Готовящееся к выпуску юридическое руководство УНИДРУА-ФАО-ИФАД по инвестиционным контрактам на сельскохозяйственные земли (ИКСЗ)
The process of preparing, negotiating and implementing an agricultural land investment contract in a manner consistent with the principles and standards laid out in the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT) and the CFS Principles for Responsible Investment in Agriculture and Food Systems (CFS-RAI Principles), can be very challenging for investors, governments, legitimate tenure right holders and local communities alike.
The International Institute for the Unification of Private Law (UNIDROIT), in collaboration with the Food and Agriculture Organization of the United Nations (FAO) and the International Fund for Agricultural Development (IFAD), is preparing a future Legal Guide on Agricultural Land Investment Contracts (ALIC), to cater for the needs of legal counsels working on the leasing of agricultural land from States and local communities.
The ALIC guide’s aim is not to promote large-scale land acquisitions, but rather to raise awareness about alternative investment models. In acknowledging that land acquisitions continue to occur, however, the instrument will help to ensure that leases of agricultural land are done responsibly, with necessary safeguards to protect human rights, livelihoods, food security, nutrition and the environment, and that stakeholders’ rights, including those of legitimate tenure right holders, are both protected and respected.
The instrument, building on the success of the UNIDROIT-FAO-IFAD Legal Guide on Contract Farming and the UNIDROIT Principles of International Commercial Contracts, is being developed by a Working Group of experts, representatives of international organisations, and stakeholders. The resulting Zero Draft is currently being circulated as widely as possible in order to solicit comments and feedback.
Structure of the ALIC Zero Draft
The instrument will address the following six main aspects:
(1) Legal framework: The applicable legal framework is made up of various domestic sources of law (e.g. legislation, judicial decisions, regulations and, in some instances, customary rules) and various international sources (e.g. international human rights treaties, investment treaties or soft law instruments). The framework may also vary according to the type of agricultural land investment contract, which might be an investment agreement, lease contract or related agreements.
(2) Parties, due diligence and formation: There are various possible parties to agricultural land investment contracts, and numerous stakeholders that could be affected by such contracts. Difficult tasks could include: (a) identifying both the holders of legal title to the land and any holders of legitimate tenure rights with respect to that land; (b) consulting with those various holders, including in customary settings in which the roles of various authorities might not be clearly defined; and (c) conducting detailed feasibility studies and rigorous impact assessments, with respect to possible tenure, social, environmental and economic impacts.
(3) Obligations and rights of the parties: The agricultural land investment contract, which may be a single agreement or series of agreements, can set out provisions addressing not only the particular tenure and related rights that are granted, but also necessary safeguards to bridge gaps in the State’s law and possible impacts of the investment.
(4) Contractual non-performance and remedies: As leases of agricultural land usually involve long-term contractual relationships, it is important to understand the inherent risks in a particular investment and to promote cooperation between the parties and stakeholders.
(5) Transfer and return: The transfer of leased agricultural land from one investor to another can raise various concerns, including whether or not the granted tenure rights are actually transferable, the transfer complies with any contractual limitations, and such transfer is disclosed to the public.
(6) Grievance mechanisms and dispute resolution: Understanding the types of grievances and disputes that commonly arise under agricultural land investment contracts and the various mechanisms for resolving them (e.g. expert determinations, negotiation, mediation, arbitration and litigation) can also create a more balanced and sustainable contract.
Your views
In this online consultation we invite you to share with us thoughts and inputs you may have on the Zero Draft. Comments concerning the general approach of the Guide or on specific Chapters, sections or issues would be most welcome. In particular, we are seeking feedback on the following:
- Are there sections in the draft Guide that appear to be non-exhaustive or to have gaps in the addressed issues? If so, how would you propose to bridge them?
- Are there sections that lack clarity? If so, how would you propose to clarify them?
- Does the draft Guide present any sections where the content is redundant (i.e. has already been presented elsewhere)?
All comments received will be submitted to the Working Group and taken into account, as appropriate, for the draft's final revision, which is to take place between 1 October and 20 December 2019.
Subject to the final revision process in coordination with FAO and IFAD, the Legal Guide on Agricultural Land Investment Contracts will be adopted by the UNIDROIT Governing Council at its 99th session in May 2020.
Many thanks in advance for your time and valuable input.
Carlo Di Nicola
Senior Legal Officer, UNIDROIT
Темы
- Прочитано 34 комментарии
Would it be possible to add more resources and guidance related to specific issues?
The draft references the Roundtable on Sustainable Palm Oil, for example. Please consider adding a reference to the Farm Animals Responsible Minimum Standards (FARMS) Initiative's Responsible Minimum Standards (RMS), which provide technical guidance on best practice for breeding, rearing, transporting and slaughtering for five of the most farmed species. Attention to farm animal welfare has numerous benefits, including relating to food quality, food safety, environmental impact, resource usage, labor conditions and financial viability. The 1-2 page RMS are based upon principles of risk mitigation outlined in the IFC Good Practice Note on Animal Welfare in Livestock Operations. The FARMS Initiative and the RMS will be included in the Resources section of the upcoming UNEP Finance Initiative's Principles for Responsible Banking, to be launched in late-September.
The FARMS Initiative website: www.farms-initiative.com
Responsible Minimum Standards: Beef Cattle, Chickens, Dairy Cattle, Laying Hens and Pigs
Proposed description for the FARMS Initiative and the RMS to be included in Section 3.112.
"In the farm animal sector, the Responsible Minimum Standards of the FARMS Initiative provide technical guidance with respect to breeding, raising, transporting and slaughtering five of the most farmed species: Beef Cattle, Chickens, Dairy Cattle, Laying Hens and Pigs."
Thank you.
Here is a selection of titles proposed by FAO Publications for forum participants who would like to read more on agricultural land investment contracts.
Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security
The guidelines are the first comprehensive, global instrument on tenure and its administration. They set out internationally accepted standards of responsible practices for the use of and control of land, fisheries and forests.
Safeguarding land tenure rights in the context of agricultural investment
This guide provides guidance to government authorities engaged in the promotion, approval and monitoring of investments at all stages of the investment cycle.
Responsible governance of tenure and the law
This guide addresses the legal value of the Guidelines covering the governance of tenure of land, fisheries and forests by explaining the concept of legitimacy and reviewing the different stages of legislative processes, from legal assessment and law-making through implementation of legislation to settlement of disputes.
Responsible governance of tenure: a technical guide for investors
This Technical Guide explains what the Voluntary Guidelines mean and how they can help firms to understand and manage risk related to land tenure.
Legal guide on contract farming
This guide is a tool for a range of users involved in these practices, in policy design, legal research and capacity-building, and will contribute to creating a favorable, equitable and sustainable environment for contract farming.
Due diligence, tenure and agricultural investment – A guide on the dual responsibilities of private sector lawyers in advising on the acquisition of land and natural resources
This guide examines private sector lawyers’ responsibilities when advising clients on agricultural investments. It discusses how they can address, e.g. through policy statements or engagement letters, potential adverse human rights impacts on tenure rights holders.
Enabling regulatory frameworks for contract farming
This study provides guidance on appraising and reforming domestic regulatory frameworks for responsible contract farming, addressing issues such as power imbalance, dispute resolution methods and transparency.
Model agreement for responsible contract farming − With commentary
This paper provides practical legal tools for responsible investments. It addresses some of the challenges in contract farming, including sustainable business relationships, a transparent business environment, fair prices, and timely payments to producers.
Further reading
http://www.fao.org/cfs/home/activities/rai/en/
http://www.fao.org/legal/publications/legislative-studies/en/
Dear Team
After going through the document which has been worked on thoroughly, I would like to say we have done a great job.
What I could not see clearly is the political group as the target audience. These are not policy makers neither are their just other stakeholders or community but are key in influencing decisions and the implementation of such guide to rectify some sections of the law. I therefore would like a detail on the role of political groups, how they could be approached to influence land issues.
If all parties agree to this and it’s approved by some processes, how could it be marketed for domestication? Will a committee under FAO or WFP be tasked with rolling out the guide to countries and work to guide vulnerable countries involving political parties?
Dr. Jefter Mxotshwa
An interesting subject. It looks like this is another effort for “Estate Management” of smallholder lands. If this is the case make certain you learn the lessons from past efforts in particular the major debacle of the Gizzeria Scheme the Brits attempted outside Khartoum, Sudan at the confluence of the Blue and White Nile over 100 years ago. While as a major advocate for smallholder farming, I will agree that the estate management can be more productive and provide a better opportunity to meet national food security then individual smallholders. I will also agree that it could be a toss up if an individual is personally better off economically being an independent smallholder or an estate employee. However, as you do move from one to the other it can be a sensitive shift with many issues to consider.
1. Since an estate cannot have any isolated private holder inclusions you need some form of eminent domain to assure all land is included.
2. Then if you are not outright purchasing the land and disruptively displacing people, you need some equitable relationship for the use of the land.
If I were doing it, I would look at sharecropping in which during the season of estate management the owners will receive 30% of the crop. That is basically the world-wide standard share for use of land. This would be 30% of the total estate production prorated to the farmer according to area involved and not just 30% for the land involved as time differential across the estate will make the production on individual farms unequal. I would than guarantee the farmers the opportunity to work for the estate. The combination of wage earning and share should provide a reasonable income to the farmers. Also, if the estate is only interested in one crop a year the land should be available to the owners use during the off-season for personal production of something like short season vegetables.
Anyway, just some thought on estate farming of smallholder lands.
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