NEW YORK (Dow Jones)--A little-noticed provision in the financial-overhaul legislation promises to expose new details of the flow of money between companies and resource-rich countries.
Oil, natural gas and mining companies listed on U.S. exchanges will for the first time need to publicly document payments made to foreign governments in annual reports to the Securities and Exchange Commission. Human rights groups say the information, likely available starting in 2012, will prove invaluable in fighting the corruption and mismanagement that plagues many governments that rely on oil and mineral wealth. Oil companies whose shares are widely traded are worried that they'll be put at a competitive disadvantage to less-transparent government-controlled companies that aren't listed on U.S. exchanges.
President Barack Obama signed the bill, which mostly deals with regulating financial markets, on Wednesday.
The law puts the force of the SEC behind a movement that had tried--mostly unsuccessfully--for nearly a decade to convince companies and governments to voluntarily open their books. U.S. law has prohibited companies from bribing foreign officials since the 1970s.
"For our members in resource-rich developing countries, this means they will be able to...make sure--to demand--this resource wealth is actually being used for health and education," said Radhika Sarin, international coordinator for Publish What You Pay, a coalition of advocacy groups in nearly 70 countries that has led the drive for transparency in the energy and mining industries.
Transparency activists say only three large resource companies currently provide country-by-country payments to local governments: Norway's Statoil ASA (STO, STL.OS); Talisman Energy Inc. (TLM, TLM.T), a Canadian oil and gas company; and Newmont Mining Corp. (NEM), one of the world's biggest gold miners. The new law will require disclosures from the nine oil companies that spend the most on exploration and production, according to IHS Herold, a consultancy. The list includes Exxon Mobil Corp. (XOM), the largest U.S. oil company, as well as foreign firms whose shares trade in the U.S., such as Royal Dutch Shell PLC (RDSA, RDSB, RDSA.LN, RDSB.LN) and PetroChina Co. (PTR, 0857.HK, 601857.SH).
Human rights and anti-corruption organizations say they need more detailed financial data to fight the "resource curse," where the vast majority of citizens of resource-rich countries see little benefit from the billions of dollars flowing into government coffers. Nigeria is an oft-cited example where 80% of the government budget comes from oil production but 84% of the population lives on less than $2 a day, according to the United Nations Development Programme.
Currently, human rights and anti-corruption groups must rely on a patchwork of production figures and project announcements, often published by the same authorities accused of mishandling funds.
The new law leaves out over one-third of the more than $400 billion spent on oil exploration and production annually, including many of the state-owned companies that own the majority of the world's reserves, according to figures provided by Barclays Capital.
Those firms that can continue to operate in the dark could begin to make investment decisions using once-proprietary spending information that must now be disclosed by U.S.-listed companies, said Misty McGowen, a director of federal relations at the American Petroleum Institute, a trade group for the U.S. oil and gas industry.
"Our industry has concerns that [the law] would allow competitors to basically have access to proprietary information that could be used in bidding for critical energy resources," McGowen said.
The API and other industry groups will have a chance to shape the new disclosure requirements during the SEC's rulemaking process. It's too early to say how much of the information sent to the SEC would be made public, said John Heine, a spokesman for the agency.
Breaking out payments by project and by country is also likely to add an expensive new layer of bureaucracy at energy and mining companies, said Mike Koehler, an assistant professor of business law at Butler University in Indianapolis whose research has focused on the Foreign Corrupt Practices Act, a law barring U.S. companies from bribing foreign officials.
When Congress was debating the Foreign Corrupt Practices Act in the 1970s, lawmakers rejected a similar disclosure plan to the one passed by Congress earlier this month as too burdensome on U.S. companies, Koehler said.
"We already have a law in place that seeks to address bribery and corruption concerns," he said. "It's akin to killing a fly with a bazooka, and in the process you're saddling these companies with huge new compliance costs."
Country-by-country financial disclosures are more labor-intensive for Newmont Mining, a longtime supporter of the transparency movement, said spokesman Omar Jabara. But other anti-corruption efforts the company undertakes are far more costly, he said.
"There's a significant amount of work that goes into ensuring we have the right checks and balances," Jabara said.
The new disclosure rules specifically target legitimate payments, putting the focus on how governments use the money, rather than the behavior of energy and mining companies, said Shelly Han, a policy advisor at the Commission on Security and Cooperation in Europe. The bipartisan congressional commission helped design a bill introduced by Sen. Ben Cardin (D., Md.) and Sen. Richard Lugar (R., Ind.) in the Senate last fall that provided the basis for the language added to the financial overhaul legislation.
"We're not saying these companies are corrupt," Han said. "There's no assumption that business deals are bad or wrong."
-By Brian Baskin, Dow Jones Newswires; 212-416-2453; firstname.lastname@example.org
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