Megan Bowman

Intellectual Property Rights, Plant Genetic Resources and International Law: Potential Conflicts and Options for Reconciliation

This paper analyses the potentially conflictual provisions of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Convention on Biological Diversity (CBD) pertaining to plant genetic resources and intellectual property rights (IPRs). It concludes that potential conflict between TRIPS and the CBD may be reconciled by remaining true to the over-arching principle of global welfare-maximization in TRIPS and by utilizing patent exemptions in appropriate circumstances. In so doing, consonance may be achieved with the objectives of the CBD in order to ensure appropriate international recognition of IPRs and also conservation and sustainable use of biodiversity.

Brexit and Environmental Law: Challenges and Opportunities

The prospect of the UK leaving the European Union poses significant challenges for UK environmental law. Fundamentally, this is because environmental issues, both legal and physical, cannot be hermetically sealed within a single jurisdiction. Environmental law is an inherently multi-jurisdictional and transnational enterprise, making the EU a highly competent regulatory actor in pursuing many environmental objectives. Initially, Brexit appears to pose mainly technical challenges for UK environmental law, but these challenges reflect more fundamental normative and institutional issues. There is a complex legal task ahead in translating and disaggregating an extensive and intricate EU environmental acquis into ‘sovereign’ UK environmental law. Whilst the UK government has indicated that current EU law, including EU environmental law, will initially be ‘converted’ into domestic UK law by legal mechanisms introduced through a ‘Great Repeal Bill’, this apparently simple technical manoeuvre raises at least three problems. First, there will need to be new UK legislation translating substantive provisions of directly applicable EU regulations, such as the Waste Shipment Regulation and REACH, which set out regulatory provisions that are relied upon by operators in the waste and chemicals industries. Whilst the UK is a member of the EU, these provisions do not require domestic legislation to operate as

Foreign Investment Law and Policy in Australia: A Critical Analysis

Under Australias foreign investment review framework all foreign governments and their related entities should notify the federal government and gain approval before making a direct investment in Australia regardless of the value of that investment. Yet can Australias current policy settings be maintained given developments in global capital markets, in particular the rise of state capitalism? This article sets out the Australian foreign investment legal and policy framework. It focuses closely on the national interest test and the manner in which it has been applied, with particular reference to the rising importance of China as a major trading partner. Focusing on empirical evidence of government decision-making under the Foreign Acquisitions and Takeover Act 1975 (Cth) and supporting policy documents, this article makes recommendations for reform in three areas: (1) the national interest test and public opinion; (2) enhancing transparency and consistency; and (3) non-discrimination.

Resilience through interlinkage: the green climate fund and climate finance governance

ABSTRACT The Green Climate Fund (GCF) is a significant and potentially innovative addition to UNFCCC frameworks for mobilizing increased finance for climate change mitigation and adaptation. Yet the GCF faces challenges of operationalization not only as a relatively new international fund but also as a result of US President Trump’s announcement that the United States would withdraw from the Paris Agreement. Consequently the GCF faces a major reduction in actual funding contributions and also governance challenges at the levels of its Board and the UNFCCC Conference of the Parties (COP), to which it is ultimately accountable. This article analyzes these challenges with reference to the GCF’s internal regulations and its agreements with third parties to demonstrate how exploiting design features of the GCF could strengthen its resilience in the face of such challenges. These features include linkages with UNFCCC constituted bodies, particularly the Technology Mechanism, and enhanced engagement with non-Party stakeholders, especially through its Private Sector Facility. The article posits that deepening GCF interlinkages would increase both the coherence of climate finance governance and the GCF’s ability to contribute to ambitious climate action in uncertain times. Key policy insights The Trump Administration’s purported withdrawal from the Paris Agreement creates challenges for the GCF operating model in three key domains: capitalization, governance and guidance. Two emerging innovations could prove crucial in GCF resilience to fulfil its role in Paris Agreement implementation: (1) interlinkages with other UNFCCC bodies, especially the Technology Mechanism; and (2) engagement with non-Party stakeholders, especially private sector actors such as large US investors and financiers. There is also an emerging soft role for the GCF as interlocutor between policy-makers and non-Party actors to help bridge the communication divide that often plagues cross-sectoral interactions. This role could develop through: (a) the GCF tripartite interface between the Private Sector Facility, Accredited Entities and National Designated Authorities; and (b) strengthened collaborations between the UNFCCC Technical and Financial Mechanisms.

The Limitations of Business Case Logic for Societal Benefit & Implications for Corporate Law: A Case Study of ‘Climate Friendly’ Banks

A common refrain within the sustainability literature is that voluntary ‘green’ corporate reforms can benefit a company’s bottom-line even as they serve broader social goals. The question of whether private incentives are aligned with broader socio-environmental benefits has been vigorously debated by advocates, but remains under-examined empirically. This paper provides a qualitative empirical examination of whether and to what extent voluntary corporate greening (and its concomitant social benefit) is driven by business case logic. My analysis focuses on an illustrative but important sector: banking. Specifically, I explore whether private sector banks have the means and motives to facilitate climate change mitigation by supporting low-carbon economic activities in the global economy. I frame my inquiry against the backdrop of theoretical insights from organizational change and management literatures in combination with critical accounting theory and legal and regulatory scholarship. Using interview data obtained from a purposive sample of senior managers within seven early-moving transnational banks and also from non-government organizations and external consultants, I find that business-case-driven corporate change can facilitate societal benefit, but the extent to which it actually does so in practice is extremely limited. Consequently, my analysis underscores the importance of the institutional role played by corporate law and governance norms in influencing socially beneficial corporate behavior. Specifically, I conjecture the potential impacts of directors’ duties in each of the United States, United Kingdom and Australia on ‘climate friendly’ finance sector behavior.

What's the State of Play? The Effects of State Capital Investment in Australia and Regulatory Implications

The growing size and significance of investments by Sovereign Wealth Funds (SWFs) and State-Owned Enterprises (SOEs), especially those of rapidly growing Asian economies, are having a profound impact on the dynamics of markets across the world. Better understanding global state investment capital is an increasingly important strategic priority for governments, regulators, finance sector participants and other stakeholders. This is particularly the case for Australia given the economic and political reality that its stability and economic well-being is increasingly intertwined with Asian jurisdictions that are active state investment actors. This paper draws on the early stages of a research project that seeks to map from an Australian perspective these transformational forces.