Law Commons^™

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 …

Land Deal Dilemmas: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This report, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects.

The report considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment law, international human rights law, and investor-state contracts. Understanding the implications of this diverse range of legal obligations is particularly important in …

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 …

Recommending Transparency In Land-Based Investment: A Summary Of Relevant Guidelines And Principles, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

An emerging consensus on the need for greater transparency in land-based investment is increasingly evident across various forums. This document consolidates recommendations regarding transparency featured in guidelines and principles published by international organizations, government agencies, and multilateral or multi-stakeholder groups. Viewed together, these recommendations offer insight on the evolving narrative on transparency in land-based investment, assist stakeholders in addressing the issue of transparency, and provide an informed starting point for further analysis.

Land Deals And The Law: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This briefing note, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects. It accompanies a more in depth report on similar issues, entitled "Land Deal Dilemmas: Grievances, Human rights, and Investor Protections."

The briefing note considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment …

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

Columbia Center on Sustainable Investment Staff Publications

A Community Development Agreement or CDA can be a vital mechanism for ensuring that local communities benefit from large-scale investment projects, such as mines or forestry concessions. In formalizing agreements between an investor and a project-affected community, CDAs set out how the benefits of an investment project will be shared with local communities. In some countries CDAs are required by domestic legislation; in others, they are entered into voluntarily. The most effective CDAs are also 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 …

Linkages To The Resource Sector: The Role Of Companies, Governments, And International Development Cooperation, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

With support from GIZ, CCSI prepared a report titled "Linkages to the Resource Sector: The Role of Companies, Governments, and International Development Cooperation." It outlines options for how these stakeholders can increase the economic linkages to the extractive industries sector not only in terms of ‘breadth’ (number of linkages) but also in terms of ‘depth’ (local value added). Apart from providing the theoretical framework for linkage creation and an overview of existing literature on this topic, the study highlights successful case study examples. Recommendations are provided for the three types of stakeholders.

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 …

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.

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

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.

Wrong Direction On Climate, Trade And Development, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In pushing for Trade Promotion Authority, the Obama administration argues that the agreements it is negotiating (including TPP and TTIP) are true 21st century agreements that correct the failings of past agreements and will promote trade and investment that can both re-launch America as the key economic player and promote broad-based sustainable development at home and abroad.

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 …

Eyes Wide Shut On Isds, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Recent agreement among congressional leaders on a “fast-track” bill may have been a victory for the Obama administration’s trade agenda. However, members of congress should take a look at the recent Bilcon case, decided by a NAFTA tribunal, to understand what they are signing up for.

Comments On The World Bank’S Revised Draft Environmental And Social Framework, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In February 2015, CCSI sent comments to the World Bank regarding its draft Environmental and Social Framework. This took place in the context of the Bank’s consultations on the review and update of its safeguards policies. CCSI’s comments focused on ensuring consistent and comprehensive application of the framework, and on the need to more expansively incorporate human rights standards. The memo also underlined the need to protect all legitimate tenure rights, including those not currently recognized by national law, and to limit the permissibility of forced evictions. In addition, the comments include proposed amendments that would ensure that government borrowers …

The Responsible Investor’S Guide To Climate Change, Jeffrey D. Sachs, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Around the world, institutional investors – including pension funds, insurance companies, philanthropic endowments, and universities – are grappling with the question of whether to divest from oil, gas, and coal companies. The reason, of course, is climate change: unless fossil-fuel consumption is cut sharply – and phased out entirely by around 2070, in favor of zero-carbon energy such as solar power – the world will suffer unacceptable risks from human-induced global warming. How should responsible investors behave in the face of these unprecedented risks?

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 …

Making Agricultural Investments Work For Land Users & Communities, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Earlier this year, Liberian President Ellen Johnson Sirleaf made an unexpected commitment related to foreign investment in land and community land rights. In a meeting with communities who had raised concerns regarding a British company’s attempts to expand its palm oil production onto their customary land, the President effectively told those communities that they would have the right to say yes or no to further expansion, noting that the company could expand only with the affected communities’ approval.

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.

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 …

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 …

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 …

Memo To The Obama Administration On The Burma Responsible Investment Reporting Requirements, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In September 2013, CCSI sent a memo to President Obama and his Administration in response to the first public reports submitted by U.S. companies in compliance with the Burma Responsible Investment Reporting Requirements. The memo applauded the U.S. Government’s efforts to encourage responsible investment in Burma, noting that robust due diligence is essential to ensuring that international investments contribute to sustainable development. Yet the memo also urged the Obama Administration to take steps to strengthen future reporting. In particular, CCSI urged the Administration to issue clarifying guidance that any U.S. investor submitting a report should (1) provide information on due …