Out-Law News | 20 Apr 2004 | 12:00 am | 2 min. read
Earlier this year, the world's third-largest oil company sacked its chairman, Sir Philip Watts, and exploration director Walter van de Vijver, after admitting that it had overstated its oil and gas reserves by more than 20%. Yesterday, it became clear that the figure was more like 25% - and that Watts and van de Vijver had known of the problem for at least two years.
US law firm Davis Polk & Wardwell was instructed by Shell to investigate, and the Anglo-Dutch company decided to publicly publish its report.
The report reveals that booking reserves – which provide crucial market information in the oil industry – were audited by a single, part-time former employee who acquiesced in the company's attempts to hide its problems, apparently because he feared for his job.
On 28th May 2002, Sir Philip e-mailed van de Vijver, telling him to leave "no stone unturned" to achieve a 100% Reserves Replacement Ratio – an indication that it could replace oil reserves as quickly as oil was being sold.
On 2nd September 2002, van de Vijver submitted a memo to the Committee of Managing Directors, with a copy to finance director Judith Boynton, acknowledging the company's "dilemmas" and reasoning: "the market can only be 'fooled' if 1) credibility of the company is high, 2) medium and long-term portfolio refreshment is real and/or 3) positive trends can be shown on key indicators."
"Unfortunately," it continued, "we are struggling on all key criteria ('caught in the box')."
After further exchanges, on 9th November 2003, van de Vijver e-mailed Sir Philip:
"I am becoming sick and tired about lying about the extent of our reserves issues and the downward revisions that need to be done because of far too aggressive/optimistic bookings."
In an internal memo of 2nd December 2003, van de Vijver was advised on the reserves position.
The authors assumed that approximately 2.3 billion barrels of proved reserves were non-compliant, that this was "material" to the market, and that failure to disclose would be "a violation of US securities law and the multiple listing requirements."
Van de Vijver immediately e-mailed one of its authors: "This is absolute dynamite, not at all what I expected and needs to be destroyed," he wrote.
Because of prompt interdiction by internal counsel, the document was retained, according to the Davis Polk report.
Shell announced yesterday that Judith Boynton has "stepped aside" from her position as Group Chief Financial Officer, as it faced international media speculation on a ruined reputation, anticipated lawsuits from investors, and government investigations.
But the e-mail revelations provide a salutary reminder for other companies. Robyn McIlroy, an employment law specialist with Masons, the international law firm behind OUT-LAW.COM, said:
"Anything written in an e-mail can come back to haunt the writer – possibly becoming ammunition for legal action. The onus is on every organisation to make sure that its communications policy reminds workers – however senior – of protocols and the need to use appropriate language in all business e-mail communications, both internal and external."