This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. The Ruminations Series in 2009 produced a series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. Ruminations continue to be produced form time to time. For 2010, this site introduced a new series--Business and Human Rights. The series took as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum.
For 2011, this site introduces a new series of integrated essays--Developing a Coherent Transnational Jurisprudence of Ethical Investing: The Norwegian Sovereign Wealth Fund Ethics Council Model. The object of this series to to consider the work of the Ethics Council of the Norwegian Sovereign Wealth Fund. The thesis of this series is this: The Norwegian Sovereign Wealth Fund (NSWF ) investment program is grounded in the application of a set of Ethical Guidelines adopted by the Storting (the Norwegian Legislature) and enforced through an Ethics Council charged with determining whether a company should be excluded from investment by the NSWF. The work of the Ethics Council has produced the beginnings of a coherent jurisprudence of ethics for corporate investment. That jurisprudence may contribute significantly both to the development of transnational social norm standards and affect the way domestic corporate law is understood. This is Part XXIV of the series.
Part XXIV: Ethics and a Jurisprudence of Responsible Investment: Summary of Ethics Council Standards developed form the Determinations
We are coming tot he end of this series. At this point it might be useful to bring together the "law" that has been made by the Ethics Council as it has applied the Ethics Guidelines. The are divided into the following categories:
evidentiary rules
procedural rules
product exclusion standards
conduct exclusion standards.
evidentiary rules
1. Use of web posted company materials as evidence and admission.
4. Probative information obtained from NGOs
5. Use of company product catalog or other publication .
procedural rules
1. Communication through mail, e-mail or telephone
2. Ethics Council determines the probative value of evidence.
product exclusion standards
nuclear weapons:
1. Define “develop and produce key components to nuclear weapons”standard
a. Missile, testing, and maintenance rule: "It is presumed that the missile carrying the warhead as well as certain forms of testing of new weapons and maintenance of existing weapons also fall within the scope of the exclusion criteria."
b. "The Council considers any form of testing of nuclear weapons to be crucial to the development of nuclear weapons, and therefore such activity falls within the fund’s exclusion criteria."
c. Dual Use Test: The Council finds that development or production of products or materials or other
activities that may be categorised as “dual use” is, as a point of departure, not covered by the guidelines.
Cluster weapons
1. Exclusion includes companies involved in production of key components
evidentiary rules
procedural rules
product exclusion standards
conduct exclusion standards.
evidentiary rules
1. Use of web posted company materials as evidence and admission.
B. Recommendation of Sept. 6, 2006 on exclusion of Poongsan Corp. The company is recommended for exclusion because of production of cluster munitions[06.09.2006]
C. Recommendation of April 18, 2006 - The exclusion of EADS from the investment universe of the Government Pension Fund — Global has been reviewed [18.04.2006]
D. Recommendation of June 16, 2005 on the exclusion of companies that are involved in production of cluster munitions [16.06.2005]
F. Recommendation of August 26, 2008, on exclusion of the company Textron Inc. [30.01.2009]
G. Recommendation of October 22nd, 2009, on the exclusion of tobacco companies [19.01.2010].
2. Use of foreign state website for determinations of issues of fact.
3. Use of legitimated third party fact finder informationA. Recommendation of November 16, 2009, on suspension of exclusion of United Technologies Corp. [18.03.2010] (U.S. Air Force).
A. Recommendation of April 18, 2006 - The exclusion of EADS from the investment universe of the Government Pension Fund — Global has been reviewed [18.04.2006](Jane's).
B. Recommendation of June 16, 2005 on the exclusion of companies that are involved in production of cluster munitions [16.06.2005] (Jane's)
C. Recommendation of May 15, 2007, on exclusion of the companies Rheinmetall AG and Hanwha Corp. [11.01.2008] (Jane's)
D. Recommendation of October 22nd, 2009, on the exclusion of tobacco companies [19.01.2010] (FTSE, Bloomberg, ).
4. Probative information obtained from NGOs
A. Recommendation of June 16, 2005 on the exclusion of companies that are involved in production of cluster munitions [16.06.2005]
5. Use of company product catalog or other publication .
A. Recommendation of September 5, 2007 - New assessment of the company Rheinmetall AG [11.01.2008] (catalogue)
B. Recommendation of February 13th, 2009, on inclusion of the company Thales SA.[03.09.2009] (corporate social responsibility report).6. Use of industry classifications in Fund's reference indices determinative
procedural rules
1. Communication through mail, e-mail or telephone
B. Recommendation of August 26, 2008, on exclusion of the company Textron Inc. [30.01.2009]
2. Ethics Council determines the probative value of evidence.
3. Ethics Council: presumption that past actions without interruption can be assumed to be ongoing.
product exclusion standards
nuclear weapons:
1. Define “develop and produce key components to nuclear weapons”standard
a. Missile, testing, and maintenance rule: "It is presumed that the missile carrying the warhead as well as certain forms of testing of new weapons and maintenance of existing weapons also fall within the scope of the exclusion criteria."
b. "The Council considers any form of testing of nuclear weapons to be crucial to the development of nuclear weapons, and therefore such activity falls within the fund’s exclusion criteria."
c. Dual Use Test: The Council finds that development or production of products or materials or other
activities that may be categorised as “dual use” is, as a point of departure, not covered by the guidelines.
A. Recommendation of September 19, 2005 on the exclusion of companies that are involved in production of nuclear weapons. [19.09.2005]
Recommendation of November 15, 2007, on exclusion of the company GenCorp Inc. [11.01.2008] (dual use test)
Recommendation of April 18, 2006 - The exclusion of EADS from the investment universe of the Government Pension Fund — Global has been reviewed [18.04.2006]
Cluster weapons
1. Exclusion includes companies involved in production of key components
A. Recommendation of Sept. 6, 2006 on exclusion of Poongsan Corp. The company is recommended for exclusion because of production of cluster munitions [06.09.2006]
B. Recommendation of June 16, 2005 on the exclusion of companies that are involved in production of cluster munitions [16.06.2005]
Landmines
1. Definition
A. Recommendation of September 20, 2005 concerning whether the weapons systems Spider and Intelligent Munition System (IMS) might be contrary to international law. Letter to the Ministry of Finance from the Advisory Council on Ethics[20.09.2005] (applies to landmines with battlefield override)Military Equipment to Burma
1. Definition of "arms and military equipment" by reference to U.S. and E.U. sanctions policy, applies to products with significant military application or purpose, including spare parts and technical assistance.
Tobacco
1. Scope--production rather than sale of tobacco within scope of prohibition.
conduct exclusion standards
Adoption of general principles
1. Perinciple fo proportionality adopted (humanitarian suffering weighed against military advantage).
A. Recommendation of June 16, 2005 on the exclusion of companies that are involved in production of cluster munitions [16.06.2005]
2. Principle of distinction of use (between military and civilian goals) adopted.
A. Recommendation of June 16, 2005 on the exclusion of companies that are involved in production of cluster munitions [16.06.2005]
3. Ethics Council will apply international law obligations of Norway to its assessment of Ethics Guidelines rather than the legality of production in home or host states of company but interpret its provisions.
A. Recommendation of August 26, 2008, on exclusion of the company Textron Inc. [30.01.2009].
C. Recommendation of September 20, 2005 concerning whether the weapons systems Spider and Intelligent Munition System (IMS) might be contrary to international law. Letter to the Ministry of Finance from the Advisory Council on Ethics[20.09.2005]
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