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Über dieses Buch

The book provides a systematic examination of the legal, fiscal and institutional frameworks for the commercial development of petroleum and solid mineral resources in Africa. First, it considers the values, assumptions, and guiding principles underpinning legislation and governance in Africa’s extractive sector. It then provides detailed and comparative evaluations of regulatory frameworks, pricing, local content, procurement, sales, and contractual arrangements across African extractive industries. Further, the book assesses how questions of business and human rights risks, accountability, corporate social responsibility, waste and pollution control, environmental justice, and participatory development have been addressed to date, and how they could be addressed better in the future. Enhancing readers’ understanding of the geography, sources and scope of extractive resources in Africa, the book explains how corporations can effectively identify, mitigate and prevent legal and business risks when investing in African extractive industries. Lastly, it discusses the innovative legal strategies and tools needed to achieve a sustainable and rights-based extractive industry.Written in a user-friendly style, the book offers a valuable resource for corporations, investors, environmental and human rights administrators, advocates, policymakers, judges, international negotiators, government officials and consultants who advise on, or are interested in, petroleum and solid mineral investments in Africa. It also offers students and researchers an authoritative guidebook to the current state of extractive industry laws and institutions in Africa. Numerous examples of how international legal norms could be used to help revitalize the underlying legal and fiscal regimes in African extractive industries – to make them more robust, accountable, sustainable and rights-based – round out the coverage

Inhaltsverzeichnis

Frontmatter

Introductory Context and Principles

Frontmatter

Chapter 1. Introduction

Abstract
This chapter provides a conceptual overview of the extractives industry in Africa. It provides foundational definitions and information on the key processes and actors in the extractives industry, and then identifies many of the essential challenges that require dynamic legal solutions in the African extractives industry. These include legal challenges relating to infrastructure deficits, business and human rights, and environmental sustainability. The chapter also outlines the overall aim and structure of the book.
Damilola S. Olawuyi

Chapter 2. Nature and Scope of the African Extractives Industry

Abstract
This chapter provides an overview of the origin, nature, scope and attributes of the two main subsectors of the extractives industry: petroleum and solid minerals. After providing conceptual clarifications on the meaning and attributes of petroleum and solid minerals, the chapter unpacks the origin of petroleum and minerals in general, as well as their early discoveries in the African continent; outlines the key stages, processes and investment opportunities involved in the discovery and exploration of petroleum and mineral resources in Africa; and discusses the role of law in the regulation and administration of petroleum and solid minerals production in Africa.
Damilola S. Olawuyi

Chapter 3. Extractive Sector Infrastructure

Abstract
This chapter discusses the importance of a comprehensive and functional infrastructure network as a fundamental requirement for optimizing and maximizing the benefits of Africa’s vast extractive resources. It unpacks the priority infrastructure required for extractive operations; the nature and extent of infrastructure gaps and the opportunities for infrastructure investments in Africa; and the legal framework for constructing, maintaining and operating extractive infrastructure in African countries. It discusses the need for appropriate legal frameworks that support the development and financing of shared use infrastructure projects across Africa.
Damilola S. Olawuyi

Legal Theories, Contracts and Fiscal Regimes on Extractives Investments in Africa

Frontmatter

Chapter 4. Ownership and Control of Extractive Resources

Abstract
This chapter surveys the applicable theories and regimes underpinning the ownership and control of extractive resources in Africa. In doing so, it deals with several complicated matters relating to the extent of interest and rights that any person, individual or body has in petroleum and mineral resources. First, it contextualizes ownership debates and contentions from the perspectives of dominial and non-dominial jurisdictions. It then reviews the diverse theories that have been put forward to clarify whether petroleum and minerals are capable of being owned: namely the absolute ownership theory, qualified interest theory, non-ownership theory, the rule of capture and ownership puzzles relating to the tragedy of the commons.
Damilola S. Olawuyi

Chapter 5. Sources of Extractive Industry Law

Abstract
This chapter provides an overview of the different sources of law that govern the extractives industry. It discusses the roles of international, regional and national laws in shaping extractive sector activities and investments across the African continent. First, it identifies some of the basic characteristics of the different sources of law that are applicable to extractive operations. It then analyses the character, status and force of the different sources including the interrelationships between them.
Damilola S. Olawuyi

Chapter 6. Regulatory Institutions

Abstract
This chapter surveys and evaluates institutional arrangements across Africa for the regulation and supervision of the extractive sector. It unpacks the key governance approaches adopted for extractive sector supervision in Africa. It then outlines the key institutions, ministries, agencies and government entities that supervise, oversee and approve participation licenses and contracts. It analyses law and policy reasons why many countries today establish national oil and mining companies and the roles such national companies play in extractive sector governance.
Damilola S. Olawuyi

Chapter 7. Legal Rights and Interests in Resource Extraction

Abstract
This chapter examines the key features of, and distinctions between, the different types of legal rights and interests granted by African regimes for petroleum, mining and metallurgical operations. After discussing the nature, scope and fundamentals of freehold, leasehold, mineral, surface and royalty interests, the chapter unpacks the characteristics of commonly encountered mining and petroleum interests in African countries. The chapter also examines the common types of petroleum and mineral exploration rights and licenses across Africa; the conditions for the grant of each of those licenses and permits; and the procedures for assignment and revocation of these rights.
Damilola S. Olawuyi

Chapter 8. Contractual and Fiscal Arrangements in the Extractive Industry

Abstract
This chapter provides a detailed analysis and discussion of the prevalent fiscal and commercial arrangements in extractives industries in Africa. It examines the meaning, nature and essential characteristics of the ten main contractual arrangements relied upon by state-owned enterprises and governments in Africa to convey titles and interests: concessions; production sharing contracts; joint ventures; service contracts; farm out contracts; pooling agreements; unitization contracts; long term oil and gas supply contracts; mining development agreements and impact benefit agreements. It also discusses the legal effects of the agreements on the conduct of extractive operations.
Damilola S. Olawuyi

Chapter 9. Local Content and Product Mandating Requirements

Abstract
Over the last decade, African countries have increasingly introduced local content legislation and contractual requirements that mandate extractive companies to give priority to nationals, indigenous communities, domestic companies and locally produced material, in the procurement of goods and services used for petroleum and mining operations. While such policies can enable national authorities to maximize in country value of extractive activities, beyond mere economic benefits, they can also serve as disincentives to foreign investors if such policies are not properly designed.
This chapter examines how local content policies have evolved across Africa. It provides a comparative analysis and profile of local content obligations in African countries, in order to determine prevailing preferences and legal risk points. It also examines how investors and national authorities can evolve collaborative and achievable local content requirements that minimise disputes and legal risks.
Damilola S. Olawuyi

Legal and Business Risks in African Extractive Investments

Frontmatter

Chapter 10. Environmental Impacts and Risks of Extractive Operations

Abstract
This chapter examines environmental impacts and risks associated with extractive operations and activities in resource rich African countries. After providing contextual discussions on the nature and meaning of the environment, it unpacks the key sources of environmental degradation from extractive operations in the petroleum and solid minerals sectors. It then discusses key laws designed to regulate and prevent environmental pollution in extractive industries in Africa. The chapter also provides insights on how extractive companies can avoid environmental sanctions by implementing internal policies that meet international environmental law standards on pollution prevention, remediation and restoration.
Damilola S. Olawuyi

Chapter 11. Business, Human Rights and Corruption Risks

Abstract
This chapter provides an overview of business and legal risks that must be carefully considered when investing in African extractive markets. Such risks include resource nationalism; lopsided contractual provisions that confer unfair advantages on national oil or mining companies; arbitrary change in contract terms; delays in operational approvals; complex local content requirements; weak human rights culture; and high corruption potentials amongst others. Even though some of these risks are not peculiar to Africa, as this chapter will show, conventional means of addressing legal risks through contractual provisions, internal regulation, and consistent business practices alone are not adequate in African markets. The chapter discusses how investors, and their lawyers alike, can effectively deal with such risks, as early as possible, through extensive due diligence and diligent contract negotiations.
Damilola S. Olawuyi
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