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Thursday, September 20, 2012

IFC performance standards: A benchmark for CSR | Canadian Mining Journal

IFC performance standards: A benchmark for CSR | Canadian Mining Journal

Is Employer Neutrality Required by the IFC Performance Standards? Probably Not But Be Careful...

Performance Standard 2 of the IFC Performance Standards for Environmental & Social Sustainability (Performance Standards) requires that workers not be discouraged from joining or forming a workers’ organization. Discrimination, retaliation, refusal to hire, demotion, reassignment, outsourcing, shifting work, or other retaliation in response to union activities is prohibited by PS 2. Does it also require neutrality of the employer in regard to unionization?  Probably not, but FIs and clients applying the Performance Standards should be careful when taking a position regarding organizing efforts of workers.

Sunday, September 16, 2012

Corporate Crimes for Employee Conduct - Bribery & Anti-Corruption

The Canadian Corruption of Foreign Public Officials Act (“CFPOA”) and the Criminal Code of Canada (the "Code") makes it an indictable offence for an individual or organization to (i) directly or indirectly (ii) offer or give or agree to offer or give (iii) an advantage or benefit (iv) in order to obtain or retain an advantage in the course of business (v) to a foreign public official or to any person for the benefit of the foreign public official (vi) either as consideration for, or to induce an act or omission by the foreign public official. In applying these provisions, corporate criminal liability may attach to an organization through the acts and intentions of its senior officers acting within the scope of their authority. In other words, the acts of such employees may create legal liability for the corporation itself.

Friday, September 7, 2012

Ability to Pay in OHS Sentencing - Australian and Canadian Analogies

The Work Health and Safety Act, 2011 (the “WHSA”) in New South Wales (NSW) provides that a breach of the WHSA is a criminal offence attracting a maximum penalty of $600,000 and up to five years imprisonment for serious offences by corporate officers. There are a variety of considerations that a Court will make in determining the appropriate penalties where a breach of the WHSA has been found. Among these is the ability to pay of the Defendant pursuant to section 6 of the Fines Act – a sentencing provision which was recently applied in the case of Inspector Hall v Raydaz Design Pty Ltd to reduce the amount of a fine under the WHSA. Recent Canadian case law involving the imposition of fines for workplace health and safety violations may offer some useful analogies for application of section 6 of the Fines Act to sentencing under the WHSA.

Wednesday, September 5, 2012

Draft of Updated Equator Principles (EP III) Released for Stakeholder Consultation and Public Comment

The Equator Principles (EP) Association today releases the draft of the updated Equator Principles (EP III) for stakeholder consultation and public comment.

The EP is a risk framework for identifying, assessing, and managing environmental and social risks in Project Finance transactions and has been adopted by 77 financial institutions worldwide. Key themes and areas of development proposed in the EP III draft include:
  • An extension in the scope of the EP to Project-Related Corporate Loans and Bridge Loans.
  • Changes reflecting the recent update of the International Finance Corporation (IFC) Performance Standards.
  • New requirements related to managing impacts on climate.
  • Greater emphasis on human rights considerations in due diligence and an acknowledgment of the UN "Protect, Respect and Remedy" Framework for Business and Human Rights and Guiding Principles on Business and Human Rights.
  • A strengthening of reporting and transparency requirements.
The draft can be found HERE.

Monday, September 3, 2012

NEW BOOK: IFC Performance Standards on Environmental & Social Sustainability: A Guidebook

This Guidebook provides a comprehensive analysis of the IFC Performance Standards on Environmental and Social Sustainability (IFC Standards), as used in financial investment decision making and international business operations.

IFC Performance Standards as a Benchmark for CSR and Sustainability

When defining what CSR means, mining and energy companies operating in emerging markets should first look to the contents of the IFC Performance Standards.

There are other frameworks, private or public, legal or best practice in nature, which may be important in defining the full extent of corporate expectations, but there is little doubt that the IFC Performance Standards are emerging as the de facto benchmark for CSR and sustainable business practices.

Sustainability in International Project Finance

Michael Torrance and Pierre Dagenais of Norton Rose Group discuss the international project finance landscape, corporate social responsibility issues and the equator principles.