How transnational rules can contribute to the improvement of the Brazilian regulatory system for unitization—an analysis under the transnational legal order perspective

Abstract

Unitization is the most effective method to avoid irrational, wasteful and environmentally unsustainable production of oil and natural gas. Therefore, it is important to notice that unitization is a complex practice. It is effective for the equitable production division of a deposit shared by different owners. However, compulsory membership can result in costly negotiation and make exploration and production projects less attractive. In the pre-salt, the most productive Brazilian oil province, unitization processes are common and even more complex due to the following factors: (i) there are three different tax regimes in the pre-salt polygon; (ii) when the reservoir is shared with an area not granted yet (referred to as an open area), the Brazilian regulation establishes that the unitization process must be carried out with the public company, Pré-sal Petróleo S.A., representing the Government; (iii) moreover, due to the high productivity of the pre-salt layer, the financial values involved in this process are substantial, even with a participation of less than 1 per cent in the shared reservoir. Brazil established a robust regulation on unitization in 2013, which was amended in 2017 and, again, in 2020. This demonstrates that the regulatory improvement process, in the search for a more efficient regulation—that balances the attraction of investments and protection of the public interest—is continuous. This article proposes that in this process of regulatory improvement, good international petroleum industry practices (good practices), contractual models drawn up by industry associations and codes of conduct shall be used as a reference. These non-state rules, which are the result of self-regulation by the upstream sector of the oil industry, will be considered in this article as transnational rules, following the approach of Halliday and Shaffer, who propose the existence of a transnational legal order.