Julián J Garza C and Héctor Arangua L of Nader Hayaux & Goebel in Mexico City look at the possibilities opening up in the Mexican energy and infrastructure sectors
Mexico is living in very interesting times. With a new reform to the energy sector on the way and the Mexican Government’s increasing focus on infrastructure projects, Mexico is on the right path to relevant economic growth and to consolidation as an economic power of the Latin American region and a successful global competitor.
The energy sector
Following the Constitutional reform of the energy sector approved during December 2013, Mexican President Peña Nieto submitted to congress the secondary energy bill consisting of 8 new laws and amendments to 13 existing laws (the ‘Energy Bill’) by the end of the ordinary Congressional session on April 30 2014. Relevant members of the Mexican Congress have expressed an extraordinary session will be called for the month of June 2014 to debate and approve the Energy Bill and it is expected that it will be voted on in the second half of June or, at the latest, in a second extraordinary period in any case before the next ordinary session of Congress starting next September.
In general and as presented, the Energy Bill is in line with and adequately follows the Constitutional reform. As drafted, it will widely open the oil and gas and electricity sectors to national and foreign private investment. Although an intense debate is expected especially from the Mexican left-wing parties which oppose a reform of the sector, it is expected that the government party (PRI) and the right-wing party (PAN) will pass the Energy Bill without significant amendments that alter the spirit of the Constitutional mandate and the Energy Bill deriving thereof.
A. Oil and gas
The main proposals contained in the Energy Bill, without an order of relevance, are the following:
(i) The property of hydrocarbons will remain the property of the Mexican State. Nevertheless, Petróleos Mexicanos (Pemex) and the Comisión Federal de Electricidad (CFE) will no longer have the monopoly of the oil and gas and electricity sectors and will have the mandate to gradually transform into government-owned enterprises (empresas productivas del estado) with international standards rather than being state branches.
(ii) The Energy Bill regulates four main types of contracts to be used with private companies in the oil and gas sector, (a) services contracts, with a clearly defined scope and cash consideration, (b) profit sharing contracts conveying the success risk to the private companies on the exploration and exploitation of oil but granting a fixed base payment plus a fee per oil barrel in cash, (c) production sharing contracts also conveying the success risk to the private entities in which the Mexican government and private companies will agree on a percentage of profit sharing once the costs have been covered and the consideration may be in cash or oil, and (d) licenses granting the right to explore and extract oil without granting property of the subsurface hydrocarbons belonging to the Mexican State. Concessions will not be allowed under the Energy Bill but licenses contain some of the main features of the concessions, that is, the right to explore and extract oil and gas.
As a general rule, all contracts offered to private companies will be subject to public bidding processes and the Energy Bill contains new transparency provisions with respect to all the contracts granted by the Mexican State. In addition, and following global trends, the private companies will be allowed to book the oil and gas reserves subject to exploitation as long as they expressly acknowledge that the original property of such hydrocarbons belongs to Mexico.
(iii) As a general rule, to be revised on a case-by-case basis, 25% of national content will be required for all hydrocarbon projects. Also, there is a 20% mandatory participation of Pemex with respect to the exploitation of transboundary oil fields.
(iv) The authorities and regulators of the oil and gas sector are (a) the Ministry of Energy, which will set forth the national energy policies, (b) the National Hydrocarbons Commission (CNH), which will mainly be in charge of the contract granting in the E&P/upstream sector, (c) the Energy Regulating Commission, which will mainly supervise midstream and downstream activities, and (d) the Ministry of Finance, which will be in charge of the determination of the economic terms of the public bids and of the contracts granted by the CNH.
(v) Pemex will become a new player in the oil and gas industry. It will receive entitlements (asignaciones) from the Ministry of Energy to explore and exploit hydrocarbons. Pemex has already requested to the Ministry of Energy the initial entitlement to a number of undisclosed areas of the country it considers it has the financial and technical ability to exploit (Round 0). The determination of the entitlement areas and therefore the areas which will be subject to contracting with private entities, will be determined during September 2014, at the latest. The Energy Bill contains the fiscal and economic terms applicable to the entitlements granted to Pemex in the understanding Pemex will be allowed to enter into contracts with private companies to aid Pemex with its entitlement mandates.
(vi) The Mexican Oil Fund for Stability and Development (Fondo Mexicano del Petróleo para la Estabilización y el Desarrollo) (the ‘Mexican Oil Fund’) is created as a trust in which Banco de México will act as trustee. The purpose of the Mexican Oil Fund is to receive, administer and distribute the income stemming from the entitlements of Pemex and the contracts entered into between the CNH and private companies, but excluding taxes. The funds managed by the Mexican Oil Fund will be used as part of the public expense of the country, as long-term savings and as investments that are meant to create development and wealth within the country.
To summarise, where will oil and gas opportunities lie if the Energy Bill is passed substantially in the same terms? Everywhere. The upstream, midstream and downstream activities will now be completely open to the private sector. The exploration and production of oil and gas, nowadays a monopoly of Pemex, which only allows the participation of the public sector through services contracts, is expected to attract great amounts of domestic and foreign investment assuming the Round 0 will leave an interesting number of fields subject to private contacting. As to refining of oil and gas and petrochemicals, it will also be open to private companies along with the transportation, storage distribution and sales of refined products and petrochemicals, already open to private entity participation.
Although the full benefits of this oil and gas reform would not be felt immediately but in the mid to long term, the Energy Bill would definitely change the shape of the Mexican economy starting with the creation of a privately held oil and gas industry.
In a final note, we expect significant transactional activity within the sector mainly regarding mergers and acquisitions in preparation for the first stages of the energy reform both involving cross-border deals and domestic deals.
According to the Constitutional reform and Energy Bill mentioned above, it is intended that the CFE will be transformed into a government-owned enterprise (empresa productiva del estado). The main impact of such a transformation lies in the type of services and activities that the CFE would be empowered to conduct, which are to be framed in a specially created regime applicable to the CFE, which will govern its organisation, corporate governance, management and operations, as well as new government procurement process and budgetary and financial treatment. Overall, under the Constitutional reform and the Energy Bill, the CFE is aimed to operate under efficiency standards and with the mandate of increasing revenues and generate added economic value.
Certainly, the Energy Bill does not only afford organisational flexibility to the CFE, but rather reinvigorates the spectrum of investment opportunities in the electricity sector both for the CFE and private investors.
The Energy Bill proposes new laws to govern the CFE and the electricity industry, including a new Electricity Industry Law (Ley de la Industria Eléctrica), a new Hydrocarbons Law (Ley de Hidrocarburos) and a new CFE Law (Ley de la Comisión Federal de Electricidad).
Until now, the purpose of the CFE has been limited to rendering electricity services and a few other activities directly related to such services. As proposed under the Energy Bill, the CFE’s activities can be grouped as follows:
(i) Electricity related services
As set forth in the Constitutional reform, the transmission and distribution of electricity will remain a public service under the exclusive control of the CFE.
(ii) Gas and hydrocarbons
Under the proposed new CFE Law, such an agency would be able to participate in projects that are until now primarily reserved for Pemex. That is the case, for gas, geothermal and other hydrocarbons projects. The CFE will be permitted to participate in the entire process, from the extraction, transportation and storage, to the distribution and commercialisation of such products.
(iii) Other services
The Energy Bill permits the CFE to perform other services, including to third parties. As mentioned below, that opens up a large variety of investment opportunities both for the CFE and private parties.
Where do opportunities lie for private investors in the Mexican electricity industry? In all sectors and related activities, except for transmission and distribution of electricity. Under Mexican law, private companies are already permitted to generate electricity, use it for their own industrial activities and commercialise it with CFE. Under the Energy Bill, such companies and other investors will continue to be permitted to generate electricity, but will be able to do so in a more competitive environment, being entitled to commercialise electricity with private companies as well. If the Energy Bill is passed, private investors will also be permitted to participate in gas and other hydrocarbons projects, both in building the infrastructure associated with it and in the exploitation and distribution processes. Such investors will be able to team-up with the CFE in the aforementioned electricity and gas projects, as well as in other projects and services, that reduce costs for CFE, increase their revenues and generate added economic value, as mandated by the Constitution.
As previously mentioned, the Energy Bill still needs to be discussed and approved in Congress. It may be subject to change. Prior to it becoming effective, the Energy Bill will need to be issued and published by the Federal Executive. Nevertheless, it clearly follows the path of last year’s Constitutional reform, which is already effective and is already aligning Federal agencies and private companies in the search of new opportunities. A particular challenge that will be encountered in the process of participating in private investment into the new Mexican energy environment are the government procurement reforms. Both Pemex and CFE are set to perform under a special regime that intends to provide them with flexibility and efficiency at the time of contracting. The contractual framework and the eventual judicial testing of any given legal structure will be fundamental.
Last year, Mexico failed to meet the expectations in terms of Government spending in infrastructure projects. As a result thereof, Mexico had a marginal growth in its GDP. This year, Mexico has committed to further developments in a number of infrastructure industries, including toll roads, trains, airports, gas pipelines, oil related infrastructure, among others.
Other areas where infrastructure needs in Mexico are evident are power plants, natural gas, oil drilling and platforms, maritime ports, water and wind facilities, penitentiaries, hospitals and educational centres, among others.
The Government needs to continue working on accelerating bidding procedures, which move slowly, and finding adequate schemes to finance infrastructure projects. The Energy Bill, if passed as explained above, will create a special regime applicable to Pemex and CFE for its acquisitions and services processes. That may speed up any associated bidding procedures.
Any infrastructure development efforts in conjunction with private investors are insufficient unless adequate financing and investment schemes are available, with adequate security packages and flows of funds streams. Financing and investment in infrastructure projects can be accomplished through, among others, (a) private equity, (b) secured and syndicated loans, (c) public and private placements of debt, equity and hybrid instruments such as structured notes (certificados de capital de desarrollo or ‘CKDs’), and (d) securitisation of flows via structured finance.
Mexican pension funds (Afores) have had a tremendous impact in the infrastructure market through their investment in such projects. Afores have invested more than $5 billion in CKDs in the 2009 to 2012 period and have the availability to invest an additional amount of approximately $20 billion in CKDs and other capital markets instruments.
Infrastructure financing through securitisation has included underlying assets such as toll road flows, PPP (public-private partnership) payments (including from the constructions of penitentiaries and hospitals) and other strategic sectors. There has also been appetite of private equity funds to invest in infrastructure in Mexico.
The new Mexican Federal Public-Private Partnership Law (the ‘PPP Law’) intends to provide certainty and confidence with respect to investments in infrastructure. Its purpose (as such of other Mexican PPP laws or regulations) is to increase private investment in the long-term projects of the Mexican Federal Government.
The PPP Law and the services contracts associated therewith will continue to permit the Federal Government to develop the new wave of infrastructure projects for 2014 and coming years, using private funds and expertise.
Obligations of private investors include acquiring real estate, construction and equipment of facilities and management and operation of the respective projects. Failure to comply with performance standards for the project entitles the Federal Government to claim remedies, including payment of damages and penalties, termination of the relevant agreements and the right to step into the project for operating purposes.
In order to allow a PPP project to receive financing, its legal structure shall consider, among other matters: (i) collateral, (ii) compensation and milestones, (iii) insurance coverage, (iv) termination events and step-in rights, (v) exit strategies, (vi) early termination payments, and (vii) minimum guaranteed amounts and indemnities.
The Federal Executive is looking for mechanisms to allow Afores to invest in infrastructure used by Pemex. Private investment in strategic services of the oil industry, shall be permitted either through funds raised in capital markets, through PPP schemes or even through Fibras.
Fibras (the Mexican equivalent of US REITs) permit existing real estate projects to be transferred to a Mexican trust, which participates investors of the investments thereof through the issuance of real estate certificates. Fibras are also allowed to raise funds to be destined to the acquisition of a portfolio of real estate properties or projects.
The purpose of the Fibra is the acquisition or construction of real estate for leasing, acquisition of the right to receive income from leasing of real estate, or the granting of loans for either of such purposes. The trust certificates issued by the trustee of the Fibra are generally offered in the Mexican Stock Exchange, although they can also be offered privately and on foreign markets through Reg-S and 144-A offerings.
Fibras have not yet been implemented to develop infrastructure. They face a number of challenges, including the ownership of “public assets” through the issuing trust of the Fibra. Nevertheless, it may be possible for Fibras or similar instruments to raise funds from capital markets to be used in oil-related projects.
In recent years, Mexico has enacted laws aimed at permitting the creation of public private equity funds through the issuance of CKDs. CKDs are just one of several initiatives aimed at strengthening the Mexican equity capital markets and fostering real estate and infrastructure projects though private funds.
CKDs were created to raise capital primarily from Afores and to revitalise the investment by the private sector in self-sustaining projects. The investors in CKDs share with the sponsor of the fund the success or failure of the projects in which it invests, in as much as they are not entitled to the payment of principal and interest but rather a distribution of flows stemming from such projects. Investors and sponsors (which are usually also co-investors in the projects) are generally free to agree on the rules applicable to cash flow distributions.
CKDs are public structured notes registered with the Mexico Stock Exchange that resemble a private equity fund. The funds raised through CKDs issuances are invested in Mexican projects; generally, in the infrastructure and real estate markets. Sponsors of a CKD issuance are generally the managers of the fund. Under Mexican law, any issuance of CKDs must be subscribed by at least 20 investors. CKDs are issued through fideicomisos, whose purposes include, among others, investing the funds raised, subject to investment guidelines and timelines. CKDs currently permit capital calls and commitments from investors.
CKDs have been successful in raising funds from the public market for investment in infrastructure projects, although in a few cases they have been slow in deploying funds to actual projects. Some infrastructure projects that have received CKD funds so far include water and wind facilities, power plants and energy related services.
Julián Garza C
Nader Hayaux & Goebel
About the author
Julián J Garza specialises in banking and finance, mergers and acquisitions, structured and project finance, energy and infrastructure. He has strong international experience and regularly advises US and other international clients on their local operations or investments in the Mexican market.
Julián has a strong background in banking law and regulations and handles a range of finance transactions. He is an expert in complex structured and project finance deals, securitisations, real estate finance, private equity and security issuances, including CKDs and Fibras. He also provides regulatory advice to a number of financial Institutions, including banks and insurance companies active in Mexico.
Julián is a specialist in M&A and handles transactions covering a range of industries. His work includes structuring real estate funds and joint ventures to develop commercial and residential properties and advising financial institutions on funding infrastructure projects. Julián actively participates in infrastructure project finance transactions and in Pemex and energy related matters.
Héctor Arangua L
Nader Hayaux & Goebel
About the author
He is an expert in securities and regularly advises both private and public companies on issuances in the local market and abroad. He has also developed niche expertise in CKDs (development capital certificates), a new type of security instrument recently introduced in Mexico.
Héctor’s structured finance practice is focused on providing advice to lenders on structuring complex bankruptcy-remote payment structures.
Héctor has developed expertise in the oil and gas sector, in which he has continuously been advising on finance and M&A matters. Some of his most recent deals involve advising Axis on the establishment of a joint venture with Temasek and Ares to create Oro Negro, a Mexican oil services company providing services to Pemex, with equity investments over $450 million.
Héctor has strong international experience. He is licensed to practice in New York and regularly advises US and other international clients on transactions in Mexico.