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Columbia Law School

2014

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Full-Text Articles in Law

M&A In Japan: Reenergized, Center For Japanese Legal Studies Dec 2014

M&A In Japan: Reenergized, Center For Japanese Legal Studies

Center for Japanese Legal Studies

On December 4, 2014, a symposium called “M&A in Japan: Reenergized” was held at Columbia Law School (CLS). Mr. Hidemi Moue, CEO of Japan Industrial Partners (JIP), was the first speaker on this panel, sharing his thoughts on the development of Japanese M&A and current trends. Mr. Jonathan Rouner, the head of International M&A of Nomura Securities International, and Professor Curtis J. Milhaupt, the Parker Professor of Comparative Corporate Law and director of the Center for Japanese Legal Studies (CJLS) at CLS, each shared their perspectives on current and future trends for the M&A in Japan. Professor Hugh Patrick, the …


Making Agricultural Investments Work For Land Users & Communities, Kaitlin Y. Cordes Dec 2014

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 Dec 2014

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 Nov 2014

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.


Outcome Report Of Roundtable On Governing Natural Resources, Columbia Center On Sustainable Investment Nov 2014

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 …


International Investment Agreements: Are Their Policy Aims Served By Their Broad Definitions Of Covered “Investors” And “Investments”?, Lise Johnson Nov 2014

International Investment Agreements: Are Their Policy Aims Served By Their Broad Definitions Of Covered “Investors” And “Investments”?, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

With negotiation of “mega-treaties” such as the 12-country Trans-Pacific Partnership (TPP) and investment treaties between the EU and other large economies such as Canada and the United States, international investment agreements (IIAs) are gaining fame and raising a host of important policy questions. Among those questions are who/what the treaties benefit and at what cost.


Toward Win-Win Sustainable Development, Linda Moon Nov 2014

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.


The Mauritius Convention On Transparency: Comments On The Rreaty And Its Role In Increasing Transparency Of Investor-State Arbitration, Lise Johnson Sep 2014

The Mauritius Convention On Transparency: Comments On The Rreaty And Its Role In Increasing Transparency Of Investor-State Arbitration, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In July 2014, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Mauritius Convention on Transparency that, if widely adopted, will do much to increase the transparency of investor-state arbitrations conducted under thousands of existing investment treaties and under any set of arbitration rules. This Policy Paper introduces the background and objectives of the Transparency Convention, provides commentary on each of its specific articles, and explains how the Transparency Convention can accomplish broad reform.


New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson, Nathalie Bernasconi-Osterwalder Sep 2014

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson, Nathalie Bernasconi-Osterwalder

Columbia Center on Sustainable Investment Staff Publications

In July 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted a package of rules aiming to ensure transparency in investor-State arbitration (the “Rules on Transparency”), ratifying the work done by delegations to UNCITRAL – comprised of 55 Member States, additional observer States and observer organizations – over the course of nearly three years of negotiations.

Under previous versions of the UNCITRAL Arbitration Rules, disputes between investors and States were often not made public, even where important public policies were involved or illegal or corrupt business practices were uncovered. In contrast, the new rules, which will officially come …


Review Mechanisms In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert Jul 2014

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 …


Leveraging Mining Demand For Internet And Telecommunications Infrastructure For Broad Economic Development: Models, Opportunities And Challenges, Perrine Toledano, Clara Roorda Jun 2014

Leveraging Mining Demand For Internet And Telecommunications 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 internet and telecommunications.


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 May 2014

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.


State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea Apr 2014

State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea

Columbia Center on Sustainable Investment Staff Publications

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to expensive litigation and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes.

This policy paper discusses these possible steps, and the legal rules supporting them, providing guidance to states, attorneys, and tribunals regarding the important role of states in clarifying vague standards in and managing liability under existing investment treaties. A second paper, published by the Global …


The Impact Of Investment Treaties On Governance Of Private Investment In Infrastructure, Lise Johnson Mar 2014

The Impact Of Investment Treaties On Governance Of Private Investment In Infrastructure, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Governments are increasingly turning to the private sector to provide the capital, resources and/or know-how necessary for development and operation of infrastructure. In some cases, the involvement by the private sector will trigger coverage by an international investment treaty that overlies, and can override, the domestic law and contract that would otherwise be applicable to the project. This working paper discusses the circumstances affecting when an investment treaty will apply and also highlights some of the ways that investment treaties can impact governance of infrastructure development and operation. While focusing on the relationship between investment treaties and investments in infrastructure, …


A Framework To Approach Shared-Use Of Mining Related Infrastructure, Perrine Toledano, Sophie Thomashausen, Nicolas Maennling, Alpa Shah Mar 2014

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

Columbia Center on Sustainable Investment Staff Publications

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


Leveraging Mining Investments In Water Infrastructure For Broad Economic Development: Models, Opportunities And Challenges, Perrine Toledano, Clara Roorda Mar 2014

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 Feb 2014

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

Columbia Center on Sustainable Investment Staff Publications

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


Profile In Public Integrity: Joseph Ferguson, Center For The Advancement Of Public Integrity Jan 2014

Profile In Public Integrity: Joseph Ferguson, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Joseph Ferguson is in his second term as Chicago’s Inspector General. Ferguson came to the Inspector General’s Office following 15 years with the United States Attorney’s Office (USAO) for the Northern District of Illinois. From 1994 through 1999 he represented the United States in cases before the U.S. District Court for the Northern District of Illinois and U.S. Seventh Circuit Court of Appeals involving employment discrimination (Title VII), civil rights, environmental law, and government program fraud. From 2000 to 2009, Ferguson worked in the Criminal Division of the USAO, prosecuting public corruption, mail/wire fraud, tax, healthcare and government program frauds, …


Profile In Public Integrity: Adam Graycar, Center For The Advancement Of Public Integrity Jan 2014

Profile In Public Integrity: Adam Graycar, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Adam Graycar is Professor of Public Policy at the Australian National University (ANU), where he is also Director of the Transnational Research Institute on Corruption. He joined ANU in 2010 when he became the Foundation Dean of the Australian National Institute for Public Policy for two years. He recently stepped down after four years as Director of the Research School of Social Sciences at ANU.

Graycar acquired extensive policy experience over 22 years in the senior posts he held in Australian government at state and federal levels. He has had long experience in both academia and in government. His most …


False Claims Act: An Inspector General's Best Friend, John Carroll Jan 2014

False Claims Act: An Inspector General's Best Friend, John Carroll

Center for the Advancement of Public Integrity (Inactive)

Federal and State False Claims Acts facilitate recovery against contractors who bill the government fraudulently. FCAs have many components which make them potent anti-corruption weapons.


Profile In Public Integrity: Frank Vogl, Center For The Advancement Of Public Integrity Jan 2014

Profile In Public Integrity: Frank Vogl, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Frank Vogl is Co-Founder of The Partnership for Transparency Fund and Co-Founder of Transparency International, former Vice Chairman of the Board of Directors and currently a member of the Transparency International Advisory Council and the Advisor to Transparency International’s global Managing Director. He is also the President of Vogl Communications and former World Bank Group Director of Information and Public Affairs and acting head of External Relations. Previously, Vogl was an international economics correspondent for Reuters news service and The Times (London).


Profile In Public Integrity: Mark Greenblatt, Center For The Advancement Of Public Integrity Jan 2014

Profile In Public Integrity: Mark Greenblatt, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Mark Greenblatt is an attorney in the Greater Washington area specializing in criminal and ethics investigations. Over the course of his career, Mark worked in several roles to lead investigations into misconduct by senior officials in U.S. and foreign governments, most recently as Director of Special Investigations at the U.S. Department of Commerce Office of Inspector General. He also served as an Investigative Counsel for the special investigations unit of the Department of Justice Office of Inspector General. He also led the U.S. Senate investigation into the United Nations’ Oil-for-Food Program. Mark is a graduate of Duke University and Columbia …


Profile In Public Integrity: Marianne Camerer, Center For The Advancement Of Public Integrity Jan 2014

Profile In Public Integrity: Marianne Camerer, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

Marianne Camerer co-founded Global Integrity, a leading international anti-corruption non-profit. She is the Programme Director of Building Bridges, a new policy-focused research and outreach programme at the Graduate School of Development Policy and Practice at the University of Cape Town, South Africa. She previously headed anti-corruption research at the Institute for Security Studies, was a founding director of the Open Democracy Advice Center and lectured in applied ethics at the University of Stellenbosch. Marianne holds a doctorate in Political Studies from the University of Witwatersrand, masters’ degrees in public policy and political philosophy from Oxford and the University of Stellenbosch, …


Using Gps Devices In Inspector General Investigations After Cunningham V. New York State Department Of Labor, Wesley Cheng Jan 2014

Using Gps Devices In Inspector General Investigations After Cunningham V. New York State Department Of Labor, Wesley Cheng

Center for the Advancement of Public Integrity (Inactive)

When the New York State Office of the Inspector General (“NY-OIG”) suspected that a New York State employee named Michael Cunningham was submitting false time reports, its investigators turned to electronic surveillance to assist in their collection of evidence. Without obtaining a judicial warrant, NY-OIG investigators covertly attached a global positioning system (GPS) device to Cunningham’s car and collected data on Cunningham’s vehicular movements twenty-four hours a day for a month, including during his vacation. Ultimately, the GPS data was used in a disciplinary hearing leading to Cunningham’s termination.


Authority Of Pacific Island States To Regulate Greenhouse Gases From The International Shipping Sector, Meredith Wilensky Jan 2014

Authority Of Pacific Island States To Regulate Greenhouse Gases From The International Shipping Sector, Meredith Wilensky

Sabin Center for Climate Change Law

This white paper assesses Pacific island states’ legal authority under international law to regulate greenhouse gas emissions from the international shipping sector and considers what regulatory options are permissible within this legal framework.


New York State Leading On Utility Climate Change Adaptation, Ethan Strell, Christine Fazio Jan 2014

New York State Leading On Utility Climate Change Adaptation, Ethan Strell, Christine Fazio

Sabin Center for Climate Change Law

In a precedent-setting decision, the New York State Public Service Commission unanimously approved a settlement on Feb. 20, 2014, requiring Con Edison to implement state-of-the-art measures to plan for and protect its electric, gas, and steam systems from the effects of climate change. Although issued in the context of Con Edison’s rate case, the commission’s order issued on Feb. 21, 2014, explicitly broadened the sweep of its order to address resiliency measures for all utilities in New York State.


Managing The Public Trust: How To Make Natural Resource Funds Work For Citizens, Andrew Bauer, Perrine Toledano, Malan Rietveld Jan 2014

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 …


Trading Away Human Rights, Kaitlin Y. Cordes, Olivier De Schutter Jan 2014

Trading Away Human Rights, Kaitlin Y. Cordes, Olivier De Schutter

Columbia Center on Sustainable Investment Staff Publications

Trade negotiators in Singapore recently failed to finalize a deal on the long-awaited Trans-Pacific Partnership; they will soon have another chance to complete what would be the world’s largest regional free-trade agreement. But, given serious concerns that the TPP will fail to consider important human-rights implications, that is no cause for celebration.


Flag State Regulation Of Greenhouse Gas Emissions: Regulatory Authority Of Flags Of Convenience And Franchised Registries, Alyssa Kutner, Meredith Wilensky Jan 2014

Flag State Regulation Of Greenhouse Gas Emissions: Regulatory Authority Of Flags Of Convenience And Franchised Registries, Alyssa Kutner, Meredith Wilensky

Sabin Center for Climate Change Law

International shipping accounts for approximately 2-3% percent of global anthropogenic greenhouse gas emissions (GHG). Under business as usual conditions, emissions from the sector are expected to double by 2050. The quantity of GHG emissions from shipping combined with the potential for reductions using existing technologies make the sector a strategic target for mitigation measures.

In February of 2014, the Sabin Center for Climate Change Law published a white paper that concluded that sovereign states have broad authority under international law to regulate GHG emissions from vessels within their registry. However, many registries are structured such that the flag state has …


Reverse Environmental Assessment Analysis For The Adaptation Of Projects, Plans, And Programs To The Effects Of Climate Change In The Eu Evaluation Of The Proposal For An Eia Directive, Teresa Parejo-Navajas Jan 2014

Reverse Environmental Assessment Analysis For The Adaptation Of Projects, Plans, And Programs To The Effects Of Climate Change In The Eu Evaluation Of The Proposal For An Eia Directive, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

It is clear that mitigation measures are not enough to tackle climate change effects and, therefore, some adaptation measures will be needed to improve resiliency. The new Reverse Environmental Impact Assessment (REIA) analysis, so named by Professor Michael B. Gerrard1, evaluates the impacts that the “transformed environment” – a result of the adverse effects of climate change – may cause to a project, plan, or program, in order to allow those undertaking these activities to act proactively.

There are many countries that have taken action accordingly. The EU has elaborated “Guidances” on integrating climate and biodiversity into either the Environmental …