Tom Fox recently wrote a post for the FCPA Blog about allegations that Shell made a £1.1 billion ($1.42 billion) payment for an oil field license in Nigeria, with half the money ending up in a company owned by a Nigerian government official.
Having initially denied any wrongdoing, incriminating emails leaked to the staff at advocacy group Global Witness prompted Shell to claim there was a commercial impasse that could only be breached by their dealing with the company concerned.
Maintaining its innocence, Shell stated that it had done nothing wrong and this was a matter for the Nigerian government over how it chose to apportion the license fee.
Whether these payments amount to corruption by a major oil company remains to be seen. What is clear is that this is precisely the sort of development that I have commented upon and predicted previously, when considering the SEC Rule, repealed by the U.S. Senate in February of this year.
The Extractive Industries Disclosure Rule — adopted in 2012 and finalized in 2016 — was intended to force those companies in the industry to disclose any payments over $100,000 made to foreign governments. The rule was set to go into effect in 2018.
My concerns about its repeal were simple. Energy companies might recommence the sort of under-the-table-payments that many in law enforcement had fought to prevent, and that we hoped had been substantially confined to a darker past. The Shell/Nigeria story seems a classic case in point and indicative of the type of situations we could be returning to with much greater frequency with the abandonment of the SEC rule.
Natural resources like oil belong to “the State,” in this instance the people of Nigeria. So why was license money allegedly “re-allocated” to a company owned by a Nigerian government official? These diversions of revenue are extremely damaging to developing nations. They hold back growth and impact directly upon the poorest of people who should be benefiting from oil exploration and the revenue it generates. The $700 million in question could have been used to build hospitals — part of an infrastructure that supports those unable to fend for themselves.
Any form of corruption blights a society. Those engaging in it not only let themselves, their corporations, and their nations down, but are hammering nails into the coffins of those who may die needlessly due to shortages of medication or food needed to sustain them and their families (not to mention other areas of failing public services and infrastructure).
This is not being melodramatic. The impact of corruption (especially Grand Corruption) cannot be overstated. The United Nations and other organizations dedicated to improving life for the global poor are struggling to convince governments of the damage being wreaked on countries criminally exploited by corrupt leaders and big business.
The decision to abandon the Extractive Industries Disclosure Rule is likely to fuel corruption. Without the rule, we are potentially opening up the floodgates for big business to return to the “good old days” when tax-deductible backhanders were an everyday occurrence, especially when doing business with developing nations.
Martin Kenney, pictured above, is Managing Partner of Martin Kenney & Co., Solicitors, a specialist investigative and asset recovery practice based in the BVI and focused on multi-jurisdictional fraud and grand corruption cases www.martinkenney.com |@MKSolicitors.