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SEC to clarify rules for murky resource sector

06 July 2012, 12:53

 Johannesburg - Murky deals between resource companies and governments in Africa and elsewhere face tougher scrutiny after U.S. authorities clarify disclosure rules next month, although intense lobbying by industry giants may have ensured the changes are limited.

The rules require energy and mining firms with U.S. listings to disclose payments to foreign governments. Enacted two years ago under the Wall Street Reform Act, the U.S. Securities and Exchange Commission (SEC) has not finalised the requirements, frustrating investors and activists alike.

On Monday, however, the SEC said it would vote on them on 22 August.

The stakes have been especially high in Africa, where vast oil and mineral wealth has not translated into wider prosperity, a state of affairs widely referred to as the "resource curse".

That takes several guises. Sometimes oil or mining crowd out other industries, or a country's economy dances to the beat of volatile commodity or energy markets.

As governments tend to control access to natural resources, graft becomes a problem if states become addicted to the spoils that can be reaped from the resource sector.

The payment disclosure rules were widely hailed as the most sweeping measures yet to try and tackle the problem as they hit the primary cause: opaque deals between governments and industry.

But two years of foot-dragging have raised concerns the final rules will be rendered toothless after a barrage of lobbying, from the oil industry in particular.

One point of contention has been whether or not exemptions should be made if a country has laws that forbid a company from disclosing the payments it makes to the government.

U.S. oil lobbyists, who have claimed this kind of legislation exists in countries such as Angola, have been pushing for such exemptions.

However, Brazilian oil giant Petrobras (PETR4.SA)(PBR.N), which will fall under the new rules because of a U.S. secondary listing and operates in Angola, has said it was not aware of any country with a curb on official disclosure.

Project by project

Another area that has stirred controversy revolves around how a project is defined.

The legislation calls for project-by-project details of payments to foreign governments, a provision welcomed by some investors and anti-poverty campaigners but resisted by industry groups such as the American Petroleum Institute (API).

Among the objections API raised last year in a lengthy submission was that project-by-project payment disclosure could "identify the location of the firms' most important personnel and their most important capital assets."

"Given the current state of affairs in Chad, Nigeria and other oil-rich states, it would seem intuitively obvious that handing criminals, terrorists or partisans in the Chadian or Nigerian conflicts the financial equivalent of a roadmap ... would be unwise," it said.

These concerns are certainly legitimate. But a project could be defined all the way up to the country or regional level, so a mineral trend - deposits running through several countries - could be construed as a project.

Anti-graft campaigners have said defining a project so widely would dilute its transparency aims as corruption often bubbles at the micro-level and payments could be hidden there.

Investors are also anxious to see if the SEC will allow disclosure requirements on payments to foreign governments to be "furnished" rather than filed. If they are furnished, the information would be presented in an attachment to the annual report, and not filed in the body.

Analysts have said this will have implications for shareholders. For example, if such a payment was found to have been materially misstated and resulted in a loss to investors, under U.S. law they would have no legal recourse if it was furnished rather than filed in the body of the report.

If a filed disclosure were misstated, investors would have legal recourse.

Regardless of what the SEC decides, it will at least finally be providing clarity for investors on an issue that has been closely followed by lobbyists, boardrooms and activists.

Whether or not the final rules actually improve transparency in the obscure world of oil and mining payments to governments is another matter.

- Reuters


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