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Thursday’s Daily News Digest

Scott Fahey

Financial Transparency: A National Security Imperative
Diplomatic Courier, June 23, 2010

Africa: The Next BRIC? Or Not Yet?
CIPE Development Blog, June 2 2010

Spain issues ultimatum to holders of Swiss accounts: report
AFP, June 23, 2010

Banker Who Blew Whistle on Secrecy Over Tax Cheats Seeks Pardon
Bloomberg Businessweek, June 24, 2010

Spain Fin Min Confirms Discovery Of Undeclared Swiss Accounts
Dow Jones, June 24, 2010

FBR unearths Rs500m tax evasion under transfer pricing
The News International (Pakistan), June 24, 2010

Liberia: A Flower Grows in West Africa
Liberian Observer, June 24, 2010

In The Public Interest: Why Do We Let Companies Abandon Ship on Taxes?
The Huffington Post, June 23, 2010

In The Public Interest: An Oil Industry Tax-Dollar Leak No Amount of “Top Kill” Can Stop
The Huffington Post, June 23, 2010

Fugitive walks free
Times Live, June 23, 2010

Kenya’s Anti-Money Laundering law take effect next week
Daily Nation (Kenya), June 24, 2010

FBI’s Anti-Corruption Unit to Expand
Main Justice, June 24, 2010

Botswana loses billions to corruption – Magistrate
Mmegi, June 24, 2010

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Monaco: Leopards don’t change their spots

John Christensen

Photograph by Herry Lawford

A French language economic magazine is reporting that the forthcoming OECD Global Forum peer review (see note below) evaluation of Monaco – due next month – will make unhappy reading for those who think this secrecy jurisdiction and others have mended their ways.

According to this article in Challenges, the Principality will be in the line of fire over the lack of depth of its tax information exchange treaty network, and its continued lack of transparency over beneficial ownership.

Initially included on the OECD’s 2009 ‘grey’ list of secrecy jurisdictions, Monaco rushed to sign up to the minimum of 12 tax information exchange agreements. Much to the OECD’s embarrassment, however, many of these agreements involved other secrecy jurisdictions, including Liechtenstein, San Marino and the Bahamas. To date Monaco has not signed agreements with either Italy or the UK, both of which states are reckoned to lose significant revenues to Monegasque tax evasion structures.

As much as anything else, the Global Forum’s evaluations are likely to reveal the shortcomings of the OECD listing process. Allowing secrecy jurisdictions to slip so easily from the grey to the white list suggests that the OECD has been somewhat naive about the sheer malevolence of the people they’re dealing with. Hopefully they will copy our example and require secrecy jurisdictions to demonstrate true willingness to cooperate by signing up to a minimum of 60 tax treaties with information exchange provisions, this being the threshold we used for the 2009 Financial Secrecy Index evaluation.

Note: Created by the Global Forum at its 2009 meeting in Mexico City, the peer review group is to ensure forum members comply with tax information and exchange agreements they sign (169 DTR I-5, 9/3/09) and whether signed agreements meet OECD standards. The group will also verify agreements are actually been implemented (11 DTR I-6, 1/20/10).

According to OECD, the review group includes senior tax officials, auditors, and lawyers from countries such as France, India, Japan, Singapore, Jersey, Brazil, Cayman Islands, South Africa, Switzerland, the United Kingdom, and the United States.

In its phase 1, to last three years, the group will examine each forum member’s legal and regulatory framework. Phase 2, also slated to begin early this year, is to evaluatemembers’ implementation of OECD tax standards.

The review reports will be published once they have been adopted by the Global Forum, whose next meeting will take place in Singapore at the end of September 2010.

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Wednesday’s Daily News Digest

Scott Fahey

Venezuela Prohibits Financial Transactions with Off-shore “Fiscal Paradises”
Venezuelanalysis.com, June 22, 2010

Hong Kong, Ireland Sign Pact To Avoid Double Taxation, Tax Evasion
Dow Jones, June 23, 2010

Swedish fashion group H&M evades taxes in Bangladesh: NGO
AFP, June 22, 2010

Nigeria: Jonathan Tasks Senate On Terrorism, Money Laundering Bills
Vanguard (Nigeria), June 23, 2010

Terwilliger to Propose New Rules for FCPA Disclosures
Main Justice, June 22, 2010

Argentina switches foreign ministers as opponents allege bribes to do business in Venezuela
The Canadian Press, June 22, 2010

Finnish defence firm in Egypt bribery case
Reuters, June 23, 2010

Aide to ex-PM admits receiving W300 million
The Korea Times, June 23, 2010

ANC slams Vavi for public comments
Independent Online (South Africa), June 22, 2010

What Is Corruption?
Liberian Observer, June 23, 2010

Raja Pervaiz Ashraf strikes back against corruption charges
Daily Times (Pakistan), June 23, 2010

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Illicit Financial Flows and the Recession

Richard Murphy

Around the world governments are announcing massive cuts in government spending. The consequence is inevitable: programs that politicians and civil servants once thought essential will be subject to new scrutiny. In many cases those programs will be scaled back, or even cut altogether. Nowhere is this more likely than amongst new programs, where there is no established pattern of spending and no certain proof of delivery of benefit as yet.

Many of the programs initiated over the last few years to tackle tax haven secrecy jurisdiction abuse fall into this last category. Will commitments to negotiating new information exchange agreements, to promoting new standards of governance, to implementing new anti-money laundering objectives and to (more importantly) actively monitoring their implementation on the ground survive this process of cuts? Likewise, will commitments to help developing countries develop the tax systems they need to raise their own revenues avoid cuts that are likely to impact on all development spending?

I do not know the answer to these questions, but I can guess the outcome. None of these programs have strong domestic political appeal, if I’m honest. They’re technical and essential, but are behind the scenes activity. It makes them exceptionally vulnerable to anyone wielding an axe over spending.

In that case the recession and its aftermath, and the chosen policy of cuts that so many governments (unnecessarily, in my opinion) are adopting to tackle it, could represent the biggest threat to progress in tackling illicit financial flows yet encountered.

It’s obvious to informed commentators that we cannot afford to stand back from tackling this issue now when it can contribute to much of  the revenue needed to solve the problem of government deficits that plague so many governments. But will those with short term zeal for short term cuts see it that way? If they do not then the current round of cuts in public spending sweeping across Europe and beyond will be the best gift to the abusers of tax havens / secrecy jurisdictions that they’ve had for a long time.

And that is very worrying indeed.

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Tuesday’s Daily News Digest

Scott Fahey

G20: Calling for Action
Transparency International, June 21, 2010

No Safe Havens for Dirty Money
Project Syndicate, June 21, 2010

€60 billion could return to Spain from Swiss banks
Citywire, June 22, 2010

IPL Gate: Probe set to spread to tax havens
The Economic Times (India), June 22, 2010

L’Oreal heiress to regularise taxes after media leak
Reuters, June 21, 2010

Italy: Police ‘uncover’ €22 bln in unpaid taxes
AKI, June 22, 2010

Liberia: Corruption Fight Heats Up – Sirleaf Proposes? Special Court?, Tougher Law
The Analyst (Liberia), June 22, 2010

A World Without Bribes?: Fewer Places to Hide
The World Today, July 2010

Corruption: Donors press concerns over embezzlement
Financial Times, June 22, 2010

Corruption row sparks fight in Nigerian parliament
Reuters Africa, June 22, 2010

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(Tax) Cat and (Corporate) Mouse

Karly Curcio

Creative corporate tax strategy is nothing new. As Congress passes laws and the tax code changes, so does the strategy of how firms choose to declare their revenues and losses and financial flows overall. Many times, in efforts to avoid intended taxes on their profits, corporations will create and use a foreign-based shell company in a tax haven or secrecy jurisdiction. Doing this allows the company to siphon funds away from the eyes of the U.S. government to a company that it fully or partially owns, in a destination like the Cayman Islands, and then later to filter the funds back in, or repatriate them, to the United States through various methods that avoid taxation.

A recent article by Lucy Komisar in The American Interest demonstrated such a method ofshifting funds offshore then back to the U.S. Komisar lays out the mechanics: ICE Holding Co. L.P. was established in the Caymans in 2008.  Soon after, The Clearing Corporation (TCC) – whose owners include Goldman Sachs, Citigroup, JPMorgan Chase, BofA, Merrill Lynch and Morgan Stanley – merged with this newly formed ICE Holding Co. L.P. in the Caymans. Effectively, these major trading firms became owners in an offshore clearinghouse.  Clearing houses provide clearing and settlement services for firms trading financial products, and when these institutions are located offshore, they are not subject to SEC reporting and monitoring and pay little or no taxes. Adding this offshore twist to the mix changes how and under what conditions financial flows and profits from those firms may be taxed in the United States. When these banks trade derivatives – which are contracts derived from the value of some other thing – between their offshore company and their domestic firm, through a series of loopholes, they effectively either 1) bring the money back into the U.S. minimally or completely untaxed or 2) continue to use the money offshore to increase profits.

Both the taxation and tax avoidance schemes are complex. Komisar elucidates the particular process of evasion through the trading of derivatives on a firm’s own account, or proprietary trading, using a scheme structured by a complex web of interrelated firms – Intercontinental Exchange Inc. (ICE), ICE US Holding Co. L.P., ICE US Holding Co. GP L.L.C., and ICE Trust U.S. I highlight here two points that are implicit in the article, but warrant explicit attention, because they underlie the entire problem with the complexities and crises caused by offshore entities run by U.S. banks. The only reason ICE US Holding Co. L.P. (which has merged with the clearing house formerly based in the U.S.) is in the Caymans is to avoid reporting requirements as well as U.S. corporate tax law, both of which undermine the U.S. and global financial system in different ways.

The only difference between a clearinghouse in the Caymans and one in the U.S. is that the one in the Caymans does not have to abide by U.S. laws. Many banks argue that if money is offshore, the United States and its private sector banking institutions are not responsible for what happens; that if illegal activity occurs and many shareholders are swindled that the burden is not on the firm or the U.S. government to fix it. That is simply not true. Just because once-domestic money owned by a U.S. firm has made its way to an offshore account that is still owned by the US firm, doesn’t mean that the U.S. economy or domestic firm will not feel the hit when volatility occurs in the risky derivatives markets. No large institution can walk away from its international obligations despite the legal technicalities.

So, while ICE Holding Co. L.P in the Caymans will stand to lose big if its financial bets don’t pan out, its purpose is only to be a shell/filter for funds from U.S. domestic and other global banks. With a related entity in the Caymans, U.S. banking firms can continue to trade derivatives in the form of Credit Default Swaps (CDS) with what is still essentially domestic money to be lost. The ICE shell will hurt the domestic banks in the end, despite the fact that the revenue is passed through the filter of being “foreign money” from the Caymans. If things go poorly again, domestic banks will absorb much of the impact of the financial shock…again, and the conditions for requiring a large scale government bailout could be the same as before.

Kosimar states that the ICE member banks account for about 90 percent of the CDS market. If the bulk of this clearing now takes place abroad, but has the ability to affect financial stability at home, there is clearly a problem. The major banks filtering funds through this offshore holding company are reaping the benefits of a more stable and more regulated environment in the U.S. (relatively, compared to most other countries in the world) while simultaneously depriving that structure of the revenue it needs to sustain and improve itself. Now, not only does the firm avoid corporate taxes and place a larger burden of tax collection on you, the private citizen, but it facilitates and perpetuates the toxic model of convoluted and opaque financial transactions, especially in trading high-risk instruments.

ICE US Holding L.P. is one tangible example of how the efforts to benefit a few corporate elite contribute many times over to creating vulnerabilities that destabilize the financial system as a whole. The persistent effort to avoid corporate taxes comes at the extremely high cost of stability to financial markets.

Had the proposed Merkley-Levin amendment banning proprietary trading passed in the U.S. Senate, it would have made illegal the process of trading with the firm’s own money into a holding company the firm already part owns. It would have closed a loophole that the banks literally capitalized on and which helped, in part, to facilitate the financial crises. Anything that perpetuates opacity in markets for high-risk financial instruments contributes to instability in the system as a whole. In reality though, closing the loophole is just another play in the game of (tax) cat and (corporate) mouse. The real fix is more transparency; if transparency increases, developing new methods to hide funds becomes more difficult.

Note 1: A separate piece of the argument is whether or not taxing the margin (posted collateral) is logical (and in the spirit of the pre-2008 section 956 of the U.S. tax code). Taxing the margin of the proprietary trade rather than the revenue of the trade creates a disincentive for larger margin posts which create more stability and accountability. As I understand it, before the 2008 US financial downturn, banks were not expected to be burden-sharing shareholders in the clearinghouses they were using. Now that they are –whether informally or in the future possibly legally –partners in the clearinghouse, their margin posts, newly, fall under section 956 and are taxable; so what were not considered taxable corporate funds became taxable after the banks restructured their chains of control to include what is considered proprietary trading to related offshore entities – in anticipation of new laws and regulations on banks. That being said, the law is the law, and because many of these partner financial entities are located in the Caymans, it allows any U.S. partner bank to circumvent the law. According to the Komisar article, income to the IRS would be considerable if taxes on the margins of those prop trades were to be collected. What is also clear is that a company incorporated in the Caymans does not have a single financial reporting requirement to the country in which it is incorporated. This underpins the crippling opacity and convoluted financial schemes that make oversight and/or regulation by the U.S. so difficult.

Note 2: Komisar in the American Interest article states that the Caymans offshore structure is legal and approved by the New York Federal Reserve Bank, the New York Banking Department, and also that the parent ICE Holding company reported the company in the Caymans to the Securities and Exchange Commission (SEC). Given the fact that separate agencies and boards within the US government know, in a decentralized manner, the structure of and relationship between these entities, it becomes glaringly clear that there is a great opportunity to better aggregate information. This is part of what proponents of banking regulatory reform have been advocating. Just because different U.S. agencies and officials okayed different aspects of the ICE ownership/partnership chain without knowing how they are all related, it does not mean that the government as a whole soundly endorses the structure. Many banks use this as an argument in defense of their actions – “We filed with the various segregated boards and agencies and haven’t been found to be doing anything illegal, what more do you want?”…Yet another play in (Tax) Cat and (Corporate) Mouse.

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UN Convention against Corruption Meeting Begins Today

Kelley Brescia

The United Nations Convention against Corruption (UNCAC) meeting in Dakar began today and runs through Wednesday, June 23, 2010. The UNCAC, which calls for the prevention and criminalization of corruption, was formed by the United Nations General Assembly in December 2005. To date, the convention is comprised of 145 member states and is the sole international judiciary body against corruption. International cooperation and asset recovery are other major principles of the UNCAC.

“The Convention goes beyond previous instruments of this kind, criminalizing not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence and the concealment and laundering of the proceeds of corruption,” according to the UNCAC website.

Leaders of the member states of the Economic Community of West African States (ECOWAS), as well as Mauritania, Morocco and Rwanda are expected to attend. Other invitees to this conference include: representatives of the commission of ECOWAS, the African Union, and other development organizations such as the United Nations Development Program and the African Development Bank.

Participants will obtain elaborate regional plans of action to better coordinate members’ efforts and strengthen partnerships with international institutions and ideas on how to implement these aims sub-regionally. Member states will also be able to participate in the review process adopted at the Doha conference.

The full (French) text of the press release is provided below:


Mise en œuvre de la Convention des Nations Unies contre la Corruption et le renforcement des capacités des Institutions nationales de lutte contre la corruption en Afrique de l’Ouest.
CNLCC/UNODC. Dakar, 20 juin 2010. La Présidence de la République du Sénégal et le Bureau pour l’Afrique de l’Ouest et du Centre de l’Office des Nations Unies contre la Drogue et le Crime (UNODC) organise du 21 au 23 juin 2010 à Hôtel Méridien un forum régional sur la mise en œuvre de la Convention des Nations Unies Contre la Corruption et le renforcement des capacités des Institutions nationales de lutte contre la corruption en Afrique de l’Ouest.

La corruption est identifiée comme un obstacle majeur à la promotion d’une gouvernance efficace, à la croissance économique et au développement national dans tout pays soit-il industriel ou en cours de développement.

A cet égard, les Etats parties, soucieux de lutter contre ce fléau, ont négocié et adopté la Convention des Nations Unies contre la Corruption, qui est entrée en vigueur en décembre 2005 et compte aujourd’hui 145 Etats parties. La Convention est le seul instrument international juridiquement contraignant contre la corruption et donne les armes efficaces aux Etats afin de prévenir et réprimer les actes de corruption.

Sont attendus à cette rencontre de Dakar, les premiers responsables des entités nationales de lutte contre la corruption des Etats membres de la CEDEAO, ainsi que la Mauritanie, le Maroc et le Rwanda, qui feront le suivi des résolutions adoptées lors de la Conférence des Etats parties à la Convention des Nations Unies contre la Corruption, qui s’est tenue à Doha en novembre 2009, et des recommandations adoptées lors de la réunion de Banjul de mars 2009.

Outre les Etats Membres de la CEDEAO et la Mauritanie, seront également invités à ce forum, les représentants de la Commission de la CEDEAO, de l’Union Africaine et des partenaires au développement, tels le Programme des Nations Unies pour le Développement, l’Union Européenne, la Banque Africaine de Développement, la Commission Economique des Nations Unies pour l’Afrique et la Banque Mondiale, ainsi que les représentants de la société civile.

A l’issue des travaux, les participants auront élaboré un plan d’action régional afin de mieux coordonner les efforts des Etats membres et de renforcer le partenariat avec les institutions internationales et sous régionales pour une mise en œuvre effective des Conventions des Nations Unies et de l’Union Africaine contre la Corruption et du Protocole de la CEDEAO. Les Etats parties à la Convention des Nations Unies seront également en mesure de participer aux travaux du mécanisme d’examen adopté lors de la Conférence de Doha.

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Monday’s Daily News Digest

Scott Fahey

Offshore centres to reform tax regimes
Financial Times, June 18, 2010

Turkey, Switzerland sign double taxation agreement
Today’s Zaman (Turkey), June 19, 2010

World Bank Urges Action Against Armenian ‘Shadow Economy’
Radio Free Europe/Radio Liberty, June 19, 2010

Our view: Cartel laundering: Mexico strikes financial blow
Sun-News Report, June 18, 2010

New law curbs money laundering
Gulf Times, June 19, 2010

South Korean whistleblower Kim Yong-chul breaks silence on Samsung
Christian Science Monitor, June 18, 2010

We won’t revisit $180m Halliburton bribery case — EFCC
Punch (Nigeria), June 21, 2010

Probe into top China official linked to J&J: report
AFP, June 19, 2010

Niger charges ex-president’s son with corruption
AFP, June 19, 2010

AP Exclusive: UN Africa corruption case buried
AP, June 19, 2010

Latest German business scam might involve Egyptians
Al-Masry Al-Youm, June 19, 2010

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Friday’s Daily News Digest

Scott Fahey

West Africa ‘under attack’ by gangs
Financial Times, June 17, 2010

After UBS Deal, Does Offshore Banking Have A Future?
Forbes, June 17, 2010

UBS deal generally welcomed
Swissinfo, June 18, 2010

Qatar praised for dirty money curbs
The Peninsula, June 18, 2010

Ghana: M&J Row Not Over; CHRAJ Heads to the Appeal Court
Accra Mail, June 16, 2010

Judge Urges Prosecution to Produce Evidence in FCPA Sting Case
Main Justice, June 18, 2010

Task Force to Take On Afghan Corruption
Wall Street Journal, June 18, 2010

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Raymond Baker Speaks at African Economic Outlook Briefing

Kelley Brescia

Money laundering and trade mispricing were some of the topics discussed by the panel discussion in a Capitol Hill briefing yesterday on the ninth African Economic Outlook (AEO).

The AEO is produced annually by the OECD Development Center, African Development Bank and United Nations Commission for Africa. Although the report provides a comprehensive analysis of economic, political and social developments, the main topic of discussion surrounded the illicit outflow of money from the continent via money-laundering, transfer pricing and tax evasion.

Global Financial Integrity Director Raymond Baker explained how the flow of illicit money out of Africa into developed countries, such as the United States, is impeding the economic progress of the continent.

Baker said the following:

“I’m all for more foreign aid, more FDI [foreign direct investment], more debt relief, more free trade for Africa, but there’s no question in my mind over the years that I’ve spent involved with the continent that the greatest thing we can do for Africa is to curtail our receipt of the illicit money that pours out of the continent, which damages resource mobilization, capital mobilization and hurts the collection of taxes in the continent. That’s the greatest thing we can do.”

Baker emphasized that there is a “two-way street between Africa and the Western world.” Citing GFI’s report on Africa, “Illicit Financial Flows from Africa: Hidden Resource for Development,” Baker said that Africa lost more than $US850 billion in illicit money between 1970 and 2008. And that is a conservative estimate. If the missing data resulting from holes in reports, smuggling and money transferred via trade mispricing is approximated, the estimate jumps to a loss of US$1.8 trillion over the 39 year period.

To put it further into perspective, Africa lost between 90 and 169 billion dollars in illicit money in 2008 alone, Baker added.  Additionally, the money is not just leaving Africa –  it is generally a permanent loss. Africa is the hardest hit by illicit financial flows, according to Baker.

Yes, illicit money is pouring out of Africa, but where is it going? Baker chastised the Western world for placing the blame elsewhere.

“We in our western countries like to point the finger overseas and suggest that it’s all due to that corruption that takes place in those countries over there…,” he said. “By far the greatest part of this, 60 to 65 percent, of the global total is commercial tax evasion in which multinationals are certainly participants.”

Baker did not simply paint a picture of doom. He made three recommendations to begin the process of stopping illicit money from leaving Africa: curtail money laundering, curtail abusive transfer pricing and require country-by-country reporting.

He acknowledged that the complexity of transfer pricing makes it a difficult problem to solve, and that although the AEO’s recommendations for legislative action fell short, the authors of the report could hardly be blamed. Instead of establishing more rules and regulations, Baker recommended that both parties should sign their name to the fact that the transaction is legitimate. Something as simple as the conscience would help curtail the flow of illicit money.

Either way, the message was that something needs to be done. “This massive transfer of illicit money out of the poorest countries into the richest countries is quite frankly an inexcusable reality here at the dawn of a new millennium,” Baker said.

Baker was joined on the panel by Jean-Philippe Stijns, Economist, OECD Development Center; Mthuli Ncube, Chief Economist, African Development Bank; and Witney Schneidman, Senior Adviser, Leon H. Sullivan Foundation. Congressman Donald M. Payne, Chairman of the House Foreign Affairs Subcommittee on Africa and Global Health was the event chairman.

Watch Mr. Baker’s full commentary below:

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Thursday’s Daily News Digest

Scott Fahey

Still Waiting for Those Names
The New York Times, June 16, 2010

Switzerland agrees to handing thousands of private bank details to US
Telegraph, June 17, 2010

Gibraltar ends tax-free offshore corporate status
Economic Times, June 16, 2010

Four charged in South Florida Ponzi scheme targeting Haitian Americans
Miami Herald, June 16, 2010

Ndola MP Mushili arrested for laundering K6 billion
Zambian Watchdog, June 17, 2010

Nigeria: Crimes Commission Grills Ex-Ministers, Others Over Siemens Bribery Scam
Leadership (Nigeria), June 16, 2010

Daimler Admits Bribing Ghana Military
Public Agenda, June 17, 2010

Everyday corruption costs Greece billions
RFI (France), June 17, 2010

US ratchets up pressure on Robert Mugabe’s mob
The Zimbabwe Mail, June 15, 2010

Special corruption court helping to ease caseload
Jamaica Observer, June 17, 2010

Nigeria: The Rumble in the House
Vanguard (Nigeria), June 17, 2010

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Another view on the economy of minerals

François Valérian

We need to rethink the traditional relationship between industrial resource extraction and local development, writes Transparency International’s François Valérian.

Photograph by Chance Agrella

Our traditional approach to the link between industrial exploitation of underground wealth and local development is fundamentally flawed. While there is ample recognition that industrial corporations have to help local development where they operate, the rationale behind such efforts is rarely articulated. Implicit rationale is most often to buy some kind of local peace through community investment. More theoretical and acceptable explanations make extensive use of the “sustainability” concept, but this concept is too broad to have a concrete efficacy, since it mainly refers to the duration of the industrial operation and could be used for the sole economic management of a non-renewable resource as well as for any long-lasting environmental impact. Another widely used concept is the one of “stakeholder”, one of the stakeholders of the mining operation being the local population, but even the concept of stakeholder is of poor use if we are not more precise on how we define the stake. Most definitions oppose the stake of a stakeholder to the share of shareholder, and therefore define the stakeholder in a negative manner, as a non-shareholder who has to somehow be taken care of. Generally speaking, all measures that refer to sustainable development or stakeholders’ interests are construed as corrective measures, external to the real transaction which is purely industrial and financial.

To the contrary, the economics of local development have to be fully reintroduced into the economics of industrial mining, so that a unified framework can be developed and used for all negotiation purposes. In most countries, with the notable exception of the US, the underground minerals belong to the state, and we have to start with this two-hundred year old French law concept to understand the issues at stake. Two major issues arise from this legal principle, which are the political compact between the state and the local population, and the economic agreement through which the state allows private interests to make economic use of that wealth.

The relationship between the local population and the underground wealth is problematic. One could argue that there should be no economic or legal relationship between them, since before successful exploration this wealth had often remained unknown to the population. This view is the classical view, which was also the colonial view, and we use here that term without the usual pejorative intent, simply to illustrate that the wealth could be used for the almost exclusive profit of its discoverer after some royalty payments to a central authority.

Social and environmental sciences have clearly established, though, the negative impacts that a mining exploitation could have on the local community. I will not come back to them; we all know that they range from water and soil pollution to HIV contamination through destruction of the traditional communities and families. Those impacts are commonly referred to as externalities, which have to be re-internalized in the economics of mining.

Exploitation of underground wealth goes with the exploitation of another wealth, which is formed by the local conditions of living, those conditions ranging from environment to health through social welfare. A ton of copper is only a ton of copper while it still lies underground. Once above earth, it becomes a ton of copper undergoing several chemical treatments and a share in the local population’s life. Hence a first conclusion, but also a question. Through the contract signed between the state and the mining company, the local population lends this share of its life to the mining company. But the question is how to evaluate this pound of flesh.

Let us stay on our first finding for a moment. We have identified an absent signatory to the mining contract, and we have also extended the company’s balance sheet to a new lender which is the local population, and new corporate assets which are some rights on the local population’s life. A number of conclusions derive from that and form as many elements for a negotiation framework.

First of all, we have a lender who does not sign the contract, which raises the issue of state legitimacy to represent the interests of the lending population. The more legitimate and accountable the state is, the more possible the inclusion of the local population can be, and we can immediately reverse the sentence. Doing mining business in a country, the government of which has poor legitimacy or accountability, is also ruling out from the very beginning any chances for inclusion of our absent lender.

Negotiating with an accountable government however is not enough, since the contract also has to be explicitly a lending contract in a particular form. Evaluation, conditions and interests of the loan have to be negotiated and stated. Evaluation is a difficult topic, since it has to assess numerous and long-lasting impacts. Only a few countries, unfortunately the more developed ones, require a comprehensive and detailed study on the environmental and social impacts of the exploitation prior to the contract grant. Such requirement is however crucial to long-term sustainability of local life, and should become regular practice in every mining country, with multilateral assistance for the study when needed. Local population has to be involved in the study, through appropriate political or civil society representation, and full results of the study have to be published. Any mining exploitation has to bring about empowerment of the local population, and should be used as a political opportunity to enhance representation of, and accountability to, this population.

Once the impact has been evaluated, conditions of the loan, ie mitigation of the impact has to be clearly defined. The mining contract has to make it clear that the mining grant is not a licence to do whatever it takes to bring up as much underground wealth as possible. Environmental protection, adequate closing conditions, security and safety, relationship with artisanal mining, as well as caps on annual production have to be defined, as well as the right balance between local and imported workforce.

Lastly, the interests of the loan have to be negotiated and included in the contract. Usually, payments to the state are of two different kinds. You find one-off payments, often called signing bonuses, which are a massive cash injection into the state’s budget. Benefit to the general population, and to the local population, is close to nil according to general experience. Signing bonuses are similar to sudden ingestion of an enormous amount of food. Very often, they fuel the diseases of the public body and end up wasted in individual offshore accounts. Very different are the long-term, regular contributions, ie royalties, taxes, shares in production, which should be substantial and serve the interests of the local population.

You will find an opposing view to regular contributions being substantial. Some argue that low tax and royalty requirements attract investment and help the country successfully compete with other countries, thus enhancing global revenue. The mistake here is that mining is not a commodity industry, investment choices are made on technical parameters and also on governance considerations, those considerations including transparency and fight against corruption. Tax and royalty payments do not form the key driver for an investment choice, but are of crucial importance to the local population, provided that this population becomes its share of them.

We are now back to the issues that we had mentioned at the beginning of our intervention, namely the compact between state and local population, and the contract between the state and the mining company. As well as the local population has to be explicitly recognized as a lender to the company, the government has to serve the interests of the local population, and has to provide it with the interests of the loan. The contract has to provide for corporate expenses for local development, but those expenses should not be an excuse for the state to stay absent and not spend locally. To the contrary, a mining contract also has to provide for part of the revenue to go back to sound local development.

Are we close to including the local population in the negotiation of all mining contracts? No. Is it a reason to leave the contracts behind the closed doors of negotiating rooms in a remote capital city? No. The local population, and the civil society as a whole, is entitled to know what financial amounts flow from the mining industry to the state. This is the much needed first step, a first step that we in Transparency International strongly encourage through our Promoting Revenue Transparency Project. Only transparent and accountable corporations, only transparent and accountable governments, will be in a position to invite the local population to the negotiation table.

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