The Legal Status of Petroleum Development Agreements in International Law and the Problem of Characterization: A Proposed Way Forward

State contracts involving foreign direct investment for the development of upstream petroleum resources have posed for a long time particular legal challenge with reference to their legal and regulatory framework, especially in the event of a dispute. Governed primarily by the principles of public international law, various other sources including national administrative or public law, contract law and peremptory norms jus cogens of public international law all converge within the framework of petroleum development agreements to vie for supremacy in the prioritization of applicable norms as the substantive governing law. It is against this background that the procedural question of characterization plays a key role in determining questions of jurisdiction and choice of applicable law. This article sets out to analyze the characterization of upstream petroleum development agreements whilst critically inquiring into the relationship between private and public law in the characterization process. The article’s main premise is founded on the continuing need for reform of the current (but in our view out-dated) legal framework for dispute settlement in the upstream petroleum sector. The article’s main objective is develop a new conceptual framework for the characterization of upstream petroleum development agreements, together with a proposed new legal regime which is expected to be more suitable and appropriate to the upstream petroleum development agreements of the 21st century.