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1. Human Rights Law and the Investment Treaty Regime

Author:
Jesse Coleman, Kaitlin Y. Cordes, and Lise Johnson
Publication Date:
06-2019
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with realization of human rights and broader public interest objectives. This Chapter provides an overview of the interaction between human rights law and the investment treaty regime. It highlights the challenges that arise from tension between international human rights and investment norms, including the impact of the investment regime on the ability of host states to regulate and on access to justice for investment-affected rights holders. The chapter also explores whether and how human rights issues have been addressed by the investment regime to date, highlighting recent developments in treaty drafting practice and responses to human rights argumentation by investment tribunals. It notes the shortcomings of current approaches, and concludes by briefly setting out options for reform.
Topic:
Government, Human Rights, Treaties and Agreements, Reform, and Investment
Political Geography:
Global Focus

2. Innovative Financing Solutions for Community Support in the Context of Land Investments

Author:
Sam Szoke-Burke and Kaitlin Y. Cordes
Publication Date:
03-2019
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments. Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. This report presents a call to action to help communities secure the support they so crucially need. The report explores options for tapping new funding sources for community support. These include: Government marshaling of funding from companies and others, through taxes, fees, and penalties Basket funds, operated by independent, trusted entities and funded by contributions from multiple actors Market-based impact investments and social impact bonds Direct company funding Third party funding Other solutions for increasing funding or reducing costs, including crowdfunding, generating profits from social enterprises, affordable user fees or in-kind services, contingency and uplift fees, and court-ordered fee shifting. The report also presents overarching considerations for developing a new financing initiative. These include: the initiative’s likely cost, efficiency and financial sustainability, political complexity and obstacles, political economy implications, the importance of strong governance mechanisms, and the logistics required to link funding, communities and support providers.
Topic:
Agriculture, Human Rights, Natural Resources, Investment, and Land
Political Geography:
Global Focus

3. Outcome Report on the Climate Crisis, Global Land Use and Human Rights Conference

Author:
Mateusz Kasprowicz, Sam Szoke-Burke, and Kaitlin Y. Cordes
Publication Date:
11-2019
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
On September 27th, the Columbia Center on Sustainable Investment (CCSI), the Sabin Center for Climate Change Law, Landesa, the New York City Bar Association International Environmental Law Committee, and Wake Forest Law School hosted a day-long conference on the intersection between land use, the climate crisis and clean energy transition, and human rights. Held at the Ford Foundation Center for Social Justice, the conference brought together individuals from civil society organizations, governments, and academia, as well as lawyers, climate scientists, land-rights experts, indigenous representatives and other stakeholder groups. The panelists analyzed the critical role that land plays in achieving climate solutions, the degree to which climate change may reshape regional abilities to support sustainable ecosystems, and the ways in which these land and climate interactions might affect land rights, human rights, and achievement of the Sustainable Development Goals.
Topic:
Climate Change, Energy Policy, Human Rights, and Sustainable Development Goals
Political Geography:
Global Focus

4. Governing Land Investments: Do Governments Have Legal Support Gaps?

Author:
Columbia Centre on Sustainable Investment
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
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 links in global and national efforts to achieve more responsible land investments, as well as opportunities to encourage better practice. For example, legal support holds the potential—albeit not yet regularly realized—to be an entry point for incorporating international best practice and guidelines into negotiations and at other stages of the investment. The report also takes stock of how governments are negotiating and concluding land investments in practice, to determine where additional legal support could potentially improve outcomes for governments.
Topic:
Science and Technology, Governance, and Land
Political Geography:
Global Focus

5. Costs and Benefits of Investment Treaties: Practical Considerations for States

Author:
Lisa Sachs, Lise Johnson, Brooke Güven, and Jesse Coleman
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
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.
Topic:
Treaties and Agreements, Law, Legal Theory, and Investment
Political Geography:
Global Focus

6. Clearing the Path: Withdrawal of Consent and Termination as Next Steps for Reforming International Investment Law

Author:
Lise Johnson, Lisa Sachs, Brooke Güven, and Jesse Coleman
Publication Date:
04-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
This is a crucial moment in international investment policymaking. Two factors have converged, calling for a new direction. First, it has become increasingly difficult to justify investor-state dispute settlement (ISDS); even governments that had been among its strongest proponents are now changing course and have raised a range of fundamental, systemic and inter-related issues relating to ISDS. Second, policy makers and other stakeholders have a greater awareness of the need to design appropriate policies to maximize the contributions cross-border investment can make to sustainable development. Influenced by these factors, various reform efforts related to investment policy are underway at the national, regional, and international levels. These discussions about reform are likely to be slow, and outcomes uncertain. In the meantime, governments and their stakeholders remain tied to an outdated system that is widely acknowledged to be ill-suited for modern investment policy objectives, with increasingly concerning consequences. This policy paper explores two near-term options that governments engaged in reform discussions can pursue, alongside longer-term work on substantive and procedural reform. These options are: (1) a joint instrument on withdrawal of consent to arbitrate; and/or (2) a joint instrument on termination. The paper examines how both options could be implemented, and makes the case for putting a pause on ISDS to ensure that investment treaties and their dispute settlement mechanisms achieve their desired ends, produce legitimate decisions, and do not undermine international economic cooperation and sustainable development more broadly.
Topic:
International Cooperation, Regional Cooperation, Governance, Reform, Policy Implementation, and Investment
Political Geography:
Global Focus

7. The Renewable Power of the Mine

Author:
Nicolas Maennling and Perrine Toledano
Publication Date:
12-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
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 been falling at an unprecedented scale, which has encouraged an increasing number of mining companies to test these technologies at their mine sites. The Renewable Power of the Mine report, launched at the Energy and Mines World Congress in Toronto and prepared with the support from the German Cooperation, is the most comprehensive study to date on how the sector has been integrating renewables in their mining operations, the roadblocks that still exist, and the future trends that are likely to further drive the roll-out of renewables to supply electricity to mine sites. 38 case studies are included to highlight practical examples and lessons learned. Recommendations to address the outstanding roadblocks are included for governments, mining companies, independent power producers and donors.
Topic:
Climate Change, Energy Policy, Natural Resources, Mining, and Renewable Energy
Political Geography:
Global Focus

8. Green Foreign Direct Investment In Developing Countries

Author:
Columbia Centre on Sustainable Investment
Publication Date:
10-2017
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
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 is necessary to generate such investments, this paper, produced in conjunction with the UN Inquiry into the Design of a Sustainable Financial System, focuses on the actual and potential role of one type of financial flow—FDI—in achieving the transition to a low-carbon, just and sustainable world and, more specifically, FDI flows into developing countries.
Topic:
International Political Economy and Climate Finance
Political Geography:
Global Focus

9. Designing a Legal Regime to Capture Capital Gains Tax on Indirect Transfers of Mineral and Petroleum Rights: A Practical Guide

Author:
Columbia Centre on Sustainable Investment
Publication Date:
10-2017
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
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 the country, or the shares of the holding company are sold, instead of the asset.
Topic:
International Political Economy
Political Geography:
Global Focus

10. Towards an Indicative List of FDI Sustainability Characteristics

Author:
Howard Mann and Karl Sauvant
Publication Date:
09-2017
Content Type:
Policy Brief
Institution:
Columbia Center on Sustainable Investment
Abstract:
Based on a review of 150 instruments, ranging from international investment agreements to codes of multinational enterprises, this paper identifies ten core characteristics of sustainable FDI and twenty emerging sustainable FDI characteristics widely accepted across ten stakeholder groups. The paper explores furthermore opportunities and mechanisms to advance the application of the sustainability characteristics. The FDI sustainability characteristics are also of immediate relevance for the discussions of investment facilitation
Topic:
International Affairs
Political Geography:
Global Focus