Petroleum Authority of Brunei Darussalam Act · s 38

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38.
Authority
(1) On or before the appointed day, His Majesty the Sultan and Yang
Di-Pertuan in Council shall-specify the excluded property and excluded liabilities of the Government, including, without limitation, any specific right or obligation under any of the Government petroleum mining Agreements which shall not be transferred to, and shall not vest in. the Authority as part of the petroleum regulatory undertaking of the Government to be transferred to the Authority:
Provided that where any such specific right or obligation under any
Government petroleum mining Agreement is so specified to be excluded property or excluded liabilities, notice of such specification shall also be given to the contractors who are parties to such petroleum mining
Agreement.
(2) If any question arises as to whether any particular property or liabilities (including, without limitation. any particular assets, interests, rights, privileges or obligations) are excluded property or excluded liabilities for the purposes of subsection (1) and therefore have not been or should not be transferred to or be vested in the Authority as part of the petroleum regulatory undertaking of the Govemment transferred or to be transferred to the Authority on the appointed day, a certificate given at any time under the hand of His Majesty the Sultan and Yang Di-Pertuan as to whether such particular property or liabilities are such excluded property or excluded liabilities shall be conclusive evidence of the same.
(3) Subject to subsection ( 9 ,  on the appointed day, all properties and liabilities comprised in the petroleum regulatory undertaking of the
Government (including, without limitation, all assets, interests, rights, n vest in the Authority without hrther assurance, act or deed.
(4) Subject to subsection (5), every agreement relating to the petroleum regulatory undertaking of the Govemment to which the
Government was a party immediately before the appointed day, whether or

Petroleum Authority 42
o f  Brunei Darussalum not of such nature that the rights and liabilities thereunder could be assigned, shall have effect as from the appointed day as if -
(a) the Authority had been a party to such an agreement;
(b)
for any reference to the Government there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority;
(c) for any reference to the words "the Prime Minister7' there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority;
(4 for any reference to the words "the Authority" there were substituted. in respect of anything to be done on or after the appointed day, a reference to the Authority;
(e) for any reference to the words "His Majesty the Sultan and
Yang Di-Pertuan" or "His Majesty the Sultan and Yang Di-Pertuan in
Council" there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority;
fl for any reference (however worded and whether express or implied) to any other Government party there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority; and
(g) for any reference (however worded and whether express or implied) to any representative of the Government there were substituted, as regards anything to be done on or after the appointed day, a reference to a representative of the Authority as the Authority may appoint for that purpose.
( 5 )  (a) The Authority shall be liable only to perform an obligation under an agreement relating to the petroleum regulatory undertaking of the
Governrnent which is transferred to the Authority to the extent that the
Authority would be able to perform such obligation from the appointed day, and the Authority shall not be liable to undertake any action in connection with such obligation if such action is not within the Authority's capacity.
power or authority:

Petroleum Authority of Brunei Durussaluni
CAP.231 43
•
Provided that where such action is within the Government's capacity.
power or authority. the Authority shall request the Government to perform such action.
(b) Where a provision in an agreement relating to the petroleum regulatory undertaking of the Govenment which is transferred to the
Authority had. prior to the appointed day, provided that the
Government shall procure. provide or assist in the procurement or provision of any regulatory approval, the Authority's obligations under such provision are, from the appointed day, deemed satisfied if the
Authority uses its reasonable endeavours to liaise with the relevant authorities or departments in connection with such regulatory approval.
(c) Any provision under any of the Government petroleum mining Agreements that requires the Govenment to nominate or designate a representative of the Government who is of managerial or senior status is, after the appointed day, deemed satisfied by the
Authority nominating or designating a representative who is a senior officer of the Authority.
(d) For the avoidance of doubt, where any provision under any of the Government petroleum mining Agreements provides for any payment to the Minister of Finance and Econon~y or the Government of any amount whatsoever (including, without limitation. any royalty.
rental payments or taxes), all such amounts shall continue to be payable to the Minister of Finance and Economy or the Government
(as the case may be) after the appointed day and this Act shall not affect the obligation of any party (including, without limitation, any contractor) to make such payment to the Minister of Finance and
Economy or the Government (as the case may be).
(e)
For the avoidance of doubt. it is hereby declared that the
Authority shall not be obliged to perform any obligation under any agreement relating to the petroleum regulatory undertaking of the
Government which is transferred to the Authority if such obligation is an excluded liability.
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(6) For the avoidance of doubt, it is hereby declared that -
(a) any reference in this Act to property comprised in the petroleum regulatory undertaking of the Government is a reference to

Petroleum Authority 44
o f  Brunei Darussalam such property (other than the excluded property) of the Government whether situated in or outside Brunei Darussalam; and
(bj any such reference to rights and liabilities comprised in the petroleum regulatory undertaking of the Government is a reference to such rights to which the Government is entitled or, as the case may be, such liabilities to which the Government is subject, whether under the laws of Brunei Darussalam or any country or territory outside Brunei
Darussalam.
(7) The Government and the Authority shall take all such steps as may be necessary to secure that the vesting in the Authority by virtue of this section of any foreign property, right or liability is effective under the relevant foreign law.
(8) Nothing in subsection (7) shall be taken as prejudicing the effect under the laws of Brunei Darussalam of the vesting in the Authority by virtue of this section of any foreign property, right or liability.
(9) In subsections (7) and (8), references to any foreign property, right or liability are references, respectively, to any property, right or liability comprised in the petroleum regulatory undertaking of the Government as respects which any issue arising in any proceedings would have been determined (in accordance with the rules of conflict of laws) by reference to the law of a country or territory outside Brunei Darussalam.

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s 38Authority

(1)

On or before the appointed day, His Majesty the Sultan and Yang

Di-Pertuan in Council shall-specify the excluded property and excluded liabilities of the Government, including, without limitation, any specific right or obligation under any of the Government petroleum mining Agreements which shall not be transferred to, and shall not vest in. the Authority as part of the petroleum regulatory undertaking of the Government to be transferred to the Authority:

Provided that where any such specific right or obligation under any

Government petroleum mining Agreement is so specified to be excluded property or excluded liabilities, notice of such specification shall also be given to the contractors who are parties to such petroleum mining

Agreement.

(2)

If any question arises as to whether any particular property or liabilities (including, without limitation. any particular assets, interests, rights, privileges or obligations) are excluded property or excluded liabilities for the purposes of subsection (1) and therefore have not been or should not be transferred to or be vested in the Authority as part of the petroleum regulatory undertaking of the Govemment transferred or to be transferred to the Authority on the appointed day, a certificate given at any time under the hand of His Majesty the Sultan and Yang Di-Pertuan as to whether such particular property or liabilities are such excluded property or excluded liabilities shall be conclusive evidence of the same.

(3)

Subject to subsection ( 9 , on the appointed day, all properties and liabilities comprised in the petroleum regulatory undertaking of the

Government (including, without limitation, all assets, interests, rights, n vest in the Authority without hrther assurance, act or deed.

(4)

Subject to subsection (5), every agreement relating to the petroleum regulatory undertaking of the Govemment to which the

Government was a party immediately before the appointed day, whether or

Petroleum Authority 42

o f Brunei Darussalum not of such nature that the rights and liabilities thereunder could be assigned, shall have effect as from the appointed day as if -

(a)

the Authority had been a party to such an agreement;

(b)

for any reference to the Government there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority;

(c)

for any reference to the words "the Prime Minister7' there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority;

(4 for any reference to the words "the Authority" there were substituted. in respect of anything to be done on or after the appointed day, a reference to the Authority;

(e)

for any reference to the words "His Majesty the Sultan and

Yang Di-Pertuan" or "His Majesty the Sultan and Yang Di-Pertuan in

Council" there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority;

fl for any reference (however worded and whether express or implied) to any other Government party there were substituted, in respect of anything to be done on or after the appointed day, a reference to the Authority; and

(g)

for any reference (however worded and whether express or implied) to any representative of the Government there were substituted, as regards anything to be done on or after the appointed day, a reference to a representative of the Authority as the Authority may appoint for that purpose.

( 5 ) (a) The Authority shall be liable only to perform an obligation under an agreement relating to the petroleum regulatory undertaking of the

Governrnent which is transferred to the Authority to the extent that the

Authority would be able to perform such obligation from the appointed day, and the Authority shall not be liable to undertake any action in connection with such obligation if such action is not within the Authority's capacity.

power or authority:

Petroleum Authority of Brunei Durussaluni

CAP.231 43

•

Provided that where such action is within the Government's capacity.

power or authority. the Authority shall request the Government to perform such action.

(b)

Where a provision in an agreement relating to the petroleum regulatory undertaking of the Govenment which is transferred to the

Authority had. prior to the appointed day, provided that the

Government shall procure. provide or assist in the procurement or provision of any regulatory approval, the Authority's obligations under such provision are, from the appointed day, deemed satisfied if the

Authority uses its reasonable endeavours to liaise with the relevant authorities or departments in connection with such regulatory approval.

(c)

Any provision under any of the Government petroleum mining Agreements that requires the Govenment to nominate or designate a representative of the Government who is of managerial or senior status is, after the appointed day, deemed satisfied by the

Authority nominating or designating a representative who is a senior officer of the Authority.

(d)

For the avoidance of doubt, where any provision under any of the Government petroleum mining Agreements provides for any payment to the Minister of Finance and Econon~y or the Government of any amount whatsoever (including, without limitation. any royalty.

rental payments or taxes), all such amounts shall continue to be payable to the Minister of Finance and Economy or the Government

(as the case may be) after the appointed day and this Act shall not affect the obligation of any party (including, without limitation, any contractor) to make such payment to the Minister of Finance and

Economy or the Government (as the case may be).

(e)

For the avoidance of doubt. it is hereby declared that the

Authority shall not be obliged to perform any obligation under any agreement relating to the petroleum regulatory undertaking of the

Government which is transferred to the Authority if such obligation is an excluded liability.

- - --

(6)

For the avoidance of doubt, it is hereby declared that -

(a)

any reference in this Act to property comprised in the petroleum regulatory undertaking of the Government is a reference to

Petroleum Authority 44

o f Brunei Darussalam such property (other than the excluded property) of the Government whether situated in or outside Brunei Darussalam; and

(bj any such reference to rights and liabilities comprised in the petroleum regulatory undertaking of the Government is a reference to such rights to which the Government is entitled or, as the case may be, such liabilities to which the Government is subject, whether under the laws of Brunei Darussalam or any country or territory outside Brunei

Darussalam.

(7)

The Government and the Authority shall take all such steps as may be necessary to secure that the vesting in the Authority by virtue of this section of any foreign property, right or liability is effective under the relevant foreign law.

(8)

Nothing in subsection (7) shall be taken as prejudicing the effect under the laws of Brunei Darussalam of the vesting in the Authority by virtue of this section of any foreign property, right or liability.

(9)

In subsections (7) and (8), references to any foreign property, right or liability are references, respectively, to any property, right or liability comprised in the petroleum regulatory undertaking of the Government as respects which any issue arising in any proceedings would have been determined (in accordance with the rules of conflict of laws) by reference to the law of a country or territory outside Brunei Darussalam.