Law Commons^™

Incorporating Free, Prior And Informed Consent (Fpic) Into Investment Approval Processes, Kelly Dudine, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Investment approval processes are the gateway through which governments set the agenda for their country’s investment environment. Yet too often these processes fail to incorporate meaningful requirements regarding participation in decision-making by Indigenous and other affected communities, increasing the risk of under-performing and conflict-ridden investments.

Enabling meaningful participation by rights holders and obtaining and maintaining their Free, Prior and Informed Consent (FPIC) throughout different investment approval processes can help governments to fulfill their legal obligations, mitigate financial and political risk, and, ultimately, attract more sustainable land-based investments.

Featuring concrete guidance and drawing on case studies from Kenya, Liberia, Mexico, Peru, …

Submission To Bonsucro Re Production Standard V5 (2019-21), Nami Patel, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely:

• Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations
• Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and
• Establishing accessible …

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: U.S.-Kenya Trade Agreement (April 28, 2020): CCSI, in response to the United States Trade Representative’s request for public comment to inform its approach to a U.S.-Kenya Trade Agreement, submitted Comments elaborating on our main points that (1) investor-state dispute settlement should not be included in any U.S.-Kenya agreement and (2) principles that should guide an investment chapter or investment provisions in any such agreement should (a) strategically support cross-border investment that produces positive development outcomes for the U.S. and Kenya, (b) facilitate and support good governance of investment projects, and (c) enhance cooperation to solve challenges …

Environmental Injustice: How Treaties Undermine Human Rights Related To The Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Policymakers and environmental advocates have often overlooked how provisions granted by states in international investment agreements (IIAs) have been used by investors to challenge government measures taken in the public interest to protect the environment and advance environmental justice.

This 2019 paper, published in the Sciences Po Legal Review issue devoted to the climate crisis, explains how the investor-state dispute settlement (ISDS) mechanism, made available to investors in thousands of bilateral and multilateral trade and investment agreements, may …

Outcome Report On The Climate Crisis, Global Land Use And Human Rights Conference, Mateusz Kasprowicz, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

On September 27^th, the Columbia Center on Sustainable Investment (CCSI), the Sabin Center for Climate Change Law, Landesa, the New York City Bar Association International Environmental Law Committee, and Wake Forest Law School hosted a day-long conference on the intersection between land use, the climate crisis and clean energy transition, and human rights.

Held at the Ford Foundation Center for Social Justice, the conference brought together individuals from civil society organizations, governments, and academia, as well as lawyers, climate scientists, land-rights experts, indigenous representatives and other stakeholder groups. The panelists analyzed the critical role that land plays in …

Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Briefing For Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work And What Are Their Environmental Impacts?, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

If a company wants to use a community’s land for eucalyptus plantations, the community should think carefully about whether this is a good idea. Civil society organizations that support communities can use this briefing to help communities understand the potential environmental impacts the community should be aware of. The briefing explains plantation forestry and the life-cycle of eucalyptus tree plantations. It also notes the different possible negative environmental impacts of eucalyptus plantations before exploring how this information can be factored into community decision-making about a proposed eucalyptus plantation. While the briefing focuses on eucalyptus plantations, a lot of it will …

Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with …

Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

International investment treaties entrench and exacerbate intra-national inequality by:

1. Providing stronger substantive legal rights to a certain class of actors that in turn strengthen the legal force of their economic rights and “expectations”, with potentially negative impacts on the competing rights and interests of other stakeholders; and
2. Providing unequal procedural rights to a certain class of actors, easing their ability, through ISDS, to challenge regulatory measures negatively impacting their economic interests, while other individuals and entities continue to face relatively high legal and practical barriers to using litigation to protect and/or enhance public interest objectives.

This Working Paper, adapted from …

Amicus Brief On Rights To Information And Public Participation In Colombia, Brooke Guven, Sam Szoke-Burke, Pedro Villegas

Columbia Center on Sustainable Investment Staff Publications

CCSI submitted an amicus brief to the Constitutional Court of Colombia concerning the Tutela hearing of Mansarovar Energy Colombia Ltd. v. Tribunal Administrativo del Meta (The Consulta Popular of Cumaral, Meta). The hearing concerned a challenge by Mansarovar Energy Colombia Limited of a municipal-wide referendum (the Consulta Popular) concerning whether or not the extraction of hydrocarbons should be permitted in the municipality of Cumaral. The municipality voted 97% against allowing the extraction of hydrocarbons.

CCSI’s brief focused on the international human rights law dimensions of the case, given that Colombia’s Constitution renders the government’s international human rights law obligations …

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.

Employment From Mining And Agricultural Investments: How Much Myth, How Much Reality?, Kaitlin Y. Cordes, Olle Östensson, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Employment creation is often seen as a key benefit of investment in natural resources. However, this benefit sometimes falls short: job estimates may be inflated, governmental policies may fail to maximize employment generation, and, in some cases, investments may lead to net livelihood losses. A more thorough examination of employment tied to mining and agricultural investments is thus useful for assessing whether and how employment from natural resource investments contributes to sustainable economic development – a particularly timely topic as countries consider how they will achieve the Sustainable Development Goals adopted in 2015.

This report aims to clarify the processes …

Emerging Practices In Community Development Agreements, Jennifer Loutit, Jacqueline Mandelbaum, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Community Development Agreements (CDAs) have the potential to facilitate the delivery of tangible benefits from large-scale investment projects, such as mines or forestry concessions, to affected persons and communities. To be effective, however, CDAs must be adapted to the local context, meaning that no single model agreement or process will be appropriate in every situation. Nonetheless, leading practices are emerging which can be required by governments, voluntarily adopted by companies, and demanded by communities. These practices are grounded in ensuring that all parties are sufficiently informed, capacitated, and prepared to engage in meaningful negotiations regarding how the investor’s operations should …

Corporate Agricultural Investment And The Right To Food: Addressing Disparate Protections And Promoting Rights-Consistent Outcomes, Kaitlin Y. Cordes, Anna Bulman

Columbia Center on Sustainable Investment Staff Publications

Over the past decade, the world has witnessed heightened corporate interest in large-scale land-based agricultural investment. While such investments can potentially have positive effects for local communities, they also can have wide-ranging negative impacts on human rights, including through forced displacement and the loss of livelihoods. This Article examines the impact of large-scale corporate agricultural investment on the right to food, as well as on human rights more generally. It considers the protections offered by the investment and human rights legal regimes to both corporations and individuals, including recent international developments relating to transnational corporate accountability and efforts to integrate …

Transparency In Land-Based Investment: Key Questions And Next Steps, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry are often shrouded in secrecy. In many cases, they are negotiated without the involvement of affected communities, approved through opaque decision-making procedures, and governed by legal agreements that are difficult both to access and to understand. This systemic lack of transparency impedes accountability and exacerbates ongoing disagreements about the real costs and benefits for investors, host countries, and their citizens.

Jointly authored by CCSI and the Open Contracting Partnership, this briefing note examines why contract disclosure and a contracting process that is open, accessible, and inclusive are important; what such transparency entails; and how …

Trading Away Human Rights, Kaitlin Y. Cordes, Olivier De Schutter

Columbia Center on Sustainable Investment Staff Publications

Trade negotiators in Singapore recently failed to finalize a deal on the long-awaited Trans-Pacific Partnership; they will soon have another chance to complete what would be the world’s largest regional free-trade agreement. But, given serious concerns that the TPP will fail to consider important human-rights implications, that is no cause for celebration.

Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.

At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.

A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for …