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	Why it’s getting harder (and more dangerous) to hold companies accountable by Ciara Dowd, Elodie Aba Business & Human Rights Resource Centre, agencies   May 2017   There is a crisis of impunity for corporate human rights abuses and it is getting worse. In our work with the Business & Human Rights Resource Centre, we track the latest legal developments in holding companies accountable for human rights abuses, to share knowledge among lawyers and ultimately strengthen accountability. For years, we have highlighted increasing barriers for victims to obtain justice. As companies are rarely brought to account, there have been few reasons for optimism.   So bad is the crisis of impunity that we have had to dedicate a significant portion of space in our latest Annual Briefing to the threats directed at advocates and lawyers working on corporate accountability.   In 2016, we even saw Pavel Sulyandziga, a well-known indigenous leader in Russia and member of the UN Working Group on Business and Human Rights, speak out about the harassment he and his family are facing because of his work supporting local communities to retain control of their land from extractives companies.   Human rights defenders working on corporate accountability have faced killings, beatings and threats and are rarely, if ever, able to obtain justice. Moreover, the law is often used as a weapon. In the last two years, the Business & Human Rights Resource Centre has tracked over 450 cases of attacks against human rights defenders working on corporate accountability. The most common is judicial harassment (40% of cases).   In February 2016, six activists opposing the use of villagers’ land for Socfin plantations were jailed after a Sierra Leone court found them guilty of destroying 40 palm oil plants. The activists say they are innocent and see the trial as a “tactic to get us into prison so that we cannot raise our voice on the unacceptable land deals in Malen Chiefdom.”   These types of legal harassment are often not intended to be successful claims, but rather are designed to silence human rights defenders by tying them up in costly litigation processes.   In France, the NGO Sherpa has been sued by the company Vinci for defamation, after the NGO filed a criminal complaint in March 2015 against the company and its Qatari subsidiary over alleged forced labour on their construction sites in Qatar. Sherpa said of the lawsuits: “by involving us in these costly proceedings, Vinci is plainly seeking to pressure us into withdrawing our action for lack of resources.”   These lawsuits are often a disproportionate response to statements as small as social media posts. During a mission to Indonesia in September 2016, we met with the NGO KontraS, which is currently campaigning against criminalisation of human rights defenders. They told us of an activist from the NGO WALHI (Friends of the Earth Indonesia) who faced a criminal defamation complaint by supporters of a land reclamation project in Bali, over a Twitter post that mocked them.   In the US, community activists were sued for USD 30 million by Green Group Holdings after they complained on social media about the company’s landfill and its impact on the local resident’s health. Lee Rowland, a senior staff attorney with the American Civil Liberties Union who worked on the case, said: “No one should have to fear a multi-million dollar lawsuit just for speaking up about their community—but our clients did.”   Lawsuits like these have a chilling effect on human rights activism and advocacy. The inequality of power and resources between large corporations with teams of lawyers and grassroots human rights defenders means that many activists may give into the demands of corporations rather than enter a costly legal battle. This chilling effect is immeasurably worse when defenders are threatened with physical assaults and death.   From impunity to accountability   Companies benefit from an environment where there is freedom of speech, satisfied workers, and an increased consumer base, and governments attract investment when there is a strong rule of law. Governments should decriminalise defamation as advocated by international and regional organizations and leading NGOs, enact laws to protect human rights defenders and their lawyers from harassment, and provide an enabling environment and open civic space for those working on corporate legal accountability. (Of course, detractors would argue that criminal defamation laws are needed to protect their reputation, but there are still civil liabilities.)   Governments should pass legislation to address strategic lawsuits against public participation, like those passed in several US states and Canadian provinces.   Corporations can influence governments to improve by voicing opposition to governmental action or legislation that threatens to close the civic space. Natural Fruit filed a defamation lawsuit in Thailand against Andy Hall, a British labour rights activists and researcher, over a report that alleged labour abuse against migrant workers in the company''''s factories. The Senior Vice President of S Group, a Finnish retailer that sourced from Natural Fruit, testified in support of Andy Hall in the Thai criminal defamation lawsuit against him in July 2016. S Group’s action in this case demonstrates the steps companies can take to support human rights defenders under legal attack.   Companies can also draft a dedicated policy on human rights defenders, like adidas has done, explaining why human rights defenders are important to their work and setting out expectations towards the company’s suppliers.   Everyone benefits from the work of human rights defenders and the promotion of the rule of law, so businesses and governments should work to support and protect them. The legal system should only be used to bolster the rule of law, not burden its defenders. http://bit.ly/2ryFFHS Visit the related web page
	Unpacking the Public Private Partnership Revival by Institute for Sustainable Development, agencies   Unpacking the Public Private Partnership Revival, by Kate Bayliss & Elisa Van Waeyenberge. (The Journal of Development Studies: Extract)   This paper examines the recent resurgence of interest in public-private partnerships (PPPs) to provide infrastructure in developing countries.   First, the paper demonstrates that there has been a revival of support for private sector participation in infrastructure. Second, the paper argues that this revival differs from earlier attempts to increase the involvement of the private sector in public service provision in a number of respects. In particular, the current support for PPPs is related to an increased availability of global financial capital. Third, the paper considers the implications of this distinct feature of the revival for development.   There has been a strong resurgence of interest in public-private partnerships (PPPs) for infrastructure in recent years. Throughout this paper, we adopt a broad definition of infrastructure to include both what is, on the one hand, sometimes referred to as economic (or ‘hard’), such as roads, ports, airports, and so forth, and, on the other, social (or ‘soft’) infrastructure such as education and health provision.   As a result, infrastructure and public services are used interchangeably, with ‘public’ capturing the reality that the state retains some degree of (or all) responsibility for the service provision, regardless of varying levels of private sector involvement.   In the developing world, this resurgence has been led by the World Bank but has also received strong support from other multilateral development institutions, bi-lateral donors, national governments and various other organisations. Indeed, a number of global initiatives have recently been established to promote the adoption of PPPs.   These range from platforms seeking to pair investors with investment opportunities in the developing world to online training in support of PPP adoption. Across these, PPPs are presented as essential to address large infrastructure deficits in developing countries.   PPPs take various forms. They differ from traditional public procurement through the nature of the contract between the public and private sector, and their aim is to shift risk and management responsibility to the private sector through output rather than input specifications regarding infrastructure service delivery. They usually take the form of a concession-type contract with variations in the requirements from the private partner in the configurations of Design, Finance, Build, Operate, Maintain and Transfer of the infrastructure asset.   The exact nature of the partnership of PPPs varies but, across the range, governments remain ultimately accountable for services provided. Funding for PPPs is derived either from the state, from users, or through a combination of both.   For supporters, PPPs bring efficiency, innovation and finance. At the same time, PPPs offer returns to investors and may appear as a win-win resolution of the gap between a country’s infrastructure needs and the public funds available to finance these. Yet, PPPs remain a highly contested vehicle for infrastructure financing and delivery. Critics have pointed to their high costs, the long-term and rigid nature of contracts, the difficulty in finding sufficient appetite on behalf of private investors, and varying assessments of their performance in terms of efficiency, risk transfer and social impact.   The evidence seems to indicate that they need to be treated with caution, both on a project-specific basis and as an increasingly embedded route to infrastructure or public service provision.   Against this backdrop, this paper critically explores the recent resurgence of interest in PPPs. It does so by addressing two core questions: first, what are the distinct features of the recent revival of PPP promotion and, second, what issues do these raise in the context of development policy?   As we engage with these issues, we understand PPPs as another manifestation of a push for the increased involvement of the private sector in public service provision, which came to the fore in development policy initially with the drive for privatisation that dates back to the 1980s. And, while aware of the differences between ‘outright’ privatisation or ‘divestiture’ and a PPP arrangement, not in the least in the extent and nature of the involvement and relations between private and public sectors, our interest relates to their shared agenda of extending the reach of the private sector in the provision of essential services which would previously have been understood as the preserve of the public sector.   The paper then argues that the current efforts to promote PPPs differ from earlier initiatives that sought to promote private sector involvement in infrastructure in their reflection of a specific set of underlying imperatives. While earlier drives for privatisation in donor advocacy formally highlighted the potential efficiency gains deriving from increased private sector involvement in public service provision, the more recent wave of PPP advocacy is anchored almost entirely in arguments seeking to match a glut in global savings with the need to upscale public service provision in developing countries.   This has created an increasingly financialised approach to infrastructure, as policy is framed in terms of investment opportunities for financial investors and institutional arrangements bearing on infrastructure provision are reconfigured to facilitate their entry into the sector.   The paper highlights the hazards of such a framing and situates these in the context of well-established critiques of PPPs in development studies..   The availability of trillions of institutional finance as one of the core drivers of the current policy, infrastructure investment becomes assessed in terms of its ‘bankability’. This implies that the needs of investors are prioritised over social outcomes when the provision of public service is reorganised to accommodate the imperative to generate competitive returns for private investors.   This often translates into fees or tariffs that condition access. Critical accountants have highlighted how across sectors and countries, PPPs can act as a conduit for the redistribution of wealth away from taxpayers to financial and corporate sectors.   Researchers observe how the public good becomes ‘subordinate to the imperative of designing a commercially viable contract’. Infrastructure’s non-commercial outcomes or purposes become marginalised, with access regulated by capacity to pay and multiple purposes that could otherwise be attached to infrastructure reduced to guaranteeing profitability for investors..   Furthermore, the reliance on private investment in infrastructure (and the need to generate revenue streams) may dictate the location and design of the projects to attract private investment, where the public sector loses the capacity to cross-subsidise infrastructure investments that present less attractive commercial features.   The new understanding of infrastructure in terms of a portfolio of public, public-private and private provision arrangements, designed for specific purposes, targeted at selected groups and available often under commercial arrangements displaces the traditional approach to infrastructure which involved the systematic assessment of its social, economic and environmental consequences.   The current focus on bringing global finance to meet developing country infrastructure raises additional regulatory challenges. Research has shown how PPP assets are valuable to investors, not just for the expected rate of return their operational activities may generate but also for the opportunities they provide for financial engineering.   Based on analysis of investments in the United States, they have demonstrated that sophisticated financing techniques used, for example, to restructure debt finance, interest and dividend flows, have led to significant additional returns for investors. Such financial mechanisms increase the information asymmetries between government and investor, and constantly evolving financial practices raise challenges for regulation in long-term fixed contracts. In addition, in developing countries, fiscal resources risk being depleted by corporate activities.   Research by Global Financial Integrity (2015) shows that of the $1 trillion in illicit flows leaving poor nations annually, over 83 per cent is due to trade mis-invoicing where corporations under-value exports and over-value imports to appear to reduce corporate profits and associated tax liabilities. Bringing in more private finance with financial engineering practices into developing country infrastructure exposes governments, already known to be lacking in capacity, to greater risk of exploitation.   Finally, PPPs in general but particularly under financialised structures, can be expected to contribute to increased inequality both within and between countries. The packaging of infrastructure into bankable projects will direct spending to areas where returns are most secure and these may be hived off into pooled financial products leaving the state with the hardest (poorest) to serve.   Despite the poverty reduction rhetoric of PPP policy referenced above, even the World Bank finds that little is recorded on the poverty impact of PPPs and the extension of services to the poor is rarely an explicit objective of a PPP arrangement.   While PPPs may provide much-needed infrastructure to meet the needs of end users, this often comes at considerable cost. This needs to include considerations of a PPP’s wider fiscal impact, illustrated by the case of a hospital PPP in Lesotho, which consumed more than half of the country’s national health budget.   The fiscal cost and distributional implications of PPPs are accentuated when compared with state borrowing. The discrepancy in yield generated by a sovereign bond, for instance, as compared to a PPP infrastructure security, and hence the differential cost to the taxpayer or user of the facility, will have distributional implications.   Further, through a PPP, institutional investors in such ‘assets’, often in the form of investment funds operating on behalf of the world’s richest, become connected with the world’s poorest households through their consumption of essential services. User fees at one end of the financial chain are transformed into dividends at the other end of the chain.   * Access the complete paper with references: http://bit.ly/2Jje3g4   * Global Policy Forum: http://bit.ly/2GzkH3Z http://bit.ly/2GW9mdD   * Private Sector Partnerships arrangements in the Context of the 2030 Agenda for Sustainabale Development by the UN Joint Inspection Unit (PDF 59pp): http://bit.ly/2Isz46E   Nov. 2017   Policy Groups call for Risk Awareness with PPPs. (Institute for Sustainable Development)   Eurodad issues a briefing paper on negative impacts of PPPs, focusing on their promotion by the World Bank Group, while a briefing paper from Global Policy Watch stresses the need for responsible promotion of partnerships undertaken by the UN Development System (UNDS). Eurodad and Global Policy Watch join a “global campaign manifesto” on PPPs.   The 2030 Reflection Group reports that privatization and PPPs "involve disproportionate risks and costs for the public sector and can exacerbate inequalities, decrease equitable access to essential services and jeopardize the fulfilment of human rights.”   Several organizations have issued papers and reports examining the risks associated with the growth of public-private partnerships (PPPs) and other forms of private sector involvement in achieving the SDGs. The publications also suggest processes for the UN and development banks to address the risks.   The European Network on Debt and Development (Eurodad) issued a briefing paper on negative impacts of public-private partnerships (PPPs). The paper titled, ‘Public-Private Partnerships: Defusing the ticking time bomb,’ finds that PPPs can impose large fiscal costs on the public, but the World Bank and other actors do not always alert countries to these risks.   PPPs have “already left lasting negative fiscal legacies” including in the UK, Portugal, Ghana, Peru and Lesotho, argue authors Mathieu Vervynckt and María José Romero. The briefing encourages greater transparency and public scrutiny of PPP projects. It also calls for evaluating alternatives to PPPs, including public financing of infrastructure projects.   A briefing paper from Global Policy Watch also stresses the need for responsible promotion of partnerships, noting that currently, partnerships undertaken by the UN Development System (UNDS) result in “a dilution of governance” as well as lower quality assistance. The paper titled, ‘UN partnerships in the public interest? Not yet,’ expresses concern about a shift away from accountability in favor of corporate funding.   The authors, Barbara Adams and Sarah Dayringer, welcome a proposed postponement of the UNGA’s Second Committee discussion of a resolution on partnerships, to allow for further discussion of multi-stakeholder involvement, guidance and accountability, and a system-wide approach to partnerships. The briefing also notes that, according to this year’s report of the UN Secretary-General on partnerships (A/72/310), progress has been made toward creating a draft set of draft guidelines to “govern the risk management in partnerships involving non-governmental organizations affiliated with business entities, corporate sustainability and public transparency to be of the highest importance.”   GPW highlights that another report of the Secretary-General, on the repositioning of the UNDS (A/72/124), reports on UN initiatives underway to review partnerships by launching “partnership focused work-streams.” The work streams include a process to adopt a system-wide approach to partnerships, to be developed among the UN Global Compact, the UN Department of Economic and Social Affairs (DESA) and the UN Development Group.   Eurodad and Global Policy Watch are among the 151 national, regional and international civil society organizations, trade unions and citizens’ organizations from 45 countries that recently issued a “global campaign manifesto” on PPPs. The document outlines threats to public finance, equality, democracy, and fundamental rights.   On infrastructure, the organizations call on development banks to stop the “aggressive promotion and incentivizing of PPPs,” recognize the risks that PPPs can pose, and support countries in finding the best financing method.   On public services, they encourage prioritizing domestic resources, and stress the need for high-quality, publicly-funded, democratically-controlled, accountable public services: “the wellbeing of our communities and societies depends on it.”   In addition, the 2030 Reflection Group issued its 2017 report on the theme, ‘Reclaiming the public (policy) space for the SDGs: Privatization, partnerships, corporate capture and the implementation of the 2030 Agenda.’   Jens Martens of Global Policy Forum observes that some argue that the private sector is the most efficient way to provide the necessary means for implementing the SDGs. However, “many studies and experiences by affected communities have shown that privatization and PPPs involve disproportionate risks and costs for the public sector and can even exacerbate inequalities, decrease equitable access to essential services and jeopardize the fulfilment of human rights.”   He calls to strengthen public finance in order to reduce corporate influence over people’s lives. The paper was launched in Geneva, Switzerland, on 23 October 2017, with the UN Research Institute for Social Development (UNRISD) and Friedrich Ebert Stiftung (FES).   http://sdg.iisd.org/news/policy-groups-call-for-risk-awareness-with-ppps/ http://www.eurodad.org/PPPs-briefing-2017 http://bit.ly/2AX92Jc http://bit.ly/2iTUD94 http://bit.ly/2jg1y9x http://bit.ly/2tFtnxy   * Access the reports via the link below. Visit the related web page
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