Publications

Publications from the N-EXTLAW Team

See all the publications and working papers produced by the N-EXTLAW Team below.

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Taking the Green Transition Seriously: A Proposal for a ‘Transition Reserve’ 
Enabling Transition of Large Emitters in the Netherlands 

Prof. dr. Marija Bartl and mr. drs. Nena van der Horst

N-EXTLAW Working Paper Series, no. 1 (1/2022)

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Abstract: Large emitters, more so than any other company, are exposed to the risk of transition. If they do not transition, they will end up with unsustainable business models and stranded assets in the not-so-distant future, eventually going bankrupt as a result. One would hope that large emitters would take this risk seriously and invest into their own transition - but this is not necessarily the case. The incentives inherent in the contemporary model of financial markets and corporate governance,  alongside the possibility of public ‘bail out’, motivate companies to distribute their funds to shareholders or managers instead of investing into the green transition. In this short note, we propose to introduce two new legal obligations for large emitters, both aimed at ensuring that these companies do their part in the transition. First, we argue that large emitters should be required to keep enough money on their accounts to actually be able to pay for the costs of the transition. In order to achieve that, we propose to introduce a legal requirement to establish a new mandatory reserve: a transition reserve.  Second, we argue that the best way to establish the height of such reserves, as well as outline necessary steps toward such transition, is to formalize transition investment plans. We make some suggestions as to how to formalize these transition investment plans in law, building on the current developments at national and EU level around such plans.
From an Extractive to a Non-Extractive Economy: Disentangling the Building Blocks of Non- Extractive Economic Practices 

Kinanya Pijl (University of Amsterdam) 

University of Oslo Faculty of Law Research Paper No. 2022-39 International and Comparative Corporate Law Journal, Volume 15, 2022, Issue 2, p. 13-34 

Abstract: The paradigm of contemporary business is extractive: oriented towards extracting ever more unpaid energy, resources, money, personal data, labour, health and well-being from people and from places. Extractivism reduces life into objects for the use of others as a source of profit, giving them no integrity or value of their own, turning living complex ecosystems into “natural resources”. Collectively, these dynamics expel people from economies and societies. The climate crisis, equity crisis and crisis of the natural world challenge the validity of the supposed “proper way of running an economy” that underlies the extractive capitalism in which – one way or another – we are all collectively trapped. But what should extractive capitalism be replaced with? We use the concept of non-extractiveness to capture the essence of a just economy, consisting of economic practices that are distributive and (re)generative by design – rather than depleting – of the very resources they depend on. A multitude of entrepreneurs around the world, such as Buurtzorg and Triodos Bank, are already experimenting with economic practices and organizational designs that serve to positively contribute to social, environmental and cultural change. In effect, they are experimenting with practical ways to reimagine extractive capitalism so that it works for all the members of society and our planet. This paper builds on the premise that these organisations may hold the key to deep societal transformation towards a non-extractive economy. This paper articulates the various ways in which organisations can be designed for non-extractiveness, focusing on the organisation’s purpose, revenue model, legal structure, internal distribution of benefits, internal distribution of decision-making power, culture, and environmental and societal impacts. A deep understanding of the various ways these organisations can be non-extractive can inspire lawyers to ensure that law is designed in such a way as to facilitate people and planet thriving in balance.

Keywords: regenerative business models; sustainable economy; corporate purpose; corporate governance; measuring impact 

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