해외자원개발의 공동운영계약상 비운영자의 보호 방안

The development businesses of natural resources are risky and require a large amount of funds. Petroleum in particular is a very risky and hardly successful business. Only one or two in ten projects are successful and sustainable in commercial and profitable productions. As a consequence, petroleum development, or more specifically exploration and production(“E&P”) projects in most cases request more than two participants to jointechnologies and monies to hedge associated risks and pool big sized monies. The joint operating agreement(“JOA”) should be necessarily entered into by the participants to meet these features of petroleum E&P projects. It addresses the rights and obligations between the participants in relation to petroleum E&P operations. The participants are largely divided into an operator and non-operators. As we see in traditional JOAs, while the operator exclusively conducts most of petroleum operations on a daily basis, non-operators are passively and indirectly participating in some of operations through the joint operating committee on a irregular basis. As non-operators’ participations and roles are narrowly limited and indirectly performed,non-operators tend to remain mere financial investors and the E&P operations by the operator go without adequate checks and balances. Such unchecked and arbitrary powers of the operator turn the E&P project sour and hurt the participants’ common welfare inthe end. Here is why non-operators should become more interested in operations and take their better inputs into consideration for good operation by which E&P operations may reduce costs and increase returns on investments. There are many ways which enable non-operators to utilize to maximize their function as co-venturers in E&P operations. They may second their employees or agents to the operator in E&P fields and improve their knowledge and involvement directly or otherwise in operations. There should be a variety of voting pass-marks for decision making tailored for each of voting agenda in the joint operating committee to adequately reflect many of non-operators’ voices in operations. The scope of decision-making items in the committee should also be expanded to not fail to cover major issues, by which the operator’s sole and arbitrary decision-makings will be accordingly reduced but nonoperators’ participations by voting would be increased. It is in furtherance of nonoperators’ power to have indemnity regimes to hold the operator liable for its wrongful misconducts because it provides incentives to induce and discipline operators to conduct legitimate and industry-standard operations. It is beneficial to participants as a whole for non-operators to have entitlements to more information on E&P operations and guaranteed involvements in selecting subcontractors such as a drilling company and wide engagement in the process of dispute resolutions. The easier transferability of participating interests byeliminating unnecessary preemption rights and the adoption of sole risk operations would also work well for the protection and benefit of non-operators. All the suggestions above would be, at first sight likely helpful to strengthen the status and power of non-operators only. However, the proactive and affirmative participation inE&P operations by non-operators will eventually build up the whole welfare of all participants including operators as they decrease the inefficiency of the operation and associated costs, and as such increase the productivity of petroleum operations and the amount of profit distributed to investing participants after all. Consequently, it is necessary to incorporate such suggestions into the terms and conditions of the JOA as it guides and controls the conduct of petroleum E&P operations.