ACKNOWLEDGEMENTS We would like to acknowledge all of the people without whom we could not have completed this project: Zeynep Dereli, Pars Kutay, and Jim Geary for providing invaluable introductions in Istanbul. Mehmet Sepil and the Genel Enerji team for generously helping with logistics in Erbil. Brad Camp for his Southern hospitality in the Middle East. Those who generously spent time explaining issues surrounding Kurdish gas, particularly Dr. Ashti Hawrami, Saad Sadollah, Adel Chouach, Shakir Shakir, Paul Atherton, M. Fatih Baltacı, and David Tonge. Our HBS classmates Lee Hodder and Heath Flowers for helping us with natural gas modeling. The Middle East Initiative at Harvard, for providing funding for travel to Istanbul and Erbil. Our advisors, Professors Meghan O’Sullivan and Noel Mauer, for all of the valuable insight and advice along the way. Our client, Daniel Freifeld, for making the project possible. And most importantly, our wives Louise and Serap for the countless hours of thankless support these past three years—we really could not have done it without you.
Although this report would not have been possible without the contributions of a broad community of individuals (many listed above), all opinions, errors and omissions are ours alone.
“2. The Claimants seek an order to compel the Respondent . . . to restore the status quo ante and prevent further escalation of the dispute during the pendency of the present arbitration, by resuming payment for on-goingdeliveries of condensate and liquefied petroleum gas (LPG) and releasing and/or procuring the release of funds to the Claimants which were withheld by the KRG or on the KRG’s instructions following the Claimants’ commencement of mediation on 24 July 2013. 3.Absent the cash flows from the sale of condensate and LPG to the Claimants until their abrupt curtailment by the KRG with effect from July 2013, Dana . . . which operates the gas processing facilities at Khor Mor jointly with Crescent on behalf of Pearl, will face a cash crisis and is expected to run out of cash by the fourth quarter of 2014. As a consequence, Dana . . . will default on its debt obligations and the company will be forced into insolvency during the pendency of the present arbitration, causing irreparable damage to [Dana’s] . . . stakeholders, including its over 200,000strong regional and international shareholder base. 8.Prior to the initiation of the mediation on 24 July 2013, the KRG was making regular (albeit deficient) payments (either directly or through third parties) for condensate and LPG, which were and continue to be critical to the Contractor’s ability to continue operating the gas production facilities at Khor Mor and Dana Gas’s ability to service its home office costs and debt obligations. 9.In an act of retaliation to the Claimants’ commencement of mediation proceedings on 24 July 2013, the KRG deliberately withheld all contractuallydue payments it had previously been making on a regular basis for the supply to it of Khor Mor condensate. Moreover, and in order to ‘turn off’ entirely the tap of the Claimant’s revenue streams from the uninterrupted production that it continues to provide, the KRG altered the terms upon which it auctions the right to lift LPG to third parties by diverting payments away from the Claimants. The basis for the KRG’s retaliatory action is a set of contrived counterclaims which, despite allegedly amounting to nearly US$5 billion and being based on allegations dating back several years, had never previously been raised, let alone quantified or used as a basis for withholding payments to the Claimants. . . . 11.In the circumstances, and in the light of recent press reports regarding the KRG’s intentions to this effect, the Claimants have good reason to believe that the KRG’s conduct is part of a concerted strategy to manufacture excuses for a precipitate and unlawful termination of the Contract, take-overof operations and subsequent sale of the valuable exclusive rights under the Contract to a third party, the latter having already been attempted by the KRG in the recent past. The Claimants’ belief has been further reinforced by the
“▪ In the event Dana is unable to export and market the LPG’s
[or] Condensates by any act or omission of government (including foreign neighbouring governments) and/or for political reasons beyond the control[of] Dana then the KRG shall purchase and lift (or arrange for the lifting by the domestic companies/users) and pay for the liquid petroleum products at international FOB Med market prices as quoted by Platts Oilgram Report or similar journals within 30 days from the month ends.[Identified by the parties as “Bullet 7”].
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