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Monday, July 23, 2007

 

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Safeguarding a water contract

If you are representing a municipality or a central government, and you have to deal with water MNCs in concluding an agreement, what will you do?

I wrote a paper on this issue for a conference held by the IELRC in Geneva, last April. Here's the abstract:

Due to financial and technological reasons, water undertakings are often being conducted by large scale Multi National Corporations (MNC). Governments often positioned Regional Authorities as a regulator to these MNCs, and at the same time engaged in water contracts with them through State Owned Enterprise (SOE).

However, the relationship between Water MNC and Governments is asymmetrical as MNCs can move their assets overnight, transfer their ownership to third parties, seek various means of redress through bilateral, regional or international investment treaties and avoid confiscation by reallocating their assets. These are often done by hiding behind multiple jurisdictions enjoyed either by their parent companies, subsidiaries or shareholders.

The positions of Governments are the opposite as they do not have the flexibilities enjoyed by MNCs. This paper attempts to prescribe issues that need to be highlighted in safeguarding water contracts in Indonesia.

The first part discusses the legal relationship between institutions involved in a water undertaking. The second part listed down regulatory mechanisms in Indonesian context, more specific towards the impact of Constitutional Court’s review of the Water Law (2004). The third part of the paper examines the provisions existing normally in water contracts between a local subsidiary of MNC and regional authorities and presents a point of view in drafting the clauses.

Note that all laws mentioned there are as of March, 2007. The investment law has been modified recently. See the paper here.

 

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Indonesia needs a good squatting law?

Sunday, July 22, 2007

I have just watched Robert Neuwirth's presentation at the 2005 TED Talk. He explained that in 2030, there will be 2 billion squatters, or one in every people in the planet is a squatter. In his presentation, he explained some squatter laws in several countries, for example the 24-hour rule in Turkey which established that if a person manages to erect a building in 24 hours, they cannot be evicted without court orders.

What Neuwirth has elaborated is enermously significant, my latest newspaper article also discussed this issue:
In a recent report, the United Nations Family Planning Agency (UNFPA) predicted half the world's population would be living in cities by next year, with the figure expected to grow.

This presents challenges for more effective land use, transportation and the fulfillment of minimum daily subsistence. Cities that fail to meet these challenges will become "failed cities", marked by the rise of megaslums.

In addition to the focus towards FEW (Food-Energy-Water) laws and infrastructure, these developments requires a reformulation of property rights, which can be in the form of (i) limitation of land-ownership period, (ii) redistribution of land-ownership in cities after several generations, (iii) developing squatting laws, (iv) access to local politics.

As for the squatting law part, Neuwirth mentioned the Russian example which passed a law to allow rural land occupants to gain legal title to their holdings, as advocated by Hernando de Soto.

To get a grip on this issue, watch Neuwirth's TED presentation here:



 

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Using nanotech to prevent pollution - EPA Conference

Friday, July 20, 2007

EPA will hold a conference in utilizing nanotechnology to prevent pollution. These are the three main questions to be addressed to the participants:

1. Which nanotechnologies show the greatest promise for preventing pollution?

Considerations:

  • This question should be viewed through the lens of life-cycle thinking to minimize the possibility of unintended consequences.
  • Which pollution prevention applications are the most likely to find real-world applications?
  • What barriers exist to the adoption of nanotechnology-enabled pollution prevention applications?

2. What are the most promising areas of research on pollution prevention applications of nanotechnologies?

Considerations:

  • Which research areas could improve our understanding of the full life-cycle of nanomaterials?
  • How can the beneficial properties of engineered products of nanotechnology such as increased surface activity, greater conductivity, improved strength-weight ratio, altered optical properties (changes in color or opacity), and flame retardancy be used to improve materials and products and reduce the production of pollutants at their source?

3. What recommendations do conference participants have for promoting and encouraging pollution prevention in the development and application of nanotechnology?

Considerations:

  • What actions could be taken, and by whom?
  • What mechanisms, programs, or associations could promote the research, development, and adoption of such applications?
  • What role can EPA programs play?
Check the conference's website here.

 

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Microsatellites in the sky

Nanotechnology enabled the creation of cheaper and smaller satellites: microsatellites. These satellites weighed less than 100kg, GPS-nav, weather predictions, and Earth observation just like normal satellites, it cost as little as 10 million and so far around 400 have been launched for various purposes.

But because they are small, they can be use to spy on other spacecraft or other space structure:

"If someone interferes with another satellite, or even if the interference is caused accidentally by a piece of debris, this kind of event is likely to start a war, because this can be confused for a satellite attack."

"We really would like to see is a law against satellite destruction, any testing and usable weapon that does that. It is really time to regulate what is going on in space, the regulation that we have is pretty rusty."

The legal principles regulating peaceful uses of outer-space is actually already in place. Take for example, Article III of the Space Treaty:
States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.
The treaty does not mention anything about satellites or space structures. Nuclear weaponry and other form of WMD is strictly prohibited in space. Howbout nano-weapon? Well, as long as they are not categorized as WMD, it can be OK. There could be a loophole here.

 

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Nanoethics Journal

Thursday, July 19, 2007

The nanoethics journal has been available since last june. VOA issued a report on the journal yesterday:

Most nanotechnologies are still at the early stages of development, and Nanoethics' editor John Weckert says now is the best time to be anticipating problems that might arise, "so it won't be necessarily a matter of just waiting to see what the problems are and then trying to solve them."

Leading science publisher Springer describes its new journal as "the watchdog of a new technology." Weckert hopes the publication can foster a better understanding of the risks and benefits of nanotechnology among scientists, policy makers and the general public.

Listen to the podcast here. Check the Journal in SpringerLink here.

 

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Click-wrap agreement unenforceable in Secondlife

Last May I had an interesting discussions with Priyadi and others on the enforceability of Creative Commons license in Indonesia. In that previous post, I mentioned the example of Comb v PayPal (US District Court of San Jose), in which the Court find the agreement unenforceable.

Recently, in the case of Marc Bragg v Linden, the Court also finds Secondlife's wraps agreement unenforceable:
Linden presents the TOS on a take-it-or-leave-it basis. A potential participant can either click “assent” to the TOS, and then gain entrance to Second Life’s virtual world, or refuse assent and be denied access. Linden also clearly has superior bargaining strength over Bragg. Although Bragg is an experienced attorney, who believes he is expert enough to comment on numerous industry standards and the ‘rights’ or participants in virtual worlds, … he was never presented with an opportunity to use his experience and lawyering skills to negotiate terms different from the TOS that Linden offered.
Creative Commons license is of course, different from these wraps. Nevertheless the same question remain, can it be declared unconscionable?