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Legal Primer: Respecting the Human Rights of Communities in Wind and Solar Project Deployment
Get PDFAs a companion to the Business Guide, the Legal Risk Primer is geared towards general counsels and corporate legal teams, as well as internal and external stakeholders. It provides an overview of the wide range of potential legal risks for wind and solar energy companies associated with community-related adverse human rights impacts. The legal risks outlined arise from home and host government laws, community litigators, financiers, and power purchase agreements.
Together, these two resources support wind and solar energy companies – as well as external stakeholders seeking to influence companies, including investors, civil society organizations, and project-affected communities – in driving a just transition to renewable energy that is fast but fair.
This resource was produced as part of CCSI’s ALIGN partnership with Namati and the International Institute for Environment & Development, funded by the UK Foreign, Commonwealth & Development Office. Learn more about the ALIGN partnership here
The Sources of WTO Law and Their Interpretation: Is the New OK, OK?
No full textIn this incisive book, Petros C. Mavroidis examines the complex practice of interpreting the various sources of World Trade Organization (WTO) law. Written by a leading expert in WTO scholarship, the book serves as a broad grounding in the legal theory of the WTO contract and its sources, as well as its application in practice.
Delving into the workings of the Vienna Convention of the Law of Treaties (VCLT) and its use within the WTO courts, the author provides a critical assessment of the interpretation of the WTO contract and illuminates the role of WTO adjudicators and the Secretariat in clarifying obligations. Mavroidis then explores the uncertainty and distortion that emerge as a result of the discretion from adjudicators invited by the VCLT, explaining why this matters and offering steps towards resolving these issues.
Providing an expansive analysis of the interpretation of WTO treaties, this book will be an invaluable resource for scholars and students in the field of WTO law, as well as international trade and economic law more broadly. Its discussion of the possible future of dispute settlement, particularly its proposal for a re-evaluation of the judicial selection process, will also prove insightful to practitioners in this area.https://scholarship.law.columbia.edu/books/1336/thumbnail.jp
Equity\u27s Federalism
Get PDFThe United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court obligingly adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, Congress reconfigured the ways federal equity would intermix with state law and legal process. But in the twentieth century, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism. This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the state and local level
Intellectual Property, Independent Creation, and the Lockean Commons
Get PDFCopyrights and patents are differently structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as a complete defense to claims of infringement while patent law does not. This distinction entails that the two legal systems differ in their effects on the “intellectual commons,” or what exactly they give to rights-holders and take away from the rest of the world. It also entails that Seana Shiffrin’s seminal challenge to Lockean theories of intellectual property — arguably the most significant philosophical exploration of intellectual property so far, but which fails to distinguish between these two areas of law — is a success as to patents but not as to copyrights. Disentangling this and other distinctions in copyrights and patents within the Lockean framework, as well as between tangible and intellectual property generally, this Article outlines a number of possible implications for intellectual property doctrine. Specifically, it identifies revisionary implications for copyright required by the Lockean framework in order to better protect the intellectual commons, as well as for the copyright/patent division of labor if the two legal systems have distinct theoretical grounds. The Article thereby uses the Lockean framework to call attention to intellectual property’s underexplored philosophical complexity, as well as its doctrinal stakes, so that we begin considering it more carefully than it has yet been
Credit, Crises and Infrastructure: The Differing Fates of Large and Small Businesses
Get PDFThis Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding.
At first glance, it would seem that small businesses benefitted more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection of the range of government programs implemented and their longer-term impact reveals a very different picture. By primarily providing grants to small businesses, the government helped address their short-term cash flow challenges but did little to encourage ongoing private credit creation for these businesses. The aid provided was real but finite in nature. By contrast, the nature of the programs used to facilitate financing for the largest businesses provided major support at the moment and created expectations of future support. These interventions enhanced the viability and attractiveness of inherently fragile intermediation structures and set them up to continue to provide cheap and easy financing for the largest businesses long after the acute phase of crisis had passed.
This Essay further reveals how numerous seemingly neutral choices were anything but in practice, creating a disconnect between policymakers’ stated aims and the actual impact of many of their actions. A key takeaway is that the government should do more during times of peace to understand and shape the credit creation infrastructure in ways that facilitate small business lending in good times and bad
Comments on Council Draft 6 [black letter and comments]
Get PDFWe appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below
Asset Managers as Regulators
Get PDFThe conventional view of regulation is that it exists to constrain corporate activity that harms the public. But amid perceptions of government failure, many now call on corporations to tackle social problems themselves. And in this moment of dissatisfaction with government, powerful asset managers have stepped in to serve as regulators of last resort, adopting rules that bind corporate America on issues of great social importance, including climate change and workplace diversity. This Article describes this dynamic — where shareholders have become regulators — which has been made possible by the rise of institutional shareholding (and index investing in particular) and the contemporaneous growth of shareholder power. As a result, the large diversified asset managers that specialize in index funds (the so-called “Big Three” — Vanguard, State Street, and BlackRock) collectively hold nearly controlling stakes across the public equity market. In addition to intervening in traditional areas of corporate governance, they have adopted sweeping board diversity mandates as well as “ESG” disclosure and carbon emission reduction requirements, and enforced them through their proxy voting policies. And the early consensus is that asset managers have been influential in these areas, driving change where other private (and public) efforts failed.
This Article describes these regulatory interventions in detail and concludes that we are witnessing a novel privatization dynamic. It also offers a theory about the incentives that shape it. Asset managers will only supply regulation if it has a positive impact on their profits; therefore, demand from clients — which include not just individuals, but also institutions — will govern the choice of policies and the substance of their rules. And given the breadth of the Big Three’s clientele and their interest in avoiding government backlash, their policies are likely to take many interests into account. Nonetheless, serious concerns loom large, including the fact that for-profit asset managers lack democratic accountability and government oversight for their policymaking, with no guarantee that it will further the public interest. To the extent that their policies are shaped by the corporate clients that provide much of the assets they manage, they are unlikely to be as impactful as many perceive. The provision of regulation by asset managers may also take pressure off the government to respond to these issues with policies better calibrated toward advancing social welfare. At bottom, understanding the forces that shape (and potential problems that accompany) this privatization dynamic is of critical importance not just for investors and corporations, but also for the public
The Carbon Market and its Regulation in Brazil
Get PDFAt present, the global geopolitical scenario is based on an economy undergoing a post-pandemic recovery, with inflation unleashed in various developed countries and a war conflict in Europe, which entails an overall increase in energy prices, food insecurity and a breakdown of supply chains. Under such circumstances, the outlook is one of enormous pressure on the mitigation and adaptation plans of the United Nations, which seeks to revert climate warming caused by human actions in the post-industrial revolution era. The watchword is decarbonizing the global economy by reducing greenhouse gas (GHG) emissions and changing carbon-intensive production regimes. Indeed, countries, companies, and organizations need to increase energy efficiency, reduce or eliminate the use of fossil fuels and increase rates of carbon sequestration and long-term carbon storage. While there is consensus that decarbonization is imperative for human survival, post-pandemic realities and international conflicts have created energy and food insecurity that obstruct the path to a low-carbon or even zero-carbon economy.
In the world, the economic sectors with the greatest emissions are the Fossil Industry, Agriculture and Transportation. Changes in the production cycle in order to include new technologies that can mitigate emissions do not occur fast enough to reap their benefits, especially because of the economic costs involved in these changes. With a focus on the agricultural sector, this chapter will demonstrate how the carbon market is an effective and economically fundamental way to enable the implementation of protocols, public policies and legal strategies—taking into account the constitutional principles and the most progressive and sustainable precedents laid down by two Brazilian Superior Courts (i.e., the Supreme Federal Court and the Superior Court of Justice, which recognize a balanced environment as a third generation fundamental right or as one of a very new dimension—that will reduce emissions from the agricultural sector while minimizing the costs of these changes, ultimately giving shape to a virtuous economic and environmental circle.
Agriculture encompasses human activities for the production of food and fiber that are essential to sustain life on Earth. Because of its capacity to simultaneously emit and sequester carbon, it is necessary to choose appropriate legal strategies and agricultural technologies that encourage and provide neutral or negative emissions. However, there is a cost associated with such changes in these complex production cycles. Data made available by the Intergovernmental Panel on Climate Change (IPCC) show that global population growth and changes in per capita consumption after the Second World War, especially for food, feed, fiber, wood and energy, caused an unprecedented increase in water and land use, with a major expansion of agriculture over forested areas and the loss of ecosystems.
On the one hand, there is illegal deforestation within the context of land use, technically defined by the IPCC as the unsuitable management practices of Agriculture, Forestry and Other Land Use (AFOLU) causing erosive and predatory degradation and responsible in themselves for approximately 13 percent of total carbon dioxide and 44 percent of methane (CH4) emissions in the period 2007-2016, i.e., an average of roughly 24 percent of total emissions. On the other hand, sustainable agricultural activities make up an important GHG sink, assuming a central role in decarbonizing the economy. And, in this regard, Brazil can contribute more quickly to carbon sequestration through strict measures against deforestation and the adoption of increasingly advanced and sustainable techniques to replace more carbon-intensive farming practices. As we will see below, a correct regulatory framework can help agriculture put into force new production processes adapted to a low carbon reality and, furthermore, it can also assign a compensatory monetary value for new practices that will generate social and environmental benefits due to emissions mitigation. This new mechanism is called the carbon market
Through the Gale Ep3: Building Inclusive Law Schools
No full textIn this episode, we examine how law schools have responded to calls to develop new curriculum and pedagogy that is critical, inclusive, and attentive to how race, power, and identity shape jurisprudence and the culture of law schools. Through conversations with Susan Sturm (George M. Jaffin Professor of Law and Social Responsibility), Kendall Thomas (Nash Professor of Law), and Professor Meera Deo (Southwestern Law School), the hosts explore the role of hiring practices, pedagogy and curriculum in law schools’ evolving anti-racism efforts.https://scholarship.law.columbia.edu/through_the_gale/1004/thumbnail.jp
Doctrinal Conflict in Foreign Investment Regulation in India: \u3cem\u3eNTT Docomo vs. Tata Sons\u3c/em\u3e and the Case for “Downside Protection”
Get PDFThe strategic importance of India as an investment destination for foreign investors is highlighted by ongoing tensions in the Indo-Pacific region and the recognition that a strong economic relationship with India is in the interests of countries seeking a more stable balance of power in the region. From a policy perspective, India has struggled to balance its own economic interests with the commercial requirements of investors. Rules attempting to strike this balance have created uncertainties that have resulted in investors seeking greater protections for their investments, which in turn have triggered additional regulatory responses that enforce India’s policy preferences. The prevalent use of put options by foreign investors, whereby Indian parties are required to buy out their counterparties at predetermined prices, has been a prominent subject of these regulations. India’s judiciary has been drawn into this cycle through actions brought by foreign investors seeking to enforce arbitration awards validating their exit rights. In the process, they have created their own interpretation of the applicability of foreign investment rules that support principles of freedom of contract. This doctrinal conflict with regulatory policy is illustrated by a high-profile dispute involving one of Japan’s largest and most well-known companies, NTT Docomo, and one of India’s largest and most trusted companies, Tata Sons. Japan views India as a key strategic partner and, in particular, views strong economic ties as a central linchpin of the partnership. Using, principally, the Tata-Docomo case as an example, and a review of other similar disputes, this Article analyzes the regulatory and judicial doctrines that have shaped foreign investment regulation in India and explores the public policy implications of the conflict for India. In doing so, it proposes regulatory reforms to provide more clarity and certainty for investors, suggesting that express recognition of “downside protection” for investments provides a rational balance between private commercial interests and public regulatory objectives