Law Commons^™

Five Years After The Adoption Of The Paris Agreement, Are Climate Change Considerations Reflected In Mining Contracts?, Tehtena Mebratu-Tsegaye, Perrine Toledano, Martin Dietrich Brauch, Mara Greenberg

Columbia Center on Sustainable Investment Staff Publications

Domestic laws are the ideal legal instrument to regulate the mining sector’s contribution to climate change mitigation and adaptation. Even so, as a stop-gap-measure, governments may consider updating model mining development agreements (MMDAs) or negotiating climate­-related contractual provisions. This CCSI paper explores whether governments are using, and how they can use, investor–state mining contracts to advance climate goals. We synthesize our findings and recommendations for six categories of provisions: integrating renewable energy into mining products, reducing deforestation, requiring a climate risk assessment and community vulnerability assessment, regulating water use, requiring tailings dam design justifications, and integrating climate risks into closure …

The Case For A Climate-Smart Update Of The Africa Mining Vision, Perrine Toledano, Martin Dietrich Brauch, Karan Bhulwaka, Kojo Busia

Columbia Center on Sustainable Investment Staff Publications

The 2009 Africa Mining Vision (AMV) provides guidance for the industrialization of African countries by leveraging their mining sector. However, the global context has changed since its adoption. As a result, it does not include guidance on how governments should embrace the climate change agenda as an opportunity for better and further industrialization, deeper linkages, and sustainable development.

There are many ways to look at the implications of international climate change policy for Africa, including through the increased extraction of minerals needed in clean energy application and the greening of mines. The localization of global value chains – induced by …

Transparency For Whom? Grounding Land Investment Transparency In The Needs Of Local Actors, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Transparency is often seen as a means of improving governance and accountability of investment, but its potential to do so is hindered by vague definitions and failures to focus on the needs of key local actors.

In this new report focusing on agribusiness, forestry, and renewable energy projects (“land investments”), CCSI grounds transparency in the needs of project-affected communities and other local actors. Transparency efforts that seek to inform and empower communities can also help governments, companies, and other actors to more effectively manage operational risk linked to social conflict.

Troublingly, the report finds that:

• Disclosures around land investments continue …

Equipping The Nigerian National Petroleum Corporation For The Low-Carbon Transition: How Are Other National Oil Companies Adapting?, Perrine Toledano, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye, Francisco Javier Pardinas Favela

Columbia Center on Sustainable Investment Staff Publications

The Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders.

Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or in­ternationally – for example, Sau­di Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone …

Electric Utility Alignment With The Sdgs & The Paris Climate Agreement, Perrine Toledano, Aniket Shah, Nicolas Maennling, Ryan J. Lasnick

Columbia Center on Sustainable Investment Staff Publications

The 2030 Sustainable Development Agenda poses a unique and critical challenge to the energy sector: how to scale access to clean energy to power sustainable, economic development for a growing population, while simultaneously decarbonizing global energy supply. Expanding access to clean energy will play a crucial role in achieving nearly every one of the Sustainable Development Goals, including those related to agricultural production, health outcomes, educational performance, water systems, access to infrastructure, and reducing inequalities. However, practices by some actors in the energy sector, and continued over-reliance on greenhouse gas-intensive fossil fuels also undermine global efforts to mitigate climate change …

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.

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.

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. …

How International Oil Companies Could Assist Greece To Achieve The Sustainable Development Goals: A Conversation Starter, Alexandra Sdoukou, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper wishes to be a timely contribution towards a fruitful debate among stakeholders; it urges International Oil Companies (IOCs) to examine how the critical Sustainable Development Goals (SDGs) for Greece can be integrated into their core business so that the oil and gas industry can contribute to the country’s sustainable growth.

The Renewable Power Of The Mine, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Access to affordable and reliable energy is key for the mining sector and with rising demand for minerals and falling ore grades, energy demand is estimated to increase by 36% by 2035. Today, energy produced and procured by mining companies is mostly fossil fuel based. This will have to change if the sector is to contribute to the decarbonization of the world economy, needed for countries to meet the target adopted at the Paris Agreement of keeping global temperatures from rising more than 1.5-2 degrees Celsius.

At the same time, the costs of solar, wind and battery storage systems have …

How International Oil Companies Could Assist The Republic Of Cyprus To Achieve The Sustainable Development Goals: A Conversation Starter, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper is addressed to International Oil Companies (IOCs), public officials and Non-Governmental Organizations (NGOs) involved in the natural gas industry in Cyprus. There is currently no conversation happening in Cyprus on how the oil and gas industry could help Cyprus achieve their Sustainable Development Goals. Therefore, this paper hopes to initiate a debate and conversation around this topic. It provides an overview of the ways in which IOCs operating in Cyprus could contribute towards the sustainable development of the natural gas industry and assist the Republic of Cyprus to achieve a number of their 2030 Sustainable Development Goals …

International Gas Outlook And Implications For Developing Tanzania’S Gas Projects, Nicolas Maennling, Perrine Toledano, Thomas Mitro

Columbia Center on Sustainable Investment Staff Publications

In the frame of its partnership with Uongozi – Tanzania, CCSI drafted a brief that reviews recent international gas developments, the outlook in this regard and implications for the development of proposed offshore gas projects in Tanzania. As the country aims to benefit from its gas discoveries by increasing its domestic gas use, it also outlines some of the trade-offs and considerations that need to be taken into account when negotiating the domestic gas allocation.

Submission To Opic On Revisions To Its Environmental And Social Policy Statement, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In November 2016, CCSI sent a submission to the Overseas Private Investment Corporation (OPIC) regarding its draft revised Environmental and Social Policy Statement (ESPS). CCSI’s input focused on two discrete issues that CCSI has been working on: (1) contract transparency for natural resource and infrastructure projects, and (2) redress for harms in the context of project abandonment or failure. The submission urged OPIC to add into the ESPS a requirement that Applicants involved in natural resource or infrastructure projects commit to publicly disclosing any investor-state contracts related to the underlying Project. CCSI’s submission also suggested that OPIC incorporate into the …

A Policy Framework To Approach The Use Of Associated Petroleum Gas, Shay Banerjee, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI developed "A Policy Framework to Approach the Use of Associated Petroleum Gas."

Associated Petroleum Gas (APG) is a form of natural gas that is found associated with petroleum fields. APG is often flared or vented for regulatory, economic or technical reasons. The flaring, however, is problematic from health and environmental perspectives. Moreover, flaring and venting APG wastes a valuable non-renewable resource that could be re-injected into the oil field or used for local and regional electricity generation.

This framework aims at providing guidance for regulators, policymakers, and industry leaders seeking to develop practical approaches to unlock the economic value …

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 …

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 …

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

Columbia Center on Sustainable Investment Staff Publications

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating …

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 …

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 …

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 …

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 …

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 …

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 …

Openness In Extraction, Lisa E. Sachs, Shefa Siegel

Columbia Center on Sustainable Investment Staff Publications

More than a decade before becoming President of the United States, Herbert Hoover, a mining engineer, observed that, among the branches of property law, the distribution of mining rights most elegantly reflects the vicissitudes of social and political relations. According to Hoover, mining rights were a "never-ending contention," as old as economic and civil conflict, among four principle classes – overlord, state, landowner, and miner. "Somebody," he concluded, "has to keep peace and settle disputes."

Today, with the prices of major natural-resource commodities – including oil, coal, copper, gold, and iron ore – doubling, tripling, or rising even faster, the …