Guidance on agreements with investors

Hi all,

The Columbia Center on Sustainable Investment and Namati are currently investigating potential ways to assist and provide guidance to communities affected by land-based investments. Specifically, we are hoping to develop written and other guidance and tools pitched at communities (or their paralegals or advisers) that cover:

  1. How to negotiate better contracts between communities and investors.

  2. How to ensure investors fulfill the terms of agreed investor-community contracts.

  3. Model contractual clauses / guidance for: (1) Terms of engagement for negotiation between communities and investors; and (2) actual community-investor contracts.

  4. Monitoring company obligations contained in contracts entered into between investors and host governments.

We would love to hear from paralegals or advisers supporting communities. Are there tools / guides that you already use? Are there any gaps that you think need filling? If so, what do you think is needed, and what format (written / online / video / in person training / guidance) would be helpful?

Many thanks!

Sam Szoke-Burke

Legal Researcher

Columbia Center on Sustainable Investment

Columbia Law School | The Earth Institute, Columbia University 435 W116th St. New York, NY 10027 | (+1)(212) 854-2635 | (+1)(646) 630-4123 | s.burke@columbia.edu | www.ccsi.columbia.edu | @CCSI_Columbia | @samszokeburke

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HI

I am Raymond Kaima from Zambia, we are working on empowering community members to be their own negotiators by equipping them with knowledge on advocacy and engagement. Currently, we are following up with an investor who has acquired over 22,000 hectares of land which affects over a 300 households. We are yet to conclude our investigation/research as we were not involved at the onset. As such when reported to us, we were told that an MoU was signed with the community but we are not privy to it as we have been unable to see it.

To this end, we can appreciate assistance in model or templates that could be used as guides for community Memoranda with investors, therefore tools or guides can be helpful. Secondarily, in person training can be helpful as the area is prone to more investment in largescale land acquisitions. Community members and traditional leaders alike have come to us to ask us assist them to better negotiate with investors, therefore in person training and orienteering can be a helpful insight in equipping us with a honed skill to be better negotiators. This training can also help us to be able to monitor company obligations and how to ensure that these companies fulfil their contractual obligations

Regards Raymond Kaima+

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Hi Raymond,

Thanks very much for your message. It is helpful to know about what is happening in your work, and to hear that any template MOUs and guidance would need to be accompanied by in-person training.

What sort of investment is taking place on those 22,000 hectares?

We are still at the early stages of our planning, but will keep your comments in mind as we progress.

Best, Sam

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Hello @sam_szoke_burke!

As part of the Namati Environment Justice Program, we work on compliance of environmental conditions using legal hooks at every step. One of the methods that we apply is ā€˜groundtruthingā€™, wherein facts stated in official documents are compared with on ground realities. Here is the link to the methodology note which elaborates on this:-

We also recently held a webinar on ā€˜Groundtruthing Environmental Complianceā€™, which you can access here

While we have not dealt with negotiation of contracts, this method can be applied in advocating for compliance and as a tool for monitoring. Would love to know your thoughts on this method!

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Thank you @krithikadinesh! Iā€™ll be sure to review those resources to see how our guidance can feed into the groundtruthing methodology.

Best, Sam

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I happened to come across this link - a fundraising campaign for a project by Let Us Talk in the Turkana region of Kenya - to train citizen journalists and environmental/social monitors in the communities affected by the oil and gas industry.

Those interested in agreements with investors or ground truthing may want to look into the project and see what methods could be learned or shared!

@kanchikohli @rorypulvino @sam_szoke_burke @marenabrinkhurst

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Thanks Laura! Our project is focusing on the ag / forestry sectors, but this still looks very interesting.

Best, Sam

Hi all, hereā€™s an update on what we have found on this topic:

Community Guidance on Agreements Relating to Agriculture or Forestry Investments

While there are a number of existing resources that can assist communities and their advocates in their interactions with investors over landā€”from negotiating better agreements with investors, to monitoring whether investors fulfill the terms of their agreementsā€”these resources are not always easy to find. CCSI has created a detailed Google document that lists relevant guides and other documents, provides links to the original documents, and includes brief descriptions of their content. This Google document is available here; it can be viewed online, downloaded, emailed, and printed.

This document was developed in the context of CCSIā€™s work on Addressing Legal Support Gaps around Land-Based Investment and in the course of a partnership with Namati to develop community-oriented resources to support communitiesā€™ interactions with investors.

CCSI will update this document periodically; if you know of additional materials that should be included, please email us at ccsi@law.columbia.edu.

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