Securities Law Commons^™

Ccsi Submission To Un Special Rapporteur On Extreme Poverty Re: United States Country Visit, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

The United Nations Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, will conduct a country visit to the United States in December 2017. In response to his call for input, CCSI sent a submission focused the United States’ role in the international investment regime, and the United States’ international investment agreements (IIAs), noting that the IIAs to which the US is a party raise tensions, and can potentially create conflicts, with the US’s human rights obligations, including those that apply extraterritorially, and exacerbate conditions of poverty, extreme poverty and inequality.

At The Intersection Of Land Grievances And Legal Liability: The Need To Reconsider Contract Rights And Expectations At The Supranational Level, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

This Article explores how host governments’ legal obligations can affect or constrain their ability to address “land grievances,” which are defined as concerns raised by local individuals or communities in response to negative impacts of land-based investments. Obligations under international investment law, international human rights law, and investor-state contracts can be in tension or can directly conflict with one another, creating complexity for governments seeking to respond to land grievances. To explore the legal considerations that governments must navigate in this context, this Article considers several options that governments could pursue to respond to land grievances. In all of the …

Green Foreign Direct Investment In Developing Countries, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

The message is by now clear: our global economy must be fundamentally reoriented and redeployed in order to achieve the SDGs and the commitments of the Paris Climate Agreement. This requires action by all stakeholders, including non-financial and financial firms, debt and equity investors, government policymakers, and consumers. In terms of the amount of money required, it has been estimated that meeting the SDGs will require $5 to $7 trillion annually, with investment needs for developing countries amounting to roughly $3.3 to $4.5 trillion per year. While a big picture view of and strategic thinking regarding the entire economic ecosystem …

Designing A Legal Regime To Capture Capital Gains Tax On Indirect Transfers Of Mineral And Petroleum Rights: A Practical Guide, Perrine Toledano, John Bush, Jacky Mandelbaum

Columbia Center on Sustainable Investment Staff Publications

When a local asset (or a right relating to such asset) is sold, a country will generally have jurisdiction to levy a capital gains tax on the sale, both under domestic law and international treaty. This is called taxation of a “direct” transfer of a local asset. However, taxation becomes increasingly complicated when a company located offshore owns the local asset. Further difficulties arise when the local asset is held by a chain of corporations located in tax havens. An “indirect” transfer occurs when the shares of the domestic subsidiary, the shares of the foreign company with a branch in …

230+ Law And Economics Professors Urge President To Remove Isds From Nafta, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI helped launch a letter signed by over 230 law and economics professors urging President Trump to remove ISDS provisions from NAFTA. As the letter notes, the ISDS mechanism “undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law.” The letter builds upon the center’s past work, including a similar letter published last year calling on Congress to reject the Trans Pacific Partnership for its inclusion of ISDS, and broader analyses of both the threat that ISDS poses to domestic US law and of the ISDS provisions that were included in …

India’S Revised Model Bit: Two Steps Forward, One Step Back?, Jesse Coleman, Kanika Gupta

Columbia Center on Sustainable Investment Staff Publications

In December 2015, the Indian government approved the final text of its revised model bilateral investment treaty (BIT). Shortly thereafter, in February 2016, India published a joint interpretative statement to clarify its understanding of certain treaty provisions found in existing Indian treaties. These recent developments in Indian investment treaty policy are products of a multi-year review process ,prompted at least in part by the 2011 finding against India in the White Industries claim - the first such known finding against the state – and by several notices of dispute received following the determination in that case.

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.

How Oil And Gas Companies Can Help Meet The Global Goals On Energy And Climate Change, Lisa E. Sachs, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

The sustainable development goals (SDGs) and the Paris Agreement lay out a global consensus on the need to curb human-induced climate change and to achieve sustainable development. These concepts are linked. The urgency of addressing climate change is critical for global efforts to reduce poverty and advance sustainable development, but also climate-change mitigation must be pursued in a manner consistent with ending poverty, promoting economic development, respecting human rights, and ensuring social inclusion. CCSI and the UN Sustainable Development Solutions Network (SDSN) have published a briefing note summarizing the ways in which international oil and gas companies can help expand …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based investments, such as agricultural or forestry projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This has serious implications for requirements for meaningful consultation, and, where applicable, free, prior, and informed consent (FPIC), and is particularly important in situations in which investor-state contracts grant the investor rights to lands or resources over which the community has legitimate claims.

The paper explores how consultation and FPIC processes can be integrated into …

The Settlement Of Investment Disputes: A Discussion Of Democratic Accountability And The Public Interest, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

In this briefing note, CCSI considers the threats to principles of good governance, including government accountability, respect for the rule of law, transparency, and respect for citizens’ rights and interests under domestic law and international human rights norms, that are posed by the settlement of treaty-based investor-state disputes. The authors also consider the exacerbated threats posed by the settlement of disputes that include government counterclaims, and highlight the need for the ISDS reform agenda to include a focus on these issues.

Articulating A Rights-Based Argument For Land Contract Disclosure, Jesse Coleman, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In March 2017, CCSI presented a working paper titled "Articulating a Rights-Basted Argument for Land Contract Disclosure" at the World Bank Land & Poverty Conference. The paper explores whether and how existing state obligations under human rights law require disclosure of land contracts and more transparent contracting processes around land investments. It focuses on the extent to which guidelines for responsible land-based investment, which encourage greater transparency, reflect existing host and home state obligations. Based on a review of relevant human rights law and authoritative interpretations thereof, the paper articulates rights-based arguments for land contract disclosure, based in particular on …

Submission Regarding Amendments To The Icsid Arbitration Rules, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017, CCSI submitted comments to the ICSID Secretariat regarding proposed revisions to ICSID’s arbitration rules. CCSI’s submission provided illustrative suggestions for amendments regarding the following issues: recognizing and safeguarding of the rights and interests of non-parties; improving transparency of the dispute resolution process; promoting transparency of ownership over investments; preventing actual and apparent conflicts of interest; addressing concerns raised by third-party funding; ensuring legitimacy of settlement agreements; and ensuring legitimacy of the rule revision process itself.

Public Consultation On A Multilateral Reform Of Investment Dispute Settlement, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017 CCSI made a submission to the European Commission (EC) in response to its “Public consultation on a multilateral reform of investment dispute settlement.” CCSI’s submission consisted of a response to the form questionnaire created by the EC and a supplementary “Position Paper” to explain in greater depth CCSI’s views on the EC’s proposed Multilateral Investment Court (MIC).

In its Position Paper, CCSI emphasizes the importance of international investment and international law to sustainable development objectives. The submission stresses, however, that the EC’s proposed MIC does not address, and therefore does not remedy, the most problematic aspects of …

Submission On The Draft General Comment On “State Obligations Under The Icescr In The Context Of Business Activities”, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In January 2017 CCSI made a submission to the Committee on Economic, Social and Cultural Rights, regarding its draft General Comment on “State obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities.” CCSI’s submission focused on: (1) host and home states’ obligations as they relate to international investment agreements (IIAs); (2) extraterritorial obligations in the context of outward investment; and (3) state obligations related to corruption issues.

In the submission, CCSI emphasized that states must ensure that existing treaties do not generate conflicts between obligations owed under IIAs and the Covenant (in …

Guide To Land Contracts: Forestry Projects, International Senior Lawyers Project, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Agricultural investment contracts and forestry projects can be complex, with complicated provisions that are difficult to understand. To assist non-lawyers in better understanding agricultural investment contracts, such as those available on the Open Land Contracts repository, CCSI has developed a Guide to Land Contracts: Forestry Projects.

This Guide, prepared by International Senior Lawyers Project staff and volunteers in collaboration with the Columbia Center on Sustainable Investment, aims to assist the Open Land Contracts repository users in unpacking the technical provisions and language typically found in forestry contracts in order to better understand the contracts and the potential implications of …

Beyond Trade Deals: Charting A Post-Brexit Course For Uk Investment Treaties, Lise Johnson, Lorenzo Cotula

Columbia Center on Sustainable Investment Staff Publications

The Brexit referendum has raised questions about the future terms of the United Kingdom’s engagement with the world economy. While a debate over the UK’s future approach to trade deals has already begun, a similar discussion has yet to develop on the treaties that govern foreign investment. As this briefing note by Lorenzo Cotula of the International Institute for Environment and Development, and Lise Johnson of CCSI highlights, the stakes are high: ill-designed treaties could leave the UK excessively exposed to legal claims by foreign companies and could fail to address relevant economic, social and environmental challenges. While meaningful negotiations …

International Investment Agreements: Impacts On Climate Change Policies In India, China And Beyond, Lise Johnson, Brooke Güven

Columbia Center on Sustainable Investment Staff Publications

Mitigating and adapting to climate change will require a fundamental reorientation of our global economy as we move away from fossil fuels and transition to a low carbon and climate-resilient world. This reorientation depends on government actions to help catalyze and channel financial flows in new directions and away from business-as-usual practices.

International investment agreements (IIAs) – treaties that now number over 3,000 and have the objective of promoting and protecting cross-border investment flows_could potentially play a key role in these efforts to scale up and (re)direct investments to meet climate change mitigation and adaptation needs. As presently drafted and …

Conference Report: Climate Change And Sustainable Investment In Natural Resources: From Consensus To Action, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network, Sabin Center For Climate Change Law

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment has produced this conference report on CCSI’s Conference on Climate Change and Sustainable Investment in Natural Resources: From Consensus to Action. A shorter outcome document, which was disseminated at COP22, is also available. These documents summarize the discussions at the eleventh annual Columbia International Investment Conference, which took place on November 2-3, 2016, at Columbia University. The Conference offered a high-level opportunity to discuss how countries can reduce their greenhouse gas emissions in accordance with the Paris Agreement, while also advancing the Sustainable Development Goals, and in particular the important implications for the …

Outcome Report Of Workshop On International Investment And The Rights Of Indigenous Peoples, Kaitlin Y. Cordes, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

On May 12, 2016, the United Nations (UN) Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, and the Columbia Center on Sustainable Investment hosted a one-day workshop on international investment and the rights of indigenous peoples. This outcome document synthesizes the discussions that took place during the May 12 workshop.

The workshop was part of a series of consultations undertaken to support the Special Rapporteur's Second Thematic Analysis on the Impact of International Investment Agreements on the Rights of Indigenous Peoples. Held at the Ford Foundation in New York, the workshop brought together 53 academics, practitioners, indigenous …

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

Columbia Center on Sustainable Investment Staff Publications

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

Space For Local Content Policies And Strategies, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper explores both the role that local content measures can play in advancing sustainable development, and the impact that trade and investment treaties concluded over the past 20 years have had and will continue to have on the ability of governments to employ those tools. Certain local content measures had been restricted under the WTO due to wide agreement by negotiating parties that their costs outweigh their benefits. But the WTO also left a number of local content measures in governments’ policy toolboxes. As is discussed in this paper, however, that is changing, with the range of permissible actions …

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Submission To The Sec On Addressing Land Tenure Risks Through Regulation S-K, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

In July 2016, CCSI sent a submission to the Securities and Exchange Commission (SEC) to provide input into how land tenure risks could be addressed through disclosure requirements for public companies. The SEC was seeking input into modernizing business and financial disclosure requirements in Regulation S-K, including whether Regulation S-K should be amended to require disclosure of public policy and sustainability information. CCSI argued that, due to the significant financial risk created by land tenure disputes in countries with weak or transitioning land governance systems, companies should be required to report on land tenure risks. Disclosure should be required for …

Mapping Mining To The Sustainable Development Goals: An Atlas, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network, United Nations Development Programme, World Economic Forum

Columbia Center on Sustainable Investment Staff Publications

CCSI has been working with the World Economic Forum, United Nations Development Programme (UNDP), and the UN Sustainable Development Solutions Network (SDSN) to create a shared understanding of how the mining industry can most effectively contribute to the SDGs. The report will help mining companies navigate where their activities – from exploration, through operations and mine closure – can help the world achieve the SDGs. Governments, civil society and other stakeholders can also identify opportunities for shared action and partnership with the industry.

A draft report of Mapping Mining to the Sustainable Development Goals: A Preliminary Atlas was released for …

Employment From Mining And Agricultural Investments: How Much Myth, How Much Reality?, Kaitlin Y. Cordes, Olle Östensson, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Employment creation is often seen as a key benefit of investment in natural resources. However, this benefit sometimes falls short: job estimates may be inflated, governmental policies may fail to maximize employment generation, and, in some cases, investments may lead to net livelihood losses. A more thorough examination of employment tied to mining and agricultural investments is thus useful for assessing whether and how employment from natural resource investments contributes to sustainable economic development – a particularly timely topic as countries consider how they will achieve the Sustainable Development Goals adopted in 2015.

This report aims to clarify the processes …

Corporate Agricultural Investment And The Right To Food: Addressing Disparate Protections And Promoting Rights-Consistent Outcomes, Kaitlin Y. Cordes, Anna Bulman

Columbia Center on Sustainable Investment Staff Publications

Over the past decade, the world has witnessed heightened corporate interest in large-scale land-based agricultural investment. While such investments can potentially have positive effects for local communities, they also can have wide-ranging negative impacts on human rights, including through forced displacement and the loss of livelihoods. This Article examines the impact of large-scale corporate agricultural investment on the right to food, as well as on human rights more generally. It considers the protections offered by the investment and human rights legal regimes to both corporations and individuals, including recent international developments relating to transnational corporate accountability and efforts to integrate …

Sustainable Development Goals: How Can The Mining Sector Contribute?, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In September 2015, the heads of 193 United Nations (UN) Member States adopted 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The agenda provides a successor framework to the Millennium Development Goals, which were adopted in 2000, with a view to ending poverty in all forms and dimensions, protecting the planet, and ensuring prosperity for all.

A Silver Lining? Impact Of Commodity Price Fall On Good Governance In Sierra Leone, Herbert M'Cleod, Nicolas Maennling, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

From 2002 to 2013, resource-rich countries in Africa enjoyed the benefits of a commodity boom, using increased revenues to embark on major infrastructure projects in roads, rail, ports, and housing. But when commodity prices fell starting in 2011 (see figure below), public sector revenues took a major hit with private sector companies scaling back operations, delaying investment decisions and suspending unprofitable operations. Especially as the number and size of investments in the sector contracted, Governments felt increased pressure to collect, manage and spend those revenues more efficiently. As a result, the fall in commodity prices and mounting economic pressure actually …

Land Deals And The Law: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This briefing note, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects. It accompanies a more in depth report on similar issues, entitled "Land Deal Dilemmas: Grievances, Human rights, and Investor Protections."

The briefing note considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment …

Land Deal Dilemmas: Grievances, Human Rights, And Investor Protections, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land-based investments can create significant grievances for local individuals or communities, and host governments seeking to address those grievances must navigate a complicated landscape of legal obligations and pragmatic considerations. This report, funded by UK aid from the Department for International Development, focuses on practical solutions for governments confronting grievances that arise from large-scale investments in agricultural or forestry projects.

The report considers such solutions in the context of governments’ legal obligations, particularly those imposed by international investment law, international human rights law, and investor-state contracts. Understanding the implications of this diverse range of legal obligations is particularly important in …