You are here

1 Setting the Legal and Policy Framework

Stage 1:
Setting the Legal & Policy Framework

Setting the Legal and Policy Framework refers to the need for a country to formulate clear policies and strategies that both attract FDI and benefit the country.

Government Policies and Strategies Legislative and Regulatory Frameworks Sector-Wide Analyses
2 Pre-Negotiation

Stage 2:
Pre-Negotiation Stage

The Pre-Negotiation Stage refers to the period during which a government identifies a particular project or investment and conducts feasibility studies and impact assessments.

Feasibility Studies Impact Assessments Tender Process and Financial Structure
3 Contract Negotiation

Stage 3:
Contract Negotiation Stage

The Contract Negotiation Stage refers to the actual negotiation of investment contracts between a government and an investor.

Prepare for the Negotiation Assemble a Negotiation Team Develop a Negotiation Position Contract Negotiation
4 Contract Implementation and Monitoring

Stage 4:
Implementation & Monitoring Stage

The Implementation and Monitoring of the Investment Stage refers to the period during which an investment project is developed and operated pursuant to the terms of the investment contract.

Monitoring Implementation Grievance Mechanisms

Roadmap

Conduct and Review Environmental, Social and Human Rights Impact Assessments

Content of this page:

Environmental Impact Assessments, Social Impact Assessments, and Human Rights Impact Assessments need to be conducted to assess the potentially adverse social, environmental, and human rights impacts of a particular investment and be better placed to manage and mitigate the risks. With an understanding of the impacts, site-specific environmental, human rights, and social parameters can then be included in the tender documents and incorporated into the investment contract entered into between the government entity and the investor.

Where a local community stands to be affected by an investment, it is important that a government engages early on with such a community. The internationally-recognized principle of free, prior, and informed consent, or FPIC, provides that indigenous peoples have a right to consultation on matters, like investments, that affect their rights and interests. There is also increasing international consensus that non-indigenous communities have a right to be consulted with and to participate in public decisions that affect their lives. Consulting with communities and obtaining FPIC also reduces the risk of social conflict, which minimizes transactional costs and ensures greater certainty for the project.

Key Tools At This Stage

Useful Resources

Tendering & Procurement

Public-Private Partnerships Reference Guide: Version 2.0 Go to resource

The PPP Reference Guide is a comprehensive resource for PPP practitioners worldwide, drawing from global approaches and experiences.

The PPP Reference Guide seeks to provide advice on what PPP practitioners should know, rather than provide advice on what to do. The Guide sets out the main topics, looks at the key issues that must be addressed, and provides some of the most important references that PPP practitioners can turn to for answers and to enhance their own knowledge and understanding.

The website is also available in French and Spanish, but the document is only available in english.

It is structured into separate sections that focus on three main areas:

  1. What are PPPs, when might they be used and what are the advantages and disadvantages relative to public provision;
  2. What kind of policy, legal and institutional frameworks should be put into place to help improve their effectiveness; and
  3. What are the ways in which PPP projects can be developed and implemented.

A diverse range of case studies and institutional solutions, from all parts of the world, are presented in the PPP Reference Guide.

Feasibility Studies

Mining and Critical Ecosystems: Mapping the Risks Go to resource

Guidelines for assessing the viability of a project in environmentally or socially vulnerable areas that can help governments determine “no-go” areas for mining. It offers a general framework that can be used to identify risk areas globally and two case studies.

Impact Assessments

FAO Investment Centre Environmental Impact Guidelines Go to resource

Guidelines that provide an overview of how to conduct environmental impact assessments of agriculture and sector-related investments.

Getting it Right: Human Rights Impact Assessment Guide Go to resource

This guide is a step-by-step process that allows assessment teams to take stock of the positive and negative human rights impacts of an investment project. Throughout the steps, information and additional references are provided including reference documents on human rights, examples of research techniques, relevant websites, and details on where to find specific information.

The guide is available in English, French, and Spanish.

Guidebook for Evaluating Mining Project EIAs Go to resource

The guidebook will help governments, public interest lawyers, grassroots advocates, and community members understand mining EIAs, identify flaws in mining project plans, and explore ways that mining companies can reduce the public health hazards associated with mining.

Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework Go to resource

In June 2011, in an unprecedented step, the United Nations Human Rights Council unanimously endorsed a set of Guiding Principles on Business and Human Rights. The Guiding Principles establish an authoritative global standard on the respective roles of businesses and governments in helping ensure that companies respect human rights in their own operations and through their business relationships. 

The Guiding Principles were developed by the Special Representative of the UN Secretary-General for Business and Human Rights, Professor John Ruggie of Harvard Kennedy School, over the six years of his UN mandate from 2005 to 2011. They elaborate on the three pillars of the UN "Protect, Respect and Remedy" Framework that Prof. Ruggie proposed to the Human Rights Council in 2008. The three pillars of the Framework are:

  • The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
  • The corporate responsibility to respect human rights, that is, to act with due diligence to avoid infringing on the rights of others and address adverse impacts with which they are involved; and
  • The need for greater access by victims to effective remedy, both judicial and non-judicial.

Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework Go to resource

En juin 2011, dans une initiative sans précédent, le Conseil des droits de l'homme des Nations Unies a approuvé à l'unanimité un ensemble de Principes directeurs sur les affaires et les droits de l'homme. Les Principes directeurs définissent une norme mondiale faisant autorité sur les rôles respectifs des entreprises et des gouvernements pour veiller à ce que les entreprises respectent les droits humains dans leurs propres opérations et dans leurs relations commerciales.

Ils ont été élaborés par le Professeur John Ruggie de la Harvard Kennedy School, alors Représentant spécial du Secrétaire général de l'Organisation des Nations Unies chargé de la question des droits de l’homme et des sociétés transnationales, pendant les six ans de son mandat auprès des Nations Unies de 2005 à 2011. Ces principes reposent sur les trois piliers du cadre de référence des Nations Unies, à savoir « protéger, respecter et réparer » proposé par le Professeur Ruggie au Conseil des droits de l'homme en 2008. Ces trois piliers du cadre de référence sont les suivants :

L'obligation de l'État de protéger les humains contre des abus perpétrés par des tiers, notamment les entreprises, grâce à des politiques, réglementations et décisions adéquates ;

La responsabilité des entreprises de respecter les droits humains, c'est-à-dire, d'agir avec la diligence requise pour éviter la violation des droits des autres et contrer les effets néfastes qui s'ensuivent ; et

Le besoin d'un plus grand accès, par les victimes, à des solutions efficaces, sur le plan judiciaire et non judiciaire.

ICMM Land Acquisition and Resettlement: Lessons Learned Go to resource

  • Date:  2015
  • Sector:  Extractive Industries, Infrastructure, Land & Agriculture, Mining, Oil & Gas
  • Source:  ICMM

The publication provides recommendations for managing the resettlement of local communities who have been displaced or whose livelihoods have been impacted due to the presence of mining. This includes ensuring adequate compensation and development opportunities.

The document is structured around 10 modules that cover planning, stakeholder engagement, compensation, livelihood restoration and monitoring impacts among other topics.

It is targeted primarily at companies, but also contains information and guidance relevant for all stakeholders, including government representatives.

ICMM Mining Partnerships for Development Toolkit Go to resource

  • Date:  2009
  • Sector:  Extractive Industries, Mining
  • Source:  ICMM

Methodology for assessing the mining environment in which a potential project will take place as well as the social and economic impacts of the project. It includes advice on how to measure impact on local communities and a mine’s life cycle, governance-related issues, and an overview of the different actors and interests involved in investment projects.

IPIECA Human Rights Due Diligence Process: A Practical Guide to Implementation for Oil and Gas Companies Go to resource

  • Date:  2012
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  IPIECA

The purpose of this guide is to assist oil and gas companies in implementing a due diligence process for human rights. This can be an essential part of a company’s overall risk management strategy, especially in countries where human rights issues may be more prevalent.

The Guide aims to:

●  clarify what constitutes a due diligence process for human rights;

●  clarify the business case for a human rights due diligence process;

●  support the development and/or continuous improvement of due diligence processes for human rights; and

●  promote consistent approaches to the management of potential human rights issues and impacts. 

IPIECA: Integrating Human Rights into Environmental, Social and Health Impact Assessments Go to resource

  • Date:  2013
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  IPIECA

A Guide offering practical advice on how human rights can be integrated into environmental, social and health impact assessments (ESHIAs) for oil and gas sector projects has been launched.

The Guide is the outcome of a collaborative effort by impact assessment experts from global oil and gas companies brought together by IPIECA and human rights practitioners from the Danish Institute for Human Rights. Working together, they have attempted to bridge the gaps in terminology, processes and approaches between the ESHIA and human rights impact assessment communities.

In addition to providing a brief introduction to human rights, the Guide explains why it is important for the sector to consider the potential human rights impacts of its projects and activities. It has three overarching objectives:

Foster the inclusion and, wherever appropriate, the integration of human rights into ESHIAs conducted for projects undertaken by the oil and gas industry;
Provide human rights insights on the key process steps in international standard ESHIAs, and
Provide a new practical reference point in an evolving field of assessing human rights impacts.

Mining and Critical Ecosystems: Mapping the Risks Go to resource

Guidelines for assessing the viability of a project in environmentally or socially vulnerable areas that can help governments determine “no-go” areas for mining. It offers a general framework that can be used to identify risk areas globally and two case studies.

New Alliance Analytical Framework for Responsible Land-Based Agricultural Investments Go to resource

This analytical framework is designed to assist investors in aligning their policies and actions with global and continental guidelines on responsible land-based investments, most notably the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT) and the Guiding Principles on Large Scale Land Based Investments in Africa (LSLBI). 

The Framework offers investors a due diligence and risk management resource to apply to their land-based agricultural investments. It is an effort to provide advice and highlight best practices related to structuring investments in the most responsible way possible.

The Framework includes red lines that indicate in which situations investment projects should be cancelled if no benign alternatives can be found. 

The Framework should be used throughout the life of the project, beginning with the preliminary project assessment, followed by the due diligence phase and continuing through the negotiation, agreement, operation and close-out phases. Hence, while the Framework ideally should be used from the beginning of a project, it can also be used after a project has commenced, as land tenure risks can and should be assessed well beyond the due diligence and start-up periods, especially in areas where communities have insecure land rights.

The Framework was developed by an international group of land experts and vetted through consultation with a broad array of stakeholders. The New Alliance and Grow Africa Leadership Council welcomed and recognized the Analytical Framework as a tool for investors, and agreed to assess experience with the framework in one year.

OGP: Disclosing Environmental Information in the Natural Resource Sector Go to resource

The Open Government Partnership (OGP) offers an opportunity for governments to mitigate negative impacts on local communities associated with the establishment and operation of oil, gas, and mining projects by making commitments on the proactive disclosure of social and environmental information related to the extractive industry. This issue brief aims to provide an overview of current standards and practices, and outline concrete examples of environmental disclosure commitments for consideration by governments and civil society organizations. 

Practical Guide: Mining and Communities Go to resource

  • Date:  2015
  • Sector:  Extractive Industries, Mining, Oil & Gas
  • Source:  Communities First

Written in a question-and-answer format with dialogues among local people, the 300-page combined reference manual and interactive curriculum addresses: mines & communities, meaning the mine life cycle, the changes it brings, how to participate in an impact assessment and monitor the management plan; the rule of law, including human rights and the roles and responsibilities of each actor; conflict and violence prevention and tools supporting improved communication, negotiation and community cohesion, including consultation or community protocols and participatory land use planning; the possible benefits of mining, and tools to capture mining’s benefits, including local content strategies, community development agreements, and local financial management; ways to address and minimize impacts on land (compensation mechanisms, and resettlement), environment and cultural sites; what actions people can take locally to voice their concerns, how to document and monitor (including baseline studies, community-controlled impact assessments, joint participatory monitoring) and options for access to remedy locally, nationally, regionally and internationally.

In each of the Modules, the Guide draws on and summarizes relevant aspects of domestic law (not only the mining law, but also the Constitution, law of decentralization, land law, environmental protection law, water law, public health law, and more), regional and international human rights law, gender, industry best practice, and advice and case studies from affected communities around the world.

The Guide is available in French. An abridged summary version of the Guide is available in French and English. A folder with the Guide’s reference documents is available on Dropbox.

Respecting Free, Prior and Informed Consent Go to resource

A practical guidance for governments, companies, NGOs, indigenous peoples, and local communities in relation to land acquisition. 

This technical guide sets out practical actions for government agencies to respect and protect free, prior and informed consent (FPIC) and for civil society organizations, land users and private investors globally to comply with their responsibilities with FPIC. 

Responsible investments should do no harm, safeguard against dispossession of legitimate tenure right holders and environmental damage, and should respect human rights.