Law Commons^™

An International Law Framework For Climate-Aligned Investment Governance, Martin Dietrich Brauch, Elena Klonsky, Fanny Marie Everard, Qiaozi Guanglin, Tyler Alviano, Justin Cuddihey, Mary Wang

Columbia Center on Sustainable Investment

The January 2024 CCSI Working Paper, An International Law Framework for Climate-Aligned Investment Governance, outlines a framework — and invites and hopes to inspire further thinking, research, and discussion — on how to bridge gaps and build cohesion among various areas of international law relevant to investment in climate mitigation and adaptation. The working paper identifies areas of international law that are or could be relevant to investment governance, highlights points of inconsistency, and proposes a framework to reform and integrate international law with the objective of promoting and facilitating climate investment flows and achieving climate-aligned regulation of investment.

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 …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how consultation …

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 …

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 …

Modelling For Sustainable Development: New Decisions For A New Age, Andrea M. Bassi, Liesbeth Casier, David Laborde, Max Linsen, David Manley, Nicolas Maennling, Howard Mann, Morten Siersted, Carin Smaller, Iain Steele, David Uzsoki, Johnny West

Columbia Center on Sustainable Investment Books

This book outlines how next-generation models need to integrate social and environmental components in government and corporate decision-making. Traditionally, these models have focused on profits and taxes, but to achieve the UN’s Sustainable Development Goals, they need to take a more holistic view. The book builds on the expanding practices of modelling complex decision making requirements and indicators. It considers the challenges of decision making in the face of incomplete and sometimes inaccurate information, the role of multiple stakeholders, and the capacity of governments and others to use models effectively.

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based investments, such as agricultural or forestry projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This has serious implications for requirements for meaningful consultation, and, where applicable, free, prior, and informed consent (FPIC), and is particularly important in situations in which investor-state contracts grant the investor rights to lands or resources over which the community has legitimate claims.

The paper explores how consultation and FPIC processes can be integrated into …

Submission To The Sec On Addressing Land Tenure Risks Through Regulation S-K, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In July 2016, CCSI sent a submission to the Securities and Exchange Commission (SEC) to provide input into how land tenure risks could be addressed through disclosure requirements for public companies. The SEC was seeking input into modernizing business and financial disclosure requirements in Regulation S-K, including whether Regulation S-K should be amended to require disclosure of public policy and sustainability information. CCSI argued that, due to the significant financial risk created by land tenure disputes in countries with weak or transitioning land governance systems, companies should be required to report on land tenure risks. Disclosure should be required for …

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 …

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 …

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.

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.

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?

Wider Role For Our Miners In Africa, Lisa E. Sachs, Joel Negin, Glenn Denning

Columbia Center on Sustainable Investment Staff Publications

The Australian government is rapidly increasing aid to Africa. But the real story about the country's engagement in Africa is the massive investment by Australian companies in extractive industries.

More than 150 Australian resource companies are active in more than 40 African countries with a total investment greater than $20 billion, including in coal in Mozambique, copper and uranium in Zambia, gold in Eritrea and uranium in Malawi.

Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard

Faculty Scholarship

This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global …