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View this email in your browser <https://mailchi.mp/law/perspective-351?e=dd153d6a25> 哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看: https://ccsi.columbia.edu/content/columbia-fdi-perspectives <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=5f3fc57124&e=dd153d6a25> . *Columbia FDI Perspectives* Perspectives on topical foreign direct investment issues Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Matthew Conte ([log in to unmask]) *The Columbia FDI Perspectives are a forum for public debate. The views expressed by the authors do not reflect the opinions of CCSI or our partners and supporters.* No. 351 February 20, 2023 *Hardening soft law: strategic use of the OECD Guidelines to achieve meaningful outcomes* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a66b838052&e=dd153d6a25> by Marian Ingrams and Katharine Booth* Despite their soft law nature, the OECD Guidelines for Multinational Enterprises <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a2db33d521&e=dd153d6a25> (Guidelines) have clear and proven potential to help generate impactful outcomes for victims of corporate misconduct. This *Perspective* outlines several strategies civil society has employed either to use the soft law standards in the Guidelines to influence development of hard law or to use hard law to reinforce the standards and positive outcomes from complaints, thereby successfully promoting business uptake of the standards and/or ensuring remedy for complainants. - *Using the expectations in the Guidelines to urge lawmakers to close gaps in national and regional laws.* Civil society has used both the Guidelines and the associated OECD due diligence guidance <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=6a86b1356d&e=dd153d6a25> in advocating for several (proposed) laws on due diligence, including in Canada <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=5570918970&e=dd153d6a25>, France <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=06cecea4b4&e=dd153d6a25>, Germany <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4372035450&e=dd153d6a25>, the Netherlands <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=32123448b7&e=dd153d6a25>, and the EU <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=157964c017&e=dd153d6a25>. These laws, which are largely based on the norms in the Guidelines and the United Nations Guiding Principles on Business and Human Rights <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a9a6415aea&e=dd153d6a25> (UNGPs), have the potential to deliver real remedies to adversely impacted people. The Guidelines have also been used to encourage national legislators to close gaps in existing domestic law. For example, in *FNV vs NUON Energy* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4a12721f33&e=dd153d6a25>, a Dutch National Contact Point (NCP) complaint filed by the Federation of Dutch Trade Unions at the NCP, the complainants alleged that the energy company had breached the Guidelines’ labor and employment provisions. Specifically, FNV alleged that NUON had relied on a loophole in Dutch labor law allowing its subcontractor to pay foreign workers less than Dutch workers performing the same duties. In its final statement, the NCP acknowledged the stronger expectations in the Guidelines vis-à-vis Dutch law in terms of the supply chain responsibilities of companies for employment practices. The NCP recommended that the government close this gap—and the Dutch parliament did so soon thereafter. - *Citing the Guidelines in legal proceedings to encourage their implementation by companies. *In a recent well-known Dutch court case, *Milieudefensie et al. vs. Royal Dutch Shell* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=5315948a1f&e=dd153d6a25>, the applicant argued that the company owed a duty of care to address its climate impacts based on soft law standards, including as contained in the Guidelines and UNGPs. In May 2021, the court found that these standards do form the basis of this duty of care under Dutch tort law. By accepting this argument, the court effectively implemented the Guidelines and UNGPs into Dutch law. - *Insisting that companies comply with NCP-brokered agreements*. During NCP mediation in *Sherpa et al. vs Bolloré* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=1e1452fe54&e=dd153d6a25>, the parties reached an agreement that palm oil company SOCAPALM’s shareholder Bolloré would exercise its leverage to encourage remedy of SOCAPALM’s negative impacts on the environment and labor rights. In 2013, the parties developed a remedial action plan to be implemented under external monitoring; however, in 2014, Bolloré ceased implementing the agreement. Sherpa subsequently sued Bolloré in French court, requesting enforcement of the NCP-mediated agreement under French contract law. Although the case is still pending, it demonstrates the potential for companies to be bound by joint agreements brokered during NCP processes. - *Using NCP complaints to clarify or expand responsible business conduct standards from relevant international (expert) bodies.* The NCP complaint *Society for Threatened Peoples Switzerland vs UBS Group* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=9c93846c0e&e=dd153d6a25> addressed the bank’s ties to passive investments supporting the forced labor of Uighurs. Following the Swiss NCP’s determination that no business relationship under the Guidelines existed between UBS and its nominee shareholdings, thereby exempting the bank from related human rights responsibilities, BankTrack and the Centre for Research on Multinational Corporations <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=58e28cf2cf&e=dd153d6a25> sought and attained contrary clarification <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8077a6c5be&e=dd153d6a25> from the UN Office of the High Commissioner for Human Rights (OHCHR), establishing more broadly applicable soft law guidance on the responsibility of banks with respect to their financial services. The OHCHR’s opinion clarified the issues raised in the NCP complaint and the expectations in the UNGPs. While not legally binding, expert opinions such as the OHCHR’s would be highly persuasive in any future litigation or legislation on this issue and influential for another NCP considering a different complaint on the same issue. Using the Guidelines and NCP complaints in connection with hard law, either to push for a broader interpretation of responsible business conduct in legislation or case law or to seek enforcement of positive NCP outcomes, has been successful in cases brought by civil society. These cases suggest that the soft law Guidelines can be a useful tool not only in advocating for greater corporate responsibility to respect human rights and the environment—but also in strengthening the legal framework on corporate accountability. ------------------------------ *Marian Ingrams ([log in to unmask]) and Katharine Booth ([log in to unmask]) are, respectively, Network Coordinator and Policy Advisor/Researcher for OECD Watch <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=01553bdb8d&e=dd153d6a25>, the official representative of civil society to the OECD Investment Committee. Both are also researchers at the Centre for Research on Multinational Corporations (SOMO). This *Perspective* draws on OECD Watch’s webinar, “The OECD Guidelines and the pursuit of accountability: Exploring case examples on how the OECD Guidelines are influencing development of ‘hard law’ on business & human rights,” February 22, 2022. The authors wish to thank their colleagues from the following organizations for their comments: BankTrack, European Coalition for Corporate Accountability (ECCJ), Milieudefensie/Friends of the Earth Netherlands, and Sherpa. The authors also wish to thank Federico Ortino, Stephan Schill and an anonymous peer reviewer for their helpful peer reviews. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Marian Ingrams and Katharine Booth**, ‘**Hardening soft law: strategic use of the OECD Guidelines to achieve meaningful outcomes**’ Columbia FDI Perspectives*,* no. 351, February 20, 2023. Reprinted with permission from the Columbia Center on Sustainable **Investment (**http://ccsi.columbia.edu* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8141fb164b&e=dd153d6a25>*).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at **[log in to unmask]* <[log in to unmask]>*.* For further information, including information regarding submission to the *Perspectives*, please contact: Columbia Center on Sustainable Investment, Matthew Conte, [log in to unmask] *Most recent Columbia FDI Perspectives* <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=d51a245abb&e=dd153d6a25> - No. 350, Riccardo Crescenzi, Roberto Ganau and Michael Storper, “Outward FDI and home country employment, <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=35ee8924ff&e=dd153d6a25>” *Columbia FDI Perspectives*, February 6, 2023 - No. 349, Jose Godinez and Mahmoud Khalik, “Corruption and FDI: The role of social brokers <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=f369196609&e=dd153d6a25>,” *Columbia FDI Perspectives*, January 23, 2022 - No. 348, Gary Gereffi, “How to make global supply chains more resilient <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=6fea0554e0&e=dd153d6a25>,” *Columbia FDI Perspectives*, January 9, 2023 *All previous FDI Perspectives are available at https://ccsi.columbia.edu/content/columbia-fdi-perspectives <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=eb0b06c46e&e=dd153d6a25>* . *Other relevant CCSI news and announcements* - *Register now* for our next series of online preparatory workshops in advance of the forthcoming convening of the United Nations Commission on International Trade Law’s Working Group III on investor-state dispute settlement reform. Each workshop will cover topics anticipated on the agenda of the March 2023 working group session. The remaining workshops will take place *March 1 *and *March 16* from *9:00-11:00 am ET*. *For more information, and to register, visit our WGIII webpage <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=92c42abe45&e=dd153d6a25>**. Individual registration links for each of the workshops can be found under the heading “Preparatory Sessions for Government Delegates.”* - CCSI and the Sabin Center for Climate Change Law are hiring for the position of *Senior Legal Researcher, Climate Law & Finance*. The researcher will work collaboratively with CCSI's and the Sabin Center’s Leadership and Research Staff to analyze the interrelated legal, finance, and policy pathways critical to achieving global climate goals and facilitating the energy transition, and the corresponding implications for public, private, and institutional financial sector actors, regulators, and alliances. *More details on the position and instructions for applying can be found here <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=da9e9187ce&e=dd153d6a25>* . - *Apply now* for our 2023 virtual *Executive Training Program on Extractive Industries and Sustainable Development* from* June 5–16, 2023*. The interdisciplinary program is designed to equip participants with the necessary skills to promote the responsible development of the extractive industries in resource-rich developing countries and to encourage a rich dialogue about best practices from around the globe. Applications will be considered on a rolling basis until March 31, 2023. *For more information, and to apply, visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=8d7afc7d78&e=dd153d6a25>* . - *Apply now* for our 2023 virtual *Executive Training Program on Sustainable Investments in Agriculture* from May 2-12, 2023. This interdisciplinary program explores challenges and solutions for advancing sustainable investments in agriculture. It includes asynchronous and synchronous components, including short and interactive live sessions dedicated to engagement with course lecturers and participants from around the world. Applications will be considered on a rolling basis until March 15, 2023. *For more information, and to apply, visit our website <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=0c7ec5605b&e=dd153d6a25>* . Karl P. Sauvant, Ph.D. Senior Fellow Columbia Center on Sustainable Investment Columbia Law School - Columbia Climate School *Copyright © 2023 Columbia Center on Sustainable Investment (CCSI), All rights reserved.* [log in to unmask] *Our mailing address is:* Columbia Center on Sustainable Investment (CCSI) Columbia Law School - Columbia Climate School, Columbia University 435 West 116th Street New York, NY 10027 Add us to your address book <https://columbia.us6.list-manage.com/vcard?u=ab15cc1d53&id=a61bf1d34a> unsubscribe from this list <https://columbia.us6.list-manage.com/unsubscribe?u=ab15cc1d53&id=a61bf1d34a&e=dd153d6a25&c=366df75d8f> update subscription preferences <https://columbia.us6.list-manage.com/profile?u=ab15cc1d53&id=a61bf1d34a&e=dd153d6a25&c=366df75d8f> [image: Email Marketing Powered by Mailchimp] <http://www.mailchimp.com/email-referral/?utm_source=freemium_newsletter&utm_medium=email&utm_campaign=referral_marketing&aid=ab15cc1d53&afl=1> -- *Karl P. Sauvant, PhD* *Senior Fellow* *Columbia Center on Sustainable Investment* Columbia Law School, Columbia University 435 West 116th St., Rm. JGH 825, New York, NY 10027 | p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask] | w: www.ccsi.columbia.edu | t: @CCSI_Columbia <https://twitter.com/CCSI_Columbia> "Three Reasons Why a WTO Agreement on Investment Facilitation for Development is Important <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4285857>", *Investment Facilitation for Development: A Toolkit for Policy Makers. Second Edition <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3830031>,* "Agenda for Practice-oriented Research <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4103768>", "How Would a Future WTO Agreement on Investment Facilitation for Development Encourage Sustainable FDI Flows, and How Could it be Further Strengthened? <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4084032>”, "Green FDI: Encouraging Carbon-neutral Investment <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3943705>", "Extending International <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3939019> Legal Aid from Trade to Investment: An Advisory Centre on International Investment Law <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3939019> ", "More Attention to Policies! Improving the Distribution of FDI Benefits <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3818974>", "Facilitating Sustainable FDI in a WTO Investment Facilitation Framework: Four Concrete Proposals <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496967>", "An Inventory of Concrete Measures to Facilitate the Flow of Sustainable FDI: What? Why? How? <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3739179>", are available at https://ssrn.com/author=2461782 . ____ AIB-L is brought to you by the Academy of International Business. For information: http://aib.msu.edu/community/aib-l.asp To post message: [log in to unmask] For assistance: [log in to unmask] --- You must be an active AIB member to post to AIB-L . AIB-L has a moderator which checks messages for basic relevance. However, AIB does not edit or screen messages for accuracy or reliability of content. All subscribers are recommended to perform their own due-diligence before responding to any requests or calls. 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