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2018

Transnational Law

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Full-Text Articles in Law

The Renewable Power Of The Mine, Nicolas Maennling, Perrine Toledano Dec 2018

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 …


Tying The Knot: An Interdisciplinary Approach To Understanding The Human Right To Adequate Nutrition, Jessica Fanzo, Kaitlin Y. Cordes, Elizabeth F. Fox, Anna Bulman Dec 2018

Tying The Knot: An Interdisciplinary Approach To Understanding The Human Right To Adequate Nutrition, Jessica Fanzo, Kaitlin Y. Cordes, Elizabeth F. Fox, Anna Bulman

Columbia Center on Sustainable Investment Staff Publications

Malnutrition is alarmingly prevalent, affecting one in three people worldwide. In this Article, we argue that a key reason the global community has been unsuccessful in combating malnutrition is a lack of clarity outside the field of nutrition regarding the true meaning of “nutrition.” In particular, this has limited the effectiveness of international human rights law as a mechanism for addressing malnutrition.

In this interdisciplinary Article, which draws from both the legal and nutrition fields, we unpack the meaning of nutrition and demonstrate that a standalone right to adequate nutrition does indeed exist in international human rights law as a …


Framing The Global Pact For The Environment: Why It’S Needed, What It Does, And How It Does It, Teresa Parejo Navajas, Nathan Lobel Dec 2018

Framing The Global Pact For The Environment: Why It’S Needed, What It Does, And How It Does It, Teresa Parejo Navajas, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

We face a critical environmental crisis. Humanity consumes unsustainably; we use resources at a rate fifty percent faster than they are reproduced by the planet. The population is growing exponentially and climate change, the most important challenge of this century, is already wreaking havoc around the world. Despite numerous existing international environmental treaties, the Earth, and, therefore, human safety and prosperity, is in peril. According to a recent study by scientists from Stanford University and the National Autonomous University of Mexico, the ongoing “sixth mass extinction” threatens to cause an “assault on the foundations of human civilization.” In November 2017, …


The Relevance Of Fatf's Recommendations And Fourth Round Of Mutual Evaluations To The Legal Profession, Laurel S. Terry, Llerena Robles, Jose Carlos Dec 2018

The Relevance Of Fatf's Recommendations And Fourth Round Of Mutual Evaluations To The Legal Profession, Laurel S. Terry, Llerena Robles, Jose Carlos

Faculty Scholarly Works

More than two hundred countriesin the world have agreed to abide by the anti-money laundering ("AML") recommendations developed by the Financial Action Task Force ("FATF"), which is an intergovernmental organization. This Article focuses on the potential impact on the legal profession of FATF's fourth round of mutual evaluations. During these mutual evaluations, which currently are underway, FATF-affiliated countries examine each other's compliance with the FATF Recommendations and recommend follow-up action. This Article first presents the legal profession-related results from the completed Mutual Evaluation Reports. A number of these FATF Reports recommend changes that include requiring lawyers to report suspicious client …


How International Oil Companies Could Assist The Republic Of Cyprus To Achieve The Sustainable Development Goals: A Conversation Starter, Andreas Tornaritis, Perrine Toledano Oct 2018

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 …


Agricultural Investments Under International Investment Law, Jesse Coleman, Sarah Brewin, Thierry Berger Oct 2018

Agricultural Investments Under International Investment Law, Jesse Coleman, Sarah Brewin, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

International investment law, based primarily on international investment treaties, plays an important role in the governance of investment in agriculture, forestry, and fishing. The obligations established by these treaties, and enforced by means of investor–state arbitration, can present challenges for policy-makers and others seeking to ensure that investments are sustainable, including by affecting the ways in which the costs and benefits of investments are distributed among different actors.

CCSI partnered with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD) to produce a briefing note on agricultural investments under international investment law. The …


The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez Oct 2018

The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez

Faculty Scholarship

Five years ago, when Mexico transformed its energy sector, most commentators were worried about the government’s capacity to implement the reform. What would the upstream contracts look like? Would the auctions be transparent? How would international companies react? After two successful auction rounds, 107 signed contracts, and the creation of viable regulatory agencies to manage and monitor the reform agenda, the questions have changed. Today, Mexico’s capacity to implement energy reforms and attract foreign investment is no longer in doubt. Today, the most pressing questions about the reform concern its long-term sustainability. Can it survive the Mexican electoral cycles? Will …


Outcome Report Of Roundtable On International Investment Regime And Access To Justice, Michelle Chan, Kanika Gupta, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson Sep 2018

Outcome Report Of Roundtable On International Investment Regime And Access To Justice, Michelle Chan, Kanika Gupta, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

On October 18, 2017, the UN Working Group on Business and Human Rights and the CCSI co-hosted a one-day roundtable on the impacts of the international investment regime on access to justice for investment-affected individuals and communities.

Held at Columbia University in New York, the roundtable brought together 32 individuals from civil society organizations, communities affected by investments at the heart of investor-state claims, governments, academia, donor organizations, UN mandate holders, and other stakeholder groups. The roundtable provided an opportunity for participants to: (i) explore and assess the specific impacts of international investment agreements and investor-state dispute settlement on access …


Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst Sep 2018

Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …


Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst Sep 2018

Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …


Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes Aug 2018

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …


Implementing The Ahafo Benefit Agreements: Seeking Meaningful Community Participation At Newmont’S Ahafo Gold Mine In Ghana, Benjamin Boakye, Maggie M. Cascadden, Jordan Kuschminder, Sam Szoke-Burke, Eric Werker Jul 2018

Implementing The Ahafo Benefit Agreements: Seeking Meaningful Community Participation At Newmont’S Ahafo Gold Mine In Ghana, Benjamin Boakye, Maggie M. Cascadden, Jordan Kuschminder, Sam Szoke-Burke, Eric Werker

Columbia Center on Sustainable Investment Staff Publications

In 2008, ten communities in the Brong Ahafo region of Ghana entered into agreements with Newmont Ghana to govern company-community relations, ensure local job creation, and share the benefits of the company’s mining operations. Ten years later, this report, co-authored by Canadian International Resources and Development Institute (CIRDI), African Center for Energy Policy (ACEP), CCSI, and ISP, looks at the communities’ experience of those agreements and suggests how the agreements might be improved. Though the agreements were celebrated for their attempts to include all stakeholders in decision-making, challenges remain around representation, consultation, and participation. New entities established to facilitate multi-stakeholder …


Diagonal Public Enforcement, Zachary D. Clopton Apr 2018

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more than a …


Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes Mar 2018

Governing Land Investments: Do Governments Have Legal Support Gaps?, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In the wave of efforts to encourage and support more “responsible” land investments, one aspect has been largely overlooked: are governments equipped with the legal and technical support needed to effectively negotiate and conclude investment contracts that lead to responsible outcomes?

CCSI researched how host governments access legal support in the planning, negotiation, and monitoring of land investments, with a view to better understanding where legal support gaps for governments exist, and how these can be addressed by governments themselves, as well as by donors, support providers and investors.

By scrutinizing “legal support gaps,” CCSI sought to identify possible weak …


Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs Mar 2018

Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.


Resourcing Green Technologies Through Smart Mineral Enterprise Development: A Case Analysis Of Cobalt, Saleem Ali, Perrine Toledano, Nicolas Maennling, Nathaniel Hoffman, Lola Aganga Feb 2018

Resourcing Green Technologies Through Smart Mineral Enterprise Development: A Case Analysis Of Cobalt, Saleem Ali, Perrine Toledano, Nicolas Maennling, Nathaniel Hoffman, Lola Aganga

Columbia Center on Sustainable Investment Staff Publications

Achieving the goals of the Paris Agreement requires the world to adopt ‘green technologies’ such as renewable energies and electric transportation at an unprecedented scale. While many countries have implemented policies to spur the adoption of such technologies, a lack of focus has been placed on the sourcing of minerals that are required as inputs. As a result, there is likely to be a significant deficit that may constrain the adoption of green technologies.

In this report, we argue that a neglected area in addressing the mineral scarcity challenge is the private sector’s current trajectory for geological mineral exploration and …


Implementing Shared-Use Of Mining Infrastructure To Achieve The Sustainable Development Goals, Perrine Toledano, Nicolas Maennling Jan 2018

Implementing Shared-Use Of Mining Infrastructure To Achieve The Sustainable Development Goals, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Many of the Sustainable Development Goals will only be achieved if the population has access to basic services, such as access to water, power, transport, and telecommunications. However, in many developing countries there is a lack of infrastructure to guarantee these services and there are insufficient public funds to finance growing needs. In resource-rich countries, the mining sector can play a key role in increasing access to infrastructure. Mining-related infrastructure is often developed to serve the exclusive need of the investors, but if it is shared and developed to serve the broader needs and uses of the host economy it …


Can Non-State Regulatory Authority Improve Domestic Forest Sustainability? Assessing Interactive Pathways Of Influence In Cameroon, Sophia Carodenuto, Benjamin Cashore Jan 2018

Can Non-State Regulatory Authority Improve Domestic Forest Sustainability? Assessing Interactive Pathways Of Influence In Cameroon, Sophia Carodenuto, Benjamin Cashore

Transnational Business Governance Interactions Working Papers

Transnational business governance can involve the use of non-state mechanisms to target the behavior of firms within domestic settings. Drawing on the implementation pillar of the TGBI framework, this chapter focuses attention on the interaction between state and non-state regulatory authority from two leading cases of TBG in tropical forest management: climate mitigation through avoided deforestation (REDD+) and timber legality verification through international trade agreements (FLEGT/VPA). A dominant justification among global elites for both interventions is that empowering marginalized domestic groups through technology transfer and capacity building will lead to more durable policy solutions on the ground. Drawing on empirical …


Transnational Business Governance Interactions And Financial Regulation Change: A Case Of Asian Financial Markets, Simin Gao, Christopher Chen Jan 2018

Transnational Business Governance Interactions And Financial Regulation Change: A Case Of Asian Financial Markets, Simin Gao, Christopher Chen

Transnational Business Governance Interactions Working Papers

This chapter examines the interactions of transnational business governance schemes regulating the global derivatives markets with multiple levels of interactions. The chapter describes the process of interactions via the theory of isomorphism. First, after examining the interactions of futures exchanges, we identify that governance techniques among futures exchanges are rather similar, illustrating the forces of mimetic and normative isomorphism. Second, the monopoly of the International Swaps and Derivatives Association (ISDA) scheme in the over-the-counter (OTC) market provides signs of mimetic isomorphism. Third, through imparity of market power and major market dealers, the ISDA scheme became the only governance scheme for …


Local Practices, Transnational Solutions? The Role Of Host Cities In The Cyclic Process Of Environmental Regulation Of Sports Mega-Events, Rebecca Schmidt Jan 2018

Local Practices, Transnational Solutions? The Role Of Host Cities In The Cyclic Process Of Environmental Regulation Of Sports Mega-Events, Rebecca Schmidt

Transnational Business Governance Interactions Working Papers

The chapter uses a case study of the environmental protection and sustainability framework for Olympic Games to examine the interactive role of local government actors as innovators in the creation of transnational regulation. The host city level has been at the forefront of innovating this framework. Developments initiated at this level were later taken up by the International Olympic Committee (IOC) and became mandatory for future host cities, in a dynamic the chapter terms ‘cyclical regulation’. The chapter makes two main claims about this process: First, in certain conditions, host cities and their local organizers can ratchet up social and …


Micro-Level Interactions In The Compliance Processes Of Transnational Private Governance, Graeme Auld, Stefan Renckens Jan 2018

Micro-Level Interactions In The Compliance Processes Of Transnational Private Governance, Graeme Auld, Stefan Renckens

Transnational Business Governance Interactions Working Papers

Transnational private governance has emerged in multiple issue areas to promote responsible business practices. While most studies assess its rule-setting function, much less research has been done on the compliance-assessment function. This chapter examines the various actors that are involved in this process—auditors, individual assessors and, to a lesser extent, accreditors—and their respective interactions. Using the Marine Stewardship Council as an empirical case, the chapter examines the level of competition among accredited auditors and assessors, and the degree of organizational interdependence. It argues that while the number of accredited auditors has increased over time, the degree of competition is rather …


Transnational Delegation, Accountability And The Administrative Governance Of Biofuel Standards, Phillip Paiement Jan 2018

Transnational Delegation, Accountability And The Administrative Governance Of Biofuel Standards, Phillip Paiement

Transnational Business Governance Interactions Working Papers

The European Union’s 2009 Renewable Energy Directive delegated to privately run ‘voluntary schemes’ the task of monitoring biomass production sites and ensuring their compliance with the Directive’s sustainability requirements. This chapter assesses the consequences of the Commission’s delegation for the administrative governance architectures of non-state sustainable biofuel standards operating outside the EU, focusing in particular on the effects this governance interaction has on the involvement of vulnerable stakeholders in the governance of sustainable biofuels. Utilizing the Transnational Business Governance Interactions framework complemented by the theory of governance assemblages, this research provides a meso-level analysis of the character and effects of …


Let International Competition Negotiations Sleep A While Longer: Focus On Tools And Capacity, Frederick M. Abbott Jan 2018

Let International Competition Negotiations Sleep A While Longer: Focus On Tools And Capacity, Frederick M. Abbott

Scholarly Publications

No abstract provided.


International Law And Extraterritoriality: Brief Of International And Extraterritorial Law Scholars As Amici Curiae (U.S. V. Microsoft), Anthony J. Colangelo, Austen L. Parrish Jan 2018

International Law And Extraterritoriality: Brief Of International And Extraterritorial Law Scholars As Amici Curiae (U.S. V. Microsoft), Anthony J. Colangelo, Austen L. Parrish

Faculty Journal Articles and Book Chapters

Written by international and extraterritorial law scholars, the attached amicus brief was submitted in the U.S. v. Microsoft case. That case involves whether Congress, when it enacted the Stored Communications Act, intended to provide federal and local law enforcement authority to unilaterally seize the private email communications of foreign citizens stored abroad.

The amicus brief explains how the Charming Betsy canon and the law of extraterritoriality are part of a well-defined body of law the U.S. Supreme Court has developed for determining how American law applies abroad. These doctrines exist independently: one aims to avoid unsanctioned violations of international law. …


Incentive Compatible Climate Change Mitigation: Moving Beyond The Pledge And Review Model, Gabriel Weil Jan 2018

Incentive Compatible Climate Change Mitigation: Moving Beyond The Pledge And Review Model, Gabriel Weil

Scholarly Works

Climate change represents a global commons problem, where individuals, businesses, and nation-states all lack sufficient incentives to reduce their greenhouse gas emissions to levels consistent with meeting their collectively agreed upon mitigation goals. The current "pledge and review" paradigm for global climate change mitigation, which many see as a major breakthrough, relies primarily on moral pressure, reputational incentives, and global public opinion to foster cooperation on mitigation efforts over and above those driven by maximization of narrow conceptions of national interests. Given the scale of the emissions reductions required to meet stated mitigation goals, the substantial economic costs of deep …


Copla: A Transnational Criminal Court For Latin America & The Caribbean, Robert Currie, Jacob Leon Jan 2018

Copla: A Transnational Criminal Court For Latin America & The Caribbean, Robert Currie, Jacob Leon

Articles, Book Chapters, & Popular Press

States in the Latin American and Caribbean regions have long called for the creation of an independent, international court to prosecute members of transnational organized crime gangs. These organizations not only profit from the illicit traffic in drugs, people and cultural property, but are able to corrupt and undermine the domestic legal systems and judiciaries of the affected states. This paper examines the current proposal for the creation of the "Latin American and Caribbean Criminal Court Against Transnational Organized Crime" (COPLA). It reviews the rationale for creating such a court, examines the main pillars of the current proposal, and suggests …


Amicus Curiae Observations On The “Prosecution’S Request For A Ruling On Jurisdiction Under Article 19(3) Of The Statute”, Fannie Lafontaine, Robert Currie, Amanda Ghahremani Jan 2018

Amicus Curiae Observations On The “Prosecution’S Request For A Ruling On Jurisdiction Under Article 19(3) Of The Statute”, Fannie Lafontaine, Robert Currie, Amanda Ghahremani

Reports & Public Policy Documents

The Amici Curiae (‘the Amici’) have been granted leave by Pre-Trial Chamber I (‘the Chamber’) to submit observations in the present proceeding, which derives from the Prosecutor’s request under art. 19(3) for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

The Amici respectfully offer the Chamber observations on the novel legal issues raised by the Prosecutor’s Request: (II) the scope of art. 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it; (III) the scope …


Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand Jan 2018

Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand

Articles

In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …


Targeting Of Persons: The Contemporary Challenges, Charles J. Dunlap Jr. Jan 2018

Targeting Of Persons: The Contemporary Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitioner, No. 18-600, Texas Advanced Optoelectronic Solutions, Inc. V. Renesas Electronics America, Inc., Timothy R. Holbrook, Ann Bartow, Andrew Chin, David C. Hricik, Yvette Joy Liebesman, Lucas Osborn Jan 2018

Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitioner, No. 18-600, Texas Advanced Optoelectronic Solutions, Inc. V. Renesas Electronics America, Inc., Timothy R. Holbrook, Ann Bartow, Andrew Chin, David C. Hricik, Yvette Joy Liebesman, Lucas Osborn

All Faculty Scholarship

To comply with the obligations of the Uruguay Round Agreements, particularly the Agreement on the Trade Related Aspects of Intellectual Property (TRIPS), Congress amended 35 U.S.C. § 271(a) to make it an act of infringement to “offer to sell” a patented invention within the United States. See Uruguay Round Agreements Act, Pub. L. No. 103-465, §§ 531-533, 108 Stat. 4809 (1994).

The Federal Circuit has interpreted this provision in a manner contrary to the presumption against the extraterritorial reach of United States laws. The Federal Circuit has held that location of the ultimate sale contemplated in the offer controls the …