There are few things that can be improved in Chapter 1- The Legal Framework. First, after reading this chapter, the structure and classification of each part is not that clear and sometime overlap. It would be helpful if the drafting team can reconsider a more logical structure of this chapter. Second, in 1.5 (page 15), it mentions ‘customary land rights’ and ‘customary rights’. Would it possible to provide footnotes or examples on this? In 1.8 – Domestic legal system in general, it mainly discusses and/or mentions constitution or constitutional system. While, in some countries, the institution does not specifically mentions contract regulation or provide information on how to regulate contract with public factors. This part can provide few more general information concerning the domestic legal system. In part A-Domestic Sources 1.10, the guide use ‘legal rules’ to include all mandatory domestic legal sources, but I have some reservations about it. The case law may not be described as ‘rules’. The guide puts the 1.10, 1.11, and 1.12 into parallel parts, while it seems that the three parts might not be the same level. Or it would be nice if considering putting the ‘customary rules’ and ‘recognition of customary rules’ in one part with sub-titles. There are also overlaps in part B- International sources and Part II. Relevant Areas of Law, especially when mentioning international instruments concerning human rights. In 1.21, the guide mentions applicable tax and finance regime, but in the bullet points, it only emphasises fiscal regime and accounting standards.
In the part of IV. Protection of Investment and Regulatory Autonomy, there are few things that need to be improved or clarified. First, in 3.126, the guide mentions ‘domestic investment codes’, but I would suggest not to use the term ‘codes’ but ‘law’ or ‘rules’ or ‘regulation’ since in many countries they do not have investment “codes” but investment law, or regulation, or provisions in relation to investment in other codes or law. The term of ‘codes’ is not frequently used in investment law field. In 3.132, when mentioning ‘indirect expropriation or regulatory taking’ or ‘tantamount’, other similar alternatives or terms can be also mentioned for wide readers, e.g. ‘creeping’, or ‘de facto’ expropriation. In 3.134 (page 79), whether the examples of ‘discounted cash flow method, book value, replace value’ can be further explained or with footnotes provided. In 3.139 (page 80) and 3.140, it would be helpful if the term ‘economic equilibrium clauses’ or ‘stabilisation clauses’ can be explained since many other people may not be familiar with these technical terms. Actually, there are two basic types of stabilisation clause, i.e. ‘freezing clauses’ and ‘economic equilibrium clause’. The guide in this part may have to clarify the relation of these clauses to make readers clearly understand it. In addition, this part seems to provide an approach or an view to address or reflect the conflict between protection of investment and protection of the right to regulate and try to make a balance, however, the obligation (binding or non-binding) of investors has seldom been mentioned. It seems that the view of this part is mainly to provide measures or approaches that the government can take to balance this conflicting interest but not the measures or approaches that the government can take to protect its right to regulate, i.e. countermeasures. The guide mentioned CSR, responsible business conduct or similar expression but in this part these terms do not appear. Given that, for the readers, the obligation or soft responsibility of investors is not a key issue but this is also very important for the purpose of achieving sustainable investment.
In every part of this draft guide, I can see the intention of drafting organisations to contribute to sustainable and responsible investment in agricultural land and to achieve goals set in SDGs, in particular those in relation to agriculture and food. The guide mentioned CSR, responsible business conduct, and also mentioned negative risks (e.g. human rights, social and environmental impacts) that may occur if investment is not sustainable. However, the guiding instruments as the basis for this guide mainly focuses on human rights, while other relevant instruments in relation to social and environmental elements can seldom be seen in this guide. And in page 14-Intro 5, the guide mentions the consistence with the UN Guiding Principles, the VGGT, the CFS-RAI Principles and other international instruments. What does the ‘other international instruments’ refer to? For Chapter 6 – Grievance Mechanisms and Dispute Resolution, grievance mechanisms can also be regarded as a kind of dispute resolution mechanism and it might be a judicial one or non-judicial one. The classification of dispute resolution mechanisms and the order or title of this part can be reconsidered. The guide mentions Mediation in Chapter 6, however, it would be helpful if the guide can mentions the United Nations Convention on International Settlement Agreements Resulting from Mediation-Singapore Mediation Convention in the part of ‘Enforcement of Settlements or Decisions Resolving A Dispute’.
Generally speaking, it shows that the guide, once finalised, may contribute to sustainable investment in agricultural land and the implementation of the Sustainable Development Goals (SDGs). The aim of this guide is of value. But for a more practical and useful guide, there might be something that needs to be improved. The first thing that I intend to raise is similar to one of the recent contributions below, i.e. the definition of 'sustainable investment', 'responsible and sustainable investment' and similar expressions. It would be helpful, if the guide can provide definition of these terms for the purpose of realising the aim of this guide. In academic papers, policy papers and/or some international soft law instruments or statements, these terms do not have a shared or unified definition, but usually there are some key elements that were usually mentioned to defining these terms. Since this guide focuses on Agricultural Land Investment Contracts, it is important to define these terms in this field, providing specific elements or factors. Secondly, as a guide for different stakeholders or to be adopted by different parties, the structure and content of the guide need be clear and easy to read and follow. Although the table of content follows a clear order but in each Chapter, the content is not in a proper order or the content or main point of each paragraph is not that clear or reader-friendly. Thirdly, I want to raise a small technical question in relation to ‘local communities’. For the contract between investors and local communities, even though the word of ‘local community’ is known to many people or entities, but in some countries, the meaning or definition of ‘local community’ is not clear or even in some countries, the so called ‘local community’ cannot sign land contract with other investors.
博士 Wei Yin
There are few things that can be improved in Chapter 1- The Legal Framework. First, after reading this chapter, the structure and classification of each part is not that clear and sometime overlap. It would be helpful if the drafting team can reconsider a more logical structure of this chapter. Second, in 1.5 (page 15), it mentions ‘customary land rights’ and ‘customary rights’. Would it possible to provide footnotes or examples on this? In 1.8 – Domestic legal system in general, it mainly discusses and/or mentions constitution or constitutional system. While, in some countries, the institution does not specifically mentions contract regulation or provide information on how to regulate contract with public factors. This part can provide few more general information concerning the domestic legal system. In part A-Domestic Sources 1.10, the guide use ‘legal rules’ to include all mandatory domestic legal sources, but I have some reservations about it. The case law may not be described as ‘rules’. The guide puts the 1.10, 1.11, and 1.12 into parallel parts, while it seems that the three parts might not be the same level. Or it would be nice if considering putting the ‘customary rules’ and ‘recognition of customary rules’ in one part with sub-titles. There are also overlaps in part B- International sources and Part II. Relevant Areas of Law, especially when mentioning international instruments concerning human rights. In 1.21, the guide mentions applicable tax and finance regime, but in the bullet points, it only emphasises fiscal regime and accounting standards.
博士 Wei Yin
In the part of IV. Protection of Investment and Regulatory Autonomy, there are few things that need to be improved or clarified. First, in 3.126, the guide mentions ‘domestic investment codes’, but I would suggest not to use the term ‘codes’ but ‘law’ or ‘rules’ or ‘regulation’ since in many countries they do not have investment “codes” but investment law, or regulation, or provisions in relation to investment in other codes or law. The term of ‘codes’ is not frequently used in investment law field. In 3.132, when mentioning ‘indirect expropriation or regulatory taking’ or ‘tantamount’, other similar alternatives or terms can be also mentioned for wide readers, e.g. ‘creeping’, or ‘de facto’ expropriation. In 3.134 (page 79), whether the examples of ‘discounted cash flow method, book value, replace value’ can be further explained or with footnotes provided. In 3.139 (page 80) and 3.140, it would be helpful if the term ‘economic equilibrium clauses’ or ‘stabilisation clauses’ can be explained since many other people may not be familiar with these technical terms. Actually, there are two basic types of stabilisation clause, i.e. ‘freezing clauses’ and ‘economic equilibrium clause’. The guide in this part may have to clarify the relation of these clauses to make readers clearly understand it. In addition, this part seems to provide an approach or an view to address or reflect the conflict between protection of investment and protection of the right to regulate and try to make a balance, however, the obligation (binding or non-binding) of investors has seldom been mentioned. It seems that the view of this part is mainly to provide measures or approaches that the government can take to balance this conflicting interest but not the measures or approaches that the government can take to protect its right to regulate, i.e. countermeasures. The guide mentioned CSR, responsible business conduct or similar expression but in this part these terms do not appear. Given that, for the readers, the obligation or soft responsibility of investors is not a key issue but this is also very important for the purpose of achieving sustainable investment.
博士 Wei Yin
In every part of this draft guide, I can see the intention of drafting organisations to contribute to sustainable and responsible investment in agricultural land and to achieve goals set in SDGs, in particular those in relation to agriculture and food. The guide mentioned CSR, responsible business conduct, and also mentioned negative risks (e.g. human rights, social and environmental impacts) that may occur if investment is not sustainable. However, the guiding instruments as the basis for this guide mainly focuses on human rights, while other relevant instruments in relation to social and environmental elements can seldom be seen in this guide. And in page 14-Intro 5, the guide mentions the consistence with the UN Guiding Principles, the VGGT, the CFS-RAI Principles and other international instruments. What does the ‘other international instruments’ refer to? For Chapter 6 – Grievance Mechanisms and Dispute Resolution, grievance mechanisms can also be regarded as a kind of dispute resolution mechanism and it might be a judicial one or non-judicial one. The classification of dispute resolution mechanisms and the order or title of this part can be reconsidered. The guide mentions Mediation in Chapter 6, however, it would be helpful if the guide can mentions the United Nations Convention on International Settlement Agreements Resulting from Mediation-Singapore Mediation Convention in the part of ‘Enforcement of Settlements or Decisions Resolving A Dispute’.
博士 Wei Yin
Generally speaking, it shows that the guide, once finalised, may contribute to sustainable investment in agricultural land and the implementation of the Sustainable Development Goals (SDGs). The aim of this guide is of value. But for a more practical and useful guide, there might be something that needs to be improved. The first thing that I intend to raise is similar to one of the recent contributions below, i.e. the definition of 'sustainable investment', 'responsible and sustainable investment' and similar expressions. It would be helpful, if the guide can provide definition of these terms for the purpose of realising the aim of this guide. In academic papers, policy papers and/or some international soft law instruments or statements, these terms do not have a shared or unified definition, but usually there are some key elements that were usually mentioned to defining these terms. Since this guide focuses on Agricultural Land Investment Contracts, it is important to define these terms in this field, providing specific elements or factors. Secondly, as a guide for different stakeholders or to be adopted by different parties, the structure and content of the guide need be clear and easy to read and follow. Although the table of content follows a clear order but in each Chapter, the content is not in a proper order or the content or main point of each paragraph is not that clear or reader-friendly. Thirdly, I want to raise a small technical question in relation to ‘local communities’. For the contract between investors and local communities, even though the word of ‘local community’ is known to many people or entities, but in some countries, the meaning or definition of ‘local community’ is not clear or even in some countries, the so called ‘local community’ cannot sign land contract with other investors.