RECOMMENDATIONS As part of its overhaul of UK financial 6. The Financial Services Authority should regulation, the government should ensure launch a full investigation into the findings that the listings regime for the London of this report, specifically the relationship Stock Exchange and oversight of companies between Kazakhmys plc’s senior by the Financial Services Authority and its management and President Nazarbayev of successors are significantly tightened. Kazakhstan, in order to determine whether this could materially affect the company. FOR THE FINANCIAL SERVICES AUTHORITY FOR KAZAKHMYS PLC 7. The company should make public 1. Any company wishing to list on the London disclosures which fully address all the Stock Exchange should disclose the matters raised in this report, including: ultimate beneficial owners of its shares for the five years prior to the time of its listing. • the relationship between its senior management and President Nazarbayev, 2. Senior managers or board members • the issue of political donations to the of such a company should disclose ruling party of Kazakhstan, any relationships with government • the sale of an aircraft to the presidential officials which could materially affect the fleet of Kazakhstan, company, explaining the nature of these • the reasons for the appointment of Bolat relationships and their potential impact. Nazarbayev to the board of Kazakhmys in August 2004, 3. Any research carried out on companies • the reason why the company was sent by their sponsors before listing should be President Nazarbayev’s bill from the verified by a third party to check for errors Lanesborough Hotel in 2006. or omissions. 8. The company should increase to at least 4. Listed companies that operate in the 50% plus one share the percentage of oil, gas and mining sectors should be shares the company sells on the market, required to publicly disclose all the so that the majority of the company payments that they make to foreign is outside of the control of its senior governments, whether in cash or in kind, managers and the Kazakh government on a country-by-country basis. until the above matters are clarified by the company and the FSA. Alternatively, 5. The UK should discard the “comply or Vladimir Kim should step down as the explain” model of corporate governance executive chairman of Kazakhmys plc and instead should enforce compliance in and a new wholly independent chairman listed companies. should be appointed. Front cover: stock broker photograph REUTERS/Stringer Russia Coal miners in Kazakhstan REUTERS/Arko Datta Inside cover: Proggie/Creative Commons Back cover detail: Scott Barbour/Getty Images GLOBAL WITNESS | JULY 2010 | RISKY BUSINESS 1 EXECUTIVE SUMMARY RIskY BUSINEss Reuters THE FINANCIAL COLLAPSE The near-collapse of the global financial natural resource-rich countries where the HAS RAISED NEW QUESTIONS system has brought home to investors rule of law can be overridden by corrupt ABOUT CORPORATE RISK the urgent need to understand the true government officials. So investors in oil and picture of risks facing their investments. mining have to be sure that they have all The crisis has prompted deep thinking of the information they need in order to about whether the current regulations for properly assess these risks. They also need financial markets are rigorous enough to to be sure that the regulatory regime and ensure that investors have the information the regulators of securities markets are that they need to assess risk, and to strong enough to address the risk that oil protect the public interest in securities and mining companies may be subject to markets being efficient, orderly and fair. interference from corrupt foreign officials. Few sectors of the economy are as risky In recent years, mining companies from the as the oil and mining industries, which former Soviet Union, a region both rich in often make significant investments in natural resources and notorious for high 2 GLOBAL WITNESS | JULY 2010 | RISKY BUSINESS PRESIDENT NAZARBAYEV (LEFT) OPENS THE DAY’S TRADING AT THE LONDON StOCK EXCHANGE WHILE ON AN OFFICIAL VISIT TO THE UK IN 2006 Scott Barbour/Getty Images levels of corruption, have gained listings • Global Witness believes that Kazakhmys on the main market of the London Stock plc’s listing prospectus may not have Exchange. The first of these companies provided certain information that would was Kazakhmys plc, a copper mining have been necessary for an individual company operating predominantly in the to make a fully informed decision about Central Asian nation of Kazakhstan. investing in the company. As this report will explain, Kazakhmys plc’s listing Kazakhmys is a member of the prestigious prospectus omitted potentially key FTSE 100 share index, meaning that information about the biographies of institutional investors such as pension its senior managers and its beneficial funds which hold the savings of ordinary ownership. Global Witness has also citizens are exposed to its performance. discovered discrepancies in the reporting of its shareholding structure A company intending to list must issue a before the company’s incorporation in prospectus for potential investors. Listing the UK and subsequent listing (see p23). regulations state that this prospectus must provide information that is “necessary to • These gaps in the prospectus matter enable investors to make an informed because, as this report will also show, the assessment of the assets and liabilities, company faces allegations from numerous financial position, profits and losses and Kazakh sources, some of them former prospects of the issuer.”1 Since investors members of the country’s ruling elite, that rely on the prospectus to assess the risks senior executives of the company (who of investing in a company, it is crucial that are also its controlling shareholders) owe the information in this document is as their positions to the country’s autocratic comprehensive and impartial as possible. head of state, President Nursultan Nazarbayev (see Chapters 4-8). GLOBAL WITNESS | JULY 2010 | RISKY BUSINESS 3 • These allegations cannot be proven primarily in the interests of the ruling beyond reasonable doubt but have been family and its associates. Members of voiced by sources from various spheres Nazarbayev’s family are reportedly of Kazakh life – politics, civil society worth billions of dollars6 and hold senior and journalism. They need to be taken positions in state businesses.7 As recent seriously because they raise legitimate events in neighbouring Kyrgyzstan show, concerns that President Nazarbayev kleptocracies can lead to instability, may be able to unduly influence the disorder and ethnic violence, as citizens decisions taken by the company, remain poor while the elite get richer. should he choose, in a way that may be detrimental to other shareholders. They Against this background, it becomes all also imply a risk that, should Nazarbayev the more important to ascertain what ever be replaced by a political rival, due diligence was done on Kazakhmys the close association of Kazakhmys’ plc by regulators before the decision was senior executives with Nazarbayev made to allow the company to list. The himself could lead to punitive actions London Stock Exchange is regulated by by a successor government that would the Financial Services Authority (FSA). damage the interests of the company However, when Global Witness turned to and its shareholders. Global Witness has the FSA with a Freedom of Information also found evidence which appears to request on this subject, the request show a closer relationship between the was refused on the grounds that it was company and the government than has not in the public interest to reveal such been disclosed (see Chapter 10). information. But as this report will show, the public interest clearly requires greater The political risks of an investment in a transparency than the FSA has provided. Kazakh-based company should not be underestimated. Nazarbayev has been Global Witness also sent Kazakhmys plc a set president for the last 20 years and was of detailed questions about the allegations recently granted by his parliament the title detailed in this report. The company of “the leader of the nation”, which gives him declined to answer individual questions but immunity from prosecution2 despite the said: “As you can appreciate, the process fact that he was accused of receiving bribes in the 1990s from foreign oil companies. This scandal, dubbed Kazakhgate, led to an ongoing trial in the United States of an American businessman who is alleged to have paid US$78 million in bribes to two top Kazakh officials.3 As Global Witness detailed in its 2004 report, Time for Transparency, court filings indicate that one of these officials was President Nazarbayev himself.4 Little has changed in Kazakhstan since then to suggest that the risk of corruption has abated and the US State Department has continued to voice concerns over the dominance of Kazakhstan’s ruling elite.5 Indeed, Kazakhstan shows signs of being a ‘kleptocracy’ – a country run 4 GLOBAL WITNESS | JULY 2010 | RISKY BUSINESS the financial markets, these responses are simply not adequate. The Kazakhmys case flags wider issues that need to be addressed by securities market regulators. Kazakhmys plc is the first company from the former Soviet Union to list on London’s main market. The risk in such countries where the rule of law is weak is that companies will be subject to undue pressure from ruling elites seeking favours, payments or even influence over management, to the detriment of shareholders. Investors need to be confident that they have full information about the political risks facing companies that operate in such countries. They need to be sure that a company is not being unduly influenced Alastair Grant-Pool/Getty Images from behind the scenes, and that its financial relationships with governments NAZARBAYEV WITH undertaken to prepare the [company are not contributing to corruption.