力拓案尘埃落定 仍有疑问未解

【英文原文】

Rio Tinto China Employees Get Jail Terms
A Chinese court handed down a 10-year prison sentence to the principAl defendant in the closely watched Rio Tinto PLC trial here, a dramatic and closely watched case that abruptly swung from politically charged accusations of espionage to admissions of bribery over iron-ore contracts.

The Anglo-Australian mining company-which had once defended its four accused employees-swiftly fired them Monday, saying there was 'clear evidence' they took bribes. The company described the actions of the convicted employees as 'deplorable' and said they acted 'wholly outside our systems.'

'Receiving bribes is a clear violation of Chinese law and Rio Tinto's code of conduct,' said Sam Walsh, head of the iron-ore division.A Shanghai court issued its finding that Stern Hu, the Australian who spearheaded sales for Rio Tinto in China, was guilty of charges he accepted around $935,000 in bribes from steelmakers and stole commercial secrets that undermined China's steel industry, the world's largest. Last week Mr. Hu admitted he accepted bribes on two occasions from steelmakers.

Three of Mr. Hu's Rio Tinto colleagues received sentences ranging from seven to 14 years.

Stephen Smith, Australia's foreign minister, didn't challenge the verdict but called the sentences 'very harsh' following efforts by his government to quietly defuse charges against a citizen and one of his most important companies.

Mr. Smith played down the likelihood of a substantial impact on Australia-China relations, but said he was concerned at how charges of stealing commercial secrets were tried behind closed doors, saying, 'There are serious unanswered questions on which the international business community will want to pursue with China.'

China's aggressive prosecution of employees of one of the most profitable foreign companies operating on its soil marked a fresh turn in an ongoing, if sporadic, corruption battle that has until now ensnared mostly government officials and local tycoons. Yet, the Chinese court's decision not to disclose much about the information the executives were alleged to have stolen means the case has shed little new light on how authorities differentiate corporate fact-finding from espionage-a situation that is likely to further distress companies weighing risks in their China strategies.

Rio Tinto's quick response to the court's findings may set a precedent for multinational companies' response when employees get enmeshed in China's murky legal environment. The company said its own internal investigation turned up no problems in its China operations, and while it had no involvement in the court proceedings or access to its employees since their detentions, it sent a determined signal that it respects the validity of the verdict.

A Beijing-based attorney said a guilty verdict virtually requires a company to take action to display its acknowledgment that a local court has jurisdiction, particularly after such a public case. Doing anything else would expose it to risks that include shareholder lawsuits and lost government contracts.

The lengthy sentences against Mr. Hu and his three subordinates suggested the court was little moved by their admissions of some guilt and explanations. The three subordinates-Chinese nationals Wang Yong, Ge Minqiang and Liu Caikui-were sentenced to 14, eight and seven years, respectively.

Mr. Hu must pay fines of one million yuan, or $146,000, in addition to serving 10 years in prison, starting with his detention in July, 2009. Mr. Hu's three colleagues face a combined 6.7 million yuan in fines.

In the eight months that led up to the trial, and its 2½-day session last week, few details of the allegations were spelled out publicly. But on Monday, journalists previously barred from the court property were permitted to watch the final proceedings by closed-circuit television from a courtroom annex.

Judge Liu Xin spent most of the 35-minute proceeding reading bullet-point accusations of how the four steered iron-ore shipments to more than a dozen Chinese steelmakers in exchange for bribes valued in the hundreds of thousands of dollars each. One such payment from a steel tycoon was disguised as a home loan, according to the accusations.

In June, the judge said, as Rio Tinto and a Chinese steel-industry association were locked in a tense negotiation over iron-ore prices, Mr. Hu huddled with an executive of a major steelmaker at Beijing's five-star China World Hotel, where he learned in advance how the association intended to bid for the mineral at a coming round of talks.

The judge alleged a 'direct cause-and-effect relationship' between the actions of the Rio Tinto employees and extra charges of over one billion yuan to China's steel industry for iron ore last year.

'They used illegal means to obtain commercial secrets that put the Chinese steel industry in a powerless position,' he said.

The case could spur changes in how iron ore gets priced in China, an issue with potentially global repercussions. China, which produced around 40% of last year's global output of steel, imported $50.14 billion of the feedstock iron ore last year, but has been frustrated at how its demand has driven commodity charges up in recent years.

Today, the global iron-ore trade is dominated by three companies with multibillion-dollar businesses selling minerals in China. Rio Tinto sold $10.69 billion of ore and other minerals to China last year. The others are BHP Billiton Ltd. with $9.9 billion in China sales in the year ended June and Brazil's Vale SA, which reported $9.0 billion in China sales for 2009. The companies are deeply tied to China, each generating around 20% of global totals in the world's most populous nation.

The Rio Tinto employees' detention in July appeared to many as highly politicized, since it came at a time when Rio Tinto was rattling China in at least three ways. It was considering a $120 billion merger with rival BHP that China feared would create a behemoth able to dictate pricing of minerals key to its industries. Rio Tinto had also just backed out of a $19.5 billion deal to allow its largest shareholder, Aluminum Corp. of China, or Chinalco, to boost its stake.

And days earlier, talks to price iron ore for the year had collapsed over Rio Tinto's refusal to acquiesce to a Chinese manufacturing group's demands for a sizable price cut.

In recent weeks, such tensions have been nowhere in sight. Rio Tinto expressed a desire to move on. 'I want to look to the future,' Chief Executive Officer Tom Albanese told a conference in Beijing last week shortly before shaking hands with Premier Wen Jiabao.

In the time since the case broke, there has been little discussion of Rio Tinto and BHP merging. On the eve of the trial, Rio Tinto announced a $1.35 billion deal allowing Chinalco to directly share in the production of iron ore in Africa.

On Monday, the defendants said nothing and expressed little emotion as the verdicts and sentences were read. Mr. Hu, who was born in Tianjin, China, and is in his 50s with a head of gray hair, stood erect in a dark jacket with his hands at his sides.

The convicted executives have a right to appeal the verdicts in the next few days, but Chinese courts rarely overturn decisions.

Mr. Hu is likely to be remanded to a special facility reserved for foreigners in Shanghai's Qingpu Prison, located in a rural western part of the city. In a rare 2005 visit to the facility by The Wall Street Journal, the warden offered a visit to one cell, which housed eight prisoners on four bunk beds and was connected to a small washroom. Prisoners are required to spend much of their day sitting quietly.

Mr. Smith, the Australian foreign minister, expressed regret Canberra wasn't able to engage more fully behind the scenes with Beijing on the charges in recent months. 'That opportunity, too, was lost,' he said.

A Pengana Capital fund manager, Tim Schroeders, said the verdicts raise issues about employee conduct but won't have lasting ramifications for Rio Tinto's business. 'Arguably some of the mud may stick, although there has been no direct linkage to Rio Tinto,' he said.

【中文译文】

力拓案尘埃落定 仍有疑问未解
上海市第一中级人民法院对力拓(Rio Tinto)案主犯判处了10年有期徒刑，这桩跌宕起伏、倍受关注的案件从一开始颇具政治色彩的间谍罪指控变成了判定涉案人员基于铁矿石合约收取贿赂。

澳大利亚驻上海总领事孔陶杰在法院外接受记者采访而力拓这家曾捍卫四名被告的英澳矿企周一愤怒解雇这四名人员，称有“明确证据”显示他们接受了贿赂。力拓称这些员工的行为应该受到谴责，而且他们完全是在公司的体系之外从事了这些非法活动。

力拓公司铁矿石部门负责人沃尔什(Sam Walsh)说，收受贿赂显然违反中国的法律和力拓的行为准则。受理此案的上海法庭裁定力拓在中国的铁矿石销售主管、澳籍华人胡士泰(Stern Hu)从中国钢铁企业手中受贿93.5万美元，并窃取了有害中国钢铁企业的商业秘密。上周，胡士泰承认自己接受了两笔贿赂。目前中国钢铁企业规模已经雄居全球之冠。

胡士泰另外三名受到指控的中国同事分别被判处了7到14年有期徒刑。

澳大利亚外交部长斯蒂芬•史密斯(Stephen Smith)并未质疑此次判决，但表示量刑“十分严厉”。此前澳大利亚政府一直在暗中努力，试图撤销中方针对澳籍公民以及针对力拓这家澳洲最重要公司的指控。

史密斯对此案可能给中澳关系带来的影响进行了淡化处理，但他表示自己担心有关窃取商业机密罪的审理是如何在非公开情况下进行的。他说，仍有一些重要问题未能获得答案，国际商业社会将就此继续追问中方。

力拓的盈利能力在在华外企中位列前茅，中国给其雇员判以重刑的做法标志着国内的反腐斗争迎来了新的局面，眼下中国持续的反腐努力主要针对的是政府官员和本土商业大亨。不过，中国法院决定不过多披露力拓雇员窃取的秘密，这意味着本案未能进一步澄清政府如何区分企业的实情调查和间谍行为，这种情况有可能令那些正在评估在华策略风险的公司感到更加沮丧。

力拓对判决的快速反应有可能给那些有雇员在中国官司缠身的跨国公司创下先例。力拓说，公司内部自查并未发现在华业务有什么问题，同时公司没有参予法庭审判，自从员工被捕后也没有和他们进行过接触。力拓这么做是发出了一个明确的信号，即公司尊重此次判决的合法性。

一位驻北京的律师说，有罪判决需要公司采取行动表明自己承认这家地区法庭做出了司法裁定，在这样一起公开案件中就更是如此。做其他事情则有可能让公司面临包括股东诉讼以及失去政府合同等风险。

此次法庭对胡士泰等人判以重刑表明他们此前部分认罪并给出解释的做法并未打动法官。胡士泰的三名下属王勇、葛民强和刘才魁分别判处14年、8年和7年有期徒刑。

胡士泰除领刑10年之外还必须上缴罚金人民币100万元，合14.6万美元。胡士泰服刑的日期将从2009年7月被拘时开始算起。余下三人需缴罚金合计人民币670万元。

在开庭前的八个月以及上周两天半的法庭审理期间，没有任何有关指控的细节向公众披露。但周一时，此前被禁止踏入法院的记者获准来到法院七层的一间屋子，通过闭路电视收看宣判的情景。

宣判全程历时35分钟，主审法官刘欣（音）用其中大部分时间来宣读他们的罪状，讲述了他们如何将铁矿石卖给十余家向他们行贿的中国钢铁企业，以换取数十万美元的贿赂。刘欣称，来自一家钢铁企业的贿赂是以房屋贷款的名义给出的。

法官说，去年6月份，在力拓与一家中国钢铁行业协会就铁矿石价格展开激烈谈判之际，胡士泰与一家大型钢铁企业的一名高管在北京五星级酒店中国大饭店会面，提前得知该协会在即将进行的一轮谈判中计划如何出价竞购。

法官称，力拓员工的行为与去年中国钢铁行业在铁矿石上多花人民币10多亿元之间有着“直接因果关系”。

他说，他们利用非法手段获取商业秘密，将中国钢铁行业置于无能为力的处境。

此案可能会引发铁矿石在中国定价方式的变化，这个问题可能会带来全球影响。去年，中国钢铁产量占全球产量的约40%，去年铁矿石进口额为501.4亿美元。不过，近几年中国对铁矿石的需求导致价格上升，这让中国感到很受挫。

目前，全球铁矿石贸易主要由三家企业所把持，它们在中国都有着数十亿美元的矿产销售业务。去年，力拓对中国的铁矿石等矿产销售额为106.9亿美元。此外，截至去年6月份，必和必拓(BHP Billiton Ltd.)在中国销售额为99亿美元。2009年，巴西淡水河谷(Vale SA)在中国销售额为90亿美元。这三家企业与中国关系密切，每一家在全球人口最多的中国的销售额都占了各自全球销售总额的约20%。

去年7月力拓员工的被拘在很多人看来都是高度政治化的，原因是当时力拓与中国在至少三个问题上争执不下。当时力拓正考虑与对手必和必拓进行规模1,200亿美元的合并，而中国担心这将会产生一个能够支配对中国产业至关重要的矿产定价的超级矿业巨头。力拓还刚刚退出了允许最大股东中国铝业公司规模达195亿美元的增持交易。

在那之前几天，由于力拓拒绝默许一家中国制造业组织提出的大幅降价的要求，当年的年度铁矿石价格谈判破裂。

近几周来，根本看不到这样的紧张局面。力拓表达了往前看的愿望。力拓首席执行长艾博年(Tom Albanese)上周在北京的一次大会上说，我希望放眼未来。他说此话之后不久与国务院总理温家宝握了手。

自力拓案曝光以来，力拓与必和必拓之间有关合并事宜的讨论就很少了。在力拓案开庭审理的前夕，力拓宣布允许中国铝业公司直接分享在非洲的铁矿石生产，交易规模达13.5亿美元。

周一宣判的时候，四名被告什么也没有说，也没有表露出什么情绪。胡士泰生于中国天津，现在50多岁。在法庭上，头发花白的他身穿深色夹克，笔直地站着，两手放在身侧。

未来几天，被定罪的力拓员工有权就判决提出上诉，不过中国法院很少会驳回原判。

胡士泰可能被关押在上海西郊青浦监狱的一个专为外国人设立的特殊设施。2005年，《华尔街日报》曾获得难得的机会，参观了该监狱，狱警让记者参观了一个囚室，里面有四张双层床，住着八个犯人，旁边连着一个很小的盥洗室。犯人们大部分时间都必须安静地坐着。

澳大利亚外交部长史密斯对澳大利亚政府近几个月没能在幕后就力拓案更彻底地与中国政府接触表示遗憾。他说，那个机会也失去了。

Pengana Capital基金经理施洛德斯(Tim Schroeders)说，判决引发了有关员工行为的问题，但不会对力拓业务造成持久的影响。他说，值得质疑的是，有些中伤性的评论可能难以消除，即便与力拓没有直接关系。