Transnational Law Commons^™

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.

Why Should We Not Protest For Consumption Tax Reduction? Consumption Tax Rate As A Partial Mechanism For Increasing Consumer Wealth, Limor Riza, Noam Sher

Loyola of Los Angeles International and Comparative Law Review

If you are an activist protesting against the high costs of living, we would like to offer you one suggestion: do not demand that the government reduce consumption tax. Social activists tend to believe that a government policy reducing consumption tax can, by itself, benefit the general population. This paper explains our suggestion to the contrary.

The tax field alone is insufficient for consumption tax reduction to be effective in increasing consumer wealth over benefiting suppliers. Due to cognitive biases, or heuristics, when the government changes consumption tax rates in order to increase consumers’ well-being, suppliers are able 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 …

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 …

Outcome Report Of Roundtable On Human Rights Impact Assessments (Hrias) Of Large-Scale Foreign Investments, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI, the Sciences Po Law School Clinic, and the Columbia Law School Human Rights Institute recently published an outcome document of a one-day roundtable focused on the opportunities and challenges presented by human rights impact assessments (HRIAs) of large-scale foreign investments. The roundtable, which was held in April 2014 at Columbia University, provided an opportunity for collaborative reflection on the development of HRIAs, as well as on ways to enhance HRIAs as a framework and tool for both human rights advocacy and human rights risk management in respect of foreign investments.

By sharing the outcomes of the roundtable, this document …

Meeting Summary Of Colloquium On Policy, Law, Contracts, And Sustainable Development, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI and the Institute for Human Rights and Business co-convened a colloquium on policy, law, contracts, and sustainable development, with a particular focus on large-scale investments in the extractive industries and the agriculture sector. The colloquium provided an opportunity for practitioners to share information on their related work, as well as to reflect on current practices and remaining gaps regarding efforts to embed sustainability and human rights into large-scale deals. This outcome document provides a summary of the discussion, while its annex includes information on participants’ relevant programs, initiatives, and tools.

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

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI convened a one-day roundtable focused on lessons learned from good governance initiatives for extractive industry investments and large land-based agricultural investments. The roundtable brought together a range of stakeholders working on extractive industry investments and/or land-based forestry and agricultural investments, including representatives from civil society, government, academia, and the private sector. CCSI has published an outcome note from this roundtable.

Key structural differences between the extractive industries and the forestry and agriculture sectors mean that not all lessons learned from good governance initiatives related to extractives investments or land-based agricultural investments are transferrable. However, large-scale extractive …

Toward Win-Win Sustainable Development, Linda Moon

Columbia Center on Sustainable Investment Staff Publications

An interview with Lisa Sachs, Director of the Columbia Center on Sustainable Investment.

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

Columbia Center on Sustainable Investment Staff Publications

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

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

Columbia Center on Sustainable Investment Staff Publications

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

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

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

Columbia Center on Sustainable Investment Staff Publications

Periodic review mechanisms, provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract or license and consider whether circumstances have changed since the parties’ initial agreement, are a mechanism that may smooth the process of dealing with inevitable changes in circumstances over the long term of extractive industries contracts. This briefing note looks at the use of such mechanisms, through reviewing existing extractive industry agreements, and considers how the requirements have been expressed to-date and their role as a tool to maintain the relationship between the parties. The Brief examines issues …

Why Good Governance Of Land And Tenure Security Need To Be Part Of The Sustainable Development Goal Framework, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network

Columbia Center on Sustainable Investment Staff Publications

The CCSI and the UN Sustainable Development Solutions Network’s Thematic Group on Good Governance of Extractive and Land Resources published a short briefing note on including land governance in the Sustainable Development Goal framework. The note argues that incorporating good governance of land and tenure security would help meet a number of proposed sustainable development goals for the post-2015 development agenda, including reducing poverty, strengthening food security, empowering women, and alleviating commercial pressures on land. The note recommends the inclusion of an access-to-land indicator to help measure governments’ efforts.

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

Columbia Center on Sustainable Investment Staff Publications

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

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

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

Columbia Center on Sustainable Investment Staff Publications

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

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

Columbia Center on Sustainable Investment Staff Publications

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

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

Columbia Center on Sustainable Investment Staff Publications

Given their collective size – approximately $3.5 trillion in assets as of end-2013 and growing – and concerns about the motivations of their government owners, much has been written on natural resource funds (NRFs), their investments and global influence. However their impacts on governance and public financial accountability at home have received far less attention.

On the one hand, these funds can be used to serve the public interest, for example by covering budget deficits when resource revenues decline, saving for future generations, or helping to mitigate Dutch Disease through fiscal sterilization. On the other hand, they can undermine public …

Leveraging Paraguay’S Hydropower For Sustainable Economic Development, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

While internationally Paraguay is known for being the largest hydropower exporter in the world, the domestic economy suffers from regular outages and high system losses. The country is largely dependent on agricultural production, which has led to volatile economic performances in the past resulting from climatic circumstances and commodity price fluctuations. To address these two key policy challenges, the Government of Paraguay has approached The Earth Institute to: 1) explore the potential of a climate risk management system and sustainable agriculture activities to mitigate environmental vulnerability and 2) develop a high-level strategic plan to use Paraguay’s vast hydropower resources for …

Memo To The Obama Administration On The Burma Responsible Investment Reporting Requirements, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In September 2013, CCSI sent a memo to President Obama and his Administration in response to the first public reports submitted by U.S. companies in compliance with the Burma Responsible Investment Reporting Requirements. The memo applauded the U.S. Government’s efforts to encourage responsible investment in Burma, noting that robust due diligence is essential to ensuring that international investments contribute to sustainable development. Yet the memo also urged the Obama Administration to take steps to strengthen future reporting. In particular, CCSI urged the Administration to issue clarifying guidance that any U.S. investor submitting a report should (1) provide information on due …

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper discusses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which were adopted in August of 2013 and went into effect on April 1, 2014. It draws on negotiating history to elaborate on the content of and purpose of each of the Rules’ provisions, and identifies options for and barriers to applying these Rules in future arbitrations.

On Solid Ground: Toward Effective Resource-Based Development, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The small island-state of Timor-Leste exemplifies the challenge of resource-based development for a poor country well-endowed with a valuable natural resource. Timor-Leste, which gained its independence in 2002, has accumulated $13 billion in its petroleum fund in less than a decade. Some of the largest multinational oil companies are operating in the country, and the revenues continue to flow. And yet, while Timor-Leste has seen very notable improvements in its development indicators in the past few years, it continues to face a massive challenge of converting financial wealth into economic development. There are also heated debates about how to spend …

Community Development Funds And Agreements In Guinea Under The New Mining Code, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Guinea’s 2011 Mining Code introduced a large number of reforms directed to increasing transparency and the contribution of the mining sector to development, including requirements for the establishment of a local development fund and for community development agreements between mining companies and local communities. As part of the legal and fiscal analysis of the gold mining investments in Guinea, CCSI examined how these provisions could be implemented effectively. CCSI produced a report that makes recommendations as to how the Government, mining companies, civil society and communities can work together to maximize the benefits of local development funding in the Guinean …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Legal Framework For Soviet Privatization, Olga Floroff, Susan Tiefenbrun

Pepperdine Law Review

No abstract provided.

Can Timor-Leste Rely On Its Endowments To Achieve The Strategic Development Plan Targets?, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

The Government of Timor-Leste invited the Earth Institute and CCSI to advise on the sustainable management and use of oil resources, in order to achieve higher living standards and sustainable development. One component of the project included the preparation of a sector study that assesses whether the Government can rely on agriculture, tourism and the petrochemical sectors to achieve its long term GDP growth and employment targets.

Inching Towards Consensus: An Update On The Uncitral Transparency Negotiations, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

From October 1-5, 2012, a working group of the United Nations Commission on International Trade Law (UNCITRAL) met in Vienna to continue work on how to ensure transparency in treaty-based investor-state arbitration. It was the working group’s fifth week-long meeting on the topic, but will not be the last. Although some issues were settled, many very significant ones remain contentious, and will be picked up again by the working group when it meets in February 2013.

Background Paper For Second Workshop On Contract Negotiation Support For Developing Host Countries, Vale Columbia Center On Sustainable International Investment, Humboldt-Viadrina School Of Governance

Columbia Center on Sustainable Investment Staff Publications

The Columbia Center on Sustainable Investment (CCSI) and the Humboldt-Viadrina School of Governance (HSVG) have initiated a process to discuss the desirability and feasibility of mechanisms to provide negotiation support for developing host countries in their negotiations with major investors.

At a first workshop held in October 2011, participants agreed on the need for an expansion of support for developing countries in their contract negotiations.

A second workshop was held at Columbia University in July 2012 that undertook a gap analysis between the existing sources of support for developing countries in relation to complex contracts and the countries’ needs for …

Paper On The Business Case For Transparency, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

CCSI strongly supports the transparency of contracts and tax flows. CCSI shares the belief of many stakeholders that transparency is essential to leverage extractive industries for sustainable development and is in the mutual interest of all stakeholders. However, some industry players continue to voice the concern that increased transparency would be harmful for their business. Therefore, CCSI is working to also establish the business case for transparency.

In one such case, some industry players have been lobbying against the regulations developed by the Security and Exchange Commission to implement the mandatory disclosure provisions of the Dodd Frank Wall Street Reform …

Openness In Extraction, Lisa E. Sachs, Shefa Siegel

Columbia Center on Sustainable Investment Staff Publications

More than a decade before becoming President of the United States, Herbert Hoover, a mining engineer, observed that, among the branches of property law, the distribution of mining rights most elegantly reflects the vicissitudes of social and political relations. According to Hoover, mining rights were a "never-ending contention," as old as economic and civil conflict, among four principle classes – overlord, state, landowner, and miner. "Somebody," he concluded, "has to keep peace and settle disputes."

Today, with the prices of major natural-resource commodities – including oil, coal, copper, gold, and iron ore – doubling, tripling, or rising even faster, the …

Addressing Climate Change Mitigation And Adaptation Through Insurance For Overseas Investments: The Example Of The U.S. Overseas Private Investment Corporation, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In 2008, the United Nations Framework Convention on Climate Change (UNFCCC) estimated that investments of between US$540–570 billion in physical assets and other financial flows will be needed to adequately reduce global greenhouse gas (GHG) emissions to combat climate change; additionally, tens and possibly hundreds of billions of dollars may be necessary to enable countries to adapt to the phenomenon’s challenges. Through climate negotiations under the UNFCCC in Copenhagen and Cancun, developed country governments committed to provide developing countries roughly US$30 billion between 2010 and 2012 and to mobilize approximately US$100 billion per year by 2020 for climate change activities. …