Law Commons^™

International Investment Law And The Extractive Industries Sector, Lise Johnson, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Since the 1990s, international investment law has been rapidly evolving, resulting in a complex web of over 3,000 investment treaties. These treaties have been used to challenge a wide range of host state actions and inactions that have allegedly negatively affected foreign investors or investments. Those challenges, in turn, expose host states to potentially significant financial costs, and can restrict the ability of such states to maximize the benefits, and limit the environmental and social harms, that can result from the exploitation of natural resources. This briefing note provides an introduction to international investment law, with a view to assisting …

Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael B. Gerrard, Jayni Foley Hein, Jason A. Schwartz, Keith J. Benes

Faculty Scholarship

Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air …

Uncloaking The Secrecy Behind Large-Scale Land Deals, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry have far-reaching implications for the lives of affected individuals and communities. They are also an integral part of efforts by national governments to implement the Sustainable Development Goals (SDGs) and improve the governance of land resources. Despite their significance, these “land deals” and the contracts that govern them are often cloaked in secrecy, removed from relevant spheres of public scrutiny and debate.

Exploring The Link Between Food Security And Climate Change, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Our growing global population is demanding a more resource-intensive and so-called “Western” diet. And that change in demand has drastic impact on how we must change our supply.

Measuring Land Rights For A Sustainable Future, Kaitlin Y. Cordes, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

Land rights, both for individuals and for communities, are critical for achieving sustainable development. Security of land tenure and other rights to the land (sometimes held communally rather than individually) can accelerate poverty reduction, strengthen food security, and empower women. Land rights can reduce resource conflicts, as well as encourage the responsible use of natural resources. As the UN member countries begin to implement the new Sustainable Development Goals (SDGs), they should keep land rights in their focus, and measure and protect land rights in order to achieve the SDGs.

Natural Resource Contracts As A Tool For Managing The Mining Sector, David Kienzler, Perrine Toledano, Sophie Thomashausen, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In this report commissioned by the Bundesanstalt für Geowissenschaften und Rohstoffe (BGR) on behalf of the Federal Ministry for Economic Cooperation and Development (BMZ), CCSI examined the different types of legal regimes governing mining projects in 18 countries to gain a better understanding of mining deals granted and negotiated under different minerals regimes. CCSI compared the provisions of 30 mining contracts from 13 countries, analyzed a selection of mining-related legislative texts from 18 countries, and surveyed the experiences of mining contract negotiations through dozens of interviews with experts, government officials, company representatives, and members of civil society organizations.

The report …

Resource Resilience: How To Break The Commodities Cycle, Lisa E. Sachs, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

The past year has seen dramatic declines in the prices of global commodities. Between June 2014 and the beginning of this year, crude oil prices fell by 50 percent to around $50 a barrel. Similarly, mineral prices have seen a drastic fall since the peak of the “commodity supercycle” in early 2011. Between then and April of this year, iron ore prices fell by 70 percent, coal prices by 54 percent and copper prices by 40 percent.

Memo To The Obama Administration On The U.S. National Action Plan On Responsible Business Conduct, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In January 2015, CCSI sent a memo to President Obama to provide input on the U.S. National Action Plan on responsible business conduct. The memo applauded the U.S. Government’s decision to develop a National Action Plan consistent with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, noting that responsible and rights-respecting outward investment can support sustainable development in host countries, and that the U.S. Government has an important role to play in promoting responsible business operations. The memo urged the government to explore in particular how the National Action Plan can address …

Legal & Scientific Integrity In Advancing A "Land Degradation Neutral World", Shelley Welton, Michela Biasutti, Michael B. Gerrard

Faculty Scholarship

It is no secret that the fight against desertification isn't going well. In the two decades since the United Nations Convention to Combat Desertification ("UNCCD") came into force, desertification – defined as degradation in the quality of "arid, semi-arid, and dry subhumid" land areas – has worsened considerably. Recent United Nations estimates suggest that fifty-two percent of drylands currently under agricultural cultivation are moderately or severely degraded, and 12 million hectares of productive land become barren each year due to desertification and drought. And while drylands are the focus of the UNCCD, the challenge isn't limited to them: somewhere around …

Outcome Report Of Roundtable On Human Rights Impact Assessments (Hrias) Of Large-Scale Foreign Investments, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI, the Sciences Po Law School Clinic, and the Columbia Law School Human Rights Institute recently published an outcome document of a one-day roundtable focused on the opportunities and challenges presented by human rights impact assessments (HRIAs) of large-scale foreign investments. The roundtable, which was held in April 2014 at Columbia University, provided an opportunity for collaborative reflection on the development of HRIAs, as well as on ways to enhance HRIAs as a framework and tool for both human rights advocacy and human rights risk management in respect of foreign investments.

By sharing the outcomes of the roundtable, this document …

Meeting Summary Of Colloquium On Policy, Law, Contracts, And Sustainable Development, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI and the Institute for Human Rights and Business co-convened a colloquium on policy, law, contracts, and sustainable development, with a particular focus on large-scale investments in the extractive industries and the agriculture sector. The colloquium provided an opportunity for practitioners to share information on their related work, as well as to reflect on current practices and remaining gaps regarding efforts to embed sustainability and human rights into large-scale deals. This outcome document provides a summary of the discussion, while its annex includes information on participants’ relevant programs, initiatives, and tools.

Toward Win-Win Sustainable Development, Linda Moon

Columbia Center on Sustainable Investment Staff Publications

An interview with Lisa Sachs, Director of the Columbia Center on Sustainable Investment.

Outcome Report Of Roundtable On Governing Natural Resources, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI convened a one-day roundtable focused on lessons learned from good governance initiatives for extractive industry investments and large land-based agricultural investments. The roundtable brought together a range of stakeholders working on extractive industry investments and/or land-based forestry and agricultural investments, including representatives from civil society, government, academia, and the private sector. CCSI has published an outcome note from this roundtable.

Key structural differences between the extractive industries and the forestry and agriculture sectors mean that not all lessons learned from good governance initiatives related to extractives investments or land-based agricultural investments are transferrable. However, large-scale extractive …

Review Mechanisms In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert

Columbia Center on Sustainable Investment Staff Publications

Periodic review mechanisms, provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract or license and consider whether circumstances have changed since the parties’ initial agreement, are a mechanism that may smooth the process of dealing with inevitable changes in circumstances over the long term of extractive industries contracts. This briefing note looks at the use of such mechanisms, through reviewing existing extractive industry agreements, and considers how the requirements have been expressed to-date and their role as a tool to maintain the relationship between the parties. The Brief examines issues …

Why Good Governance Of Land And Tenure Security Need To Be Part Of The Sustainable Development Goal Framework, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network

Columbia Center on Sustainable Investment Staff Publications

The CCSI and the UN Sustainable Development Solutions Network’s Thematic Group on Good Governance of Extractive and Land Resources published a short briefing note on including land governance in the Sustainable Development Goal framework. The note argues that incorporating good governance of land and tenure security would help meet a number of proposed sustainable development goals for the post-2015 development agenda, including reducing poverty, strengthening food security, empowering women, and alleviating commercial pressures on land. The note recommends the inclusion of an access-to-land indicator to help measure governments’ efforts.

Leveraging Mining Investments In Water Infrastructure For Broad Economic Development: Models, Opportunities And Challenges, Perrine Toledano, Clara Roorda

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for water infrastructure.

A Framework To Approach Shared-Use Of Mining Related Infrastructure, Perrine Toledano, Sophie Thomashausen, Nicolas Maennling, Alpa Shah

Columbia Center on Sustainable Investment Staff Publications

In April 2013, CCSI was awarded a grant from the Australian Government to develop an economically, legally and operationally rational framework to enable shared use of mining-related infrastructure, including rail, ports, power, water, internet and telecommunications. The framework was obtained by distilling best practice principles from infrastructure developments around the world, guided by expert opinion. It has most recently been refined through in-depth case studies in Liberia, Sierra Leone, and Mozambique, although its principles aim to be of general relevance to all resource rich African countries. The report was finalized in March 2014.

Investment Treaties And Industrial Policy: Select Case Studies On State Liability For Efforts To Encourage, Shape And Regulate Economic Activities In Extractive Industries And Infrastructure, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper, prepared in connection with a February 2014 conference organized by the UN Economic Commission for Africa, discusses some of the implications that investment treaties have for investments in infrastructure and the extractive industries. It focuses on liability for government conduct (1) in connection with tenders and negotiations; (2) when responding to questions regarding the legality of the investment; (3) in using performance requirements to leverage benefits and capture spillovers from the investment; (4) changing the legal framework governing an investment in response to evolving needs, circumstances, and interests; (5) administering the investment; and (6) requesting, and responding to …

Managing The Public Trust: How To Make Natural Resource Funds Work For Citizens, Andrew Bauer, Perrine Toledano, Malan Rietveld

Columbia Center on Sustainable Investment Staff Publications

Given their collective size – approximately $3.5 trillion in assets as of end-2013 and growing – and concerns about the motivations of their government owners, much has been written on natural resource funds (NRFs), their investments and global influence. However their impacts on governance and public financial accountability at home have received far less attention.

On the one hand, these funds can be used to serve the public interest, for example by covering budget deficits when resource revenues decline, saving for future generations, or helping to mitigate Dutch Disease through fiscal sterilization. On the other hand, they can undermine public …

Leveraging Paraguay’S Hydropower For Sustainable Economic Development, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

While internationally Paraguay is known for being the largest hydropower exporter in the world, the domestic economy suffers from regular outages and high system losses. The country is largely dependent on agricultural production, which has led to volatile economic performances in the past resulting from climatic circumstances and commodity price fluctuations. To address these two key policy challenges, the Government of Paraguay has approached The Earth Institute to: 1) explore the potential of a climate risk management system and sustainable agriculture activities to mitigate environmental vulnerability and 2) develop a high-level strategic plan to use Paraguay’s vast hydropower resources for …

Cameroon Pastoralists Fight For Their Way Of Life, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

After years of struggles against governments and private parties, the Mbororo-Fulani are gaining international attention. But is this too little too late?

Why The Extractive Industry Should Support Mandatory Transparency: A Shared Value Approach, Julien Topal, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The Transparency Amendment, included in the Dodd‐Frank Wall Street Reform and Consumer Protection Act, can be an important tool in curtailing the resource curse that so heavily burdens resource‐rich developing countries by shedding light on opaque payments between the extractive sector and host countries. From the get‐go, however, extractive industry companies have fiercely opposed the new mandatory disclosure requirements as set out in this regulation. The corporate opposition is for the largest part motivated by the fear of a competitive disadvantage that derives from the fact that the amendment is housed with the Securities and Exchange Commission (SEC) and thus …

On Solid Ground: Toward Effective Resource-Based Development, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The small island-state of Timor-Leste exemplifies the challenge of resource-based development for a poor country well-endowed with a valuable natural resource. Timor-Leste, which gained its independence in 2002, has accumulated $13 billion in its petroleum fund in less than a decade. Some of the largest multinational oil companies are operating in the country, and the revenues continue to flow. And yet, while Timor-Leste has seen very notable improvements in its development indicators in the past few years, it continues to face a massive challenge of converting financial wealth into economic development. There are also heated debates about how to spend …

Community Development Funds And Agreements In Guinea Under The New Mining Code, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Guinea’s 2011 Mining Code introduced a large number of reforms directed to increasing transparency and the contribution of the mining sector to development, including requirements for the establishment of a local development fund and for community development agreements between mining companies and local communities. As part of the legal and fiscal analysis of the gold mining investments in Guinea, CCSI examined how these provisions could be implemented effectively. CCSI produced a report that makes recommendations as to how the Government, mining companies, civil society and communities can work together to maximize the benefits of local development funding in the Guinean …

Ask The Experts: Mining, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

How can governments best ensure mining produces broad-based economic development?

At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.

Can Timor-Leste Rely On Its Endowments To Achieve The Strategic Development Plan Targets?, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

The Government of Timor-Leste invited the Earth Institute and CCSI to advise on the sustainable management and use of oil resources, in order to achieve higher living standards and sustainable development. One component of the project included the preparation of a sector study that assesses whether the Government can rely on agriculture, tourism and the petrochemical sectors to achieve its long term GDP growth and employment targets.

Devil In The Bidding Detail, Lisa E. Sachs, Jacky Mandelbaum, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

In light of the recent boom in natural resource prices, India is one of them many countries facing heightened scrutiny of the allocation and terms of their resource deals. In India, that scrutiny has uncovered a multi-billion dollar controversy over coal block allocations that has gridlocked Parliament. More generally, citizens in resource-producing countries around the world are asking whether the public is getting a fair value for their countries resources, or whether investors and politicians are walking away with the prize. Finally, the important questions are being asked: how should resources be managed to ensure that they benefit the citizenry, …

Leveraging The Mining Industry’S Energy Demand To Improve Host Countries’ Power Infrastructure, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for power infrastructure.

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 …

Paper On The Business Case For Transparency, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI strongly supports the transparency of contracts and tax flows. CCSI shares the belief of many stakeholders that transparency is essential to leverage extractive industries for sustainable development and is in the mutual interest of all stakeholders. However, some industry players continue to voice the concern that increased transparency would be harmful for their business. Therefore, CCSI is working to also establish the business case for transparency.

In one such case, some industry players have been lobbying against the regulations developed by the Security and Exchange Commission to implement the mandatory disclosure provisions of the Dodd Frank Wall Street Reform …