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Forum global sur la sécurité alimentaire et la nutrition • Forum FSN

Re: The Future UNIDROIT-FAO-IFAD Legal Guide on Agricultural Land Investment Contracts (ALIC)

Wei Yin
Wei YinSouthwest University of Political Science and LawChina

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.