Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 51

Full-Text Articles in Law

Investor-State Dispute Prevention: A Critical Reflection, Lise Johnson, Lisa E. Sachs, Ella Merrill Sep 2021

Investor-State Dispute Prevention: A Critical Reflection, Lise Johnson, Lisa E. Sachs, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

With the rise of treaty-based investor-state dispute settlement (“ISDS”) which has taken place over the last two decades, a number of governments have adopted varying approaches to avoid those arbitration cases. Countries including Bosnia and Herzegovina, Colombia, Mexico, Mongolia, and Peru have pursued such initiatives, often with the support of intergovernmental organizations such as the United Nations Convention on Trade and Development (“UNCTAD”) and the World Bank.

In the context of discussions on ISDS reform taking place at the United Nations Commission on International Trade Law (“UNCITRAL”), some states have identified development and implementation of such ISDS-avoidance strategies and tools ...


Carbon Accounting By Public And Private Financial Institutions: Can We Be Sure Climate Finance Is Leading To Emissions Reductions?, Martin Dietrich Brauch, Emily Spittle Aug 2021

Carbon Accounting By Public And Private Financial Institutions: Can We Be Sure Climate Finance Is Leading To Emissions Reductions?, Martin Dietrich Brauch, Emily Spittle

Columbia Center on Sustainable Investment Staff Publications

To further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.

To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency) – an alliance launched at Davos in ...


Responsible Coffee Sourcing: Towards A Living Income For Producers, Kaitlin Y. Cordes, Margaret Sagan, Solina Kennedy Jul 2021

Responsible Coffee Sourcing: Towards A Living Income For Producers, Kaitlin Y. Cordes, Margaret Sagan, Solina Kennedy

Columbia Center on Sustainable Investment Staff Publications

Coffee, one of the world’s most popular beverages, provides livelihoods for at least 60 million people across dozens of countries. Promoting the long-term health, wellbeing, and environmental sustainability of the much beloved coffee sector should be a clear priority.

CCSI has continued its work on coffee sustainability with a 2021 report: “Responsible Coffee Sourcing: Towards a Living Income for Producers.” The report focuses on a critical but under-examined topic: the impact of coffee company sourcing practices on coffee producer and farmworker well-being. The report, commissioned by a long-term investment manager, analyzes the sourcing practices of ten large coffee roasters ...


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 Jul 2021

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 ...


Comparison Between The Ipcc Reporting Framework And Country Practice, Jiarui Chen, Martin Dietrich Brauch Jul 2021

Comparison Between The Ipcc Reporting Framework And Country Practice, Jiarui Chen, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

To further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.

To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency) – an alliance launched at Davos in ...


Guide On Incentives For Responsible Investment In Agriculture And Food Systems, Anna Bulman, Kaitlin Y. Cordes, Ladan Mehranvar, Ella Merrill, Yannick Fiedler May 2021

Guide On Incentives For Responsible Investment In Agriculture And Food Systems, Anna Bulman, Kaitlin Y. Cordes, Ladan Mehranvar, Ella Merrill, Yannick Fiedler

Columbia Center on Sustainable Investment Staff Publications

To support implementation of the Principles for Responsible Investment in Agriculture and Food Systems (CFS RAI), CCSI has developed resources for governments and other stakeholders in partnership with the Food and Agriculture Organisation of the United Nations (FAO).

This work includes an online course on creating an enabling environment for responsible investment in agriculture and food systems. The course is freely available, accessible online and available for download. Part I highlights the features and key players of an enabling environment that promotes responsible investment in agriculture and food security. Part II addresses multi-stakeholder engagement in the design of legal and ...


The Case For A Climate-Smart Update Of The Africa Mining Vision, Perrine Toledano, Martin Dietrich Brauch, Karan Bhulwaka, Kojo Busia Apr 2021

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 a ...


Comments To The Draft Working Group Iii Workplan, Columbia Center On Sustainable Investment, International Institute For Environment And Development, International Institute For Sustainable Development Mar 2021

Comments To The Draft Working Group Iii Workplan, Columbia Center On Sustainable Investment, International Institute For Environment And Development, International Institute For Sustainable Development

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives ...


Transparency For Whom? Grounding Land Investment Transparency In The Needs Of Local Actors, Sam Szoke-Burke Mar 2021

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 ...


Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep Mar 2021

Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep

Columbia Center on Sustainable Investment Staff Publications

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.

In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that:

  • Communities continue to be excluded from decision-making around investments.
  • The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights.
  • The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals.

CCSI and CED therefore call ...


Should The European Union Fix, Leave Or Kill The Energy Charter Treaty?, Martin Dietrich Brauch Feb 2021

Should The European Union Fix, Leave Or Kill The Energy Charter Treaty?, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

In the early 1990s, the European Economic Community – the predecessor of the European Union (EU) – spearheaded an initiative to promote international cooperation in the energy sector, particularly with post-Soviet States in Eastern Europe and Central Asia. Out of this process the Energy Charter Treaty (ECT) was born in 1994. Going much beyond international cooperation, the treaty allows foreign investors in the energy sector to sue their host States in international arbitral tribunals and claim monetary compensation when policy measures and other State action affect their interests.

Fast-forward to 2021. With 135 known cases initiated to date, the ECT’s is ...


Lessons And Opportunities For Negotiation Teachers Following The Covid-19 Pandemic, Ana Lenard Jan 2021

Lessons And Opportunities For Negotiation Teachers Following The Covid-19 Pandemic, Ana Lenard

LL.M. Essays & Theses

In 2020-2021, and resulting from the Covid-19 pandemic, I taught and studied university negotiation courses online. In this essay I reflect on my experiences of teaching and learning online, ground them in pedagogical research, and distil key lessons and opportunities for negotiation teachers across three topics (creating inclusive classrooms, the role of technology, and equipping our students to meet the demands of the modern world). Teaching online has led to a collective upskilling in our understanding of our students, of what matters in life, and of how technology can enhance our teaching. We have agency in our classrooms to help ...


Establishing State Responsibility In Mitigating Climate Change Under Customary International Law, Vanessa S.W. Tsang Jan 2021

Establishing State Responsibility In Mitigating Climate Change Under Customary International Law, Vanessa S.W. Tsang

LL.M. Essays & Theses

No abstract provided.


Nigeria’S Petroleum Industry Bill: A Missed Opportunity To Prepare For The Zero-Carbon Future, Solina Kennedy, Martin Dietrich Brauch, Perrine Toledano, Tehtena Mebratu-Tsegaye Jan 2021

Nigeria’S Petroleum Industry Bill: A Missed Opportunity To Prepare For The Zero-Carbon Future, Solina Kennedy, Martin Dietrich Brauch, Perrine Toledano, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

With Nigeria’s National Assembly debating the proposed Petroleum Industry Bill (PIB) in the first quarter of 2021 – after nearly two decades of attempted reform of the country’s petroleum sector – Nigeria has a unique opportunity to rethink the role of the oil and gas industry in Nigeria’s economy and build out the country’s energy sector and economic capacity for the long term. CCSI’s report Equipping the Nigerian National Petroleum Corporation (NNPC) for the Low-Carbon Transition, released before the PIB was publicized, advances suggestions on how to do so. The PIB takes notable steps toward much-needed reform ...


The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka Jan 2021

The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka

LL.M. Essays & Theses

The Tax Cuts and Jobs Act is the most significant overhaul of the U.S. federal tax system in the last two decades. This paper seeks to discuss some of its most significant provisions and examine their overall impact on the U.S. economy, especially throughout the ongoing coronavirus pandemic.

This paper begins by undertaking an overview of the legislative history of the Act and then proceeds to discuss three provisions of the Tax Cuts and Jobs Acts which have had a tremendous impact on the U.S. economy by altering some major provisions of the United States Internal Revenue ...


Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell Jan 2021

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the ...


Price Gouging In A Pandemic, Christopher Buccafusco, Daniel Jacob Hemel, Eric L. Talley Jan 2021

Price Gouging In A Pandemic, Christopher Buccafusco, Daniel Jacob Hemel, Eric L. Talley

Faculty Scholarship

The ongoing Covid-19 pandemic has led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it has reawakened a debate about whether and how to regulate “price gouging.” Animating this controversy is a longstanding conflict between laissez-faire economics (which champions price fluctuations as a means to allocate scarce goods) and perceived norms of consumer fairness (which are thought to cut strongly against sharp price hikes amid shortages). This article provides a new, empirically grounded perspective on the price gouging debate that challenges several aspects of conventional wisdom. We report ...


A Major Simplification Of The Oecd’S Pillar 1 Proposal, Michael J. Graetz Jan 2021

A Major Simplification Of The Oecd’S Pillar 1 Proposal, Michael J. Graetz

Faculty Scholarship

In this report, Graetz suggests major modifications to the OECD’s pillar 1 blueprint proposal to create a new taxing right for multinational digital income and some product sales that would greatly simplify the proposal. The modifications rely on readily available existing financial information and would achieve certainty in the application of pillar 1, while adhering to its fundamental structure and policies.


Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg Jan 2021

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin ...


The 100-Year Life And The New Family Law, Elizabeth S. Scott, Naomi Cahn Jan 2021

The 100-Year Life And The New Family Law, Elizabeth S. Scott, Naomi Cahn

Faculty Scholarship

This draft book chapter, prepared as part of a symposium on The 100-Year Life by Linda Gratton and Andrew Scott, reflects on the future of family law in an era of longer lives. Our analysis leads us to conclude that the 100-year life is indeed likely to have an impact on the nature, scope, and definition of family law, but that families will continue to function as the primary setting for intimacy and for caregiving and caretaking, whatever form those families take. Further, the importance to both individual and social welfare of family support throughout life points to a need ...


The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel Jan 2021

The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel

Faculty Scholarship

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual ...


Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark Jan 2021

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer a range of accommodation, assistance, and process simplification to people without legal representation.

Until now, we have known little about whether and how judges are implementing role reform recommendations or how judges behave in lawyerless courts as a general matter. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the discretionary power they wield – in ...


Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller Jan 2021

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither is contract ...


Rbg: Nonprofit Entrepreneur, David M. Schizer Jan 2021

Rbg: Nonprofit Entrepreneur, David M. Schizer

Faculty Scholarship

It is exceedingly rare for one person to change the world almost single-handedly, but Justice Ruth Bader Ginsburg was one of those people. Even before her distinguished judicial career, RBG was a trailblazing advocate for women’s rights during the 1970s. She persuaded the Supreme Court that gender discrimination violates the Equal Protection Clause of the U.S. Constitution, winning five of the six cases she argued there. To lead this historic effort, RBG served as general counsel of the ACLU and as co-founder and the first director of its Women’s Rights Project from 1972 until she became a ...


Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg Jan 2021

Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg

Faculty Scholarship

The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.

In addition ...


Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault Jan 2021

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Faculty Scholarship

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in ...


America's Zero Carbon Action Plan: Federal Legislative And Administrative Framework, John C. Dernbach, Michael B. Gerrard Jan 2021

America's Zero Carbon Action Plan: Federal Legislative And Administrative Framework, John C. Dernbach, Michael B. Gerrard

Faculty Scholarship

This chapter sets out proposed federal laws and policies for America's Zero Carbon Action Plan, a comprehensive report on how to achieve net-zero carbon emissions by 2050. This chapter sets forth recommendations for all four pillars of deep decarbonization – electricity decarbonization, energy efficiency and conservation, electrification of transportation and buildings, and carbon capture. It is supplemented with recommendations for significant reductions in emissions of non-carbon dioxide pollutants, as well as for changes in foreign policy. Each set of recommendations is accompanied by an explanation of the underlying strategy for the proposed changes.


Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh Jan 2021

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the ...


The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell Jan 2021

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in ...


The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey Jan 2021

The Right To Mental Health In Yemen, Waleed Alhariri, Amanda Mcnally, Sarah Knuckey

Faculty Scholarship

Mental health issues are all too common consequences of conflict and atrocity crimes, often causing upwards of one-quarter of the post-conflict, post-atrocity population to suffer from physical and mental sequelae that linger long after weapons have been silenced. After more than six years of ongoing conflict, Yemen’s already weak health care system is on the brink of collapse, and population resilience has been severely stressed by indiscriminate attacks, airstrikes, torture, food insecurity, unemployment, cholera, and now the COVID-19 pandemic. This paper examines Yemen’s responsibilities regarding the right to mental health and details the few actions the government has ...