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Aligning Investment Treaties With Sustainable Development, Lise Johnson, Lisa E. Sachs, Nathan Lobel Dec 2019

Aligning Investment Treaties With Sustainable Development, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to ...


Outcome Report On The Climate Crisis, Global Land Use And Human Rights Conference, Mateusz Kasprowicz, Sam Szoke-Burke, Kaitlin Y. Cordes Nov 2019

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 27th, 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 achieving ...


Legal Frameworks & Foreign Investment: A Primer On Governments’ Obligations, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke, Rumbidzaii Mawen Nov 2019

Legal Frameworks & Foreign Investment: A Primer On Governments’ Obligations, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke, Rumbidzaii Mawen

Columbia Center on Sustainable Investment Staff Publications

Legal frameworks, and how they interact, are often invisible in the day to day. Yet they are powerful forces that influence government actions and that help to shape who benefits and who loses from foreign investment. Understanding these legal frameworks, and how they interact, is critical for anyone concerned with how foreign investment can be better harnessed to support, rather than weaken, sustainable development and human rights.

This primer provides a brief overview of host government obligations under international investment law, international human rights law, domestic law, and relevant investor-state contracts. It also highlights some of the ways in which ...


Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs Nov 2019

Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important ...


Securing Adequate Legal Defense In Proceedings Under International Investment Agreements: A Scoping Study, Lise Johnson, Brooke Guven Nov 2019

Securing Adequate Legal Defense In Proceedings Under International Investment Agreements: A Scoping Study, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

CCSI prepared a Scoping Study for the Ministry of Foreign Affairs of the Netherlands. The primary research question that the Scoping Study was requested to address is: How can adequate legal defense for parties in proceedings under International Investment Agreements (IIAs) be better secured?

The Scoping Study provides a broad and inclusive overview of issues, concerns, empirical evidence, opinions, lessons learned, and proposed solutions as they relate to potential or expanded Assistance Mechanisms for international investment law. This Scoping Study reflects input received on a confidential basis from: government officials (of all World Bank Group economic development levels); individuals who ...


Ensuring Economic Viability And Sustainability Of Coffee Production, Jeffrey D. Sachs, Kaitlin Y. Cordes, James Rising, Perrine Toledano, Nicolas Maennling Oct 2019

Ensuring Economic Viability And Sustainability Of Coffee Production, Jeffrey D. Sachs, Kaitlin Y. Cordes, James Rising, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Coffee, the world’s favorite beverage, provides livelihoods for at least 60 million people across dozens of countries. Yet this beloved drink is experiencing a sustainability crisis. A sustained decline in world coffee prices has squeezed coffee producers, and thrown a tremendous number of producers below the global extreme poverty line. This report presents our research into sustainability within the coffee sector, including the results of our analytical and empirical modeling, and provides several recommendations.


Agricultural Investments: A Primer For Host Government Lawyers And Local Lawyers In Private Practice, Tehtena Mebratu-Tsegaye Oct 2019

Agricultural Investments: A Primer For Host Government Lawyers And Local Lawyers In Private Practice, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important ...


Linkages To The Mining Sector In Colombia, Nicolas Maennling, Perrine Toledano Oct 2019

Linkages To The Mining Sector In Colombia, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

At the request of the Colombian Government and with the support of GIZ, CCSI prepared a policy brief focused on linkages from the mining sector in Colombia. The brief gives an overview of existing regulatory requirements, government policies and company programs to foster economic and infrastructure linkages. Based on the findings, the brief provides suggestions for next steps if the government is to develop a more comprehensive linkage creation program.


Fixing The Business Of Food: The Food Industry And The Sdg Challenge, Barilla Center For Food And Nutrition, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab Sep 2019

Fixing The Business Of Food: The Food Industry And The Sdg Challenge, Barilla Center For Food And Nutrition, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab

Columbia Center on Sustainable Investment Staff Publications

In collaboration with the Barilla Center for Food and Nutrition, the UN Sustainable Development Solutions Network, and the Santa Chiara Lab of the University of Siena, CCSI presented its first report on Fixing the Business of Food.

The document, part of a two-year effort, highlights the sustainable development challenge faced by the food industry. By proposing a Four Dimension framework, the report asks four overarching questions for companies in the food sector to address alignment with the SDGs:

  1. Does the company contribute to healthy and sustainable dietary patterns through its products and strategy?
  2. Are the company’s production processes economically ...


Briefing For Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work And What Are Their Environmental Impacts?, Columbia Center On Sustainable Investment Jul 2019

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 ...


Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson Jun 2019

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 ...


Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment May 2019

Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In connection with the US Department of State’s Annual Advisory Committee on Private International law meeting in May 2019, CCSI submitted written views regarding UNCITRAL’s Working Group III on ISDS reform. CCSI’s comments highlighted specific areas of CCSI’s research as it relates to the US Government and its work within the Working Group. Specifically, US investment treaty negotiating objectives specify that covered foreign investors in the United States should not be accorded greater substantive rights than domestic investors. CCSI highlights the ways in which greater procedural rights afforded under investment treaties to foreign investors in practice ...


The Policy Implications Of Third-Party Funding In Investor-State Dispute Settlement, Brooke Guven, Lise Johnson May 2019

The Policy Implications Of Third-Party Funding In Investor-State Dispute Settlement, Brooke Guven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In this Working Paper, CCSI analyzes underexplored yet critical policy issues surrounding the use of third-party funding in ISDS. It considers the costs and benefits of the practice, asks whether it is desirable or undesirable that third-parties be permitted to invest in ISDS claims, and if so, under what circumstances and in order to achieve what objectives, and overviews policy responses, including a total or partial ban and various regulatory responses, that may be appropriate to manage identified impacts.


Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson Apr 2019

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 ...


Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke Mar 2019

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors ...


Why Do Auditors Fail? What Might Work? What Won't?, John C. Coffee Jr. Jan 2019

Why Do Auditors Fail? What Might Work? What Won't?, John C. Coffee Jr.

Faculty Scholarship

Auditing failures and scandals have become commonplace. In response, reformers (including the Kingman Review in the U.K and a recent report of the U.K.’s Competition and Market Authority) have proposed a variety of remedies, including prophylactic bans on auditors providing consulting services to their clients in the belief that this will minimize the conflicts of interest that produce auditing failures. Although useful, such reforms are already in place to a considerable degree and may have reached the point of diminishing returns. Moreover, this strategy does not address the deeper problem that clients (or their managements) may not ...


Driving Toward Autonomy? The Fbi In The Federal System, 1908-1960, Daniel C. Richman, Sarah Seo Jan 2019

Driving Toward Autonomy? The Fbi In The Federal System, 1908-1960, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This paper explains the growth of the FBI (“Bureau”) in the United States at a time when criminal justice was largely a local matter by reframing the criminal justice “(eco)system” in terms of informational economy, rather than jurisdictional authority. It argues that the Bureau came to occupy a key position in the national law enforcement ecosystem by providing an informational infrastructure that enabled it to cultivate relationships with local police agencies. This history offers two insights about the nature of American state and federalism in the twentieth century. First, the Bureau’s particular strategy for enlarging its capacity beyond ...


The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt Jan 2019

The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt

Faculty Scholarship

This essay addresses the problem of truth today in light of the common belief, especially among progressives, that we have entered a post-truth age, as well as of the frequent claim that our post-truth society is the fault of postmodernists and their challenge to the objectivity of truth. The essay does not resolve the strategic question whether the post-truth argument is, as a purely tactical political matter, an effective approach to respond to the onslaught of misrepresentations and lies by President Donald Trump and the New Right. Instead, it explores the post-truth argument from a more synoptic perspective regarding the ...


The Case Against Equity In American Contract Law, Robert E. Scott, Jody S. Kraus Jan 2019

The Case Against Equity In American Contract Law, Robert E. Scott, Jody S. Kraus

Faculty Scholarship

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then prevalent penal ...


The New Mechanisms Of Market Inefficiency, Kathryn Judge Jan 2019

The New Mechanisms Of Market Inefficiency, Kathryn Judge

Faculty Scholarship

Mechanisms of market inefficiency are some of the most important and least understood institutions in financial markets today. A growing body of empirical work reveals a strong and persistent demand for “safe assets,” financial instruments that are sufficiently low risk and opaque that holders readily accept them at face value. The production of such assets, and the willingness of holders to treat them as information insensitive, depends on the existence of mechanisms that promote faith in the value of the underlying assets while simultaneously discouraging information production specific to the value of those assets. Such mechanisms include private arrangements, like ...


Hardball And/As Anti-Hardball, David E. Pozen Jan 2019

Hardball And/As Anti-Hardball, David E. Pozen

Faculty Scholarship

Many commentators have expressed alarm at the apparent rise of "constitutional hardball" in the United States, the United Kingdom, and elsewhere. This short essay introduces the idea of "anti-hardball" as a potential antidote. Complicating matters, hardball and anti-hardball are not necessarily opposed in practice. Short-term hardball tactics will generally be more justified, the essay suggests, when tied to a longer-term anti-hardball strategy.


Deterrence Theory: Key Findings And Challenges, Alex Raskolnikov Jan 2019

Deterrence Theory: Key Findings And Challenges, Alex Raskolnikov

Faculty Scholarship

This Chapter prepared for the Cambridge Handbook of Compliance reviews the key findings of the optimal deterrence theory and discusses the remaining challenges. Some of these challenges reflect current modeling choices and limitations. These include the treatment of the offender’s gains in the social welfare function; the design of the damages multiplier in a realistic, multi-period framework; the effects of different types of uncertainty on behavior; and the study of optional, imperfectly-enforced, threshold-based regimes – that is, regimes that reflect the most common real-world regulatory setting. Other challenges arise because several key regulatory features and enforcement outcomes are inconsistent with ...


Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati Jan 2019

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across ...


Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen Jan 2019

Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen

Faculty Scholarship

No recent whistleblower has been more lionized or vilified than Edward Snowden. He has been nominated for the Nobel Peace Prize and denounced as a "total traitor" deserving of the death penalty. In these debates, Snowden's defenders tend to portray him as a civil disobedient. Yet for a range of reasons, Snowden's situation does not map neatly onto traditional theories of civil disobedience. The same holds true for most cases of national security whistleblowing.

The contradictory and confused responses that these cases provoke, this essay suggests, are not just the product of polarized politics or insufficient information. Rather ...


Hardball And/As Anti-Hardball, David E. Pozen Jan 2019

Hardball And/As Anti-Hardball, David E. Pozen

Faculty Scholarship

Talk of constitutional hardball is in the air. Ever since Brett Kavanaugh's confirmation to the Supreme Court, liberal commentators have been pondering tactics such as impeachment, jurisdiction stripping, and especially "packing the court" to a degree that would have been unthinkable a few years ago. Senate Republicans have played vigorous hardball on Supreme Court appointments in the past two Congresses, most obviously by refusing to consider Merrick Garland's nomination, and there is a strong desire among many Democrats to respond with equal or greater vigor.


A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen

Faculty Scholarship

The concept of "information fiduciaries" has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis- à -vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered ...


A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko Jan 2019

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Faculty Scholarship

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate:

(1) that constitutional discourse has grown increasingly polarized over the past four decades;

(2) that polarization has grown faster in constitutional discourse than in non-constitutional discourse;

(3) that conservative-leaning speakers have driven ...


Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven Jan 2019

Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and EGA agreements which grant tariff concession through HS classifications beyond the six digit level ("ex outs") in favour of "green" goods and discuss how these initiatives fit into the WTO legal regime. Even if the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access ...


Global Settlements: Promise And Peril, John C. Coffee Jr. Jan 2019

Global Settlements: Promise And Peril, John C. Coffee Jr.

Faculty Scholarship

In 2010, Morrison v. National Australia Bank Ltd. destabilized the world of securities litigation by denying those who purchased their securities outside the U.S. the ability to sue in the U.S. (as they had previously often done). Nature, however abhors a vacuum, and practitioners and other jurisdictions began to seek ways to regain access to U.S. courts. Several techniques have emerged: (1) expanding settlement classes so that they are broader than litigation classes and treating the location of the transaction as strictly a merits issue that defendants could waive; (2) adopting U.S. law as applicable to ...


Board 3.0 – An Introduction, Ronald J. Gilson, Jeffrey N. Gordon Jan 2019

Board 3.0 – An Introduction, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

This paper sketches out the case for a new board model, Board 3.0, as an option for public company boards. The goal is to develop a model of thickly informed, well-resourced, and highly motivated directors who could credibly monitor managerial strategy and operational skill in cases where this would be particularly valuable. Unlike the present board model of thinly informed, under-resourced, and boundedly motivated directors, Board 3.0 directors could credibly defend management against shareholder activist incursions, where appropriate, with institutional investor owners. Similarly, such directors could find a place in extremely complex enterprise, such as finance, where the ...