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VCC Memos

Submissions to UNCITRAL Working Group II on Arbitration and Conciliation

Most investment treaties grant investors the procedural right to bring claims against governments through investor-state arbitration. Under the arbitration rules that commonly govern the proceedings, including the arbitration rules developed by a United Nations body, the United Nations Commission on International Trade Law (UNCITRAL), these disputes can remain hidden from public view from their commencement through conclusion. Recognizing the public interest in investor-state arbitration, UNCITRAL has been working since 2010 to develop a legal standard that would ensure transparency in investor-state arbitration.

Committed to the belief that transparency in investor-state arbitration is fundamental for accountability, good governance, and the rule of law, elements which are, in turn, crucial for sustainable development, the VCC has been participating in the UNCITRAL process and has drafted various notes and proposals in support of the effort to increase public access to information regarding these disputes. In October 2012, the VCC and partners submitted two documents to country delegations to UNCITRAL: a background note describing and analyzing the key issues involved in UNCITRAL's work to increase transparency in investor-state arbitrations, and a proposal for specific text that UNCITRAL could adopt. Based on developments in October 2012 and in advance of the next meeting of UNCITRAL's working group on transparency in February 2013, the VCC has drafted a new proposal for UNCITRAL to consider and on which we welcome comments.

 

 

Memo to the SEC on the Proposed Rule on Disclosure of Payments by Resource Extraction Issuers

The Vale Columbia Center on Sustainable International Investment strongly supports the transparency of contracts and tax flows. As many stakeholders in the field, the VCC’s belief is that transparency is essential so that a) governments can assess whether their contracts and laws are fair and comparable in terms and benefits to those in other countries with similar endowments; b) communities and civil society can assess how the risks, benefits and responsibilities are allocated among the various stakeholders, and c) governments and investors can be held accountable for their commitments.
 

Guided by this belief, the VCC decided to establish the business case for transparency. The objective is to support the collective effort seeking to inform the Security and Exchange Commission (SEC) as it moves forward with the Dodd Frank Wall Street Reform and Consumer Protection Act, which requires all US listed companies to report detailed payments to governments on a country and project-by-project basis in all countries of operation.

The full memo, submitted to the SEC on December 16, 2011, is available here.

 

 

Memo to the Obama Administration on "Improving the International Investment Regime"

In January 2009, VCC sent a Memo to President Obama’s Administration on “Improving the international investment regime.” The Memo encourages the new Administration to take a look at the current international investment regime and consider several actions that the United States might take to strengthen that regime. A number of these ideas are already on the table, and the new Administration will have to be prepared, in one way or another, to deal with them. Several eminent colleagues at Columbia University signed on to the Memo.

The full Memo, including the signatories from Columbia University, is available here.

 


Memo to the SEC on the Dodd Frank Wall Street Reform and Consumer Protection Act

The Securities Exchange Commission (SEC) has been working to write rules for the Dodd Frank Wall Street Reform and Consumer Protection Act for several months now.  Of particular interest to the VCC is section 1504, which would require oil, gas and mining companies to report payments made to governments for those natural resources.  The law takes its inspiration from the Extractive Industries Transparency Initiative (EITI).  Resource-rich countries that voluntarily adopt the EITI require both the corporate disclosure that Dodd Frank will require as well as government disclosure of revenues received from companies.
 
As a part of the rule-making process, the SEC invited the public to provide comments and research to assist with implementation of section 1504 (among others).  The VCC submitted research showing that this proposed law would not violate foreign confidentiality laws or cause companies to violate confidentiality clauses in their contracts with governments.  The submission emphasized that, if anything, the opposite is true: countries are moving towards requiring these disclosures, not vice versa.  The submission can be found here.