This is the third of a series of five (5) essays in which the nature and character of sovereign wealth funds are considered. Specifically the essays explore whether a sovereign wealth find can form itself to the ideals expressed in emerging regulatory regimes, like the Santiago Principles, one based on the idea that states may be treated like private entities with respect to their enterprises, formally sovereign but functionally private, as long as they conform to a set of behavior expectations which are said to distinguish sovereign from private behavior. The focus of that study is the "socially responsible" SWF, using as its model the Norwegian SWF, proffered by many as the model an an ideal form of sovereign wealth fund.
Part I provides an introduction to the issues to be considered and a framework for analysis. Part II explores the conceptual and regulatory framework currently arising for the transnational regulation of SWF grounded in the idea of a critical distinction between public actors and private action for constructing a system of SWF regulation. Part III focuses on the Norwegian Funds themselves: history, legal structure, and investment principles. It looks particularly at the role of the Ethics Council in SWF investment decisions. Part IV examines the Norwegian Funds in action. It explores the nature of the Norwegian SWF's engagement with corporate social responsibility through its investments, as well as its engagement with two political situations: the Israel-Palestine conflict, and the political situation in Myanmar. Lastly it examines the use of the Norwegian Fund for purposes of promoting development and its application to issues of Norwegian macroeconomic policy in the face of the economic crisis of 2008, especially with respect to investment in India. Part V looks to the regulatory implications of the relationship between the idealized framework within which regulation is constructed and the reality of the operation of the Norwegian SWF. In particular, the following are examined: (1) The role of investment and the utility of the idealized private investor model; (2) the importance of approaches in conceptualization of regulatory options; and (3) participation versus regulation as an alternative to the Public/private model.
The entire work can be accessed by CLICKING here.
Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Global Governance Through Private Global Investment
Larry Catá Backer*
Larry Catá Backer*
Abstract:The character of global regulation has changed dramatically over the last decade. Today, multinational corporations sometimes assert substantial regulatory power across borders, and states sometimes enter markets as participants rather than as regulators— especially when they engage in economic activity outside their borders through sovereign wealth funds (SWFs). In both cases the current transnational ordering has settled on voluntary principles based approaches to regulation. SWFs are controlled by states but seek to participate in private markets in the same way as private investment vehicles. But the difficulty has been the need to overcome the inherent sovereign character of state investment, central to the definition of SWFs. SWFs thus proceed from definition to conundrum. If SWFs are grounded in the reality of their formal connection to states, and if states are deemed sovereign in their actions, then it might be reasonable to assume that such funds could not be treated like private investment funds. To bridge that gap, it was necessary to find a way to disconnect SWFs from the state and sovereign activity, and to model private activity in a way that made it possible to construct a set of behavior principles that might produce an equivalence between SWFs and private investment vehicles. The first was accomplished by creating a functional distinction between state and SWF, a distinction unnecessary for traditional sovereign investment. The second was grounded in the presumption that there is a way of distilling the essence of private investment behaviors sufficiently precisely to distinguish those behaviors from sovereign conduct. Both are nicely captured in the Santiago Principles. Both are problematic as either as concept or in application. This paper looks closely at one example of this rising phenomenon—the socially responsible sovereign wealth fund. It focuses on a close review of one of the most influential funds, the Norwegian Government Pension Fund—Global (Statens pensjonsfond - Utland). It is among the largest and most influential SWF in the world, and the largest in Europe. The Norwegian SWF provides a particularly useful case study of the issues that are now at the center of reconceptualizations of the relationships between state and corporation, between economic and political regulation,between national and transnational legal frameworks, and between public and private legal regimes. The paper first describes conceptual and regulatory frameworks on which current policy discussions of sovereign wealth funds are undertaken. It then turns to the Norwegian funds, focusing on the history of the Norwegian fund, its legal structure and the development of its investment principles. It then looks to the way those principles were used in two distinct areas—the creation of incentives to produce changes in the behavior and culture of corporations and the response to the global financial crisis of 2008. The Norwegian SWF suggests that the rising model of SWF governance, grounded on an assumption that a state organization formally public but functionally private, acting like an idealized private investor does not work either for private investors who seek to use investment for political ends or state investment entities that purport to refrain from that sort of activity.
CONTENTS:
I. Introduction
II. Conceptual and Regulatory Framework: Public Actors, Private Action
III. The Norwegian Funds
A. HistoryIV. The Norwegian Funds in Action
B. Legal Structure
C. Investment Principles
A. Corporate Social ResponsibilityV. Regulatory Implications
B. Development and Use in Macroeconomic Policy: the 2008 Financial Crisis
A. The role of Investment and the Utility of the Idealized Private investor Model.VI. Conclusion.
B. The importance of approaches in conceptualization of regulatory options:
C. Participation versus regulation as an alternative to the Public/private model.
_____
III. THE NORWAY SOVEREIGN WEALTH FUNDS
A. History.
Norway’s SWF is closely tied to the exploitation of petroleum resources within Norway.110 Petroleum was first discovered in the North Sea in 1969. 111 Oil production started soon thereafter, in 1971. By 1990 a sizeable income from the exploitation of this resource was accumulating and in response thereto, Norway’s Parliament passed the Government Petroleum Fund Law.112 That enactment established the Petroleum Fund as a fiscal policy tool to support a long-term management of the petroleum revenues.113 It was not invested with separate legal personality, but instead was constituted a department of the government apparatus, to be managed by the Norwegian Central Bank.114 In 1996 the first net transfer to the Fund was effectuated, which was invested as Central Bank currency reserves. Investment in equities was first introduced in the benchmark with a 40% allocation in 1998.115
By 2000 five emerging market countries were added to the equity benchmark. In 2002 non-government bonds were added to the fixed income benchmark. Ethical guidelines for the Fund were issued in 2004 based on the recommendations of a government commission. Such guidelines have two main elements, namely, a) the Fund is an instrument for ensuring that a reasonable portion of Norway’s petroleum wealth benefits future generations representing an ethical obligation for present generations to manage it in a way that generates a sound return; b) the Fund does not make investments which constitute an unacceptable risk in which the Fund may contribute to unethical acts or omissions, such as violations of fundamental humanitarian principles, violations of human rights, gross corruption or severe environmental damages.
The Government Petroleum Fund was renamed the Government Pension Fund in 2006. The Fund comprises i) the Government Pension Fund – Global, and ii) the Government Pension Fund – Norway. The foreign portion is deposited in an account at Norges Bank, and managed under further rules established by Norway’s Ministry of Finance. The domestic portion is placed as a capital contribution to Folketrygdfondet, and managed under further rules also established by Norway’s Ministry of Finance.116 In 2007, strategic equity allocation for the Government Pension Fund – Global (“GPF”) was increased to 60% and small-cap stocks were included in the benchmark. As of 2008, the GPF’s plan was to invest up to 5% in real estate over time from the bond allocation, and to include all emerging countries in the equity benchmark.117 Norway’s Sovereign Wealth fund has been characterized as a model for sovereign wealth funds and its characteristics are considered best practices by international standards. 118 But, reflecting that amalgamation of private and public governance frameworks, the aims of management “for international best practice, and the exercise of ownership rights is based on internationally accepted principles such as the UN Global Compact and the OECD Guidelines of Corporate Governance and for Multinational Enterprises.”119
One of the most distinguished features of the GPF is its transparency.120 The International Monetary Fund indicates that Norway’s “Ministry of Finance reports regularly on the governance framework, the fund’s goals, investment strategy and results, and ethical guidelines. The Central Bank – the fund’s operational manager- publishes quarterly and annual reports on the management of the fund, including its performance and an annual listing of all investments. Detailed information on the fund’s voting in shareholder’s meetings is also published”121. Additionally, the Fund is only invested abroad in financial assets, which ensures risk diversification, financial returns, and reduces the risk of bad governance.
According to Norway’s official site in the United States, the GPF does not seek to control companies through buy-outs, “by its own rules the fund restricts its ownership in any company it invests in to five percent of shares. The investment objectives are purely financial in nature, safeguarding assets for the long term”122. A November 11, 2008 article by Kavaljit Singh published by the Centre for Research on Globalization, indicates that “there are very few non-SWFs and institutional investors that can match up to the high standards of transparency, governance and accountability of the Norwegian SWF.”123
B. Legal Structure.
The framework for the Global Fund was established by the Government Pension Fund Act, which, as amended, remains the legal basis for the fund. Under the Pension Fund Act, the Ministry of Finance is the formal owner of the Fund. However, all significant changes to the Fund’s investment strategy are in practice presented to Parliament before implementation as a way of ensuring broad political support for important strategic choices.”124 Administration of the Fund is divided into three parts. The first involves establishing overall policy. This function remains in the Ministry of Finance. The second vests control over management to the Norwegian Central Bank. Lastly, ethical issues involved in the application of the investment strategy by the Central Bank though its management apparatus is to be overseen by an autonomous ethics council. Each is discussed in turn.
The Storting established an advisory Council on investment strategy in 2005 to assist the Ministry of Finance in establishing the guidelines within which the SWFs are operated.125 “The Ministry of Finance’s Advisory Council on Investment Strategy (Investment Strategy Council) will assist the ministry in the latter’s work on the long-term, overarching investment strategy for the Petroleum Fund. Key investment strategy issues are the choice of weights for geographical regions and asset classes and the inclusion of new investment alternatives.”126 The role of the Investment Strategy Council is essentially passive.127 While it makes recommendations, the power to make decisions remains with the Ministry of Finance. But even the Investment Strategy Council’s discretion with respect to the recommendations it may offer is limited by the objectives of the a set of “overarching principles”128 that suggest purely private investment objectives.129 Thus, in this respect, the Fund complies with the ethos—formally public and functionally private model.
That model is further deepened by the form of the organization of the management of the Norwegian Global Fund. The Government Pension Fund Act of 2005 governs the establishment and operation of the management of the Global Fund.130 The Ministry of Finance, has delegated responsibility for the operational management of the Global Fund to Norges Bank.131 The Fund itself is represented by an account held by the Norges Bank in the name of the Ministry of Finance. The value of the account is the amount that may be invested by the investment arm of the bank.132 The income of the Global Fund is the cash flow from petroleum activities, which is transferred from Norway’s central government budget, the return on the GPF capital, and the net results of financial transactions associated with petroleum activities133.
According to a Finance Ministry official, the Government Petroleum Fund Act of 1990 stated that the Fund’s capital was to be invested in the same way as the government’s other assets, thus it seemed logical that the operational management of the Government Pension Fund – Global (“GPF”) be carried out by Norges Bank,134 which invests the fund’s capital in bonds and equities outside of Norway in accordance with guidelines issued by Norway’s Ministry of Finance.135 The relationship between Norway’s Ministry of Finance and Norges Bank is governed by a Management Agreement. Norway’s Ministry of Finance has adopted regulations on the Global Fund, and it sets guidelines, including benchmark and risk limits, and exercises oversight. In addition, A Supervisory Council, reporting directly to the Storting, supervises Norges Bank’s activities.136 “Underlying these objectives is an acknowledgement that Norges Bank manages substantial assets on behalf of Norwegian society.”137
Norges Bank’s management established the Norges Bank Investment Management (“NBIM”) on January 1, 1998 as an operational investment management unit for the management of the Global Fund. 138 In addition, NBIM hires outside managers to direct the investment of sectors of its portfolio.139 Norway’s Ministry of Finance stresses a high degree of openness for purposes of strengthening the confidence in the Global Fund and its structure. Operational management performance is reported by Norges Bank on a regular basis. The Ministry of Finance provides an annual report on the management of the Fund to the Storting during the spring session,140 such reports are public and widely disseminated in English. The auditing of the Fund and its management is done by the Office of the Auditor General. The Auditor General is appointed by and reports directly to Parliament, ensuring parliamentary control on GPF’s operations141
This organizational structure suggests both the formal connection between the state apparatus and the Fund, as well as a significant measure of separation between the effective management of the Fund and the apparatus of state. The organizational structure is meant to make it formally difficult for the state to intervene effectively in only a supervisory capacity without substantial effort. At the same time, it is clear that state intervention is possible, and that state policy marks the outer boundaries of acceptable management. Still, that policy at least formally adheres to the private actor model of investment. The extent of that functional privatization is tested in the formulation of investment principles and the operation of the third leg of the Fund’s management—the Ethics Council, topics taken up in the next section.
C. Investment principles.
“What constitutes a good investment strategy for the Government Pension Fund is determined by the characteristics of the Fund, the purpose of the investments, the owners’ (the people of Norway, represented by the political authorities) tolerance of risk, and assumptions about how the financial markets work.”142 The Ministry of Finance has taken the position that “there is a broad political consensus that the Pension Fund should be managed with a view to achieving the maximum possible return within a moderate level of risk. The Ministry of Finance has formulated a long-term investment strategy ensuring that the capital is invested in a broad-based portfolio comprising securities from many countries. The long investment horizon of the Fund means that the portions invested in various asset classes and geographical regions can be determined on the basis of assessments of expected long-term returns and risks.”143
Investment principles have been defined by law, through the Regulations on Management of the Government Pension Fund. 144 They mandate that the GPF is placed in a separate account in the form of krone deposits with Norges Bank. Norges Bank invests this capital in its own name in financial instruments and cash deposits denominated in foreign currency145. According to the Fact Sheet on the GPF published by the Norwegian Ministry of Finance on August 2008, “the average ownership share in listed companies is less than 1%, the upper limit is set at 10%. Equities account for 60% of the fund’s strategic benchmark portfolio, consisting of equities listed on exchanges in Europe (50%), America/Africa (35%) and Asia/Oceania (15%). All emerging markets are included, as defined by index provider FTSE. Fixed income instruments account for 35% of the strategic benchmark portfolio, consisting of fixed income instruments issued in currencies from Europe (60%), America/Africa (35%) and Asia/Oceania (5%), while real estate investments take up the remaining 5%.”146 The Fund’s investment strategy is implemented through a benchmark portfolio.147 It is based on a set of current consensus notions about the way that markets function.148
It is in the application of its investment principles that the Global Fund suggests a deviation, even as a formal matter, away from the idealized model of a private investor and the privileging solely of financial and economic objectives. “The Goal of the Government Pension Fund – Global is to be managed responsibly in a manner that takes good corporate governance and environmental and social issues into account.”149 This suggests a set of political objectives, centered on the need to satisfy the aspirations of the Norwegian people as applied to Norway’s conduct abroad—in this case through the use of its private market participation.150 The object appears to be to blend the public and private within a redefined understanding of politically motivated private conduct.151
The most important and controversial aspects of the application of the Global Funds’ investment principles are bound up in ethical guidelines for investment.152 The Guidelines are based on two premises. The first is that the Fund must be managed to protect the wealth generated by the exploitation of Norway’s extractive industries, mostly petroleum, and to extract a “sound return in the long term.”153 The second is that the first objective is contingent on a number of policy factors, including “sustainable development in the economic, environmental and social sense.”154 The policy nature of these contingencies is clearly articulated as well. The Fund is to be used not merely to protect and increase the value of the Fund itself, but to influence behaviors among the pool of potential targets of investment. First, the Fund is to have a policy proactive charge: “The financial interests of the Fund shall be strengthened by using the Fund’s ownership interests to promote such sustainable development.”155 And second, the Fund is to withhold investment to avoid investment in companies it deems might “contribute to unethical acts or omissions, such as violations of fundamental humanitarian principles, serious violations of human rights, gross corruption or severe environmental damages.”156
To meet its objectives, the Ethical Guidelines provides an implementation mechanics.157 It is grounded on three principal activities—exercise of ownership rights, negative screening of companies, and exclusion of companies from the investment pool.158 The exercise of shareholder rights159 is grounded in the web of soft law behavior rules that have been emerging from the work of the Organization for Economic Cooperation and Development (OECD),160 and the United Nations.161 Both of these organs have produced set of voluntary codes that are exerting increasing influence on the ways in which appropriate corporate behavior is judged.162 Negative screening is meant to form the basis for operationalizing the ethics objective to avoid investment in companies “that either themselves, or through entities they control, produce weapons that through normal use may violate fundamental humanitarian principles.”163 Screening serves as the basis for exclusion. The obligation to exclude is triggered where there is a finding of unacceptable risk of contributing to a list of undesirable activities.164 In this way the mechanics can be understood as based on adherence to a set of behavior norms generated by two international and transnational actors, an obligation to screen investment targets on the basis of those norm frameworks, and an obligation to exclude companies from investment that fail to adhere to those norms, but only with respect to a specified list of conduct breaches and only when adjudged to meet the severity standards of the Fund.
The Ethics Guidelines’ focus on the exercise of ownership rights suggests a role for shareholder activism that is further elaborated in the Guidelines.165 It, like the ethical objectives, appears to suggest a hybrid model. On the one hand, the Fund’s objectives as a shareholder is the conventional one—“to safeguard the Fund’s financial interests.” to safeguard the Fund’s financial interests.166 But those shareholder efforts are tied not merely to maximize shareholder wealth, but also to further the normative objectives of corporate social responsibility enshrined in the United Nation’s Global Compact and the OECD Guidelines for Corporate Governance and the Guidelines for Multinational Enterprises.167 Those obligations are to be exercised by Norges Bank and reported annually.168 The Bank, however, is permitted to delegate the exercise of ownership rights to external managers, as long as those managers are themselves bound by the Ethical Guidelines.169
Negative screening and exclusion provide the heart of the operationalization of the Ethics Guidelines, for which an institutional framework and procedures are established, and lines of authority delineated.170 The Ethics Guidelines are overseen by a Council of Ethics, established by Royal decree in 2004 and revised in 2005.171 The Ethics Council consists of five members, 172 and is entitled to some support.173 The Ethics Council is constituted as an independent advisory body, the principle of objective of which is to assess whether particular companies ought to be excluded from investment by the Government Pension Fund—Global, and to submit its recommendations with respect thereto, to the Minister of Finance.174 These recommendations are made upon request of the Finance Ministry.175 “The Ministry of Finance makes decisions on the exclusion of companies from the Fund's “investment universe” based on the Council's recommendations. Both the Ministry's decisions and the Council's recommendations will be made publicly available on [a] website.”176 But the Ministry of Finance is permitted to delay reporting where such disclosure “if this is deemed necessary in order to ensure a financially sound implementation of the exclusion of the company concerned.”177 Exclusion recommendations are reserved for companies with respect to which the Ethics Council determines that their acts or commissions constitute an unacceptable risk to the Fund of contributing to human rights violations, the rights of individuals in conflict zones, severe environmental damage, gross corruption, or “other particularly serious violations of fundamental ethical norms.”178
The Ethics Council is required to make a recommendation of exclusion after the conduct of a negative screening investigation where the Council concludes that the companies at issue either “produce weapons that through their normal use violate fundamental humanitarian principles; or sell weapons or military materiel to states.”179 The recommendation in turn is based on two conclusions. The first is that there is a connection between the company under investigation and the ethical violation described in the Ethics Guidelines. The second is that the connection between company and violation in turn represents an unacceptable risk for the company (and the Fund) to contribute to future violations.180
A critical portion of the intake investigative work of the Council of Ethics is privatized. It “receives a monthly report regarding companies that are accused of environmental damage, human rights violations, corruption or other contraventions. The service s provided by an information supplier, who conducts daily news searches on all companies within the Fund’s portfolio.”181 Beyond that, much of the Council’s investigation is meant to be undertaken through Norges Bank.182 Process rights of an elementary sort are also included in the Ethics Guidelines.183 The principal one requires that companies threatened with exclusion be given a draft of the recommendation, the reasons supporting it and an opportunity to comment.184 Excluded companies are also to be informed of decisions to that effect by the Finance Ministry.185 Yet exclusion does not end the investigative work does not end on a recommendation of exclusion. The Council is required to review exclusions on a regular basis and to recommend reinstatement where appropriate in light of new information.186 The notion suggests that exclusion is not merely a business decision, but an effort to create incentives for change in the behavior of the companies affected.
The Ethics Council is well aware of its role in the global discussion of corporate governance, and global efforts to regulate transnational corporate activity. “Our experience shows that there is a keen interest in our activities, both in Norway and abroad. The contact with various research institutions, non-governmental organisations, and media representatives are important to our work, and we look forward to valuable suggestions and opinions also in 2008.”187 The Funds have published studies that go to the utility of the use of Sovereign Wealth Funds to assume a critical role in the governance of multinational corporations.188 During the first year of its operation, the Council focused on exclusion of companies involved in the munitions business.189 It has since moved on to other significant issues touching on the most current global governance and regulatory issues in transnational business regulation, assessing eighty companies in 2007.190 It is to those that the article turns to next in Part IV of this series.191
END NOTES:
110 For a history, see, e.g., Martin Skancke, Fiscal Policy and Petroleum Fund Management in Norway, in FISCAL POLICY FORMULATION AND IMPLEMENTATION IN OIL-PRODUCING COUNTRIES 316, 318-20 (J.M. Davis, R. Ossowski, and A. Fedelino, eds., Washington, D.C. : International Monetary Fund, c2003), (the author has been the Director General, Ministry of Finance, Norway).
111 Norwegian Ministry of Finance, Fact Sheet Pension Fund – Global, August 2008.112 Act of June 22, 1990, No. 36. See Tore Eriksen, The Norwegian Petroleum Sector and the Government Pension Fund – Global, June 2006, at 7 (the author was then Secretary General, Ministry of Finance, Norway).
113 Norwegian Ministry of Finance, Fact Sheet Pension Fund – Global, August 2008. “Long term management of petroleum wealth reflects a fundamental social perspective, and is an overarching priority for the Government. Such management implies that this wealth can benefit all generations. At the same time, it makes an important contribution to stability in output and employment. These are necessary prerequisites for realizing the vision of a qualitatively better society.” Norwegian Ministry of Finance, On the Management of the Government Pension Fund in 2006, Report No. 24 (2006- 2007) to the Storting at 5.
114 See Ministry of Finance, Norway, The Management of the Government Pension Fund—Global.
115 Norwegian Ministry of Finance, Fact Sheet Pension Fund – Global, August 2008. The delay was caused by large budget deficits in the first half of the 1990s. Tore Eriksen, The Norwegian Petroleum Sector and the Government Pension Fund – Global, June 2006, at 7, (the author was then Secretary General, Ministry of Finance, Norway).
116 Norway Ministry of Finance, Provisions on the Management of the Government Pension Fund.117 Norwegian Ministry of Finance , Fact Sheet Pension Fund – Global, August 2008.
118 “In relation to the current debate on SWF, the management of the Government Pension Fund- Global is often cited as an example to be followed.” Ministry of Finance, Norway, Asset Management Department, Norway’s Position in the Debate on Sovereign Wealth Funds, March 29, 2009.
119 Id.
120 Id.
121 International Monetary Fund, Norway’s Oil Fund Shows the Way for Wealth Funds, IMF Survey Magazine: Policy, July 9, 2008.
122 Norway the official site in the United States, Transparency and Trust” Keys tothe Norwegian Pension Fund.
123 Singh, Kavalijt, “Sovereign Wealth Funds” Towards a Structural Shift in World Financial Order, Centre for Research on Globalization, November 11, 2008.
124 Statement by Director General Martin Skancke, Asset Management Department, Norwegian Ministry of Finance Before The subcommittee on Domestic and International Monetary Policy, Trade and Technology and the Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises The Committee on Financial Services U.S. House of Representatives Hearing on “Foreign Government Investment in the U.S. Economy and Financial Sector” March 5th 2008, at 3.
125 The Ministry of Finance, Norway, The Investment Strategy Council. The Council was established 29 September 2005. Id. “The Government Pension Fund Bill, no. 2 (2005-2006), states that the advisory council will continue as advisor to the Government Pension Fund – Global.” Id. The Council has no legal personality. “The Ministry of Finance will be the contractual counterparty in any agreements that the council needs to enter into with other parties.” Id.
126 Id.
127 “The council will at the outset consider matters put to it by the Ministry of Finance. The council will on a regular basis be asked to review issues related to the long-term investment strategy. The council will be entitled to address issues on its own initiative.” Id.
128 Id. These include the achievement of a high return subject to moderate risk, investment only in foreign instruments, the use of the fund as “a financial investor and not [as] a tool for strategic ownership of individual companies, diversification, and the application of a long term investment horizon. Id.
129 However these limits are not extended to management issues, which are addressed to other administrative bodies. “The council shall not make recommendations regarding the organisation of the management regime. The Ministry of Finance has delegated the operative management, including selection of external managers, to Norges Bank.” Id. Likewise, ethics issues are also addressed elsewhere. “The Ministry of Finance’s Advisory Council on Investment Strategy shall not give advice regarding the Petroleum Fund’s ethical obligations. It is the responsibility of the Petroleum Fund’s Advisory Council on Ethics to consider whether investments in individual companies are contrary to the Petroleum Fund’s ethical guidelines.” Id.
130 Government Pension Fund Act (No. 123 of 21 Dec. 2005).
131 “The Government Pension Fund Act assigns the management of the Fund to the Ministry of Finance. The operational management of the Government Pension Fund – Global is carried out by Norges Bank while the Government Pension Fund – Norway is handled by Folketrygdfondet.” Ministry of Finance, Norway, The Management of the Government Pension Fund—Global.
132 See Statement by Director General Martin Skancke, Asset Management Department, Norwegian Ministry of Finance Before The subcommittee on Domestic and International Monetary Policy, Trade and Technology and the Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises The Committee on Financial Services U.S. House of Representatives Hearing on “Foreign Government Investment in the U.S. Economy and Financial Sector” March 5th 2008, at 3-4 (“The value of the Ministry’s account in the Bank is set equal to the market value of the corresponding pool of foreign assets held by the Bank. The Ministry therefore bears the risk of changes in the market value of the assets.”). The sources of assets are identified by statute. See, Government Pension Fund Act (No. 123 of 21 Dec. 2005), at Section 3.
133 Norway Ministry of Finance, Provisions on the Management of the Government Pension Fund.
134 Arild Strommen/Royal Norwegian Embassy Washington, D.C., Transparency
and Trust: Keys to the Norwegian Pension Fund.
135 Norway Ministry of Finance, The Government Pension Fund.
136 Norwegian Ministry of Finance, Report No. 16 (2007-2008) to the Sorting On the Management of the Government Pension Fund in 2007, 139 (2008) (quoting report of it auditors). It is composed of fifteen members, all elected by the Storting. Its responsibilities include formal approval of the Bank’s financial statements, adoption of the Bank’s budget arrangements for the hiring of and the instructions to the Central Bank’s auditor, Norges Bank Audit. Id.
138 Norges Bank, Ten Years of NBIM. See also Norges Bank Investment Management, Government Pension Fund—Global Annual Report 2008, at 8.
139 For example, NBIM employed outside managers for investment in the United States. That proved a costly decision in light of the collapse of Lehman Brothers in 2008. See, Norges Bank Investment Management, Government Pension Fund—Golbal Annual Report 2008, at 11.
140 Ministry of Finance, National Budget 2009, Chapter 5. The Management of the Government Pension Fund.
141 Eriksen, Tore, Norway Ministry of Finance, The Norwegian Petroleum Sector and the Government Pension Fund – Global, June 2006.
142 Ministry of Finance, Norway, Report No. 20 to the Storting (2008-2009) On the Management of the Government Pension Fund (Preliminary and Unofficial Translation (at 4-5).
143 Ministry of Finance , supra note 15 at National Budget 2009, Chapter 5. The Management of the Government Pension Fund
144 Regulation on Management of the Government Pension Fund –Global, at Government Pension Fund Act (No. 123 of 21 Dec. 2005).
145 Id. at Provisions on the Management of the Government Pension Fund 146 Norwegian Ministry of Finance, supra note 6 at Fact Sheet Pension Fund – Global
147 Ministry of Finance, Norway, Report No. 20 to the Storting (2008-2009) On the Management of the Government Pension Fund (Preliminary and Unofficial Translation (investment strategy over time is discussed at id., pp. 9-16.
148 Id., at 7 (efficiency, diversification across market segments, and among investment instruments).
149 Ministry of Finance, Norway, Report No. 20 to the Storting (2008-2009) On the Management of the Government Pension Fund (Preliminary and Unofficial Translation, at 5.
150 “The Government requires that responsible management of the Fund is arranged in such a way that support is ensured among the population of Norway and legitimacy among market players.” Id.
151 “One goal in the role as a responsible investor is to promote sustainable development in economic, ecological and social terms, this is regarded as a precondition for good financial returns over time.” Id. (“This is in keeping with the United Nations’ Principles for Responsible Investments.” Id., at 6.).
152 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global.
153 Id., at ¶ 1, subpar. 1.
154 Id.
155 Id.
156 Id., at ¶ 1, sub par. 2.
157 Id., at ¶ 2.
158 Id.
159 Id., at ¶ 2, sub par. 1 (“Exercise of ownership rights in order to promote long-term financial returns, based on the UN Global Compact and the OECD Guidelines for Corporate Governance and for Multinational Enterprises.”).
160 See, e.g., OECD Principles of Corporate Governance (2004); OECD Guidelines for Multinational Enterprises (2000). The Organization for Economic Co-operation and Development (OECD) brings together the governments of countries committed to democracy and the market economy from around the world for a variety of development regulatory and harmonization purposes. See OECD, About OECD.
161 See United Nations, Global Compact (“The UN Global Compact is a strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.” U.N. Global Compact, Overview of the U.N. Global Compact). On the genesis of the Global Compact, see ANDREW CLAPHAM, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS 218-25 (New York: Oxford University Press, 2006).
162 For a discussion, see, Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21 July 2008), Global Witness V Afrimex (28 August 2008); Small Steps Toward An Autonomous Transnational Legal System For The Regulation Of Multinational Corporations, 10(1) MELBOURNE JOURNAL OF INTERNATIONAL LAW – (forthcoming 2009). 163 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 2, subpar. 2.
164 Id., at ¶ 2, subpar. 3. These activities include: (1) Serious or systematic human rights violations, such as murder, torture, deprivation of liberty, forced labour, the worst forms of child labour and other child exploitation; (2) serious violations of individuals’ rights on situations of war and conflict; (3) severe environmental damage; (4) gross corruption; and (5) other particularly serious violations of fundamental ethical norms. Id.
165 Id., at ¶ 3.
166 Id. at ¶ 3, sub. Par. 1.
167 Id.
168 Id. at ¶ 3, sub. Par. 2.
169 Id. at ¶ 3, sub. Par. 3.
170 Id. at ¶ 4.
171 Ethical Guidelines, Norwegian Government Pension Fund—Global, Issued 22 December 2005 pursuant to regulation on the Management of the Government pension Fund - Global, former regulation on the Management of the Government Petroleum Fund issued 19 November 2004, at 4.
172 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 4.2 (“The Council on Ethics for the Government Pension Fund – Global shall consist of five members. The Council shall have its own secretariat.”). The current Council members are Professor Ph.D. Andreas Føllesdal, Associate Professor Dr. juris Gro Nystuen (Chair of the Council), Director Corporate Finance and Managing Director Bjørn Østbø, Programme Manager Anne Lill Gade, and Professor dr. juris Ola Mestad. Styrer, Rad Og Utvalg, Council of Ethics, Norwegian Government Pension Fund—Global.
173 The Council is supported by a secretariat. According to its 2007 Annual Report, that Secretariat consisted of six employees—an economist, an individual with a masters degree in law and several candidates for higher degrees. See Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 7.
174 Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 4.
175 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 4.3.
176 Styrer, Rad Og Utvalg, Council of Ethics, Norwegian Government Pension Fund—Global. “The role of the Council on Ethics for the Government Pension Fund - Global is to provide evaluation on whether or not investment in specified companies is inconsistent with the established ethical guidelines.” Id. See also Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 4.1.
177 Id.
178 Id.
179 Id., at ¶ 4.4. The states against which weapons sales are interdicted are set forth “in Clause 3.2 of the supplementary guidelines for the management of the Fund.” Id.
180 See Ministry of Finance-Norway, Report of the Graver Committee (7-11-2003).
181 Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 4.
182 See Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, available , at ¶ 4.5. “The Council may request Norges Bank to provide information as to how specific companies are dealt with in the exercise of ownership rights. Enquiries to such companies shall be channelled through Norges Bank. If the Council is considering recommending exclusion of a company, the company in question shall receive the draft recommendation and the reasons for it, for comment.” Id.
183 Id.
184 Simon Chesterman has explained:
Simon Chesterman, Laws, Standards or Voluntary Guidelines, Norges inansdepartmentet, Editorial article, Ministry of Finance, 20.12.2007.
,
(accessed March 24, 2009). See generally Simon Chesterman, Oil and Water: Regulating the Behavior of Multinational Corporations Through Law, 36 N.Y.U. J. INT’L L. & POL. 307 (2004).
185 See id., at ¶ 4.7 (“The Ministry of Finance may request that Norges Bank inform the companies concerned of the decisions taken by the Ministry and the reasons for the decision.”).
186 Id., at ¶ 4.6.
187 Council on Ethics, Global Pension Fund—Global, Annual Report 2006 at 5.
188 See Simon Chesterman, Laws, Standards or Voluntary Guidelines, Norges Finans departmentet, Editorial article, Ministry of Finance, 20.12.2007.
189 Council on Ethics, Global Pension Fund—Global, Annual Report 2006 at 1. That focus continued thereafter. See, Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 5 (“During the year, the Council has initiated monitoring of the new benchmark portfolio in order to identify companies that produce weapons which should be screened out of the Fund.”).
190 See Council on Ethics Government Pension Fund—Global, Annual Report
2007, at 4.
191 See discussion Essay Party IV (The Norway Funds in Action: Private and Participatory or Public and Regulatory?).
152 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global.
153 Id., at ¶ 1, subpar. 1.
154 Id.
155 Id.
156 Id., at ¶ 1, sub par. 2.
157 Id., at ¶ 2.
158 Id.
159 Id., at ¶ 2, sub par. 1 (“Exercise of ownership rights in order to promote long-term financial returns, based on the UN Global Compact and the OECD Guidelines for Corporate Governance and for Multinational Enterprises.”).
160 See, e.g., OECD Principles of Corporate Governance (2004); OECD Guidelines for Multinational Enterprises (2000). The Organization for Economic Co-operation and Development (OECD) brings together the governments of countries committed to democracy and the market economy from around the world for a variety of development regulatory and harmonization purposes. See OECD, About OECD.
161 See United Nations, Global Compact (“The UN Global Compact is a strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.” U.N. Global Compact, Overview of the U.N. Global Compact). On the genesis of the Global Compact, see ANDREW CLAPHAM, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS 218-25 (New York: Oxford University Press, 2006).
162 For a discussion, see, Larry Catá Backer, Case Note: Rights And Accountability In Development (Raid) V Das Air (21 July 2008), Global Witness V Afrimex (28 August 2008); Small Steps Toward An Autonomous Transnational Legal System For The Regulation Of Multinational Corporations, 10(1) MELBOURNE JOURNAL OF INTERNATIONAL LAW – (forthcoming 2009). 163 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 2, subpar. 2.
164 Id., at ¶ 2, subpar. 3. These activities include: (1) Serious or systematic human rights violations, such as murder, torture, deprivation of liberty, forced labour, the worst forms of child labour and other child exploitation; (2) serious violations of individuals’ rights on situations of war and conflict; (3) severe environmental damage; (4) gross corruption; and (5) other particularly serious violations of fundamental ethical norms. Id.
165 Id., at ¶ 3.
166 Id. at ¶ 3, sub. Par. 1.
167 Id.
168 Id. at ¶ 3, sub. Par. 2.
169 Id. at ¶ 3, sub. Par. 3.
170 Id. at ¶ 4.
171 Ethical Guidelines, Norwegian Government Pension Fund—Global, Issued 22 December 2005 pursuant to regulation on the Management of the Government pension Fund - Global, former regulation on the Management of the Government Petroleum Fund issued 19 November 2004, at 4.
172 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 4.2 (“The Council on Ethics for the Government Pension Fund – Global shall consist of five members. The Council shall have its own secretariat.”). The current Council members are Professor Ph.D. Andreas Føllesdal, Associate Professor Dr. juris Gro Nystuen (Chair of the Council), Director Corporate Finance and Managing Director Bjørn Østbø, Programme Manager Anne Lill Gade, and Professor dr. juris Ola Mestad. Styrer, Rad Og Utvalg, Council of Ethics, Norwegian Government Pension Fund—Global.
173 The Council is supported by a secretariat. According to its 2007 Annual Report, that Secretariat consisted of six employees—an economist, an individual with a masters degree in law and several candidates for higher degrees. See Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 7.
174 Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 4.
175 Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 4.3.
176 Styrer, Rad Og Utvalg, Council of Ethics, Norwegian Government Pension Fund—Global. “The role of the Council on Ethics for the Government Pension Fund - Global is to provide evaluation on whether or not investment in specified companies is inconsistent with the established ethical guidelines.” Id. See also Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, at ¶ 4.1.
177 Id.
178 Id.
179 Id., at ¶ 4.4. The states against which weapons sales are interdicted are set forth “in Clause 3.2 of the supplementary guidelines for the management of the Fund.” Id.
180 See Ministry of Finance-Norway, Report of the Graver Committee (7-11-2003).
181 Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 4.
182 See Styrer, Rad Og Utvalg, Ethical Guidelines, Norwegian Government Pension Fund—Global, available , at ¶ 4.5. “The Council may request Norges Bank to provide information as to how specific companies are dealt with in the exercise of ownership rights. Enquiries to such companies shall be channelled through Norges Bank. If the Council is considering recommending exclusion of a company, the company in question shall receive the draft recommendation and the reasons for it, for comment.” Id.
183 Id.
184 Simon Chesterman has explained:
Technically it is not a legal tribunal bound by rules of due process; technically it focuses on the risk of complicity on the part of the fund rather than proof of allegations against a given company. In practice, however, it has justified its decisions on quasi-legal grounds, establishing precedent and following or distinguishing prior decisions; it has also adopted a quasi- adversarial procedure, allowing companies the opportunity to know allegations and respond to them, though without the full trappings of legal process.
Simon Chesterman, Laws, Standards or Voluntary Guidelines, Norges inansdepartmentet, Editorial article, Ministry of Finance, 20.12.2007.
,
(accessed March 24, 2009). See generally Simon Chesterman, Oil and Water: Regulating the Behavior of Multinational Corporations Through Law, 36 N.Y.U. J. INT’L L. & POL. 307 (2004).
185 See id., at ¶ 4.7 (“The Ministry of Finance may request that Norges Bank inform the companies concerned of the decisions taken by the Ministry and the reasons for the decision.”).
186 Id., at ¶ 4.6.
187 Council on Ethics, Global Pension Fund—Global, Annual Report 2006 at 5.
188 See Simon Chesterman, Laws, Standards or Voluntary Guidelines, Norges Finans departmentet, Editorial article, Ministry of Finance, 20.12.2007.
189 Council on Ethics, Global Pension Fund—Global, Annual Report 2006 at 1. That focus continued thereafter. See, Council on Ethics Government Pension Fund—Global, Annual Report 2007, at 5 (“During the year, the Council has initiated monitoring of the new benchmark portfolio in order to identify companies that produce weapons which should be screened out of the Fund.”).
190 See Council on Ethics Government Pension Fund—Global, Annual Report
2007, at 4.
191 See discussion Essay Party IV (The Norway Funds in Action: Private and Participatory or Public and Regulatory?).
No comments:
Post a Comment