2024采掘行业投资谈判手册：发展中国家政府官员指南

Guidance for Government Officials in Developing Countries Howard Mann and Ciata Bishop Handbook onExtractive SectorInvestmentNegotiations Guidance for Government Officialsin Developing Countries Authors: Howard Mann and Ciata Bishop © Commonwealth Secretariat 2024Commonwealth SecretariatMarlborough HousePall MallLondon SW1Y 5HXUnited Kingdomwww.thecommonwealth.org All rights reserved. This publication may be reproduced, stored in a retrievalsystem, or transmitted in any form or by any means, electronic or mechanical,including photocopying, recording or otherwise provided it is used only foreducational purposes and is not for resale, and provided full acknowledgementis given to the Commonwealth Secretariat as the original publisher. Views andopinions expressed in this publication are the responsibility of the author andshould in no way be attributed to the institutions to which they are affiliated or tothe Commonwealth Secretariat. Wherever possible, the Commonwealth Secretariat uses paper sourced fromresponsible forests or from sources that minimise a destructive impact on theenvironment. Published by the Commonwealth Secretariat. A catalogue record for this publication is available from the British Library. Contents Acronyms and AbbreviationsivChapter 1:Introduction1Chapter 2:Pre-negotiations19Chapter3:The Negotiations73Chapter 4:Post-negotiations97References106Annex A: Sample Documents and Reports109 Acronyms and Abbreviations Chapter 1Introduction Chapter 1Introduction As developing countries strive to fully utilise and developtheirnatural resources,their capacity to not only attractviableprojects,but also to negotiate long-term investmentagreements that contribute to sustainable development in theircountries and local communities, is crucial. The difficultiesand complexities of doing so continue to mount. At the time ofwriting, for example, the global dynamics for trade, investmentsand fiscal incentives are in flux in two distinct processes, bothof which impact developing countries. First, is the adoption, inSeptember 2023, of the Multilateral Convention to Facilitate theImplementation of the Pillar Two Subject to Tax Rule (OECD/G20, 2023), negotiated under the auspices of the Organisationfor Economic Co-operation and Development/Group of Twenty(OECD/G20) Inclusive Framework on Base Erosion and ProfitShifting, to protect the right of developing countries to ensuremultinational enterprises pay a minimum level of tax on a broadrange of cross-border intra-group payments. Second, is thatclimate change negotiations continue to play out globally, withold and new energy projects very much on the line, especiallywith the increasing global interest in critical minerals needed forthe transition to clean and sustainable energy. The ongoing demand boom in critical minerals is stimulatingnewexplorations and discoveries,presenting developmentopportunitiesfor countries,but also enormous risks fordeveloping countries that remain weak and vulnerable whennegotiating contracts with foreign investors. These are but twoexamples of the changing dynamics that developing countriesmust carefully understand and note for their impacts on foreigndirect investments and the overall negotiation process. ThisHandbook on Extractive Sector Investment Negotiations(the‘handbook’), which is aimed at developing country officials,isintended as a guide for teams involved in negotiationswith foreign investors to ensure that processes are designedand followed to achieve positive, sustainable outcomes thatproduce ‘win-win’ results. This handbook attempts to bringa holistic approach to such negotiations, which includes a multidisciplinaryapproach through the involvement of allrelevant stakeholders. It sets out a structured process from theevaluation of the project, establishing negotiating goals, thenegotiations themselves, and the handoff activities that arerequired post-negotiation. As each component is reviewed, thehandbook provides a simple checklist that can assist in keepingthe process on track. The goal is to empower government officials with the requisitetools, processes and commitment to professionalism necessaryto bring a relative balance of power in the negotiations, throughenhancedknowledge and expertise about the project,theresources at issue, and the negotiating process itself. Whereappropriate, the handbook signals the need for outside expertiseto support government efforts, but not to take them over. This handbook also brings to bear the experiences of the authorsand others whom they have worked with in diverse negotiatingcontextsto consolidate many lessons learned during suchnegotiations. They hope the handbook can assist others to buildon past positive outcomes and to minimise, if not altogetheravoid, errors and mistakes. 1.1Why this handbook? Thishandbook is designed to assist government officialsindeveloping countries and their designated professionalsunderstand the processes and procedures of negotiating