Financial Sector Responsibility for Human Rights Conduct of Borrowers:Lessons from the Extractives Sector

The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Institutions to Respect Human Rights: The Example of the

Extractives Sector Financing(March 2017)

Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs

Pennsylvania State University

Context• Extractive industries have been at center of CSR and environmental

responsibilities debates at the national and international level• The sector faces unique social and environmental challenges when operating in

developing countries. Faced with these challenges, a number of Canadian companies are engaging in corporate social responsibility (CSR) initiatives, generally defined as the voluntary activities undertaken by a company to operate in an economically, socially and environmentally sustainable manner. Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector

•These generally involve direct compliance • Domestic law: home and host states• Soft law; indigenous law (national an international)• Private law

•But increasing need to think about indirect compliance:• Financial institutions• Suppliers• Upstream customers

•We Focus on financial institutions and their responsibilities with respect to the human rights responsibilities of their borrowers

Focus of Discussion:•To what extent are financial institutions responsible for the human rights breaches of their borrowers?• “While the obligation for the protection of human rights

lies with the state, IFIs and their member states also have responsibilities to ensure that activities they support do not cause, or contribute to, human rights abuses by putting in place adequate safeguards.” Statement of Global Initiative for Economic, Social and Cultural Rights to UN Human Rights Council

• How might these obligations constrain borrowers? Secondary responsibility of financial sector enterprises• Loan making

• Pricing• covenants

• Due diligence during life of relationship

Roadmap for Discussion• International norm structures

• Companies• Financial Institutions

• Application• Human Rights Due Diligence• Risk analysis• Positive/passive obligations

• Case Studies• OECD• SWFs• Private Standards

International Norm Structures; Hard Law

• Basic structures• Hard vs soft law• Domestic versus international• Public versus private

• Operation• Disclosure versus substantive structures

• Link between social norms, markets, international law and national law

• Hard law—none • New comprehensive Business and Human Rights

Treaty? • National efforts, mostly disclosure oriented

• Dodd Franck ¶1502Conflict Minerals (2010);• UK Modern Slavery Act (2015)• France: Supply Chain Due Diligence Law (2017) [24

March 2017: Constitutional Council removed the €10 to €30 million civil penalty attached, liability continues to apply when companies default on their duty of vigilance obligations, including failing to publish a vigilance plan or faults in its implementation.]

5Source HERE

National Efforts

Sources of Obligation: Soft Law; Private Governance• Soft Law—Examples

• UN Guiding Principles• OECD Guidelines for MNEs• BITs with Human Rights

Components• 3rd Party Standards (Extractives

Specific Guideline; e.g. Extractive Industries Transparency Initiative (EITI))

• MNE internal norms• Social License for extractives

UNGP

• Endorsed by UN Human Rights Council• Does not create new CSR or HR legal

protections• Polycentric: simultaneous obligations to

states and enterprises• 3 part structure

• State duty to protect human rights• Extends no further than legal obligations of

state• Opens the door to extraterritorial

application• Corporate responsibility to respect human

rights• International bill of human rights• Human rights due diligence• Obligation to work around host state

restrictions• Remedial obligations for states and

enterprises• Principally through state• Also international and private mechanisms

• For extractives applies three different ways• State duty

• SOEs• Development Banks• SWFs (contentious)• State controlled banks and other lenders• IFIs

• Corporate responsibility• Private extractives firms• Private lenders• Public lenders operating under commercial activities

exemption of sovereign immunity(?)• Remedial

• States through judicial and non judicial public mechanisms

• State based and private systems with option to opt into state system (which state?; against which entity? Under what law?)

OECD Guidelines for Multinationals• Guidelines: recommendations addressed by governments to MNEs.

• They provide principles and standards of good practice consistent with applicable laws and internationally recognised standards.

• Observance of the Guidelines by enterprises is voluntary and not legally enforceable.

• Cover a number of general areas• transparency/disclosure, human rights, employment/industrial

relations, environmental issues, bribery/corruption, consumer protection, technology transfer, anti-competitive schemes, and taxation

• Special toolkit for weak governance zones• Extractives and weak governance zones HERE• OECD Due Diligence Guidance: Meaningful Stakeholder Engagement

• Complaint procedures through National Contact Points.• Have been used increasingly in two contexts

• NGOs to advance international normative agenda• Labor unions to leverage national litigation

BITs with Human Rights Elements?

--Bilateral Investment Treaties typically deal with investment and investment protection--Cuban Bits tend to focus on state prerogatives--Most others-internationalize national law-might discriminate in favor of foreign investors over domestic-stabilization provisions protect investment against domestic law-focus on expropriation; --Possibilities-Incorporate HR norms in BIT subject to stabilization protection-produce strong enforcement mechanism through arbitration-Early Study HERE--Requires coherence between HR and trade bureaucracies

Graphic Source (2009)

3rd Party Private Standards • GRI (Global Reporting Initiative)

• Social, economic and rights based reporting of economic activity• Private-public partnerships

• ISO 26000 CSR• EITI (Extractive Industries Transparency Initiative;

• (2016 Standard)

• Private organizations • Certification of compliance with their standards• Monitoring .

• Canadian Government promotes these for extractive sector:• International Finance Corporation Performance Standards on

Social & Environmental Sustainability for extractive projects with potentially adverse social or environmental impacts;

• The Voluntary Principles on Security and Human Rights for projects involving private or public security forces; and

• The Global Reporting Initiative (GRI) The government will work with the GRI and stakeholders to develop GRI supplements for oil and gas and junior mining companies.

A Work in Progress; Example EITI

Source EITI Web Site

Internal MNE Norms and Social License

•Largest MNEs already have harmonized and sometimes complex systems of CSR based control of its supply and production chain throughout their global operations

• Rio Tinto• Barrick• TransCanada

•Internal governance norms applied throughout production chain and administered through the MNE itself enforced through contractual and capital arrangements.• Constraints to application: veil piercing rules, contract principles (e.g., 3rd party beneficiary, etc.)

•Extractives Specific--Social License• “Social license ” generally refers to a local community ’s acceptance or approval of a company ’s project or ongoing

presence in an area. It is increasingly recognized by various stakeholders and communities as a prerequisite to development. The development of social license occurs outside of formal permitting or regulatory processes, and requires sustained investment by proponents to acquire and maintain social capital within the context of trust-based relationships. Often intangible and informal, social license can nevertheless be realized through a robust suite of actions centered on timely and effective communication, meaningful dialogue, and ethical and responsible behavior. (2013 Social License to Operate: How to Get It, and How to Keep It, Brian F. Yates and Celesa L. Horvath)• What happens when they say “no”?• Domestic law trumps societal licensing; complications of indigenous rights and politics at local level• Worry for the financial institution (threat to the security of its loan) and operating company

Investment and Finance Specific Obligations• 3rd Party Standards for Financial

Institutions• UN PRI• Equator Principles• Responsible

Business Conduct for Institutional Investors: Key Considerations for Due Diligence under the OECD Guidelines for Multinational Enterprises (March 2017)

3rd Party Standards for Financial Institutions

• IFC Financial Valuation Toolkit• “to help companies identify the optimum sustainability investment portfolio to deliver

maximum business and social value.”•Equator Principles

• risk management framework, adopted by financial institutions, for determining, assessing and managing environmental and social risk in projects.

• Guidelines for incorporation into loan documents•U.N. Principles for Responsible Investment•SWFs

• Ethics Guidelines•Public-Private efforts

• PROTOCOLO VERDE AGENDA DE COOPERACIÓN ENTRE EL GOBIERNO NACIONAL Y EL SECTOR FINANCIERO COLOMBIANO

• Generally IFC Sustainable Banking Guidance from Sustainable Banking Network Members

UN-PRIAs institutional investors, we have a duty to act in the best long-term interests of our beneficiaries. In this fiduciary role, we believe that environmental, social, and corporate governance (ESG) issues can affect the performance of investment portfolios (to varying degrees across companies, sectors, regions, asset classes and through time). We also recognise that applying these Principles may better align investors with broader objectives of society. Therefore, where consistent with our fiduciary responsibilities, we commit to the following:

Principle 1: We will incorporate ESG issues into investment analysis and decision-making processes.+Principle 2: We will be active owners and incorporate ESG issues into our ownership policies and practices.+Principle 3: We will seek appropriate disclosure on ESG issues by the entities in which we invest.+Principle 4: We will promote acceptance and implementation of the Principles within the investment industry.+Principle 5: We will work together to enhance our effectiveness in implementing the Principles.+Principle 6: We will each report on our activities and progress towards implementing the Principles.+

In signing the Principles, we as investors publicly commit to adopt and implement them, where consistent with our fiduciary responsibilities. We also commit to evaluate the effectiveness and improve the content of the Principles over time. We believe this will improve our ability to meet commitments to beneficiaries as well as better align our investment activities with the broader interests of society.

Equator Principles• The EPFI will, as part of its internal environmental and social review and due diligence, categorise it

based on the magnitude of its potential environmental and social risks and impacts• Client to conduct an Assessment process to address, to the EPFI’s satisfaction, the relevant

environmental and social risks and impacts of the proposed Project• Address compliance with relevant host country laws, regulations and permits that pertain to

environmental and social issues in accordance with international standards• EPFI will require the client to develop or maintain an Environmental and Social Management

System (ESMS)• the EPFI will require the client to demonstrate effective Stakeholder Engagement as an ongoing

process in a structured and culturally appropriate manner• the EPFI will require the client, as part of the ESMS, to establish a grievance mechanism an

Independent Environmental and Social Consultant, not directly associated with the client, will carry out an Independent Review of the Assessment Documentation

• Incorporation of covenants linked to compliance• The client to retain qualified and experienced external experts to verify its monitoring information

which would be shared with the EPFI.• Client reporting requirements

OECD Guidance• GUIDANCE

• Expert letters and statements on the application of the OECD Guidelines for Multinational Enterprises and UN Guiding Principles on Business and Human Rights in the context of the financial sector, 2014

• Scope and application of ‘business relationships’ in the financial sector under the OECD Guidelines for Multinational Enterprises, 2014

• Due diligence in the financial sector: adverse impacts directly linked to financial sector operations, products or services by a business relationship, 2014

• Responsible Business Conduct for Institutional Investors (MARCH 2017)• 2. Implementation of the OECD Guidelines in the context of institutional investment

• 2.1 Embedding responsible business conduct in investor policies and management systems • 2.2 Implementing due diligence: Identifying actual and potential adverse impacts• 2.3 Implementing due diligence: Seeking to prevent and mitigate adverse impacts• 2.4 Implementing due diligence: Accounting through tracking and communicating on results• 2.5 Processes to support remediation

OECD Guidance RBC

Case Studies• Friends of the Earth Europe and

Friends of the Earth Netherlands/Milieudefensie – Rabobank

• Norway Sovereign Wealth Fund Cases

• Private Bank Responsible Investing Programs

OECD: -Friends of the Earth Europe and Friends of the Earth Netherlands/Milieudefensie - Rabobank• Large financial institution heavily involved in palm oil sector

• Rabobank states it expects its clients to respect rights and to obtain free, prior and informed consent (FPIC) as a part of and guided by the Round Table for Responsible Palm Oil (RSPO) principles & criteria and as part of the environmental and social impact assessment (ESIA) process prior to embarking on a new palm oil development.

Rabobank will address the consequences of non-compliance with the FPIC requirement in the provisions of its palm oil policy;

Rabobank handles complaints concerning negative impacts caused by clients. Rabobank will modify its current approach to handling complaints. It will publish its complaints procedure, including a time frame for the procedure;

• Privatization of enforcement of emerging rule systems for the management of the palm oil production chains through the organs of financial institutions.

• Rabobank, then, is entrusted with global management of palm oil production chains through its structurally differentiated self referencing governance system, one founded on its relationship with its borrowers. (On the structural characteristics here)

SWFs: Norway Pension Fund Global

• History• A new form of projecting public power through

private markets. Described HERE.

• Structure• Ministry of Finance• Norges Bank• Secretariat

• Applicable Standards• Santiago Principles

• The Norwegian Government Pension Fund Global’s adherence with the Santiago principles 2015).

• Management Mandate (§2.2 Responsible Investment)

• Ethics Guidelines

• Ethics Council• Authority

• Active Shareholding Global Voting Guidelines• Exclusion• Observaiton

•Bound by OECD Guidelines? UNGP?

Native Americans to meet Norway's wealth fund watchdog over pipelineRock Sioux tribe representatives will meet the ethics watchdog for Norway's $915 billion sovereign wealth fund on Monday over a U.S. oil pipeline, a watchdog official said on Monday.On Sunday, Norway's largest bank DNB sold its share of loans funding the Dakota Access oil pipeline, ending its involvement in a project that has faced strong opposition from Native Americans and environmental groups.

Norway SWF: Pension Fund Global• Ethics Guidelines

• Section 3. Criteria for conduct based observation and exclusion of companies Companies may be put under observation or be excluded if there is an unacceptable risk that the company contributes to or is responsible for:

• a) serious or systematic human rights violations, such as murder, torture, deprivation of liberty, forced labour and the worst forms of child labour

• b) serious violations of the rights of individuals in situations of war or conflict• c) severe environmental damage • d) acts or omissions that on an aggregate company level lead to unacceptable

greenhouse gas emissions• e) gross corruption• f) other particularly serious violations of fundamental ethical norms

• Observation versus Exclusion

Excluded Companies• Severe Environmental Damange

• Severe environmental damage• IJM Corp Bhd (17 August 2015)• Genting Bhd (17 August 2015)• POSCO (17 August 2015)• Daewoo International Corp (17 August 2015)• Sesa Sterlite (30 January 2014) (Madras Aluminium Company and

Sterlite Industries Ltd. - both excluded 31 October 2007- are merged into Sesa Sterlite)

• WTK Holdings Berhad (14 October 2013)• Ta Ann Holdings Berhad (14 October 2013)• Zijin Mining Group (14 October 2013)• Volcan Compaña Minera (14 October 2013)• Lingui Development Berhad Ltd. (16 February 2011)• Samling Global Ltd. (23 August 2010)• Norilsk Nickel (31 October 2009)• Barrick Gold Corp (30 November 2008)• Rio Tinto Plc. (30 June 2008)• Rio Tinto Ltd. (30 June 2008)• Vedanta Resources Plc. (31 October 2007)• Freeport McMoRan Copper & Gold Inc. (31 May 2006)

• Other particularly serious violations of fundamental ethical norms• San Leon Energy Plc (4 March 2016)• Potash Corporation of Saskatchewan (6 December 2011)

Norway SWF: Violation International Law; Indigenous Rights

• exclusion of San Leon Energy Plc for contribution to serious violations of fundamental ethical norms

• The Council on Ethics for the Government Pension Fund Global (Etikkrådet for Statens pensjonsfond utland) recommends the exclusion of San Leon Energy Plc (SLE; SLGYY) from the Government Pension Fund Global because the company contributes to serious violations of fundamental ethical norms through its onshore hydrocarbon exploration in Western Sahara on behalf of Moroccan authorities.

• Same: Potash Corporation of Saskatchewan (6 December 2011)

• Recommendations from 2010, 2012 and 2014 regarding the companies Repsol S.A. and Reliance Industries Limited

• On 1 December 2010 the Council on Ethics recommended the exclusion of the companies Repsol YPF (now Repsol S.A) and Reliance Industries Limited from the Government Pension Fund Global. In the Council’s view, the exploration activity undertaken by the companies in Block 39 would increase the risk that any indigenous peoples who may be living in voluntary isolation within the block would come into contact with outsiders, leading to potentially serious consequences for these peoples’ life, health and way of living. This would constitute an unacceptable risk of the companies contributing to serious and systematic human rights violations.

• Exclusion lifted when Repsol sold its interest

Norway SWF: Corruption; Severe Environmental Risk

• Corruption• Incoherence

or Discretion in Corruption and Investment Approaches?--Petroleo Brasileiro SA (Petrobras) under observation

• Norges Bank has decided to place Petroleo Brasileiro SA (Petrobras) under observation because of the risk of severe corruption. Petrobras is one of the largest state owned petroleum TNCs in Latin America and one that is deeply embedded in corruption investigations (here and here (including the write off of over $2 billion in bribe payments)) that reached all the way to the office of the President of the Republic (here).

• Others excluded

• Severe Environmental Risk• Indonesian Company PT Astra Interna

tional Tbk Placed Under Observation (Severe Environmental Risks) by the Norwegian Pension Fund Global (SWF) Investment Universe

“The Council on Ethics for the Government Pension Fund Global (GPFG) recommends that PT Astra International Tbk be placed under observation due to the risk that the company may be responsible for severe environmental damage. The observation relates to the company’s plantation operation in Indonesia. On 11 June 2015, Astra announced that it would immediately be ceasing all logging and land conversion while developing a new sustainability strategy.

Banks• IFIs• Development Banks• Private Banks

IFIs• World Bank Development Policy Loans

• (DPLs) are programmatic loans that largely fund policy reform, often through rapidly disbursed budgetary support, rather than project -based physical investments. DPLs were created in 2004 by merging Sectoral Adjustment Loans (SECALS), Structural Adjustment Loans (SALs), and other instruments. The World Bank has approved an average of 60 DPLs per year compared to about 400 investment lending projects), but the size of each DPL is generally much larger than an investment loan. While the majority of DPLs go to middle income countries, at least a quarter of the loans are given to the world’s poorest countries (IDA countries). • Extractives: “The Poland Coal SECAL II demonstrates the benefits of proper risk assessment of DPLs under

OP 4.01 and the importance of Strategic Environmental assessments (SEAs) for higher risk DPLs.” (PP 6)

• Generally: Quick Reference Guide to Extractive Industries’ Revenue and Contract Transparency at the International Financial Institutions• IMF:

• Guide on Resource Revenue Transparency (May 2007) supports the application of Extractive Industries Transparency Initiative EITI) guidelines and includes a wide range of disclosure, reporting, and accounting practices that exceed the EITI framework.

• Development Banks• Similar framework around EITI

HSBC: Mining and Metals Policies

• Private standards drawing from international soft norms• Mixes risk management and CSR approaches• “HSBC’s Mining and Metals Sector Policy provides guidance to its offices on sustainability

standards applicable to the Group’s involvement with this sector. The standards are based on those accepted by the industry and by other stakeholders as representing best practice, and are consistent with HSBC’s long-standing commitment to sustainable development.”

• Complemented by Equator Principles

• Scope • The financial services covered by the Mining and Metals Sector Policy include all lending and

other forms of financial assistance, debt capital markets activities, project finance and advisory work. The policy applies to equity capital markets and asset management where practical, recognising the lower degree of influence the bank may have in these circumstances.

• The mining and metals activities within the scope of the policy are: exploration; mine development; mineral extraction and mine operation; mine closure and reclamation; and primary processing of minerals.

•2007 Mining and Metals Policies• Policy• Standards

HSBC: Policy• The policy is consistent with, and builds on, HSBC’s Sustainability Risk Standard and its adoption of the

Equator Principles – voluntary guidelines which apply to project finance activities – as well as the existing sector risk policies. In particular, HSBC will not provide financial services to the mining and metals sector which directly support: • Operations in UNESCO World Heritage Sites, unless the activities pre-date the UNESCO designation; • The mining, processing and/or sale of uranium for weapons purposes; • The mining or trading of rough diamonds not certified under the Kimberley Process Certification Scheme; • Artisanal mining; • Operations in wetlands on the Ramsar List (the Register of Wetlands of International Importance of the Ramsar

Convention on Wetlands); and • Operations in Primary Tropical Moist Forests, High Conservation Value Forests or Critical Natural Habitats, where

there is significant degradation or conversion – unless legacy assets are involved (see below).

• Support where the disposal of tailings is in a river or shallow sea-water environment will only be considered exceptionally where alternative options are not feasible and the benefits to local communities are significant.

• HSBC has a restricted appetite for supporting individual operating sites where: • Tailings storage facilities and waste rock dumps represent a material threat to human life or groundwater (for

example, from tailings dam failure or acid mine drainage); • Mines are in an area of high seismic activity or exceptionally high rainfall, without adequate accident and contingency

planning in place; • • Mines have no credible closure plan; and• • Mines or metals operations are in areas where there are credible allegations of human rights violations.

HSBC: Standards•HSBC looks to its clients to operate in accordance with relevant global, regional and national laws, and the policy makes express reference to the following standards. • International Cyanide Management Code: HSBC requires clients using cyanide in the mining of gold to

observe this Code or its equivalent. • International Atomic Energy Agency: HSBC has a restricted appetite for financing uranium for the

power sector where IAEA standards are not met. • European Union Emissions Trading Scheme: HSBC expects clients covered by the scheme to comply

with their allowances to restrict greenhouse gas emissions. • International Finance Corporation (IFC): in jurisdictions where appropriate standards do not exist and

potential client impacts are high, the IFC’s Performance Standards, and Environmental Health and Safety Guidelines are used as a benchmark of internationally accepted standards. This is especially important for social and safety risks, which can arise frequently in the sector and where there are a limited number of internationally accepted standards.

•HSBC is keen to work with clients in the sector who meet these standards. As part of its commitment to engage with clients and assist them towards higher standards of sustainable development, it will also work with clients who may not currently meet these standards due to legacy assets. These assets will typically be ones which pre- date this policy and clients should have a credible, documented and time-bound plan to meet our standards.

Crédit Agricole: Metals and Mining June 2015• The Bank will not participate in financings or investments directly related to the development,

construction or expansion of any metals & mining installation if aware of the following characteristics: • - coal mining projects • - asbestos mining projects • - artisanal mining • - critical impact on a protected area or on wetlands of international importance covered by the Ramsar

Convention • - the project is located within a site listed on the UNESCO World Heritage list

• or when a risk of material non-compliance has been identified and has not received, in its opinion, satisfactory answers with respect to:

• 6

• - the IFC Performance Standards (or equivalent standards when a export credit agency or a multilateral institution is involved) or the Environment, Health and Safety Guidelines, in particular with respect to the ESMS, protection of the fundamental rights of workers, displacement of population, management of tailings, closure and rehabilitation plans as appropriate, biodiversity conservation, impact on critical natural habitats, consent of indigenous people and protection of cultural heritage

• - the relevant industry initiatives listed in section 3 (International Cyanide Management Code for gold mining, Kimberley Process for diamonds, ISTCI for tin minerals, WNA Sustaining Global Best Practices for uranium)

• - public consultation or, when necessary, consent from affected indigenous peoples • - inter States consultation in the event of major cross-borders impacts

Summary• The responsibilities of enterprises to respect human rights and with respect to

environmental and sustainability principles have expanded to institutions that finance enterprise activity

• The scope of a financial institution’s obligations are evolving• Serve as an instrument of privatized international norms • Sources in international soft law frameworks and self-governance structures

• Evolving structures of compliance• OECD NAPs

• Evolving scope of obligations for both financial institutions and their borrowers• Possibility of incoherence as they might be subject to different standards

• Private governance structures evolving as they incorporate international standards• Control of borrowers through loan pricing (based on human rights risks) and covenants

(compliance and monitoring of standards developed and imposed by lenders)• Reflect DOUBLE OBLIGATION

• Internal: operations of financial institutions• External: Financing obligations

Thank You!