Global Health Research Center of Central Asia
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ESG as a Test Case for the Convergence Thesis in Corporate Law: Notes from India
Get PDFThis paper uses four concepts key to the ESG agenda – investor stewardship codes, corporate purpose, independent directors and ESG disclosures – to examine which way the corporate convergence pendulum is swinging in India. It finds that none of the aforesaid concepts are examples of perfect convergence or perfect divergence. Instead, they lie somewhere in the convergence-divergence matrix – India’s investor stewardship codes and framework on independent directors are examples of formal convergence but functional divergence, and her corporate law provisions on corporate purpose and ESG disclosure are functionally convergent, but formally divergent. The dichotomies in the analysis are explained on a case-by-case basis for each of the four concepts, as varying path-dependent, political, institutional and social forces determine the ‘level’ of convergence or divergence. The paper concludes by arguing that attempts to create ‘perfect convergence’ or standardization of corporate law in India have (and must) fail, because of social, political and economic norms and institutional resistance at the margins. In doing so, the paper adds to the increasingly relevant body of work emerging in Asia, measuring levels of convergence with ‘Western’ and global corporate governance systems since Profs. Hansmann and Kraakmaan’s influential ‘end of history’ thesis in 2001
Public Health and Human Health Implications of Climate Mobility
Get PDFClimate change poses significant challenges at the intersection of human and public health, mobility, and international law. Adverse climate impacts undermine the quality of human and public health, contributing to increasing global mobility, while climate-impacted migrants and displaced people can experience severe health challenges in transit and in their receiving communities. Moreover, the nexus between climate change, human and public health, and mobility exacerbates pre-existing vulnerabilities, undermining human rights and implicating State obligations. As international and regional courts, including the International Court of Justice (ICJ), clarify states’ duty to protect people from the adverse impacts of climate change, it is critical to consider the nexus of human and public health and mobility. Health and mobility interact in the context of climate change in three major ways. First, numerous direct and indirect climate impacts negatively affect human and public health--including by increasing food insecurity, heat-related illnesses, and diseases resulting from limited access to clean water. These health challenges can contribute individually or collectively to the decision or need to flee home. Second, climate change intensifies the health-related risks that migrants and displaced people encounter in transit. Third, movement to urban centers in response to climate impacts may strain resources and subject displaced people to living conditions hazardous to their health, especially where receiving communities do not provide sufficient housing, resources, and access to medical care. International legal frameworks are crucial in guaranteeing the health-related rights of climate migrants and displaced people. The nexus of climate change, health, and mobility implicates a range of international legal principles and norms deriving from human rights and refugee law, including the rights to health and life and non-refoulement. Emerging international standards also encourage states to reduce greenhouse gas emissions and support adaptation in order to improve the quality of life and potentially prevent the displacement of people impacted by climate change and climate-related disasters.
This paper uses a law and science perspective to examine the critical nexus of climate change, mobility and human and public health. It surveys scientific evidence linking climate change to adverse health outcomes and human mobility, considering the impacts of both sudden and slow-onset climate events. This report seeks to inform the ICJ’s consideration of States\u27 obligations regarding climate protection by identifying international legal standards and state obligations to protect the health and wellbeing of climate-impacted people, including those who move internally or across borders. The report also serves as a resource for advocates and 2 governments on the effects of climate mobility on human health and public health and defines legal interventions and policies that can protect and improve human and public health in a changing climate. While efforts to mitigate climate change are paramount, irreversible environmental changes necessitate anticipatory measures to protect migrants and displaced people, both in transit and in destination communities. States must uphold refugee and human rights law, refrain from returning people to danger, offer safe mobility pathways, and guarantee non-discriminatory access to resources and services essential to protect human and public health
Green Public Procurement: How to Fulfill the Promise of Decarbonizing the Hard-to-Abate Sectors
Get PDFPublic procurement represents a significant segment of the global economy, accounting for approximately 12% of the global GDP, according to a World Bank\u27s 2020 report. Moreover, steel and cement are among the most carbon-intensive commodities, contributing about 14-16% of global energy-related CO2 emissions. Our latest publication under the COMET initiative, Green Public Procurement: How to Fulfill the Promise of Decarbonizing the Hard-to-Abate Sectors, analyzes Green Public Procurement (GPP) and its pivotal role in decarbonizing hard-to-abate sectors like steel manufacturing.
This comprehensive study delves into how governments can use their extensive purchasing power to shift market dynamics towards low-carbon alternatives, effectively absorbing the initial \u27green premium\u27 and driving industrial innovation. By implementing robust governance frameworks and aligning procurement practices with specific and escalating quantitative targets and clear quantification methods, GPP can become a critical force in reducing greenhouse gas emissions and advancing climate mitigation.
However, this paper highlights that the effectiveness of GPP is often hindered by the voluntary nature of targets, inconsistent accounting practices, and inadequate governance structures. To overcome these challenges, it recommends that GPP evolves from a passive to a proactive tool that supports the development and scaling of emerging technologies through the adoption of GPP innovative tools like the CO2 Performance Ladder (CO2PL) and Carbon Contracts for Difference (CCfDs), which respectively integrate carbon management into procurement processes and provide stable financial incentives to support nascent technologies in industrial decarbonization.
Our findings suggest that with strategic implementation, GPP can inspire a model for private sector adoption, enhancing the collective impact on industrial decarbonization and establishing a profound ripple effect across various industries. This publication provides a roadmap for leveraging GPP\u27s full potential to contribute to a sustainable and economically viable future
A Market Mechanism for the Creation of a Climate-differentiated Market in the Steel Industry
Get PDFThe heavy industry sector, a significant contributor to global CO2 emissions, is at a critical juncture. Accounting for 25% of total CO2 emissions annually, this sector is poised to see an increased demand for materials through 2050, particularly from developing countries focused on infrastructure expansion and transitions toward net-zero emissions. However, the sector\u27s dependency on high-emission technologies, notably in steelmaking, underlines the pressing need for a swift and decisive shift to low-emission alternatives.
Our latest publication under the COMET initiative, A Market Mechanism for the Creation of a Climate-differentiated Market in the Steel Industry, introduces a twofold market mechanism specifically designed to enable the transition from traditional Blast Furnace-Basic Oxygen Furnace (BF-BOF) steelmaking methods to more sustainable Electric Arc Furnace-Direct Reduced Iron (EAF-DRI) technologies. This paper proposes the implementation of a Green Steel Certificate (GSC), bundled with a Virtual Offtake Agreement for Steel (VOAS), creating a mechanism that aims to overcome the prevalent challenge of additionality - ensuring that emissions reductions are genuine, substantive, and wouldn\u27t occur without the intervention of this market mechanism.
Traditional market mechanisms have struggled to guarantee that the environmental benefits they claim directly contribute to creating new, additional capacity for low-emission production. Our mechanism is designed to fill this gap by absorbing the green premium of near-zero emissions steel production, making green steel more competitive and viable, and creating a climate-differentiated market for it. This proposed market mechanism provides a robust certificate that verifies the emissions intensity of the steel produced and allows buyers to claim Scope 3 emissions reductions by purchasing these certificates. By bundling these certificates with a long-term virtual offtake agreement, the proceeds from the sale of these certificates ensure consistent cash flow for steel producers and create financial certainty for producers and investors to invest in new decarbonization projects.
Together, the GSC and VOAS create a synergistic effect. The GSC ensures the environmental integrity and additionality of green steel, while the VOAS secures the financial viability necessary to finance and implement these advancements –all of this being monitored and overseen by a robust Registry that will instill the whole system with the necessary transparency and traceability. This publication provides a guideline for the design principles of this twofold market mechanism to create a climate-differentiated market for “green” steel products
Rebuilding Banking Law: Banks as Public Utilities
Get PDFUnder the New Deal framework for money and payments — which had its roots in the National Bank Act of 1864 — banks in the United States were governed in many respects as public utilities. Charters were available only where they were consistent with public convenience and need, the usual standard for utilities. Banks enjoyed an exclusive privilege to augment the money supply, maintaining deposit account balances that house-holds and businesses could use as a means of payment and store of value. Banks were largely limited to conducting activities consistent with their monetary purpose. Geographic expansion was constrained to promote ad-equate service to local communities. And a government agency, the Federal Reserve, regulated the quantity of bank money in circulation and set the interest that accrued to its holders. The result was an unprecedented period of overall financial stability that lasted more or less until 2008.
Unfortunately, policymakers have steadily undermined and degraded key elements of this system, and now its logic has been largely forgotten. Deposit alternatives — financial products that as a formal, legal matter are distinct from bank deposits but that function like them in practice — match or exceed deposits in value, and the country’s once-diffuse banking system has given way to a top-heavy financial architecture in which a handful of complex conglomerates engage in a broad range of monetary and non-monetary financial activities with little meaningful government oversight. Although policymakers dramatically expanded regulation after the 2008 financial crisis, we still face rolling panics, a central bank committed to backstopping much of private finance, massive rent extraction by Wall Street, and democratic decline.
This paper offers a blueprint for reform: what we call a New National Banking system. Our goal is part restoration, part innovation. We aim to both renew the framework that undergirded American prosperity in the twentieth century and refine it by improving access to bank services and carrying through on the law’s public utility vision where previous policy-makers came up short. The proposal is structural, not technocratic — banking law, not “finreg.” Consequently, it is conceptually and legally simple: it involves fairly surgical changes and can be implemented through a series of incremental adjustments, which we delineate herein
Patient Access to Health Device Data: Toward a Legal Framework
Get PDFNew health care devices, including at-home diagnostic devices, are generating and aggregating data on patients’ health at a staggering pace. Yet much of that data is inaccessible because it is held in data siloes, most often cloud services controlled by device manufacturers. This proprietary siloing of patient data is problematic from ethical, economic, scientific, and broad public policy perspectives. This chapter frames these concerns and begins to sketch a regulatory framework for patient access to health care device data. As with other consumer data, breaking down siloes and securing patients’ access to their device data safeguards patients’ ownership interests, promotes patients’ ability to maintain and repair their equipment, and encourages interoperability and competition. Yet, data access is especially important for health data: It allows patients to make informed decisions about their own care, and it enables motivated citizen-scientists to study their own conditions and innovate in response to them. Patient access to device data may also be a first step toward building publicly accessible, responsibly governed datasets of so-called “real-world evidence” – which are increasingly essential to validate the accuracy and reliability of current diagnostic devices – and to invent and validate future devices, drugs, and other precision medicine interventions. These interests motivate the development of our proposed framework. Drawing from related experiences with clinical trial data and electronic health records, this chapter identifies the key considerations for a framework that protects key interests, such as privacy and data security, while unlocking the benefits of broader data sharing
Wrong-Person Error in Capital Cases
No full textA death verdict may be erroneous as a matter of substance (the defendant did not satisfy the conditions for conviction of murder or for the death penalty) or procedure (the process the state used to determine what the defendant did violates legal rules designed to assure factually correct verdicts). Substantive error can infect many elements of the guilt determination, of which “wrong-person” error is one. Erroneous death verdicts may be discovered before or after the individual is executed, or not at all. Focusing on capital, substantive, wrong-person errors, this chapter assesses how frequently they occur and are discovered, their implications for our capital justice system, why they occur, and what can be done to avoid them
The Crusade for the Holy Grail of Competitive Balance
No full textThe specificity of sport is a concept acknowledged on both sides of the Atlantic. In the US it is linked to a (limited) exception from antitrust laws. In Europe, the application of the rules on free movement of persons, services, and workers, as well as antitrust, has left some room for it. But whereas the US has gone full steam ahead to regulate competitive balance, Europe has not. In this contribution, inspired by the work of Steve Weatherill and others, we ask the question whether the observed differentiated approach is justified because of the nature of competition on the two sides of the Atlantic, ie closed leagues in the US, and promotion/relegation in Europe
Commercial Boilerplate: A Review and Research Agenda
Get PDFBoilerplate contracts have long fascinated legal scholars. But the focus has been largely on consumer contracts, with the debate centered on the question of whether take-it-or-leave-it mass-produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate — the standard forms used in transactions for corporate or sovereign bonds or merger agreements — has traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not in substance from bespoke contracts between business entities. Yet a growing body of scholarship is questioning that assumption. This article reviews the complexities of contract production in these large markets and provides a window into an exciting new area of contracts research
Gateway and Non-Gateway Issues in The Enforcement of Agreements to Arbitrate
Get PDFFar greater attention is given in literature on international arbitration to limitations on the enforceability of arbitral awards than on the enforceability of agreements to arbitrate. This chapter seeks to redress the balance. While rulings on the enforceability of an award is incontrovertibly within the jurisdiction of the court asked to enforce the award, authority to determine the enforceability of an arbitration agreement is allocated between courts and arbitral tribunals themselves. The chapter seeks to determine which defenses to enforcement of arbitration agreements may be lodged before a court ( gateway issues ) and which are necessarily reserved to the tribunal ( non-gateway issues )