U.S. legislation takes aim at "resource curse"

DALLAS (Reuters) - The term of art is "resource curse." Simply put, it's the distressingly common tendency of less developed, impoverished countries to fail to translate mineral wealth into broad prosperity.

The curse takes several guises. Sometimes wealth from oil or another natural resource crowds out other industries, and a country's economy suffers as it rises and falls with volatile commodity or energy markets.

But the most insidious side of the curse involves graft, capital flight and poverty -- a trifecta of woes that tends to keep down-and-out nations from improving their lot.

A little-known section of America's financial reform bill aims to change that. The law may soon shed light on billions of dollars pocketed by governments in poor countries blessed and cursed with oil, diamonds and other natural resources.

The provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act will require much more transparency from companies in the so-called extractive industries -- miners and energy companies -- on payments to foreign governments. The idea is to make it harder for corrupt officials to pillage state coffers swollen with royalty and other payments from foreign oil and mining companies.

This is no trifling amount of money.

As an example of what is at stake, an estimated $27.5 billion flowed illicitly out of oil-rich Nigeria in 2009, according to calculations provided exclusively to Reuters by Global Financial Integrity (GFI), an advocacy group that tracks such trends. That sum is part of a much wider stream of illicit money being channeled from resource-rich countries in the developing world to banks and tax havens elsewhere.

In a report earlier this year, GFI estimated that Africa alone lost $854 billion in illicit flows from 1970 to 2008.

FOR AND AGAINST

The battle lines are already emerging. Exactly what form the new rules will take is still being negotiated.

Many U.S. companies and industry groups oppose the change, fearing it will make it tougher to compete with their Chinese rivals. But the provision has spawned an unusual alliance between anti-poverty campaigners and some Wall Street investor groups backing it.

For their part, activists are hoping greater transparency will make it harder for corrupt governments to siphon off funds that should be used for the general population. As for investor groups, they are counting on the law to make it easier to judge the risks -- criminal or otherwise -- being taken by companies in frontier markets where information is often hard to come by.

It aims to lift the veil of secrecy that shrouds financial flows and extractive industries because it will provide a far more detailed picture of how much money governments are actually raking in from the energy and mining companies operating within their borders.

Paul Bugala, a sustainability analyst with Calvert Asset Management Company, which has almost $15 billion in assets under management, said changes in tax and royalty policies in resource-rich countries can have a dramatic impact.

"This (provision) can help investors gauge when this is happening," he said, pointing to Shell in Nigeria as an example. In a briefing circulated to the investment community, he noted: "The oil and gas output of Shell's subsidiary in Nigeria ... dropped by 65 percent from 1.05 million barrels per day in 2005 to 360,000 barrels per day in 2008 due to shutdowns caused by conflict in the Niger River Delta."

"The full impact of Shell's drop in production in Nigeria between 2005 and 2008 and its plans for the country cannot be modeled completely without information regarding the related tax, royalty and other obligations."

The net that has been cast here is wide. It will include not only companies such as oil-giant Exxon that have their domiciles in the United States but also any energy or mining company registered with the SEC because of secondary listings.

By some U.S. congressional estimates, this may include 70 percent of publicly-listed international oil and mining companies and the net will almost certainly widen.

The European Commission has launched public consultations on the issue, noting the reporting requirements for extractive industries laid down by Section 1504 of the Dodd-Frank Act, which it says may become global accounting standards.

The International Accounting Standards Board is considering a standard for extractive industries that could be similar, but while the process is underway it could take years.

And according to U.S. congressional sources, British politicians are signaling their intention to craft similar legislation to be applied to UK-listed firms in the sector.

"There have been inquiries made to me about how to get this legislation done by parliamentarians in England ... I have had communication with London, there is certainly interest there," said Ben Cardin, a Democratic senator from Maryland.

PROJECT BY PROJECT

Cardin and Barney Frank -- the Massachusetts Democrat who will chair the House of Representatives Financial Services panel until January -- both invoked the "resource curse" in interviews with Reuters when speaking to their motivation for pushing for the provision.

Supporters see the U.S. move as a welcome addition to the Extractive Industries Transparency Initiative (EITI), launched by former British Prime Minister Tony Blair at the World Summit on Sustainable Development in Johannesburg in 2002.

Critics say the EITI's main weakness lies in the fact that governments have the option of signing up for it and many resource-rich nations with transparency issues, such as Angola, Saudi Arabia and Russia, have not signed up. Dodd-Frank gives companies no choice, regardless of where they operate.

Cardin, with his senate Republican counterpart Richard Lugar, was instrumental not only in bringing the legislation forward but also in inserting a key provision that requires project-by-project reporting by companies. The clause was the subject of behind-the-scenes lobbying by the likes of billionaire liberal activist George Soros.

"Project-by-project is a remarkable degree of disclosure. Normally companies go by their payments to whole regions or on a global scale and you can't unpick those numbers to work out what happened in each country," said Nicholas Shaxson, a Swiss-based analyst with British think-tank Chatham House who has written extensively about oil and transparency in Africa.

A handful of mining and energy companies registered with the SEC already provide detailed information on their payments to governments -- they include South African gold miner AngloGold Ashanti, U.S. gold miner Newmont, and Canadian energy firm Talisman.

But the project level of such payments will require far more disclosure in most cases.

"This matters because it allows local communities to identify the exact nature of revenue streams. Where this might matter is Zambia where a small number of companies is involved in lots of different concessions," said Alex Cobham, the chief policy adviser for British charity Christian Aid.

"If the project in your area is doing well then you have something where you can hold your government to account and if the project is doing badly or at least appears not to be making a great return you can ask questions about whether that is a true reflection of what's happening," he said.

But Cobham said that even when this is the case, tracing where funds may have gone after being collected by corrupt governments remains shrouded in a tax haven haze and on this front, critics complain little of substance has been done.

SEC BATTLEGROUND

Lobbies from both sides are pushing the SEC to have the legislation either de-fanged or given a serious bite.

"We do feel that it will place U.S. listed companies at a competitive disadvantage. We feel like that because it requires project-level payment disclosures," said Misty McGowen, head of Federal Relations at the American Petroleum Institute (API), a lobby group that represents over 400 oil and gas companies.

"When U.S.-listed companies are competing for global energy resources, non-U.S. listed companies will have public access to confidential proprietary information that gives them a competitive advantage," she told Reuters.

The API is also concerned about the fact that it does not seek participation or input from host governments. In its submission to the SEC, it asked that project-by-project disclosure be dropped and that requirements be limited to the country level. It also asked for "an exemption that allows companies not to disclose payments for countries that prohibit such disclosure" and one "for situations where disclosure by country in effect provides disclosure of commercially sensitive information for a single project or field."

But there is also investor support for the initiative.

In a November 15 submission to the SEC, Calvert Investments and the Social Investment Forum said "resource-producing operating environments pose regulatory, taxation, political, and reputational risks that current reporting required of resource extraction issuers does not address adequately."

Calvert said in its submission that the extractive industry provisions in Dodd-Frank were vital tools in the assessment of equity valuations of companies in the industry.

"The calculations and assumptions made in this process, especially those regarding a particular project's exposure to political and other transparency-related risks, would be enhanced greatly with the specific data provided by (the legislation) as it is written," it said.

The next battles may come in the European Union and Britain as pressure comes for them to adopt similar rules.

And as the API notes, conflict also looms where the SEC rules for disclosure rub up against country-specific ones that don't allow them, for whatever reason.

But in such cases, American law often comes on top.

"It's not uncommon for U.S. law to run afoul of foreign law. But the companies tend to comply with U.S. law because we actually enforce our law," sais Heather Lowe, director of government affairs at Global Financial Integrity.

(Editing Claudia Parsons and Jim Impoco)