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ExxonMobil and Big Oil’s Fight Against Dodd-Frank

There are no shortage of Wall Street firms that want to strip some teeth from the Dodd-Frank financial reform act. But energy companies also have some incentive to parse out at least one key provision.

The item at issue, Section 1504 of Dodd-Frank, centers on transparency. Specifically it would, according to Bloomberg Businessweek, use SEC rules to force publicly traded energy/mining companies “to make timely, detailed disclosures of the tax and royalty payments they make to governments worldwide.” What is the specific arrangement agreed upon by, say, ExxonMobil and the government of Chad for the energy giant to pump oil from the resource-rich nation?

Businessweek notes how Chad, specifically, had much of its wealth pilfered by corrupt leadership. Proponents of Section 1504 hope that mandating greater transparency of these deals will keep the blame-less citizens of poor, resource-rich countries from having their country’s resources sold away to the highest bidder for the personal gain of their crooked rulers.

Now, Exxon and most other big energy companies say they aren’t against this concept in principle. As much as history has certainly helped them benefit from he actions of corrupt governments in the developing world, they have realized that transparency and “information sharing can improve governance,” according to Businessweek.

Their main issue seems simple: they already do this.

Large oil and mining companies already participate in a voluntary regime, the Extractive Industries Transparency Initiative. Executives at ExxonMobil, the world’s biggest oil company, have sat on the Initiative’s board.

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Reformers have been frustrated by the slow and incomplete nature of the disclosures required by EITI; Dodd-Frank is a chance to push through tougher rules. Lobbyists are now urging the SEC to delay action or to narrow the kinds of disclosures that would be required.
The American Petroleum Institute, the industry’s Washington arm, is leading the push, but all major oil and mining companies have joined in on their own. (Newmont Mining is the only major exception; it has expressed support for the 1504 rules.)

The question is whether or not this voluntary effort is enough.

Those in favor of Section 1504 say that the mandatory regulations go further and would better ensure that everything is reported and those living in poor, resource-rich nations are protected.

That is probably hard to argue with.

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Big Oil, however, argues that the rules would be overly onerous.

The companies argue that the proposed rules would be “excessively burdensome,” in the words of Patrick Mulva, ExxonMobil’s vice president and controller. Big Oil’s “greater concern,” as Mulva wrote in a letter to the commission, is that 1504 would have a “detrimental effect” on the “global competitiveness of U.S. companies.” The fear is that Chinese, Russian, Brazilian, and Indian oil and mining companies, lacking qualms and unburdened by Dodd-Frank rules, would exploit the financial disclosures made by their Western competitors to outbid them—and potentially persuade leaders of resource-rich countries in the developing world to stay away from U.S. companies altogether.

Like all things with the rolling implementation of Dodd-Frank, I’m sure that there will be more to come on this … slowly.

Perhaps most interestingly to me, however, the article also compares this provision to the Foreign Corrupt Practices Act, which was passed by Congress in 1977 to stamp out the rampant bribery of foreign government office that goes on between U.S. companies operating abroad.

A generation ago, Congress insisted when it passed the Foreign Corrupt Practices Act that U.S.-headquartered multinationals would be held to a special standard, forgoing bribery even where it was commonplace abroad, and would have to learn how to compete with unscrupulous Russian, Chinese, or French companies. Not only did American business survive and thrive after the law was passed, but forward-thinking American executives learned to use the law to fob off outstretched hands and avoid unsavory rents they wouldn’t have wished to pay in the first place.

That may be true.

But companies are now facing an increased enforcement of the FCPA. We just finished edited a story for our June issue about how companies can insure themselves against Justice Department FCPA investigations. There are a lot of nuanced, policy-language questions that come into play if a claim is triggered. It is some very arcane stuff, frankly.

But what is notable is seeing how the enforcement has increased. Here are two charts that tell the story.

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Cross-Border Risk Management for a Dynamic World

The following is a guest post by Dante Disparte and Daniel Wagner. Disparte is managing director of partner solutions with Clements Worldwide, based in Washington, DC. Wagner is chief executive officer of Country Risk Solutions, director of global strategy with the PRS Group, and author of the new book Managing Country Risk.

Among the many challenges facing risk managers in what has become the new normal is how to effectively manage cross-border risk, which is more important today than in recent memory. Whether we realize it or not, the rules of engagement for conducting international business have changed over the past three years — the risks associated with cross-border transactions are high and risk aversion is high, but the margin for error is low. This means that risk managers’ jobs have become more difficult.

No longer does a simple risk/reward arithmetic serve as the basis for making cross-border investment decisions — or managing the many risks facing existing international investments. Today’s dynamic landscape calls not only for a long-term orientation toward risk — sometimes decades after the investment is made — it also requires a qualitative understanding of short-term options should the worst occur.

It is only natural in this transformed landscape that international businesses would contemplate assuming cross-border risk with a greater degree of caution, but one of the things that has changed is that the new normal includes a paradigm shift. A combination of a decade of globalization, a decoupling in growth patterns between the developed and developing worlds, and the seemingly constant nature of political change implies a new risk profile — whether trading or investing in developed or emerging economies. Let us not forget that since 2008, much of the world’s cross-border risk originated – and continues to emanate from — Europe and North America.

The temptation among many international companies will be to trade and invest in developing countries as a result of the disparity in growth rates without, perhaps, fully considering the implications of doing so from a political risk perspective. The need to do so was always present, but the way many businesses traded or invested internationally before the crisis did not require the same degree of due diligence that is required today. Indeed, the rapidity with which political upheaval dominates the air waves has many risk managers assessing their firm’s readiness for the increasingly unpredictable and fragile markets to which they are exposed.

You’ve heard the story before — it all sounds good on paper. Country X is growing rapidly, it has a democratic government, demand for your product there is high, and the country or buyer appears to have the money to pay for it. But in an era when economic volatility is high, and when change occurs it tends to be dynamic and long-lasting, it is essential to consider what may happen five or 10 years from now — long after your long-term investment has been made, when the government changes and the country can no longer pay its bills. What tools, if any, does your company have to assess and manage such risks? Is protecting the P&L with reactive solutions sufficient any longer, and what mechanisms are in place to consider exposure to staff and contractors, as well as physical assets?

To the extent that international companies devote any resources at all to understanding cross-border trade and investment climates (and, in our experience, most do not), they tend to over-rely on externally generated country risk analyses, which are more often than not produced generically and are not entirely appropriate for specific transactions. This is perhaps the most common mistake risk managers make. They believe that because they may have information about the general political and economic profile of a country, that they have a true handle on the nature of the risks associated with doing business there. All too often, the rapid pace of change is making static country risk indicators an outdated and one-dimensional tool in a risk manager’s weapon arsenal.

Leading practitioners may employ a multi-faceted model and pay particular attention to early warning signs that can be gleamed from their intuition and local and external information sources. Gauging legal and regulatory risk, a country’s friendliness toward foreign trade and investment, and other companies’ experience there are full of common sense, yet less often explored. Too often, companies get caught in an “investment trap,” committing long-term resources to a country only to find that the bill of goods they were sold — or thought they understood — turned out to be something completely different. There are plenty of stories out there about companies whose investments turned into disaster because the regulatory environment changed, a legal issue arose, international sanctions affected their ability to operate, or they selected the wrong joint venture partner. After the investment has been made, it is often too late to pull out without incurring large losses and experiencing reputational risk once the story hits the press.

Another common issue is that the lines of communication between risk management personnel, decision makers and business development are often either bypassed, convoluted or just plain wrong. We have seen instances where:

  • Risk management is given only cursory participation in the transaction approval process.
  • Sales teams bypass risk management entirely, or ignore risk management’s recommendations, because they fear a transaction will be canceled as a result of unacceptably high levels of risk.
  • A CEO delivers a presentation to a board of directors that is false, but he believes it to be true, because the risk manager’s staff said it was.
  • A board of directors has no idea what questions they should be asking of corporate decision makers.
  •  A risk manager may have the right information, but it is based on a short-term assessment of the risks. The long-term view may be completely different. In the absence of knowing what questions to ask and having clear lines of communication, the right information may not be taken into consideration.

It may sound simplistic, but the easiest way to limit the possibility that unforeseen events will occur is to establish clear reporting lines and do your homework — really do your homework — and either hire one or more individuals in your company to focus full time on managing these risks, or hire an external firm to create a customized risk profile for each and every investment your company plans to make. The expense involved often pays for itself many times over when a problem is uncovered and avoided, yet many companies are happy to invest millions of dollars to make cross-border investments without doing their homework. The days when that will get the job done are long gone.

September Issue of Risk Management Now Online

Faithful readers: the June issue of Risk Management magazine is now online. The cover story focuses on the four risks facing energy companies today and how often-overlooked areas such as commodity markets and compliance pose serious threats. Other features explore the six errors in judgement people are prone to when appraising risk and Risk Management‘s 4th annual risk management and insurance education review.

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If you enjoy what you seen online, you can subscribe to the print edition to enjoy even more content.

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Guest Post: Global Protests and Business Travelers

Lately, it seems as if almost every week there is a protest of some kind at some point in the world. From hundreds demonstrating against nuclear power in Madrid to protests and travel disruptions in Delhi to the deadly anti-government coup in Cairo, there is almost no corner of the world that is immune from these mass scenes of chaos, anger and extreme violence.

These protests are particularly dangerous to unsuspecting business travelers from the United States, who find themselves caught in the middle of such unrest. Business travelers going overseas, particularly to developing nations where there may be anger and resentment toward Americans, need to be knowledgeable and prepared in advance of any trip.

As a security or risk manager, you need to arm your employees with vital information and urge them to be cautious at all times. Here are some tips that you can offer employees, wherever their jobs, projects or assignments may take them:

PLAN AHEAD; ANTICIPATE A PROTEST
Prior to departure, research current news about the destination location for controversial events such as a political race or impending decision on a high-profile court case. These events are often the springboard for a protest or riot, especially in developing nations undergoing a great deal of change.

For instance, recent events include a protest that led to travel disruptions in Delhi, India, with police firing tear gas on the crowd or a protest that also became violent in Manama, Bahrain. However, no area is off-limits. One recent example was a protest outside the Libyan Embassy in Ottawa, Canada, where two were injured. Almost any kind of protest can happen anywhere and turn violent and dangerous almost instantly.

The timing and location of public protests tend to be known in advance. If travelers do their homework prior to departure, they can avoid the area or neighborhood where the protest is happening. For instance, if the hotel they plan to stay in is located within a few blocks of the protest, they can cancel that reservation and opt to stay at a hotel further away from the event.  Also, if they have business meetings at restaurants or offices around the protest area, they should consider moving the meeting to another part of the city.

If a protest is being planned, travelers should understand the nature of the riot and the attitude toward Americans so they can assess the situation’s real danger. A teachers’ protest in Wisconsin is not the same as a riot in a Third World nation that is hostile to Americans. If travelers look through the U.S. Department of State’s website (www.state.gov), they can obtain more details on particular governments and regions of the world prior to their trips.

ADOPT A “LAY LOW” MENTALITY
If an unexpected riot erupts overseas, travelers need to go into stealth mode. They should find a safe haven in the area, such as a restaurant or hotel and remain as far away from the main entrance as possible.

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The main entrances are most likely to be hit by bombs, bullets, or other weapons if the situation turns violent. They need to take off glasses, hats or anything else that identifies them in any way. Even though they may have expensive phones or cameras with them, those items need to be either hidden or simply discarded. Photographs of riots could be confiscated and used against innocent bystanders.

Travelers should remain neutral and avoid sharing their opinion of the situation.

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If a rioter begins talking to them and seeks their opinion, they should simply say they are unfamiliar with the issue. They don’t want to appear indifferent or uncaring, as that may elicit a violent response against them from an already agitated rioter.

If possible, travelers should go back to their hotels and simply remain in their rooms as much as possible during a protest.

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They should contact their corporate travel assistance provider as soon as possible, to assist them in a safe removal from the situation.

STAY AWAY FROM PUBLIC TRANSPORTATION
If there is a protest, all forms of transportation—such as buses, trains, subways, and taxis—become potential attack targets and should be avoided. Even being in a rental car is dangerous. Also, traffic is likely to come to a halt and travelers could find themselves stuck in a terrible traffic jam. If they must travel, it should be done by foot.

Local airline service is often disrupted in these situations, and travelers may need to access other area airports in order to leave an impacted area. Their ultimate goal should be to leave the area where the protests are, even if it means going to a city where they weren’t planning to do business.

Bottom line: your employees’ safety and security in these kinds of explosive situations are more important than the purpose of a business trip.