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.

New principles on business and human rights endorsed by United Nations

The United Nations Human Rights Council has endorsed the recommendations of the report of John Ruggie, the Special Representative of the United Nations (“UN”) Secretary-General on human rights and transnational business (United Nations Document A/HRC/17/31) – with significant implications for global human rights responsibilities of business.

Case profile: AngloGold Ashanti silicosis lawsuit (So. Africa)

In October 2006, a South African gold miner named Thembekile Mankayi sued AngloGold Ashanti, his former employer, stating that he developed the lung disease silicosis while working in Vaal Reefs mine. The lawsuit, filed in the Witwatersrand Local Division of the High Court of South Africa, sought R2.6 million in compensatory damages. Mankayi alleges that AngloGold Ashanti failed to meet its responsibility to provide its employees with a safe and healthy work environment under both South African laws and an employer’s common law duty of care to its employees. AngloGold Ashanti responded that Mankayi is precluded by law from making the claims he set forth in his lawsuit. Under South Africa’s Compensation for Occupational Injuries and Diseases Act (COIDA), workers or their families may not sue an employer for injury or death incurred at the workplace. Instead, the compensation commission considers these claims. But Mankayi’s claims of AngloGold’s negligence can only be heard in a court of general jurisdiction, not by the compensation commission.

In addition, mineworkers’ lung diseases are covered under the Occupational Diseases in Mines and Works Act (ODMWA), which limits a mineworker’s compensation for illness due to working conditions to just a fraction of that awarded under COIDA (plaintiff’s counsel estimates that the payout is about a tenth of what it would be under COIDA). The size of Mankayi’s claim challenges the limitations on compensation under ODMWA. The South African Parliament is currently considering revisions to the law to address the disparity between the remedies available to workers under COIDA and ODMWA.

On 26 June 2009, the High Court of South Africa, Witwatersrand Local Division, issued a decision in this case. The court ruled in AngloGold Ashanti’s favour, holding that Mankayi was statutorily barred from making his claim. In March 2010, the Supreme Court of Appeal in Bloemfontein heard Mankayi's appeal of the lower court's ruling. On 31 March, the Supreme Court of Appeal upheld the High Court's ruling. The plaintiff's appeal to the Constitutional Court of South Africa, and this court reversed the lower court's ruling and ruled in favour of Mankayi on 3 March 2011. Mr Mankayi died of lung disease on 25 February 2011.

Article found on Business & Human Rights Resource Centre website.

Globe & Mail - For Canadian companies overseas, a corporate heart of darkness

Article questioning whether Canada is doing enough to legislate CSR practices of Canadian companies operating abroad.

Child labour-free cocoa ‘almost impossible,’ Nestlé head says

According to a report on the cocoa trade by the International Labour Organization (read the PDF here), an estimated 200,000 children, under the age of 18, were engaged in child labour in the Ivory Coast in 2002.


But Mr. Brabeck-Letmathe’s latest comments seem to suggest that eradicating child labour is neither realistic, nor particularly helpful.

“If they have the access to good schooling, then the child labour as such, if it is helping the fathers in the field and helping with the harvesting, I don’t think this is a problem,” he said, according to Reuters. “The problem is when you use the children only for that and don’t allow them to go to school.”

See Globe & Mail Article Here

Professor Kernaghan Webb, "CSR & the Law: Learning from the Experience of Canadian Firms in Latin America."

On Friday, October 29, Professor Kernaghan Webb delivered a lecture on the above subject, as part of the Ryerson Institute for the Study of CSR/Federal Extractive Sector CSR Counsellor Public Seminar Series, at Ryerson University in Toronto.

This particular talk was also co-sponsored by the Ryerson Law Centre. Based on research he is conducting, Dr. Webb’s presentation reviews current CSR-oriented legal disputes involving Canadian mining companies in Latin America, as a way of highlighting challenges associated with the legal regime, and opportunities for proactive environmental, social and economic practices by Canadian mining firms that can go some way towards reducing the likelihood that future legal issues will arise with respect to their operations.

The webcast (approx 1.5) is available for download HERE

SEC weighs forcing disclosure over ‘conflict minerals’

Thousands of companies could be forced to reveal the source of metals and ores they use under a proposed U.S. rule aimed at cutting the flow of money to armed rebels in the Democratic Republic of Congo.  See full article in the Globe & Mail here.

IFC Environmental & Social Performance Standards in Project Financing

The International Finance Corporation Environmental & Social Performance Standards (“IFC Standards”) has become the global benchmark for corporate social responsibility (“CSR”) in project financing. While the IFC Standards originated in relation to projects financed by the World Bank, they are now used by all financial institutions around the globe that have signed on to the “Equator Principles”, accounting for over 90% of global project finance. This makes the IFC Standards a “must know” for strategic leadership of multinational corporations interested in maintaining access to capital for their international projects.

Canada’s CSR Counsellor: Open for Business

The Office of the Extractive Sector Corporate Social Responsibility Counsellor (“CSR Counsellor”) opened for business on October 20, 2010. This new Government of Canada dispute resolution mechanism represents an important and very unique development affecting the legal and risk management practices of Canadian mining and oil & gas companies doing business abroad.

Persuasive Authority Beyond the State

A Theoretical Analysis of Transnational Corporate Social Responsibility Norms as Legal Reasons within Positive Legal Systems

I've uploaded a recently completed paper on the incorporation of transnational and private CSR norms into legal systems here.  Comments and critique would be appreciated.

CSR counsellor opens shop in Canada as Bill C-300 vote looms

Canada's new Corporate Social Responsibility (CSR) Counsellor for the extractive industries officially opened her doors on Wednesday, just one week before Members of Parliament (MPs) vote on a contentious piece of legislation aimed at improving the behaviour of Canadian mining companies abroad. See full article in the Mining Weekly here.

Industry Comments on draft CSR Procedures

A group of industry leaders including PDAC has sent a number of recommendations to the Government of Canada's CSR Counsellor as part of a consultation process in respect of the CSR Counsellor's Rules of Procedure.  The submission can be found here.

CSR: Perspectives in the Mining Sector in Peru

Information on the CSR Counsellor Website:

DATE: October 26, 2010

TIME: 11:45 - 14:00
PLACE: Ogilvy Renault Royal Bank Plaza - South Tower 200 Bay Street - Suite 3800 Toronto, Ontario

FEES: PCCC Members - $50

Non-members - $75
(includes lunch)

THEME: Peruvian-Canadian Chamber of Commerce (PCCC)'s Luncheon Seminar Series

HIGHLIGHTS

The Peruvian-Canadian Chamber of Commerce (PCCC) recognizes the importance of CSR and invites you to a multi-stakeholder dialogue where representatives from the Government of Peru, Canada, Mining Industry and others will share their views and experiences about this important matter.

This event is being sponsored by PCCC's Leadership Member, OGILVY RENAULT - one of Canada's leading full-service law firms, which has the experience and resources to advise Canadian and international clients with domestic and global mining interests.
Guest speakers:

Walter Casquino: President, INGEMMET- Ministry of Energy and Mines, Government of Peru
Marketa Evans, PhD: Extractive Sector CSR Counsellor, Government of Canada
Ross Gallinger: Senior Vice-President, Health, Safety & Sustainability, IAMGOLD
Kevin D’Souza: Director, Community Affairs, Barrick Gold
Michael Torrance: Lawyer, Corporate Responsibility & Sustainability, Ogilvy Renault
Louis Vos: Senior Investment Officer, Global Mining Group-Caribbean and Latin America, IFC, Washington
Facilitated by: Andrea Mandel-Campbell (Co-Anchor BNN)

ORGANIZED BY

Peruvian-Canadian Chamber of Commerce (PCCC)

CONTACT INFORMATION

Jim Louttit
Email: jvlperu@gmail.com

Corporate Responsibility as Legal Risk Management

Corporate Responsibility (“CR”) has been referred to as a form of “self-regulation in the shadow of the law.” It is aimed at the management of social expectations between corporate organizations and their stakeholders, most notably in the areas of environment, health and safety, employment, human rights and community relations. While CR may often be voluntarily adopted by corporate organizations, it can and should be seen to serve as an extension of sound legal management, aimed at mitigating legal and other social risks for the business organization.

CSR Counsellor Releases Draft Rules of Procedure

The legal and governance framework for the Government of Canada's CSR Counsellor for the Extractive Sector is taking shape, with the release of draft rules of procedure for the intake and administration of complaints. 

Rough Consensus - Running Code: A Theory of Transnational Law

Interesting new book by Osgoode Hall Law Professor Peer Zumbansen.  Article found here.

Canada CSR counsellor wraps up consultations on procedure

Corporate Social Reporting Initiative - Report to Minister of Finance

A final report to the Ontario Minister of Finance regarding reporting on "social" sustainability issues that I have co-authored has been published and can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1632992

Lawyers Weekly: Global business requires due diligence on human rights

An article by Donalee Moulton of the Lawyer's Weekly:

Free Prior and Informed Consent of Indigenous Peoples

The General Assembly of the United Nations have adopted in September 2007 the Declaration on the Rights of Indigenous Peoples. Since the Declaration is soft law, it is not legally binding on States, but the standards that it recognizes could, if they become part of the consistent conduct of States acting out of the belief that the law requires them to act that way, become customary law... See full article by Pierre-Christian Labeau of Ogilvy Renault here.