The OECD Guidelines for Multinational Enterprises are one of the world’s foremost corporate responsibility instruments and are becoming an important international benchmark for corporate responsibility. They contain voluntary principles and standards for responsible business conduct in such areas as human rights, disclosure of information, anti-corruption, taxation, labour relations, environment, and consumer protection. They aim to promote the positive contributions multinational enterprises can make to economic, environmental and social progress.

The OECD Guidelines for Multinational Enterprises

The dilemma of energy and environment is a matter of great concern for any resource-rich developing country, let alone for Iraq having the fifth largest proven oil reserves in the world. Waking up from the past four decades of war and conflicts, and faced with the continuing acute political tensions, sectarian divides and violence, and future uncertainties, Iraq has thus a tremendous challenge in hand for the sustainable development of its such vast reserves of oil and gas along the lines of international law standards and norms. This is more so at a time when the reconstruction of its war-torn economy for its social and economic development and prosperities is in process. The study examines the current Iraqi legal framework (both domestic and international) and policies concerning investment in the oil and gas sector and its development in the wider context of geopolitics, and tensions between the federal and regional governments (especially the KRG) in Iraq, and appraises how it falls short of the standards and norms of international sustainable development law as it is evolving at the global stage. It has been observed that for Iraq the road to sustainable development is not a plain one, and there are many bumpy rides ahead. It is important that with the ever-increasing pressure for sustainable development of fossil fuel as on the global agenda of the international community, Iraq as a major producer must respond to it. As it stands at present, Iraq’s shortcomings in this respect are alarming and staggering, and it has to go a long way to remedy that politically, legally and policy wise. The approach followed in this paper is interdisciplinary which along with law and policy looks into relevant political, social, economic, geopolitical aspects in order to get a better perspective of sustainable development issues concerning oil and gas in the Iraqi context. This is what this study has explored and put forward some suggestions for a better future of Iraq as a resource-rich developing country. This study facilitates the understanding of Iraqi politicians, policy makers, legislators, international oil companies, development-partner countries, interested international organizations and non-governmental organizations in respect of sustainable development issues of Iraqi oil and gas and suggests some ways forward to fix them. * LLB (Honours), LLM., M.Int’L.Law (ANU), PhD (Cambridge), MCIArb, FRSA, Professor of International law and International Business Law, University of Portsmouth, U.K; Honorary Professorial Fellow, CEPMLP, Dundee. He has held visiting professorships / senior visiting academic positions at Oxford, Cambridge, Western Ontario, Kent and London (QM) universities and China University of Political Science and Law, Beijing. He has served as a Council Member of the ICC Institute of World Business Law, Paris for many years. He is a member of Academic Council of the Institute of Transnational Arbitration, U.S.A., ILA Committee on International Commercial Arbitration, THE IDR GROUP®, London, Legal Advisory Task Force of the Energy Charter Treaty, EC Secretariat, Brussels, and IUCN / World Commission on Environmental Law and its Specialist Groups: Energy Law & Climate Change, and Water & Wetlands. E-mail: munir.maniruzzaman@port.ac.uk ** LL.B. (Mosul University, Iraq), LL.M. (International Law) (University of Baghdad, Iraq), and Ph.D. (Portsmouth). He is a lecturer at Duhok University, School of Law. He is a member of the Council of Iraqi Lawyers in Baghdad, the Association of Iraqi Lawyers in Mosul, and the Iraqi Human Rights Association in Baghdad. E-mail: suleiman236@hotmail.com *** Former Secretary-General of the United Nations, ‘Sustainable Energy for All: A Framework for Action — Secretary-General’s High-Level Group on Sustainable Energy for All’ (Framework Report, United Nations, January 2012) 4 (‘SE4ALL Framework’).

https://researchportal.port.ac.uk/portal/files/7815013/OGEL_MUNIR_JULY_2017_4_.pdf

The energy and environment dilemma: sustainably developing Iraqi oil and gas in International law and policy - prospects and challenges

A new investment agreement between Canada and the UK constitutes a crucial opportunity to include innovative provisions from recent international agreements and to explore new possibilities to construct a more legitimate regime. In order to support evidence-based decision-making in the negotiation of such an agreement, a comprehensive review of the range of opportunities must be provided. What are the provisions that can be included in an investment agreement between the two states to address controversial issues and support the reform of the international investment regime?

The objectives underlying the final report are to allow policy-makers to undertake the negotiation process with a clear sense of the various provisions that are available to address the most controversial issues of international investment law and their legal implications. The report demonstrates that an investment agreement can respond to legitimacy concerns raised by a variety of stakeholders. More specifically, it provides a side-by-side comparison of provisions that have already been included in IIAs and model agreements for three specific themes: 1) dispute settlement possibilities; 2) the breadth of investment protection; and 3) obligations imposed on foreign investors.

For each theme of the knowledge synthesis, the material that has been collected and analyzed is synthesized through a side-by-side comparison of provisions and their legal implications.

1. Dispute settlement possibilities: The mechanism allowing private investors to submit investment
claims to international arbitration has come under increasing public scrutiny, with several actors
criticizing its lack of legitimacy. Some policy-makers and negotiators have responded to these criticisms through various means. The report focuses particularly on six approaches that have been included in IIAs and model agreements. These approaches range from a reformed investor-state dispute settlement mechanism through the inclusion of new provisions, a return to diplomatic protection and state-to-state arbitration, reliance on domestic courts, alternative dispute resolution mechanisms, hybrid approaches, and an investment court system.

2. Breadth of investment protection: Addressing concerns raised by stakeholders can also be achieved by further clarifying the content of standards of protection that are traditionally included in IIAs. An enhanced level of precision is especially visible with respect to fair and equitable treatment (FET) and expropriation. Various options have been used by states to qualify FET provisions and to list the elements included in this standard of protection. Other provisions include a limiting definition of indirect expropriation or various forms of carve-outs, including for general regulatory measures.

3. Obligations imposed on foreign investors: With a view to countering the generally asymmetric nature of IIAs, some states have chosen to address foreign investors’ responsibilities in various ways. Some examples refer to these responsibilities in the preamble of an IIA or in provisions referring to the concept of corporate social responsibility. More constraining provisions impose direct obligations on foreign investors, call for an explicit consideration of the investment’s negative impact or deny substantive protection for investment made through corruption or other fraudulent means.

Investment Promotion and Protection in the Canada-UK Trade Relationship

#DefendTheSacred : harnessing hard and soft law mechanisms to integrate international investment and cultural rights

Divestment by multinational enterprises is an important yet understudied phenomenon. The few available estimates indicate that about a fifth of all foreign affiliates are divested every five years. This paper presents the findings from a novel cross-country firm-level dataset with financial and ownership information for over 62 000 foreign-owned affiliates from a selection of 41 OECD and G20 countries and their economic groups from 164 home countries for the period 2007-2014. The data allow an assessment of the relative importance of different determinants of divestment in a cross-country setting, including host country policies and bilateral factors, including trade, investment and tax agreements. The findings confirm that parents divested about one of every five foreign-owned affiliates between 2007-2014 and show that a number of host country policy and economic factors, including labour costs and international trade agreements, influence the divestment decision, on top of the firm considerations considered in previous studies.

/pdf/drivers-of-divestment-decisions-of-multinational-enterprises-1ba47se0ok.pdf

Drivers of divestment decisions of multinational enterprises - A cross-country firm-level perspective

Investment treaty law – which is scattered over 3 000 international investment agreements adopted over a period of 50 years – is a crucial but complex basis for regulating international investment flows. Investment treaties are often thought to be silent on investors’ responsibilities to host societies and on their contributions to sustainable development. The present paper establishes a factual and statistical basis for understanding the relationship between investment treaty law and governments’ ability to advance the sustainable development agenda and promote responsible business conduct. The paper presents survey results of 2 107 investment treaties and 1 113 treaty-based arbitration cases in order to shed light on how (if at all) labour, environmental, human rights and anti-corruption considerations are referred to in investment treaties and investor-state arbitration cases based on them.

/pdf/investment-treaty-law-sustainable-development-and-2bcnnauhl1.pdf

Marie Bouchard

Papers

Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey

Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey