The laws of contract and international commercial relations generally suppose two corporate entities doing business with each other, both seeking profits and answering to shareholders. This makes sense, unless one of the parties is not a corporate entity, but rather a government, answerable to citizens. Even as they conduct business, governments have duties, obligations and interests that go well beyond pure profit maximization. As such, the same secrecy afforded to contracting parties in commercial law is out of place in such contracts. Governments must be held accountable for all contracts they enter, be they for the provision of roads or the purchase of goods. And when the contracts concern non-renewable resources, the need for scrutiny is even more pressing.
One of the primary goals of this report is to promote a serious conversation among industry, governments (host and home), investors, banks and civil society organizations about disclosure and confidentiality in extractive industry contracts. The report articulates the points of resistance to contract disclosure by governments and companies, analyzes their validity from a law and policy perspective, and comes to conclusions about whether contracts can be made public legally. We seek to identify what information may legitimately and reasonably be kept confidential, and how the issue can be addressed more effectively by civil society institutions. We have relied on interviews with experts and analysts, as well as extensive documentary research and personal experience, but do not claim to base our results on statistically significant samples.
Peter Rosenblum & Susan Maples,
Contracts Confidential: Ending Secret Deals in the Extractive Industries,
Available at: https://scholarship.law.columbia.edu/human_rights_institute/62