Responsible Reporting Requirements Can Provide Rules of Engagement
By Brad Brooks-Rubin
While outright war involving a major power has broken out in Ukraine — there’s a parallel global battle underway. China, Russia, the US, and other nations are in fierce competition for access to the valuable minerals needed for new and critical technologies that will define the future of global economic power. And from Africa to Asia, we’re seeing shady brokers and dangerous foreign state proxies that often compete in a race to the bottom in terms of corruption, mass atrocities, and human rights violations.
When Deputy National Security Advisor Daleep Singh landed in Kinshasa recently to engage the Congolese government about access to minerals for companies interested in responsible investment, we would be wrong to view his visit as just another stop for a senior official.
For a country like the Democratic Republic of the Congo (DRC) that has experienced decades of horrific conflict linked to the exploitation of its natural resources, the engagement to promote US business interests comes amid a 21st century version of the colonial era “Scramble for Africa.” China, Russia, and others rely on state-owned enterprises (SOEs) or similar proxies in this shadowy and sometimes violent contest. The US engagement led by Mr. Singh thus takes place in a competitive context rife with predatory international actors, from foreign state proxies like the Kremlin-linked Wagner Group to highly connected deal brokers like China’s David Du Wei who was recently profiled in an investigative report by The Sentry.
The United States and other governments that don’t deploy such nefarious proxies must employ other kinds of tools that support a level — and more responsible — business environment, in the form of carrots (such as investment economic incentives) or sticks (like sanctions). Increasingly though, especially in the most challenging cases and environments, maintaining sustained implementation and enforcement of these tools is lacking, and companies interested in responsible business and the banks that can finance them are absent.
Now may be the time to dust off and enhance an instrument used only once, but which showed great promise: Responsible Business Reporting Requirements.
As the Obama Administration was easing sanctions on Myanmar in 2013, it created an innovative and unique tool (the “2013 Requirements”), requiring any U.S. company investing more than $500,000 in Myanmar to file a report detailing their investments and outlining the due diligence measures the company had taken with respect to specific substantive concerns: dealing with the junta, human rights, corruption, environmental concerns, etc. These reports formed the basis of an honest conversation the U.S. government sought to have with both the private sector and NGOs about how the evolving business environment in the country could be navigated.
The 2013 Requirements were lauded as a constructive approach for U.S. businesses working in a challenging environment. For example, General Electric elected to file a report because of its “commitment to transparency,” even though it did not think it satisfied the threshold for reporting. When was the last time a company chose to file a report?
As the Truman Center showed, not every company followed this path of transparency; some filed just a few sentences. But even these paltry submissions were useful in shining light on those companies that likely deserved more scrutiny. The 2013 Requirements were eliminated in 2016; as a result, the experiment was cut short.
The Obama, Trump, and Biden Administrations have wrestled with an array of complex challenges since the 2013 Requirements were introduced, from how to impose stricter restrictions and add pressure in countries of concern while averting humanitarian crises (e.g., Afghanistan pre- and post-Taliban takeover) to how to ease restrictions in the wake of positive change (e.g., Sudan post-ousting of Bashir and pre-October coup) to how to engage in challenging contexts where global adversaries have economic advantages but the United States may have political ones in the search for green economy minerals (e.g., DRC).
Yet without specific direction from the U.S. and other governments, companies must answer these questions for themselves. Increasingly, the Biden Administration has been doing more on this front, from ratcheting up the use of sanctions designations that identify bad actors to business advisories related to Myanmar and Cambodia.
But progress on responsible business will not come from one-way communication tools such as these because they do not allow for meaningful adaptation and adjustment. Real change will come from honest conversations and progressive engagement over time, with the need for companies to be able to say, “Difficult issues exist, and we have made mistakes, but here’s what those mistakes are and how we are trying to address them.” Even the ongoing discussion around standards for ESG reporting by companies will not achieve this.
Which is where the increased use of Responsible Business Reporting Requirements (“Business Requirements”) should come in.
Taking the model of the 2013 Requirements, the State Department should issue new Business Requirements for complex environments like the DRC, Sudan, Afghanistan, Venezuela, and others and mandate that companies with a certain threshold of business and/or activity in key sectors of concern file public due diligence reports on certain issues.
There need not be a general template for these Business Requirements; rather, they should be focused on the realities of the specific case, designed to elicit critical information about doing business that will benefit all stakeholders, including host governments, civil society, and local communities. In light of announced Biden Administration priorities, one would expect that reporting on corruption-related due diligence should be a part of each set, as would human rights, labor, human trafficking, and environmental concerns.
Ideally, a Business Advisory that is periodically updated would accompany each set of Business Requirements. The reporting would be evaluated against the details set out in the Advisory. Over time, the template should be adjusted to include new concerns and/or remove ones that may have become less urgent. These would most easily be done on a country basis, but they could also be issued on a sectoral basis.
Can another set of reports to the government really assist in changing the rules of this proxy battle to make irresponsible business responsible? Simply put, yes. In each case, the reports will allow a meaningful, honest, and transparent conversation among all stakeholders over time about the costs and benefits of doing business, about whether and how that business can be done responsibly, and what that itself even means over time. But productive engagement and development of rules for complex environments cannot come from one-way communication because, among other things, it does not allow for meaningful adaptation and adjustment. Even enhanced ESG reporting requirements from the SEC or new proposed due diligence rules from the European Commission that apply to some or all companies, while very positive steps in light of the generally insufficent and non-substantive state of most ESG reporting to date, will not do enough in these specific contexts because there will likely be simply too much information covering the entire planet rather than more focused coverage of particular places or issues.
Thus, new Business Requirements would not serve as a restriction or “stick” on companies, but rather, this type of reporting will make the effort to become a responsible actor easier and fairer, by providing a clear set of rules and engaging all concerned parties. These would not also displace, but instead build from and complement, specific forms of supply chain reporting, industry or issue-specific standards, but rather focus on the macro-level issues — and difficult choices of how to prioritize among these competing issues — that ultimately define whether or not business is “responsible.”
The contest for access to critical resources in countries like the DRC must shift from a chaotic and sometimes criminal proxy war, with the lowest financial costs for companies and highest human costs for the local populations, to a high road competition seeking the greatest level of responsibility, transparency, and stability. Increased use of Business Requirements is one way to begin to turn the tide.
Brad Brooks-Rubin is a Senior Advisor at The Sentry.