Author Archive

Is access to justice for poor communities really so risky for British business interests?

April 8, 2014

justiceimagesIn 2011 and 2012 the UK Government submitted official briefings to the US Supreme Court in relation to two high profile legal cases alleging corporate involvement in grave human rights abuses in the Niger Delta and Papua New Guinea.

These briefings questioned the right of the affected communities to use the US Courts to bring cases against Shell and Rio Tinto respectively. On 7 April the Guardian reported on the backstory to this decision, including the links between Shell and Rio Tinto and the Foreign Office’s official intervention in relation to these US Court cases.

The article is based on documents drawn from the CORE corporate responsibility coalition’s freedom of information requests. http://www.amnesty.org.uk/sites/default/files/fs50487115_croser_kiobel_-_full_documents_following_ico_decision.pdf

They raise key questions about how and why the Government chose to prioritize what it saw as business interests in the Kiobel v Royal Dutch Petroleum & Shell case.  (more…)

Beyond Transparency: Enhanced EITI standard set to raise the bar

May 24, 2013

2013 marks ten years of the Extractive Industry Transparency Initiative (EITI).  At the sixth conference in Sydney from 23th to 24th May a revised standard was agreed and launched. The key questions are will the revisions to the Standard keep it sufficiently fresh and relevant and how to make the jump from transparency of payment data to accountability?

CAFOD has been involved from the early development of the EITI multi-stakeholder initiative.  The newly revised standard does show significant improvements, drawing on the experience of EITI implementing countries over the last decade.  The requirement for EITI reports to include disaggregated data broken down by each company for instance is welcome and long overdue. This will end the situation which Timor-Leste experienced where some companies already reporting on a disaggregated basis under EITI Nigeria wasted a long time arguing against a similar level of disclosure for Timor-Leste’s reports. (more…)

Publish What You Pay celebrates as Europe takes the lead on transparency

April 10, 2013

Today activists from more than fifty countries will be celebrating a deal agreed in Brussels last night. Excited emails popping up in my inbox from countries like Timor, Australia, Ghana and the US show that this is by no means just a European affair.

Yesterday evening following a series of protracted negotiations, the European Council and the European Parliament reached a deal on changes to the Accounting and Transparency directives which will require oil, gas, mining and forestry companies listed on European stock exchanges (and the very largest non-listed European extractive companies) to publish what they pay to governments.

Timorese villagers discuss income from natural gas industry

Readers of previous CAFOD blogs will know that some extractive companies were lobbying to create exemptions within the law and set a ridiculously high reporting threshold which would have meant that payments below a million Euros remained secret. There has also been massive resistance by industry groups against project-level reporting, despite the fact that the United States introduced this level of detail in its transparency requirements for extractive companies under 2010 Dodd-Frank Act.

But the arguments of those promoting transparency-lite haven’t stood up to close scrutiny. In fact a robust approach from the European Parliament and growing recognition by EU Member State governments that this opportunity was simply too important to waste means that the final deal is worth the wait.

Project level reporting will be a key part of the transparency reforms as well as country level reporting. The threshold for triggering payment transparency is going to be 100 000 Euros – a much more relevant figure for citizens in some of the poorest countries in the world such as the Democratic Republic of Congo than the million Euros business had proposed.

What does it mean in practice? With last night’s deal, Europe has taken up the baton from the United States. These reporting requirements mean that local organisations in Cambodia, Angola, Zambia, Colombia, the Philippines and many other countries in the developing world will be able to access reliable information about extractive projects in their own countries. And let’s not forget how dangerous life can be for activists asking questions about mining deals in some of the more remote corners of the world. It means that officials responsible for negotiating key natural resource contracts will know that information on how much multinational companies actually pay is going to end up in the public domain. This is a crucial step in making sure that income from natural resources is used to support lasting development not conflict or corruption.

Explaining what had happened last night to two friends who are not part of the Publish What You Pay coalition and who work in completely different fields, their response was slightly underwhelmed. Surely this was common sense – why shouldn’t citizens of resource-rich countries know who is paying what for their natural resources?

It may have taken ten years but the agreement in Brussels last night showed that European MEPs and EU Member States have recognised that this is indeed common sense.

As the momentum grows for transparent ways of working which mean that businesses and governments are accountable to citizens, it’s over to you G8 – show us how you will build on this valuable work.

Watching me, watching you: what Europe can make of the US rules on extractive industry reporting

August 30, 2012

In July 2010 the huge Dodd-Frank Consumer and Protection Act became law in the US. On Wednesday 22 August 2012 the Securities and Exchange Commission finally voted to adopt the rules for implementing Section 1504 of the Act.

Amazingly it has taken two years for the rules to come out on how Section 1504 – which requires country-by-country and project-by-project reporting by extractive companies – should be implemented, not least because of hefty industry lobbying stateside.  

In the meantime however the European Union has been busy developing its own proposals for similar reporting requirements for oil, gas and mining companies listed on European stock exchanges and very large private extractive companies based in the EU.

Not surprisingly there have been quite a few glances across the pond to see what was happening with the Dodd-Frank provisions.  Nor has the traffic been only one-way. (more…)

Does a million euros matter? Open the books vs. corporate lobbyists

February 16, 2012

If you are a campesino in Peru or an artisinal miner in the Democratic Republic of Congo, payments to your government of ‘a few’ thousand dollars really matter.  If this money goes astray, then citizens lose out permanently.  When the profits that your company makes are close to $40 billion in one year, then I suppose $1 million or even 1 million Euros might seem like small change. 

EU Ministers meet in Brussels next week to discuss vital proposals requiring oil, gas and mining companies to publish details of the payments they make for each country and project where they operate.  Representatives of big oil and mining companies have been arguing that they shouldn’t  have to report payments below 1 million Euros.  Setting the bar that high would gut the value of the hard-won proposals.

This week the Publish What You Pay coalition in the US highlighted how industry lobbying has already delayed rules to implement the 2010 Dodd-Frank law.  In the light of record profits for oil and gas companies,  EU Ministers need to ensure that their own proposals to open the books are meaningful for poor citizens in resource rich countries.  Let’s set the bar for reporting so that transparency means something for them.  Take CAFOD’s Open The books action today at:

http://www.cafod.org.uk/take-action/open-up-the-books

 

Is the UK really going to make it even harder for poor communities overseas to access justice?

February 2, 2012

This week in London peers in the House of Lords have been discussing a crucial question for the UK’s record on business and human rights.  

In the middle of hundreds of amendments to the huge Legal Aid and Punishment of Offenders Bill which is currently passing through Parliament, the peers reached amendments designed to make sure that overseas victims of abuses committed by UK-based companies will still be able to bring cases in the English courts.

These amendments were proposed by cross-bench peer Baroness Coussins. Conservative, Liberal Democrat and Labour peers all spoke in support of creating this exception which would apply to a small number of significant public interest cases. In response Lord McNally said the Government didn’t believe such an amendment was necessary but promised at least to look again at the issue.

Foreign victims do not of course have any access to Legal Aid so these claims already depend on ‘no win, no fee’ agreements with lawyers and claimants being able to get insurance to cover the costs and risks of such lengthy, complicated cases.

The Government is proposing to change this system so that lawyers’ success fees and the insurance premiums would be paid out of the damages awarded to the victim instead of being paid by the losing company. In practice this would make bringing a court case financially impossible for many victims from developing countries.

Two points raised by the Lords this week – which the Ministry of Justice has yet to answer adequately – show why an exemption is urgently needed.  The costs in these kinds of cases are often much higher than the damages awarded.  This can’t just be dismissed as ‘greedy lawyers’.  First, European legislation means damages are now awarded at the level of the home country whereas the costs reflect the reality of bringing an international legal case in the English courts.  Second, the deliberate actions of companies facing such cases also drive up costs.

With the other Catholic development agencies, CAFOD has been following the UN discussions on business and human rights for many years now.  For me one of the most eye opening experiences of the UN Special Representative’s mandate was a particular roundtable discussion about bringing human rights abuse cases on behalf of foreign victims. A corporate lawyer candidly described all the tactics and obstacles that they would use on behalf of a multi-national client to stop such a case ever reaching court.  It was a good reminder that phrases like “access to remedy” can be pretty hollow if you don’t have both the means and several years’ time necessary to pursue a case.  That lawyer was just being honest and describing the current system in the UK.  The changes proposed in the Bill now going through parliament would mean the situation of South African asbestos miners or Peruvian campesinos would become even more difficult.  It won’t change the delaying tactics and procedural distractions at a company’s disposal though.

It is clear that access to justice is already heavily loaded against poor people from the developing world who try to bring cases against multi-national companies. For me the UN Principles on access to remedy are about recognising the obstacles and thinking about the implications of new laws, rather than making this situation worse.

The UK has committed its support for the UN Protect, Respect, Remedy Framework and is due to unveil its strategy for putting the Guiding Principles into practice in June this year. Many other countries will be looking to learn from our approach. The first test of how seriously the UK Government takes that commitment will be whether it amends the Legal Aid bill.

A breakthrough day for corporate reporting

October 26, 2011

At a press conference yesterday in Strasbourg, Commissioner Barnier unveiled proposed changes to EU transparency and accounting laws which will help local organisations in countries such as Zambia, the Democratic Republic of Congo, Cambodia and Peru. Under the proposals announced by the European Commission, companies listed on European stock exchanges which are active in the extractive or forestry industries and large non-listed EU companies from these sectors will be required to publish their payments to governments for each country where they operate.

This represents a significant breakthrough for the global Publish What You Pay campaign which CAFOD has been part for almost ten years. Many of the countries where our partner organisations work are rich in minerals, oil and natural gas but have been unable to convert these resources into development gains. In the DRC, Angola and Sudan mineral wealth has triggered or prolonged conflict.
(more…)

Business and human rights: will the Guiding Principles work?

June 29, 2011

Masked protestor marching to protect labour rights in Mexico

Businesses can have an impact on almost all human rights. That was one of the key findings of John Ruggie, the UN Special Representative to the Secretary General on Business and Human Rights. After more than six years’ work his mandate has now finished and his Guiding Principles for implementing the Protect, Respect and Remedy Framework have been adopted by the Human Rights Council. John Ruggie recognised in his analysis that rapid globalisation had created “governance gaps” – companies’ operations and economic and political influence reach across national borders but international human rights law has failed to keep pace.

CAFOD partner organisations and local communities in the countries where they work such as Mexico, Peru, Colombia, the Philippines and Democratic Republic of Congo would certainly agree with that analysis. What’s not yet clear to them is how the last six years of work at the UN will improve their lives and mean that abuses of human rights by companies become a thing of the past.

The Guiding Principles are not international legal obligations as John Ruggie is at pains to set out. We are now in the stage of implementation – their value and effectiveness on the ground depends on concrete actions from states and companies. (more…)

Country-by-country reporting moves to the next stage: timing and scope

March 18, 2011

Momentum towards mandatory disclosure by companies is growing. Writing to development agencies last week, George Osborne affirmed his support for mandatory reporting requirements for oil, gas and mining companies.

The UK Chancellor wrote:

You may have seen that I called on the G20 Finance Ministers to support new international transparency requirements for extractive companies. I strongly believe it is in everyone’s interests that mining companies and others operate to the highest standards. That way we can ensure some of the world’s poorest benefit from the wealth that lies in the ground beneath them. The UK will actively support the introduction of binding disclosure regulations on the extractive industry at the EU level.

This position is clear and very encouraging. The next questions are timing and scope.

(more…)

Breakthrough for Publish What You Pay

March 4, 2011

By Flickr user The EITI

As the 5th Extractive Industries Transparency Initiative Conference closes in Paris, it’s been a fascinating few days. Drive for change by reformers throughout the Middle East meant that discussions about how to ensure revenues from oil and mining companies are spent on development which benefits the people rather than going to a tiny elite were far from purely technical or theoretical.

The President of the Kyrgyz Republic, one of the few women speakers, questioned from the podium why it was that Libyan assets had successfully been frozen by the West but nothing had happened with regard to assets from her country siphoned abroad by previous regimes.

In fact the most valuable feature of this conference was that the 1000+ speakers and delegates were looking wider and thinking bigger than just EITI.

(more…)