Category Archives: Financing

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the formal withdrawal of the United States from the EITI; the passage of the Canadian Magnitsky Act; and the launch of the Investor Alliance for Human Rights.

Corporate Liability and the Alien Tort Statute: Highlights from the Oral Arguments in Jesner v. Arab Bank

On Wednesday, October 11, the U.S. Supreme Court heard oral arguments in Jesner v. Arab Bank. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).

In granting plaintiffs’ petition for a writ of certiorari, the Supreme Court agreed to review the following question:

This case presents the question this Court granted certiorari to resolve,… More

D.C. District Court Determines that Dakota Access Environmental Assessment was Inadequate

On June 14, 2017, the District Court for the District of Columbia issued a decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. The Court found that the Army Corps of Engineers (“the Corps”) had not adequately considered several issues in its environmental assessment (“EA”) for the Dakota Access Pipeline, and that therefore the Corps’ decision-making was arbitrary and capricious.

The EA was undertaken pursuant to the National Environmental Policy Act (“NEPA”),… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: the announcement of a new corporate alliance intended to advance diversity and inclusion in the workplace; the release of a paper by Professor John Ruggie on the development of the UN Guiding Principles on Business and Human Rights; and guidance from the UN Office of the High Commission for Human Rights on the human rights responsibilities of banks.… More

Alien Tort Case Development: The U.S. Supreme Court Will Review the Question of Corporate Liability

On Monday, April 3, the U.S. Supreme Court granted a petition for a writ of certiorari filed by plaintiffs in Jesner v. Arab Bank, No. 16-499. The case may once and for all determine whether companies are appropriate defendants in cases filed pursuant to the Alien Tort Statute (“ATS”).

The petition was filed after the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank,… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: new reports on the U.S. National Action Plan on Responsible Business Conduct, corporate disclosures pursuant to the California Transparency in Supply Chains Act, and shareholder proposals on social and environmental issues; the second discussion paper published by the Thun Group of Banks;… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new report from the U.N. Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression; reviews of the latest round of conflict minerals reports; corporate efforts to address the risks of sex and labor trafficking in connection with the Olympic Games;… More

Securities and Exchange Commission Issues New Rule on Extractive Industry Transparency

TransparencyOn June 27, the Securities and Exchange Commission (“SEC”) issued a new rule requiring extractive sector companies (oil, gas, and mining) to disclose the payments that they make to governments for the commercial development of oil, gas, or minerals.

The rule was enacted pursuant to Section 1504 of the Dodd-Frank Act, which directed the SEC to issue a rule requiring extractive sector companies to disclose payments to governments,… More

Five on Friday – Five Recent Developments that We’ve Been Watching Closely

iStock_000011057325XSmallIt’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a new guide for business lawyers from the International Bar Association that seeks to promote implementation of the U.N. Guiding Principles on Business and Human Rights; the public release of Know the Chain’s first report benchmarking technology companies on efforts to address forced labor in their supply chains;… More

Legal Perspectives on a “Game Changer” for Responsible Investment in the United States

iStock_000058619978_SmallThe Principles for Responsible Investment (“PRI”) recently published a report, Addressing ESG Factors Under ERISA, that sets forth two legal perspectives on the ability of fiduciaries to consider environmental, social, and governance (“ESG”) factors in their investment decision-making.

The report builds upon an interpretative bulletin released by the U.S. Department of Labor in October 2015. The bulletin, previously discussed here,… More

Human Rights Expectations for the Banking Sector: A New Report from Foley Hoag and UNEP FI

TransparencyAttorneys in Foley Hoag’s Corporate Social Responsibility (“CSR”) practice and the U.N. Environment Programme Finance Initiative (“UNEP FI”) recently collaborated on a report analyzing the implications of the U.N. Guiding Principles on Business and Human Rights for the banking sector. A copy of the report is available here.

In addition to assessing the implications of the U.N. Guiding Principles, the report evaluates existing national and international human rights laws and the extent to which these existing laws may create potential liabilities for banks and/or their officers.… More

SEC Extractive Industry Transparency Requirements Move Forward

UntitledOn December 11, 2015, the Securities and Exchange Commission (“SEC”) issued a new proposed rule to implement a key provision of the Dodd-Frank Act that targets corruption and increases transparency requirements for payments made to foreign governments by the oil, gas, and mining industries.

The SEC voted to re-propose rule 13q-1 and proposed an amended form SD to implement Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.… More

Alien Tort Case Development: Still No Corporate Liability in the Second Circuit (At Least for Now)

Alien Tort GavelOn December 8, the Second Circuit Court of Appeals upheld the dismissal of plaintiffs’ claims in five consolidated cases against Arab Bank, PLC. Plaintiffs in each of the cases alleged that they, or their family members, had been harmed in attacks by terrorist organizations that had received financing, in part, as a result of accounts and transfers arranged by the bank.

Claims in the consolidated cases, … More

Opportunity and Uncertainty for Entities Wishing to Do Business with Iran

globebookThe following is a client alert previously published here.  Questions should be directed to Gwendolyn Jaramillo or Shrutih Tewarie.

Nuclear Deal with Iran Holds Out Possibility of Phased Relaxation of Sanctions

On July 14, 2015, the United States and five other countries (collectively known as the P5+1) reached a Joint Comprehensive Plan of Action (JCPOA) with Iran under which Iran will limit its nuclear activities in exchange for a gradual lifting of international economic sanctions.… More

U.N. Guiding Principles Reporting Framework Released by the Human Rights Reporting and Assurance Frameworks Initiative

HiRes (2)In late February, after 18 months of research and consultation, a new Reporting Framework has been released to help companies report on their human rights performance in a manner aligned with the expectations set forth in the U.N. Guiding Principles on Business and Human Rights. The Reporting Framework is intended to enable companies of all sizes, and in all sectors, to report on their efforts to operate consistently with the corporate responsibility to respect human rights.… More

Alien Tort Case Development: Ninth Circuit Affirms Dismissal of Claims Against Occidental Petroleum

Alien Tort GavelIn mid-December, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum. Plaintiffs in the case argued that Occidental should be held liable for the deaths of three union leaders in Colombia who were killed by the Colombian National Army’s 18th Brigade in 2004. The court affirmed the lower court’s finding that the case raised non-justiciable political questions.… More

Foley Hoag Authors Good Practice Note on Indigenous Peoples’ Rights and Free, Prior, and Informed Consent

Indigenous handsThe U.N. Global Compact recently released a Good Practice Note on Indigenous Peoples’ Rights and the Role of Free, Prior, and Informed Consent (“FPIC”) authored by Amy Lehr, an associate in Foley Hoag’s Corporate Social Responsibility practice. The Note complements the U.N. Global Compact’s release of a longer Business Reference Guide to the U.N. Declaration on the Rights of Indigenous Peoples. … More

Mandatory Payment Disclosure: Bloodied but Unbowed

TransparencyOn July 2, the U.S. District Court for the District of Columbia vacated the rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and remanded it to the Securities and Exchange Commission (“SEC”) for further consideration. Section 1504 requires Securities and Exchange Commission issuers involved in the extraction of oil, gas, and minerals to report on their payments to foreign governments and the U.S.… More

Brazil’s Belo Monte Move: Will National Development Banks Start Taking Human Rights and Environmental Concerns More Seriously?

In late November, the Brazilian national development bank (“BNDES”, by its Portuguese initials) announced its approval of a $10.8 billion loan to finance the construction of the Belo Monte dam, the world’s third largest hydroelectric dam.  Approximately $1.5 billion, representing 11.2% of the loan, was earmarked for social and environmental programs — the largest amount ever set aside by BNDES for such purposes.… More

SEC Rejects Request to Stay New Extractive Industry Transparency Rule

On November 8, the Securities and Exchange Commission (“SEC”) rejected a request by industry groups to stay new regulations requiring disclosure of payments to governments relating to oil, gas, and mining projects. The American Petroleum Institute, U.S. Chamber of Commerce, and other groups in the extractive sector had urged the SEC to stay the requirements while the groups’ litigation against the rules proceeds.… More

SEC Issues Final Rule on Extractive Industry Transparency

Magnifier over FiguresOn August 22, the Securities and Exchange Commission (“SEC”) voted two to one in favor of a final rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Commissioners Schapiro and Paredes were recused from the vote. A copy of the final rule is available here (.pdf).

As discussed in previous posts, Section 1504 directs the SEC to issue rules requiring extractive companies (oil,… More

Newly Released Draft Equator Principles Reflect Greater Focus on Human Rights

The proposed draft of the revised Equator Principles, released on August 13, reflects a greater focus on human rights, with explicit mention of the expectation of human rights due diligence as set forth in the U.N. Guiding Principles on Business and Human Rights. The revised Principles also cover a wider range of project financing structures in recognition of the fact that the project finance market has diversified significantly since the Principles were first released in 2003.… More

Implications of Counterterrorism Measures for Companies Operating in Armed Conflict Situations

U.S. domestic counterterrorism measures are a critical component of the U.S. national security framework. Since the U.S. Supreme Court’s June 2010 decision in Holder v. Humanitarian Law Project, there has been renewed debate about the scope and impact of various U.S. measures including the Material Support Statute (18 U.S.C. § 2339B) and Executive Orders pursuant to the International Emergency Economic Powers Act (IEEPA) (50 U.S.C.… More

Floating the Kyat: A First Step in Fighting Corruption in Burma (Myanmar)

On April 2, one day after its Parliamentary by-elections, Burma (Myanmar) floated its currency, the kyat. This is an important first step in normalizing the country’s investment climate and curbing corruption. For years, the official kyat exchange rate has been more than 100 times lower than the black market rate, which has led to endless headaches for organizations operating in Burma, as well as for Burmese citizens.… More

The 2012 IFC Performance Standard on Indigenous Peoples: What’s the Fuss?

The new IFC Environmental and Social Performance Standards — in particular, Performance Standard 7 on indigenous peoples — present a range of management and operational challenges for certain companies. For the first time, the Performance Standard includes a requirement of free, prior, and informed consent (“FPIC”) from indigenous peoples.

The new Performance Standards went into effect in January 2012 and are applicable to a greater number of the IFC’s investments than the 2006 Performance Standards,… More

The IFC Performance Standards and Consultation with Communities

As discussed in an earlier post, the International Finance Corporation ("IFC") recently released an updated version of its Performance Standards on Environmental and Social Sustainability.  The IFC uses the Performance Standards to manage the social and environmental risks and impacts associated with projects receiving IFC financing.  The revised Standards reflect a number of important changes, particularly on the topic of engaging with communities, with special guidance related to indigenous peoples. … More

International Finance Corporation Releases Revised Sustainability Framework

The International Finance Corporation ("IFC") released its updated Sustainability Framework today, reflecting changes adopted by the IFC’s Board of Directors in May 2011. The Framework includes the IFC’s Policy and Performance Standards on Environmental and Social Sustainability.  The updates reflect a number of important changes, including both the scope of Framework’s application and the nature of the substantive requirements for borrowers. The new Framework will be effective on January 1, 2012.

Notably,… More