TRANSPARENCY AND THE NATURAL RESOURCE CURSE: EXAMINING THE NEW EXTRATERRITORIAL INFORMATION FORCING RULES IN THE DODD-FRANK WALL STREET REFORM ACT OF 2010

摘要

This Article analyzes the Energy Security Through Transparency Act (ESTTA), which, was introduced in the U.S. Senate on September 23, 2009 and passed on July 15, 2010 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The legislation will amend the Securities Exchange Act of 1934 to impose new disclosure and reporting obligations on securities issuers that engage in natural resource extraction projects in foreign countries. These requirements are of particular interest to development and anti-corruption advocates because they represent a novel strategy - based oh extraterritorial information-forcing - to combat the "resource curse," which describes the paradoxical inverse relationship between natural resource abundance on the one hand and economic growth, good governance, and political stability on the other. Beginning with an introduction to the resource curse phenomenon, this Article discusses the ESTTA in light of its antecedents, notably the voluntary, multi-stakeholder Extractive Industries Transparency Initiative, Section 13 of the Securities Exchange Act of 1934, and the anti-bribery provisions of the Foreign Corrupt Practices Act. Informed by this background, the Article identifies two related types of limitations that, if left unaddressed over the long term, may prevent the statute from achieving all of its objectives. Written prior to final passage of the Dodd-Frank bill in the spring of 2010, the Article concludes with several proposals to improve the effectiveness of the ESTTA, as introduced. These suggestions remain relevant as the SEC works to implement the law and civil society groups begin to grapple with a new source of detailed information about the relationship between natural resource wealth, corruption, and development.