The US Securities and Exchange Commission (SEC) earlier this month adopted disclosure standards that apply to US-registered companies with overseas mining and petroleum operations.
The move was welcomed by anti-poverty and human rights campaigners who say transparency will help fight back-room deals and exploitation in developing countries with large mineral or hydrocarbon reserves.
Europe will now face pressure to replicate the US regulations in revising an old EU law, the 2004 Transparency Directive, to create what in effect would become a global standard for industries operating in conflict areas, emerging countries with weak rule of law and developing nations with newly discovered mineral reserves.
Clare Short, who chairs the Extractive Industries Transparency Initiative (EITI), recommends that the EU align its draft rules with the Americans “so that companies don’t have do one set of reports under the US rules, and another set of reporting under the EU rules.”
“As far as possible [the EU should] make the rules compatible with the US rules, just to make it lean and clear and not heavily bureaucratic and difficult,” Short, a former British MP and international development secretary, told EurActiv in a telephone interview.
MEPs on the European Parliament’s legal affairs committee are due to consider a recast of the Transparency Directive in mid-September. The revamped directive was unveiled by the European Commission in October 2011 to close loopholes and streamline reporting.
Denmark followed up during its rotating EU presidency in the first half of the year by encouraging adoption of the new directive.
More ‘loopholes’ emerge
But there are some key differences between the European proposals and the US rules, which stem from a sweeping package of financial and consumer reforms know as the 2010 Dodd-Frank Act.
ONE International, a poverty-fighting group with offices in Europe, Africa and the US, complains that the draft EU proposals would create a new loophole by exempting corporations from reporting their interests if a law in a country where they are operating bars such disclosures.
The exemption “could incentivise countries to develop repressive laws outlawing transparent reporting – the so-called tyrant’s charter,” says a recent statement by ONE, whose board includes the singer Bono and former US Secretary of State Condeleezza Rice.
The SEC, in contrast, turned aside industry associations’ efforts to include a similar exception in the US measures. The petroleum industry had argued that such rules could force American companies out of Angola, China and Qatar, important markets which have laws restricting financial disclosure.
Although Europe and the US are largely in sync on the transparency standards, there are other differences. Europe’s directive would cover forestry as well as mining and petroleum. Unlike the EU draft, the US requires companies to file project-by-project financial reports. The draft EU law requires more general country-by-country investment disclosures.
On both sides of the Atlantic, the disclosure rules have been controversial. The powerful American Petroleum Institute, representing the big oil companies, and the International Association of Oil and Gas Producers (OGP) in Europe contend that the rules would put them at an unfair advantage against unscrupulous companies or state-owned firms that are not registered in either the US or Europe.
The trade groups also fear that disclosing details of specific projects could expose them to unfair competition in bidding and contracting.
Industry groups had pressed lawmakers to model the regulations on the EITI’s decade-old standards, which oblige implementing companies to disclose their payments for mining and petroleum operations and governments to report what they receive. The goal was to cut back-room contract deals and shed light on an industry prone to political manipulation.
Today, 14 countries, 60 corporations and charities like Oxfam participate in the Oslo-based initiative. Some 22 nations are candidates, and one country - Madagascar - has been suspended. The European Commission is also a partner in EITI.
“In developing countries rich in oil, gas and mining, the discovery of these resources tends to lead to an increase in corruption and poverty and a proneness to conflict,” Short, the EITI chair, said. “That is just a tragedy because hundreds of millions of people could have their lives improved if there resources were better managed.”
“Transparency is part of the remedy just to get better accountably because companies tend to be quite secretive about what the contract is and sometimes politicians are secretive and the money’s not well spent,” she added.
Europe increasingly depends on raw materials from emerging economies. Nearly all the supply of rare earth metals used in electronics and industry are produced by China. According to the European Association of Mining Industries, Metal Ores and Industrial Minerals, more than 50% of major reserves or raw materials are located in countries with a per capita gross national income of $10 per day or less.
'Big step forward'
Charities and human rights groups have long campaigned for legally binding laws that would affect hundreds of companies, citing business deals involving rogue regimes and lucrative mining concessions used to finance wars in Angola, Sierra Leone, Congo and other countries.
They also complain that closed-door deals between politicians and corporations have kept petroleum-rich countries like Nigeria largely impoverished.
Eloise Todd, the Brussels director of ONE, called the SEC decision “a big step forward.”
“We urge the European Parliament and member states to back a strong EU extractive transparency law,” Todd said in a statement. “By doing so, Europe will show its commitment to eliminating extreme poverty by ensuring the vast potential of Africa’s natural resources is harnessed to improve the lives of some of the world’s poorest people.”