hydrocarbons, with Vanco estimating its region alone potentially holding 2-4 billion barrels of oil equivalent. Development of these reserves would help Ukraine wean itself from reliance on Russian oil and gas.

However, production in this deep-water region is complicated by Ukraine’s offshore inexperience and technical limitations. Chornomornaftogaz, the Crimean subsidiary of Naftogaz, lacks the means to drill beyond depths of around 100 meters, while the Prykerchenska zone ranges from about 500 to over 2,000 meters deep. Full-scale production (should the region be fruitful) would likely take tens of billions of dollars.

The combination of these technical and financial hurdles led Ukraine to call for outside investment and employ a PSA to coordinate the project. The process of reaching the agreement was a drawn-out and affair complicated by the government’s inexperience. The final agreement (discussed below) was signed as the Viktor Yanukovich-led government was on its way out of office, to be replaced by Tymoshenko’s cabinet.

In March of this year, the Minister of Environmental Protection criticized the PSA, saying that the tract was too large to give away, especially to such a relatively-unknown company. His calls to reexamine the license were picked up by various Verkhovna Rada Deputies and were later echoed by Tymoshenko herself.

On April 11th, Tymoshenko publicly criticized the PSA, intimating that foul play was involved in the deal and announcing the government’s intention to look into the situation with the aim of restructuring the license.

“Ukraine gave all this wealth away to one company,” she reportedly said. “Meanwhile, the State Finance Monitoring Agency has figured out that this company, it has become clear, is registered in an offshore zone by four female students between 20 and 22 years old.” This off-shore structure, along with the grand size of the area, led her to equate the awarding of the license to a “global crime.”

On April 15th, Vanco’s 80-year old founder and chairman, Gene Van Dyke, gave a press conference in Kyiv to give his company’s side of the story.

Vanco's founder Gene Van Dyke emphasized his company's experience in deepwater drilling

One of his central messages was iterating a desire for openness and clarity throughout the process, and he backed up that goal by clarifying terms of the company’s bid, the PSA, and its work schedule. He also expressed frustration at the government’s comments and lack of support as the company has attempted to move forward in its development plan.

Indeed, Vanco asserted that the Ukrainian government had not contacted them privately regarding its criticisms, instead relying on accusations through the press. This comes even as the government has failed to fill its half of the inter-agency PSA coordinating committee that is supposed to be overseeing the work of Vanco on the offshore project.

Just before the mid-April press conference, the government announced that first deputy PM Alexander Turchynov (Tymoshenko’s right-hand man and candidate in Kyiv’s pre-term mayoral elections) would lead the committee. This position was supposed to be filled by the second of two first deputy PMs, whose duties cover the fuel and energy complex, but Tymoshenko has not filled this role (though at one point Vitaly Gaiduk from the Industrial Union of Donbass was rumored to be tapped for the position). The other spots on the government side of the committee, however, were not filled.

The absence of this committee forced Vanco to essentially proceed with its business plan without explicit approval. This has led to delays and trepidation from the company that they may come under additional pressure.

Van Dyke also emphasized his experience in the oil industry and background as a “wildcatter.” He spoke of the significant potential of the region due to its geological characteristics, while at the same time stressing that there remains critical risk–all of which is being borne by the company, as versus the Ukrainian government.

Van Dyke is a sharp contrast to the co-eds described by Tymoshenko

Here’s a rundown of the situation, as described by Van Dyke at the press conference last month:

  • Vanco’s bid in the initial tender outlined a three-year initial stage, with the committee committing to investing around $200 million during that time frame. This expenditure comes in the form of at least 3,000 square km of seismic data (budgeted at $60 million) and the drilling of two wells, regardless of the results of this data (at $70 million per well). Van Dyke believes this pledge to sink two wells within the first three years pushed Vanco’s bid above others, which apparently included more conditional language. “We had the most aggressive work program,” he said.
  • The plan for the next three years included an additional 1,000 sq km and drilling another two wells.
  • Three years after the start of the deal, Vanco is required to release a quarter of the land back to the government. At the end of the nine-year exploration period, the company has to give back everything except for the land surrounding any fields they discover. The government can then give out the returned acreage to other companies through new license agreements.
  • The PSA calls for a 70-30 revenue split in favor of Vanco until the point when the company recoups is losses. From that point on, it will be a 50-50 division. However, adding in the 2% royalty and the 25% corporate income tax results in about a 65-35 split in favor of the government, according to Vanco.
  • This year’s work program calls for $87 million in investment from Vanco. They aim to complete 4,200 sq km of 3D seismic mapping (above the 3,000 sq km required). After receiving seven bids, they expect the task to cost about $50 million. They hoped to begin in September, expect the mapping to take about seven months, and then plan eight months for reviewing the data.
  • Vanco expects to begin drilling in 2010. Turkey’s national oil company and Brazil’s Petrobras are also coordinating in potential Black Sea development. Vanco has agreed to jointly contract a drilling rig with them. The rig, MPF01 (multi-purpose floater) is currently being constructed in China. The topside will be built in Spain, and it is expected to leave the docks in December 2009. Passing through the Bosporus will require a partial de-construction of the large rig. Once in the Black Sea, Petrobras gets to drill the first well, followed by Vanco, followed by Turkey’s oil company, with the pattern then repeating itself.
  • The ship costs about $1.2 million per day. With wells expecting to take 60 days, that results in about $70 million per well. If Vanco can get cooperation from the government, by 2010 “we should have some major discoveries off the shore of Ukraine,” Van Dyke said.
  • All resources extracted are to be sold in Ukraine (unless the government refuses, and decides to export them). All oil extracted will be sold at world market prices. The price of gas will be pegged to the current import price for Russian / Central Asian gas. (No one knows exactly what will be down there–the geological formations are very suggestive that something is there, though.)
  • Vanco has no intention to sell off its license. While Van Dyke admitted that they have been approached, he said they are firmly committed to their work program and developing the area. He also strongly denied the rumor that they would sell off to Gazprom, saying he had never hear anything from the Russian company and wouldn’t sell to them anyway. (Gazprom has no offshore experience anyway, so that idea is rather impractical).

I’m off to Vanco’s press conference, more later.

Gazprom enters Ukraine’s gas market, but overall picture remains unclear

Naftogaz will be competing with Gazprom to supply gas to industrial consumers Late last month, Gazprom Sales Ukraine (Газпром сбыт Украина, or GSU) was granted a license by the National Energy Regulatory Commission (NKRE) to sell up to 7.5 billion cubic meters (bcm) of natural gas per year to Ukraine’s industrial consumers. The five-year license was a key part to the March agreement between Russia and Ukraine on the “development of relations within the gas sphere.”

The entry of Gazprom’s fully-owned subsidiary into Ukraine’s gas market was also meant to compensate for the exit of Ukrgazenergo, which previously dominated sales to the industrial sector with a yearly quota of 32 bcm. The removal of this gas trader–50% owned by the state-owned Naftogaz, 50% by RosUkrEnergo, which is itself 50/50 split between Gazprom and two Ukrainian businessmen–is supported by the Ukrainian government. Prime Minister Yulia Tymoshenko has been especially vocal in her opposition to such “middlemen,” seeking to completely liquidate Ukrgazenergo’s (and eventually RosUkrEnergo’s) presence in the Central Asia-Russia-Ukraine gas scheme.

Earlier this year, the NKRE slashed Ukrgazenergo’s quota to just over 5 bcm per year in an effort to drive the trader from the market and open room for Naftogaz’s on gas sales division, Gaz Ukrainy. An additional point in the bilateral gas sphere agreement saw Ukrgazenergo lose another of its key tasks, buying gas on the Russian-Ukrainian border from RosUkrEnergo. This transaction is also being taken over by Naftogaz.

However, the shift towards a greater Naftogaz presence has been far from graceful.

First there was confusion among consumers over whom to pay stemming from overlapping assertions and a muddled legal situation. A cement factory complained that “we in fact have two actual agreements with both companies [Gaz Ukrainy and Ukrgazenergo]. But the ODU [United (gas) Distribution Administration, controlled by Naftogaz] can shut the valve off at any moment.” Citing this reason, the factory decided to pay Gaz Ukrainy despite a fax from Ukrgazenergo asserting ownership over the gas that the plant was receiving.

Indeed, Naftogaz’s control over the gas distribution pipes allowed them to limit supplies to factories hesitating to sign on with Gaz Ukrainy. Such tactics prompted protests in front of Naftogaz’s office and warnings of catastrophic accidents resulting from the decreased gas pressure.

Protesters staged a rally last month over Naftogaz's attempts to switch gas providersThe majority of the protesting factories are set to sign on for supplies from GSU, and interest in working with Gazprom subsidiary–as versus Naftogaz–is reportedly high. About twenty companies sought contracts with GSU, according to a company source, more than the quota would allow for. The attraction apparently stems from a continuation of Ukrgazenergo’s policy of giving the consumers a 10-day payment window as opposed to Gaz Ukrainy’s 100% prepayment terms. Gaz Ukrainy is also reportedly charging a higher price than what the companies paid Ukrgazenergo.

Despite this reorganization, Ukrgazenergo cannot be counted out yet.

An April 18th ruling from the Kyiv district administrative court struck down the NKRE’s limitation of Ukrgazenergo’s sales quota. This decision re-opens the door for Ukrgazenergo, at least partially. “Essentially,” an industry participant told Kommersant, “three major players have emerged on the internal market instead of two.” While it has lost its direct purchases from RosUkrEnergo (essentially, its ability to import the gas), Ukrgazenergo allegedly has about 7 bcm of gas in underground storage that they can sell on the market.

Ukrgazenergo could also purchase gas from Naftogaz for resale to consumers, like GSU is doing now. The margin for sales by Naftogaz to GSU is set at $0.01 per thousand cubic meters (mcm) by the gas sphere agreement, making the price $179.51. It is unclear what the internal Naftogaz-Gaz Ukrainy margin is or how much Naftogaz will sell gas to other market participants such as Ukrgazenergo and smaller gas trading firms (typically with quotas of 1-2 bcm or less). Ukrgazenergo had apparently been charging about $185 before being removed as a middleman.

While the internal market has yet to be completely sorted out, a major obstacle in negotiations with Gazprom has apparently been passed–Tymoshenko announced in late April that Ukraine had (finally) fully paid off its debt for imported gas. This had been a tripping point for nailing down a longer-term agreement between Naftogaz and Gazprom, and hopefully signals the resolution of some of the company’s financial difficulties.

The announcement coincided with the visit to Kyiv by Russia’s PM Viktor Zubkov, his last such trip before he’s expected to be replaced by outgoing President Vladimir Putin. Energy topics were high on the list for discussion between the two Prime Ministers. Ten bilateral priorities were drawn up from the meeting, with the gas issue the second one mentioned (right below WTO cooperation):

The second priority concerns the fact that after regulating tactical gas problems we should turn to the establishment of strategic cooperation. And this second priority – signing strategic long-term agreements on natural gas supplies to Ukraine and transit of the Russian natural gas through the territory of Ukraine to the European countries. It would be better to sign this agreement for 10 and more years in order to see how much prospective and progressive our move toward each other is.

A bilateral commission is set to examine the Ukrtatnafta conflictOil issues also came up (abridged English version):

Ukraine in its turn agreed to work through the conflict surrounding the Kremenchug oil refinery and by the end of April form a working group with representatives from Ukraine’s Ministry of Fuel and Energy, the State Property Fund, Ministry of Justice and Russia’s Ministry of Industry and Energy and the Federal Property Agency “for the preparation of suggestions for the normalization of work at Ukrtatnafta.”

And by the first of July, Russia’s Ministry of Industry and Energy and Ukraine’s Ministry of Fuel and Energy will hold consultations in order to “better the competitive terms of transporting oil” for both transport to Europe as well as supply to Ukrainian refineries without levying VAT.

The two governments will also work on another long-term nuclear fuel deal, despite Ukraine’s plans to buy fuel for its nuclear plants from Westinghouse beginning in 2010 and the country’s aspirations to eventually develop its own supply.

Activity in Kyiv has picked up some since the Easter and May Day holidays, but Friday’s Victory Day celebration is just around the corner.  The extended vacation time has made getting responses and clarifications particularly different.  As people begin returning to work, I’ll keep trying to find out more, particularly in regards to the relatively productive visit of Zubkov and the next step for Ukrgazenergo.

Akhmetov’s SCM weighs in on Dniproenergo: Kolomoisky is no “Robin Hood”

Yulia, don't steal, Dniproenergo for the people!

A walk through Kyiv shows that the fate of Dniproenergo is far from sealed, as PR posters from both sides of the conflict continue to pepper the city. (The majority seem to be anti-Privat, however — more pictures appended at the end of the post).

A decision earlier this month by Ukraine’s Supreme Court deemed a debt-for-equity plan instituted last year at the major electricity producer illegal:

The controversial restructuring plan that was struck down saw the state’s share lowered to 50%+1 through a supplementary stock issue that resulted in magnate [Rinat] Akhmetov’s Donbass Fuel and Energy Company (DTEK) gaining control of about 44% in Dneproenergo. DTEK, in turn, agreed to pay about $10 million, take on the company’s loans totaling around $200 million, and provide another $200 million in investment.

The shareholders had accepted this agreement and it was recognized by the government’s securities and stocks commission. However, Dniproenergo’s registrar, Ukrneftegaz, refused to amend the company’s shareholders’ register. Ukrneftegaz is controlled by Privat, a key owner of which [Igor Kolomoisky] recently expressed frustration at the manner in which Dniproenergo’s share issue had been handled. [The Mirror Weekly has an excellent rundown of Privat’s use of shareholder registers in various corporate management disputes.]

A Privat-affiliated company and minority shareholder in Dniproenergo (owning 257 shares, or 0.00655%) launched the lawsuit against the restructuring plan, culminating in the [April 8th] Supreme Court ruling.

While this decision paved the way for Prime Minister Yulia Tymoshenko’s privatization plan for the electricity generator, President Yushchenko soon after halted the implementation of Tymoshenko’s vision.

The court ruling also threw Dniproenergo’s financial status into jeopardy, as the company once more finds itself in bankruptcy.

Ukrainian breakthrough, Dniproenergo for the people

Last Wednesday Dniproenergo sent an open letter to “the country’s leadership,” namely Yushchenko, Tymoshenko, and Rada Speaker Arseniy Yatsenyuk, pleading for intervention from the government and a return to the way things were before the Supreme Court decision.

The inclusion of the political angle gives the dispute further depth. Not only do we see a battle between the businesses of two of Ukraine’s richest men (Akhmetov is #1, Kolomoisky is #3), but also a continuation of the near-constant conflict between Yushchenko and Tymoshenko.

She needs these privatizations to proceed in order to pay for her ambitious social programs. He has intimated that her privatization docket is set up to unfairly benefit certain political supporters.

The disagreements have led to a nasty battle over the leadership of the important State Property Fund.

From the Eurasian Daily Monitor:

Yushchenko canceled Tymoshenko’s orders to replace the head of the privatization body, the State Property Fund (FDM), and to privatize one of the last big factories still remaining in state ownership, the Odessa Portside Plant (OPZ). Tymoshenko, with the courts on her side, disobeyed and instructed her subordinates, perhaps for the first time ever, to ignore Yushchenko’s orders. Yushchenko sent his guards to protect the FDM from Tymoshenko’s team, and confrontation between the Presidential Guard and police was barely avoided.

An even larger conflict is looming, as both Yushchenko and Tymoshenko envision constitutional reform that would sway the balance of power to their respective branches of government.

Cases such as the Dniproenergo are a good example of how allegiances overlap, transcending political boundaries and affecting billion dollar businesses.

I had earlier translated sections of an interview given by Privat‘s Igor Kolomoisky dealing with the ongoing Dniproenergo dispute.

Last week Oleg Popov, the general director of Akhmetov’s holding company System Capital Management (SCM), gave a wide-ranging interview to Kommersant. In the interest of providing equal time, here are excerpts from the interview dealing with the Dniproenergo disupte (my translation):

– Have you already made a decision on how you will contest the Supreme Court’s ruling on Dniproenergo?

First we should see it and read the justifying section (мотивировочная часть). For two weeks we haven’t yet seen it. But I figure that we have, as the lawyers say, “a very strong case,” so most likely we will contest the decision and stand up for our rights in court. We’re sure that nothing was illegal.

– Will you contest it anew under open circumstances or in a European court?

That will depend on the justifying section.

– Are you planing on refraining from investing in Dniproenergo in connection to this decision?

The government doesn’t have an issue with the quality and process of the [debt-for-equity] rescue plan [санация] for the enterprise. We remain willing to invest in the facility, if such investment is deemed necessary by the enterprise and the government.

– Is it possible to talk about the political motivations of this decision?

Of course not! Take a look at what essentially took place. You’ve got a minority shareholder–a representative of Privat Group which sued the company Dniproenergo, contesting the supplementary share issue and the conducting of the [shareholders] meeting. They claim that their rights were allegedly infringed upon by us conducting this supplementary issue. That is, this case is exculsively between two business entities over the legitimacy of the conduction of a shareholders meeting and other procedures of the rescue.

Everything else–that’s PR from Privat, talk of “justice” [справедливость] and “the interests of the government.” What do we see here? A very simple picture. We have people who are interested in satisfying their personal interests and recollecting [восстановить, renewing] their “justice.” What interest Privat has, I’m not exactly sure. But judging by the numerous crusades for “justice” undertaken by Privat, for example the case with the Nikopolsky ferroalloy plant (NZF), all these discussions on “justice” and “the interests of the people” end once Privat gets commercial participation in a project. And by no means competitively. [И отнюдь не на конкурсе.]

– Yes, but the co-owner of Privat Igor Kolomoisky says that he is fighting for justice…

Do you want to call him Robin Hood?

– He so named himself in an interview with the internet publication Ukrainskaya Pravda…

I don’t see around him the large number of admirers that typically surround a people’s hero, standing up for justice.

– Mr. Kolomoisky levied accusations against you claiming that the permission for Energy Company of Ukraine (EKU) to vote for the rescue was given by [then] Prime Minister Viktor Yanukovich. By doing so, he played into Rinat Akhmetov’s hand as a shareholder in Dneproenergo…

We never used any preferential treatment from the state regardless of who was leading the government [i.e. the PM]. Moreover, the rescue plan was approved not by the [PM-controlled] Cabinet of Ministers, but by the Zaporizhye regional business court [where Dniproenergo is located]. We didn’t have any preferential treatment in relationship to other participants of the the tender on the conduction of the rescue. Anyone who wanted to propose their own rescue plan, they proposed it. The creditors chose our proposal since we propsed more money and the instant repayment of [Dniproenergo’s] debts. We didn’t have any preferential treatment and we don’t want to have any in the future. If we will have it, we can become weak and uncompetitive. No one needs this, above all our shareholders.

– Then why did you decide to carry out the rescue exactly in last year?

If the enterprise hadn’t recovered during 2007, then from Jan. 1st, 2008, it would have gone under the hammer [i.e., to auction]. We at that moment were minority shareholders, owning 18% of the shares in Dniproenergo. We had a goal: provide long term growth to the worth of the enterprise. We were and remain interested in its financial health. We, as creditors, were invited to participate in the competition for the rescue, and we won it. We proposed a real plan of action, invested the money, saved this enterprise and are prepared to invest further. But shareholders, who have about 2 or 3 shares, are dissatisfied with the situation and launched countless legal actions in order to turn everything around.

– Igor Kolomoisky stated that Dneproenergo didn’t settle up the debts with his companies. That, in principal, is the reason that he gave for the current conflict. Is that so?

That’s not true. Dneproenergo fulfilled its debts to all its creditors, at least those who have been able to support their claims, which would include Privat if they were in the register [of debts].

– According to you, the state is not at all participating in the Dneproenergo case?

As concerning state organs, as far as we know, they don’t have an issue with the rescue of the enterprise and our participation in it. The state doesn’t take part in court processes and doesn’t initiate them. Attempts to win back [отыграть] the situation and return Dneproenergo into bankruptcy are being carried out only by Privat. It’s them [Privat] that has an issue.

– Then how would you comment on the fact that the Vice Minister of Justice Evgeniy Korniychuk predicted the results of the case two weeks before hand?

(Pause.) At a minimum, it’s strange. If you take into account that the government organs don’t have any claims to us, because they are not involved in the court process, then it is strange to hear such a statement.

– According to our information, Mr. Korniychuk also met with the Supreme Court judges on the day the decision was given.

(Pause.) You asked me [earlier in the interview], what other problems exist in conducting business in Ukraine. If your information is correct, that speaks to the fact that judicial power, which should be independent, appears [is, является] not to be so.

– Returning to the claims of Mr. Kolomoisky against you. He says that the $400 million that you paid is too small for the 28% of shares that you got.

When we made the decision to take part in the rescue of Dniproenergo, the total worth of Dniproenergo on the PFTS [Ukraine’s major stock exchange] was at the level of about $460 million. We proposed to pay and paid for the supplementary shares based on an assessment of the entire enterprise to be worth $1.2 billion.

– Then why did Mr. Kolomoisky value only the share you received at $1.2 billion?

Probably his managers simply got confused during the calculations.

– Nonetheless, the shares of Dniproenergo rose in the last year, and now the share packet that you received is worth, based on the PFTS quotation, $626 million.

Let me tell you a another story. Do you remember Krivorozhstal? (He draws a picture with two scales, Time and Worth.) If we take 2002, 2003, 2004, 2005, 2007. We skip 2006, because then nothing happened. In 2002-2003, metallurgy was stagnating. The estimated value of all the metal enterprise groups (меткомбинаты) in the world was not very high. Upon reaching 2004, a medium-term growth tendency was noticed for metallurgy. In this year we took part in the competition for Krivorozhstal and won it, paying $800 million. In connection to the fact that the political situation in the country changed, in 2005 that enterprise went through a re-privatization process, and it was sold at auction for $4.8 billion. Mitall Steel won.

Two years pass. The world metallurgy market is now rising and growing at a quick tempo. Now Krivorozhstal is worth $15 billion. What are we to do with it? Where is the justice? If guided by the logic of 2005, then maybe the government ought to once again re-privatize the metalworks factory? And sell it for $15 billion, returning $4.8 to Mittal Steel? In two years, Mittal couldn’t do anything that would make the worth of the enterprise grow at such a rate. Indeed, the company’s growth in value was in connection to the entire industry–the market for iron ore and steal also grew. So would it be just to sell it again? Is a third time necessary? Would that be just?

If we are going to operate not based on an understanding of law, but on an understanding of justice, you can hardly talk about their being clear rules of the game for investors in our country. And you can hardly say that we have an attractive investment climate.

Note: I have at times switched between spelling the company “Dniproenergo” and “Dneproenergo.” These are the Ukrainian and Russian transliterations, respectively. It is spelled both ways in the media, depending on the language of the medium. While I tend more often to use the “i” variant, I like to include the spelling with “e” every once in a while in order to help pick up search engine-driven traffic. Such is the prerogative of a blogger.


Private money vs. Just [fair] law

 


In front of TGI Fridays…


Stuck in traffic in front of the club Avalon

Firtash and Privat resist Naftogaz’s encroachment on Ukrgazenergo as Gazprom prepares to enter Ukraine’s gas market

Protesters linked to Firtash and Privat rallied against Naftogaz's attempts to replace Ukrgazenergo

Protesters connected to major factories in Ukraine that have been sparring with Naftogaz over gas deliveries rallied on Tuesday in front of the national energy company’s office. The picketers were protesting against reductions in gas supply to the industrial enterprises.

The gas cuts are a result of the factories’ unwillingness to sign new supply contracts after political pressure forced the gas trader Ukrgazenergo from Ukraine’s internal market.

Negotiations in Moscow between Naftogaz and Gazprom appear to have found a solution to placate the protesters, as the newly established Gazprom Sales Ukraine (GSU) will provide most of the factories in question with gas beginning in May.

Naftogaz dismissed the rally as a “political show,” and part of “unprecedented pressure from the side of interested business groups with the aim of complicating and delaying the negotiations currently underway in Moscow [between Naftogaz and Gazprom over a middle- to long-term gas supply agreement].”

Naftogaz’s statement further defined those “business groups” as Dimitry Firtash-controlled enterprises and the financial-industrial conglomerate Privat Group.

Firtash is a co-owner of Ukrgazenergo and the key Ukrainian figure in the country’s shady gas supply scheme. Ukraine’s Prime Minister Yulia Tymoshenko has long rallied against the role Firtash has played as a gas middleman between Central Asia, Russia, Ukraine and Europe. Her government has led a push to replace his presence with that of the state-owned Naftogaz.

Earlier this month, factories that are controlled by Firtash and that had been receiving gas from Ukrgazenergo–namely Rivneazot, Crimean Titan and Krimsky Soda–complained that Naftogaz was limiting their gas supplies. Naftogaz has asserted that Presidential and Cabinet of Ministers decrees have stripped Ukrgazenergo of its right to provide gas on Ukraine’s internal market. It has aggressively sought to transfer sales previously with Ukrgazenergo to its own gas marketing subsidiary, Gaz Ukrainy.

The industrial consumers are holding out on signing a new contract with Naftogaz after political pressure forced their previous supplier, Ukrgazenergo, out of the picture

These companies, however, refused to sign new contracts and instead have asserted that their agreements with Ukrgazenergo are still valid. They have warned that dropping gas pressure could lead to technical problems and even catastrophic accidents, particularly since many of the factories are chemical producers.

Naftogaz, via its spokesman Valentin Zemlyansky, asserted that gas supplies to these enterprises have remained above the technical minimum required to avert a disaster.

While it may be expected that Firtash would protest actions that limit the revenue to his companies, Privat’s inclusion in the dispute is slightly more surprising.

The Privat-controlled Galychna and Neftekhemik Prekarpatia oil refineries both suffered reduced gas supplies due to a failure to sign on with Naftogaz. Representatives of these companies were also allegedly present at the protests in front of Naftogaz’s offices, in addition to workers from Firtash-connected enterprises.

Privat and Naftogaz have a recent history of conflict within Ukraine’s energy sphere, as they are sparring over the fate of Ukrtatnafta and its Kremenchug oil refinery.

The two companies have also had a longer-running feud over Ukraine’s largest oil firm, Ukrnafta. Privat is a 42% shareholder, enough for a blocking stake despite Naftogaz’s 50% holding. The two sides have been unable to agree on the distribution of dividends, leading to a round of unsuccessful shareholders meetings and criticism from Tymoshenko.

Despite this history of conflict, Privat has generally been seen as an ally of Tymoshenko (though typically only when it serves the interests of the financial group). Privat has had its own problems with Ukrgazenergo, with the gas trader allegedly refusing to supply Privat-connected industries for a period of time last year.

Siding with Firtash in this latest dispute may be an attempt by Igor Kolomoisky, a key owner of Privat and the group’s most public face, to earn points with Firtash for future collaboration.

Send the bandits in Naftogaz to jail!

Kolomoisky suggested in a recent interview that he would be interested in buying out Firtash’s stake in RosUkrEnergo (RUE), a 50% owner of Ukrgazenergo and the key coordinator of Ukraine’s gas imports. Privat’s hold-out in signing contracts with Naftogaz may be an indication that it is expecting to do business in the future with Ukrgazenergo, despite the government’s intention to remove it completely.

Indeed, no word was given about the Privat-owned enterprises when Zemlyansky announced that negotiations on Tuesday in Moscow arranged to have GSU provide gas to the Firtash-connected companies.

While this arrangement may be a way for Firtash’s factories to avoid buying gas from Naftogaz, the situation hasn’t yet fully solidified. Neither Ostchem (Firtash’s holding company for chemical factories that includes the affected plants in Ukraine) nor Gazprom said they had any knowledge of the deal. A source in Gazprom told Kommersant that “the question of Dimitry Firtash was not raised during the negotiations.” Talk of Firtash is just “small change in negotiations between countries,” the source added.

Naftogaz's spokesman asserted that the protestors had no legal justification and were instead looking only to make a scene.

The agreement (if it exists) may not even satisfy the protesters. “They haven’t given any concrete demands,” Zemlyansky told me. They are instead more interested in creating the image of dissent in an attempt to influence the continued restructuring of Ukraine’s gas sphere.

Those rallying in front of the office appeared to be actual factory workers (and essentially asserted as much, when I asked them) as opposed to the pensioners and students protesting the Dniproenergo conflict (which are typically hired for $10-20 day).

However, Wednesday’s steady rain and cool weather dispersed all but a few people sitting in tents pitched in front of the office. Zemlyansky said that he expects them to be completely cleared away by the end of the week at the latest.

A court case is currently in the works that aims to resolve any legal claims by the enterprises, as well as an anti-monopoly case lodged against Naftogaz’s increased presence within the gas market.

Meanwhile, the negotiations in Moscow have been pushed back to Wednesday as the two sides are struggling over additional (unknown) amendments to last month’s broad agreement and guarantees from Ukraine on the repayment of about $2 billion in debts for gas already delivered.

Yulia, don't give a disaster to Rivne!

An early draft of the the amended agreement currently being negotiated allegedly included language that allowed Gazprom to unilaterally annul the new arrangement in the event of Ukraine’s failure to repay its obligations. The previous setup, featuring Ukrgazenergo, would then be put back into place.

I talked with Ukrgazenergo’s press secretary on Monday, but he didn’t want to comment on the situation yet, saying only that “things are still being figured out.” He did agree to talk after the “May holidays,” a two-week block of time between Orthodox Easter (April 27th) and (WWII) Victory Day (May 9th) when basically nothing gets done.

One development is likely during that time, however. If an agreement is reached in Moscow on Wednesday, the holidays’ centerpiece–International Day of Labor on May 1st–will see GSU enter Ukraine’s market officially.

Note: Zemlyansky confirmed that Ukrgazenergo’s April 1st shareholders’ meeting, which was held in Naftogaz’s office, didn’t reach a quorum due to the absence of RUE’s representatives. (RUE and Naftogaz are 50/50 shareholders in the gas trader.) He suggested that the spate of failures among energy company shareholders’ meetings (Ukrgazenergo, Dniproenergo, Kievenergo, Ukrnafta, Ukrtatnafta, etc.) is representative of today’s turbulent nature of Ukraine’s energy sphere. I would add that political turmoil is also playing a part.

Zemlyansky went on to call the situation surrounding Ukrtatnafta a “political issue,” saying that Naftogaz needed to wait for the politicians to sort out things before they could attend to the business side of things.

Waiting for politics to resolve itself, though, seems at times to be a never-ending endeavor here.

RosUkrEnergo to remain Ukraine’s gas supplier

RosUkrEnergo's tagline belies its reliance on personal connections - From rosukrenergo.com

On Friday an official from Ukraine’s presidential secretariat announced that RosUkrEnergo (RUE) would be supplying Ukraine with gas for the remainder of the year.

The continuation of this arrangement comes as a blow to Prime Minister Yulia Tymoshenko’s hopes to completely remove the maligned middleman.

While she has praised the expulsion of RUE’s 50%-owned subsidiary UkrGazEnergo from Ukraine’s domestic gas market, its place will partly be filled by a new Gazprom subsidiary authorized to directly market gas to Ukrainian consumers.

In the meantime, Naftogaz (Ukraine’s state-owned oil and gas company) is aggressively seeking to make deals with Ukraine’s major industrial consumers, likely in an effort to stymie Gazprom’s commercial ambitions.

Naftogaz confirmed that it signed a contract with RosUkrEnergo to purchase 49.8 billion cubic meters (bcm) of gas at a price of $179.50 per thousand cubic meters (mcm) through to the end of 2008.

Meanwhile, “Gazprom Sales [Marketing] Ukraine,” (“Газпром сбыт Украина,” or GSU — I haven’t seen that acronym used yet, so remember, you saw it here first) a fully-owned subsidiary of Gazprom, has registered in Ukraine and is in the process of gaining clearance to sell 7.5 bcm per year on the country’s “unregulated” industrial market. GSU will buy the gas from Naftogaz (who itself purchases it from RUE, which purchases it from Gazprom Export, which allegedly purchases it from Central Asia), though according to early drafts of the new gas scheme agreement, Naftogaz is limited to an extremely minimal price increase (pennies per mcm) on the sale to GSU.

The industrial sector of gas sales had been dominated by Ukrgazenergo, but intense regulatory and administrative pressure has essentially forced the gas trader to shut down operations. (Nonetheless, I am still in talks with Ukrgazenergo to arrange an interview, and will update accordingly.)

Naftogaz, via its subsidiary Gaz Ukrainy, is looking to fill as much of the void left by Ukrgazenergo as possible, lining up contracts from 90 of Ukraine’s top industrial gas users. It is unclear whether the holdouts of companies connected to RUE co-owner Dimitry Firtash have been resolved.

Late in March, Ukraine attempted to pressure RosUkrEnergo by halting the transit of gas owned by RUE through Ukraine destined for sale in Eastern and Central Europe. The Polish and Slovak consumers the gas was meant for lodged complaints, citing violations of the Energy Charter. It isn’t known if the new agreement with RUE protects the trader’s ability to transit gas through to Europe, a lucrative aspect of the scheme.

The early draft of the agreement reached between Gazprom and Naftogaz last month left the exact seller of gas at the Russia-Ukraine border–either Gazprom or RUE–ambiguous. While Tymoshenko was apparently able to erase the words “not less than” before the 7.5 bcm quota to be granted to Gazprom, removing RUE–with its rumored connections to the Yushchenko camp, organized crime, Gazprom management, former politicians, etc.–proved to be not so easy.

Note: No word on the potential technical default of Naftogaz, but the debt issue with Gazprom for gas sales during the first four months of this year–a couple billion dollars, apparently– remains a pressing issue. Meanwhile, the government is suggesting that domestic prices for gas raise by 3% and 5% (depending on volume consumed) per month, beginning in May (i.e. 21-35% by the end of the year). This, in combination with an increased presence in the industrial sales sector mentioned above, should help Naftogaz’s financial situation. Of course, 20% inflation rates and woeful bill collecting problems won’t help.

Also, Naftogaz has scheduled (another) attempt at a shareholders’ meeting for Ukrtatnafta, again with the aim of changing leadership and making sweeping administrative changes. The meeting is scheduled for May 29th (coincidentally, the day before my birthday). Meanwhile, the company announced the April 23rd auction of its 4.4 thousand sq. meter office building in Kremenchug, with a starting price of UAH 9.9 million (just under $2 million). Clearing out the shelves before the store gets taken over?