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Major shareholders in Lundin Petroleum on 5 May 2017

In 2016, the Norwegian oil company Statoil, acquired a substantial amount of shares and today it owns 20,1% of the company. Another large Norwegian shareholder is the oil fund (Norges pensionsfond utland Oljefondet), which is holding 0.9 percent of the shares. This gives the Norwegian State a unique opportunity to act as responsible investor.

Swedish financial institutions have been loyal investors in Lundin since the early days of its activities in Sudan. A review by Swedwatch of 20 years of annual reports (from the 1996 Sands Petroleum report to the 2016 Lundin Petroleum report) shows that all Swedish state owned pension funds, the AP-funds (AP1, AP2, AP3, AP4), have been among the largest shareholders in Lundin Petroleum at some point during the last ten years, with the exception of AP7 .

All of the main private Swedish financial institutions such as Swedbank, Nordea, SEB, Handelsbanken, Skandia, Folksam, Länsförsäkringar have at some time been among the largest shareholders. AP1 sold are its shares in 2015. Folksam and AMF Pension are the only major investors that are known to have divested from Lundin because of its human rights record. They divested in 2012.

Lundin Petroleum figures in major index funds, including several funds that are screened for human rights criteria. A majority of investors in Lundin Petroleum claim to respect human rights and to have an engagement and/or exclusion policy for companies with a controversial human rights record.

 

Shareholder responsibilities

The right to a remedy is a core tenet of the international human rights system, and the need for victims to have access to an effective remedy is recognized as a crucial component of the responsibilities of businesses. The UNGP oblige businesses to assess if they contribute to adverse impact, to address past adverse impact, and to account for their findings and response. Shareholders in a company are directly linked to adverse human rights impacts of operations of a company through their business relationship (UNGP 13). It therefore matters to shareholders how investee companies handle allegations of adverse human rights impacts. It is a UNGP requirement that shareholders assess if and to what extent investee companies have contributed to human rights violations and responded properly, and their findings and conclusions must also be publicly communicated. This requirement cannot be substituted by a decision by a state to investigate an alleged offender of specific crimes. In the Lundin case, shareholders that are waiting for the outcome of the criminal investigation and take no action by themselves, are failing their human rights duties.

It is the responsibility of investor to engage with investees and use their leverage in order to prevent, mitigate, and address adverse impacts. If the investor lacks sufficient leverage and is unable to increase it and end the adverse impact, the investor should consider ending the relationship. Here the severity of the adverse human rights impact must also be considered: the more severe the abuse, the more quickly the enterprise will need to see change before it takes a decision on whether it should end the relationship. (UNGP 19). The allegations against Lundin Petroleum are among the severest in recent history. Many investors have engaged with the company about its legacy, but without tangible results.

On 12 June 2017, the Office of the High Commissioner on Human Rights published an opinion suggesting that unsuccessful engagement can create a duty to contribute to remedy.  `In practice, there is a continuum between ‘contributing to’ and having a ‘direct link’ to an adverse human rights impact: a bank’s involvement with an impact may shift over time, depending on its own actions and omissions. For example, if bank identifies or is made aware of an ongoing human rights issue that is directly linked to its operations, products or services through a client relationship, yet over time fails to take reasonable steps to seek to prevent or mitigate the impact—such as bringing up the issue with the client’s leadership or board, persuading other banks to join in raising the issue with the client, making further financing contingent upon correcting the situation, etc.—it could eventually be seen to be facilitating the continuance of the situation and thus be in a situation of ‘contributing.’

The members of the Lundin Consortium were and are demonstrably non-compliant with the UNGP. At a minimum, their shareholders have a responsibility to prevent them from continuing to disregard essential UNGP requirements. Because of the maturity and severity of the case, compliance will have to be prompt, full, and publicly accounted for. Unless they become visibly and fully compliant without delay, or shareholders convincingly and publicly refute all allegations against them straight away, shareholders themselves are flouting their UNGP obligations.

 

Responsibility for past abuses

Some shareholders argue that remedy is no concern for them if the crimes were committed before they bought shares. Other shareholders argue that remedy is no concern for them because the stake in Block 5A was sold a long time ago and Lundin Petroleum today is no longer involved in human rights abuses. These arguments are understandable, but invalid nevertheless. The fact that Lundin Petroleum sold its assets in Sudan does not relieve it from responsibility for what it did in Sudan. There is overwhelming evidence that Lundin’s operations have had adverse human rights impacts and there is no doubt that victims have been denied their right to remedy.

From a legal perspective, the term adverse human rights impact refers not to the action which results in an adverse human rights impact, but to the impact itself: the removal or reduction of the ability of an individual to enjoy his or her human rights (OHCHR Interpretive Guide, page 15). The right to remedy is a human right that is created by a violation that only ends with the provision of remedy or the demise of the victim. For as long as individuals have a reduced ability to enjoy their human rights the adverse impacts remain, and so does the responsibility to remedy them. The relegatation of today’s injustice to the past perpetuates the denial of a human right. By ignoring the right to remedy today, Lundin Petroleum, Petronas and OMV are disrespecting human rights today.

The fact that Lundin Petroleum and OMV sold their Sudanese assets in 2003 does not absolve them from responsibility for their actions when they were working in Sudan. The Swedish Public Prosecutor has stated that there are legal reasons to investigate persons, but the choice of the suspects suggests that the case is equally about the company itself. For five consecutive years, the activities of the members of the Lundin Consortium were directly linked to war crimes and crimes against humanity. They are morally and legally responsible for their past actions and omissions, whether or not they have sold the asset.

A significant part of Lundin Petroleum’s value today is built on the acquisition of Norwegian assets with its Sudanese profits, as reported in the company’s 3Q 2003 report. Consequently, Lundin’s current shareholders and business partners’ are seen to be benefitting from abuses. Benefitting from war crimes is always morally intolerable, even post hoc and indirectly, and even more so if victims continue to be denied their right to effective remedy.

 

What about Lundin’s high ethical ratings?

Considering the exceptionally severe allegations that Lundin Petroleum is facing and the evidence that the company still does not respect human rights today, it comes as a surprise that it receives very high Environmental, Social and Governance (ESG) ratings by companies like Fitch, MSCI, FTSE Russell, RepRisk, Robecosam, Sustainalitics, and Vigeo Eiris. These ratings may create a false impression, distracting and misguiding investors. Several rating companies accurately describe facts about the criminal investigation, but do not give it much weight in the rating. None of these rating companies factor in whether the company’s response to the ‘controversy’ is in line ith its human rights obligations. This is deliberate. Whether or not a company is respecting human rights carries little weight in prevailing ESG rating methodologies. Rating agencies do not assess environmental and social impacts of companies. Rather, they assess the risk to investors to lose money because of ESG issues. Explaining Lundin´s AA rating in a letter to PAX in August 2017, MSCI wrote `While our methodology oversight committees do occasionally permit adjustments to the model to place higher weight on a particular issue when there is a serious controversy, this happens only when we believe the controversy is or is likely to become highly financially material to the firm in the future. In Lundin’s case, while the allegations are serious and we have documented our assessment as such, we believe it unlikely that they will have significant long term negative financial impact on the firm.` In other words, it does not really matter for your ESG ratings what you do to people as long as it does not cost money.

The fact that Lundin´s Chair and CEO are both personally under criminal investigation creates a conflict of interest; a fundamental governance issue that seems to be missing as well from ESG assessments. Because of it, the company´s only goal seems to be to keep its Chair and CEO out of prison. The company seems to be flouting the duty to know, show and assess its human rights impacts to maximize the Chair and CEO´s chances in court. In practice this means that the company is leaving tens of thousands of people in the cold whose lives have been destroyed.

Lundin Petroleum is systematically confusing the criminal investigation into war crimes with its human rights impacts. These are not identical. The Swedish Public Prosecutor is gathering evidence about complicity in war crimes of two individuals. He is not at all assessing the company’s human rights impacts. That is the duty of the company itself. If the company does not do its duty then, due to the extreme severity of the case, it becomes an obligation of its investors. The confusion of criminal liability with corporate responsibility, and what this means for the assessment of the company’s human rights policy and the role of investors, seems to be overlooked by some of the leading rating companies.

About the high ratings themselves, it is surprising to see that the available evidence about complicity in war crimes and the company’s disappointing response carries only marginal weight in ESG ratings. The UN OHCHR states that it is a ‘… universal baseline responsibility that all companies have to respect human rights …’ and that nothing can ‘ … be used to offset or compensate for a failure to meet this responsibility.’ In existing rating systems a company’s biodiversity policy can offset gross and systematic human rights violations. This is confusing and at odds with the concept of human rights.

Many investors have no time to digest the data underlying ESG ratings, which is why these are made in the first place. In most cases, this will work well enough, but in unusual and extreme cases it can be problematic and investors may later regret it. The use of a simplified rating system for complicated, high-risk issues can have embarrassing outcomes. Clients may at some time find out that they are directly linked with totally unacceptable practices through their investments, having no other excuse than to point at a positive rating. This would eventually also be embarrassing for the rating company itself.

The rating industry may consider to substantially raise the profile of highly salient issues, adding a red alert flag to the rating and shelving positive ESG screening. The best option, however, would be to abstain from the overall rating of companies that are struggling with paramount issues that overshadow other ESG aspects.

 

Fuel for Conflict

Swedwatch and Fair Finance Guide Sweden are experts on the UN Guiding Principles. In April 2017, they published the report Fuel for Conflict – Investors and the Case of Lundin Petroleum in Sudan, in which they argue why shareholders in Lundin Petroleum have failed their duties. These are their recommendations to them:

  1. Conduct proper human rights due diligence regarding their investments in Lundin, focusing on the consequences of the operations in southern Sudan between 1997 and 2003. They should publicly communicate the activities and results of this process, in accordance with the UNGPs principle of “know and show”.
  2. Act on the findings of this process and address all adverse impacts on human rights that have arisen as a result of Lundin operations in Sudan between 1997 and 2003, then use their leverage to encourage Lundin to act in accordance with the UNGPs and address the impacts, be it through remediation or other means.
  3. Demand transparency and cooperation from Lundin when assessing and addressing adverse human rights impacts connected to the company’s operations in Sudan, through either investor due diligence or an independent investigation.

All institutional investors so far have rejected the findings of the report, raising serious concerns about their understanding of their human right commitments.


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