Law Commons^™

Uncloaking The Secrecy Behind Large-Scale Land Deals, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry have far-reaching implications for the lives of affected individuals and communities. They are also an integral part of efforts by national governments to implement the Sustainable Development Goals (SDGs) and improve the governance of land resources. Despite their significance, these “land deals” and the contracts that govern them are often cloaked in secrecy, removed from relevant spheres of public scrutiny and debate.

Global Value Chains And Resource Corridors: The Nexus Is Regional Integration, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

To be more involved in the global value chains, sub-Saharan African countries should intensify their regional integration efforts. A first step in this direction can be implementing cross-border resource-based development corridors.

Exploring The Link Between Food Security And Climate Change, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Our growing global population is demanding a more resource-intensive and so-called “Western” diet. And that change in demand has drastic impact on how we must change our supply.

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

Columbia Center on Sustainable Investment Staff Publications

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

The Tpp’S Investment Chapter: Entrenching, Rather Than Reforming, A Flawed System, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP’s investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP’s substantive investment protections and ISDS pose significant potential costs to …

Next Generation Treaty – India’S New Model Bit Makes It Clear That Its Goal Is To Accomplish More Than Investor Protection, Lisa E. Sachs, Lise Johnson, Sudhanshu Roy

Columbia Center on Sustainable Investment Staff Publications

The April release of India’s draft model bilateral investment treaty 1(BIT), which is expected to be approved by the cabinet soon, has generated a rich public debate on its international investment regime. There are important questions about the purpose and content of investment treaties, both in India and other countries. However, some reactions – like Augusts Law Commission report suggesting that the model BIT was not sufficiently investor-friendly – frame the discussion too narrowly, ignoring key questions and objectives behind India’s transitioning investment policy regime.

Shared-Use Mining Infrastructure In Sub-Saharan Africa, Sophie Thomashausen, Glen Ireland

Columbia Center on Sustainable Investment Staff Publications

The IBA’s recent Conference, Investing in Africa: Opportunities for Businesses and

the Lawyers Who Counsel Them, held in New York on 24-26 June 2015, highlighted the growing challenges and opportunities related to infrastructure needed for major mining projects in sub-Saharan Africa. The mining sector, which remains critical to many economies in the region, is being hampered by the lack of adequate transport, power and other infrastructure, as was underscored by participants in the ‘Trends in the Mining Sector’ panel. In the current depressed commodity price environment, large investments in infrastructure required to develop major, ‘world-class’ deposits is difficult to justify, …

Measuring Land Rights For A Sustainable Future, Kaitlin Y. Cordes, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

Land rights, both for individuals and for communities, are critical for achieving sustainable development. Security of land tenure and other rights to the land (sometimes held communally rather than individually) can accelerate poverty reduction, strengthen food security, and empower women. Land rights can reduce resource conflicts, as well as encourage the responsible use of natural resources. As the UN member countries begin to implement the new Sustainable Development Goals (SDGs), they should keep land rights in their focus, and measure and protect land rights in order to achieve the SDGs.

Memo To Prime Minister Cameron On The Revision Of The U.K. National Action Plan On Business And Human Rights, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2015, CCSI sent a memo to U.K. Prime Minister David Cameron to provide input on the 2015 revision of the U.K. National Action Plan on business and human rights, originally published in 2013. The memo applauded the U.K. Government’s early adoption of a National Action Plan consistent with the UN Guiding Principles on Business and Human Rights, noting that responsible and rights-respecting outward investment can support sustainable development in host countries, and that the U.K. Government has an important role to play in promoting responsible business operations. The memo urged the government to highlight the importance of land …

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

Columbia Center on Sustainable Investment Staff Publications

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

Natural Resource Contracts As A Tool For Managing The Mining Sector, David Kienzler, Perrine Toledano, Sophie Thomashausen, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In this report commissioned by the Bundesanstalt für Geowissenschaften und Rohstoffe (BGR) on behalf of the Federal Ministry for Economic Cooperation and Development (BMZ), CCSI examined the different types of legal regimes governing mining projects in 18 countries to gain a better understanding of mining deals granted and negotiated under different minerals regimes. CCSI compared the provisions of 30 mining contracts from 13 countries, analyzed a selection of mining-related legislative texts from 18 countries, and surveyed the experiences of mining contract negotiations through dozens of interviews with experts, government officials, company representatives, and members of civil society organizations.

The report …

Resource Resilience: How To Break The Commodities Cycle, Lisa E. Sachs, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

The past year has seen dramatic declines in the prices of global commodities. Between June 2014 and the beginning of this year, crude oil prices fell by 50 percent to around $50 a barrel. Similarly, mineral prices have seen a drastic fall since the peak of the “commodity supercycle” in early 2011. Between then and April of this year, iron ore prices fell by 70 percent, coal prices by 54 percent and copper prices by 40 percent.

Why Fast Track Is A Dangerous Gift To Corporate Lobbies, Jeffrey D. Sachs, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

The Obama Administration is now on track to get "fast track" legislation through the Senate, heading towards a close vote in the House. The end goal is to conclude two major business treaties: the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP) and the Trans-Pacific Partnership Agreement (TPP). The House Democrats are right to withhold their support until key treaty positions favored by the White House are dropped.

Not So Fast, Jeffrey D. Sachs, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

President Barack Obama and the Republican leadership in Congress are trying to pass "fast track" legislation in order to push through major economic agreements with eleven countries of the Pacific region (the Trans-Pacific Partnership) and Europe (the Trans-Atlantic Trade and Investment Partnership) without the possibility for Congressional amendments. Both are being sold generally as "trade agreements," yet they involve key areas of business law and regulation far beyond trade. Before Congress approves fast track, these agreements need to be made public and exposed to thorough public scrutiny.

Investor-State Dispute Settlement, Public Interest And U.S. Domestic Law, Lise Johnson, Lisa E. Sachs, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

As negotiations are ongoing in the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), CCSI staff and Jeffrey Sachs discuss the implications of investor-state dispute settlement (ISDS) for domestic law and policy, focusing on effects within the US. The paper concludes that the risks ISDS poses for domestic law are significant and unjustified, and that there are preferable policy alternatives to pursue as a means of protecting the rights of investors operating overseas.

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

Columbia Center on Sustainable Investment Staff Publications

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

Ripe For Refinement: The State’S Role In Interpretation Of Fet, Mfn, And Shareholder Rights, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Over recent years, many states have taken steps to refine and modernize their investment treaties. These reforms, however, are typically only included in newer treaties or model agreements. States continue to be exposed to claims, litigation, and potential damages under older “old-style” agreements. These risks are particularly acute given that tribunals have often permitted investors to “treaty shop” to obtain more favorable protections, and have also permitted investors to use the most-favored nation (MFN) provision to “import” more investor-friendly (or at least less clear) provisions from other treaties.

This working paper discusses one strategy states can use to try to …

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

Columbia Center on Sustainable Investment Staff Publications

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

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

Columbia Center on Sustainable Investment Staff Publications

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

New Weaknesses: Despite A Major Win, Arbitration Decisions In 2014 Increase The Us’S Future Exposure To Litigation And Liability, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In 2014, the US continued its overall record of success in defending investment treaty claims. But it did suffer losses on a number of important issues, and those losses will render the US (and its treaty parties) vulnerable to future claims, litigation expense, and liability. The US’s recent losses, which have thus far been largely ignored in commentary on the US’s experiences in investment arbitration, are highlighted in this briefing note.

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 …