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2. The global financial crisis and rising energy prices represent two geopolitical strategic issues to which governments may seek to respond through the deployment of SWF investments. Indeed, the interaction between geopolitics and international finance is arguably one lesson learnt by Asian political leaders from the 1997 financial crisis. The crisis arguably taught leaders that one way to avoid being held to account by the International Monetary Fund (IMF) in the future was to accumulate foreign currency reserves sufficient to “cover” national obligations in the case of another financial meltdown. See CLARK, Gordon L. and MONK, Ashby H. B., “Government of Singapore Investment Corporation (GIC): Insurer of Last Resort and Bulwark of Nation-State Legitimacy” (2010) The Pacific Review [forthcoming]CrossRefGoogle Scholar.

3. See MONK, Ashby H. B., “Recasting the Sovereign Wealth Fund Debate: Trust, Legitimacy and Governance” (2009) 14 New Political Economy 14CrossRefGoogle Scholar [Monk, “Recasting”].

4. CLARK, Gordon L. and MONK, Ashby H. B., “The Financial Crisis: The Rise and Demise of SWFs” (2009) Working Paper, Oxford University Centre for the EnvironmentGoogle Scholar.

5. See EICHENGREEN, Barry and PARK, Yung Chul, Global Imbalances: Implications for Emerging Asia and Latin America (Berkeley: Department of Economics, University of California, 2006), online: University of California, Economics 〈http://www.econ.berkeley.edu/~eichengr/policy/global_imbalances.pdf〉Google Scholar.

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7. See generally Australian Government Future Fund, Media Release, “Portfolio Update at 30 September 2009” (19 October 2009), online: Future Fund 〈http://www.futurefund.gov.au/__data/assets/pdf_file/0016/3526/Final_Portfolio_update_30_September_2009.pdf〉.

8. The significance of “framing” for negotiation and subsequent agreement is developed by James K. Sebenius in his account of how coalitions are built to achieve certain outcomes by those that have the power to set the initial terms of debate. See SEBENIUS, James K., “Sequencing to Build Coalitions: With Whom Should I Talk First?” in Richard ZECKHAUSER, Ralph KEENEY, and James K. SEBENIUS, eds., Wise Choices: Decisions, Games and Negotiations (Boston: Harvard Business School Press, 1996), 324Google Scholar. The issue of framing is also associated with decision-making under risk and uncertainty; for the seminal treatment, see generally KAHNEMAN, Daniel and TVERSKY, Amos, “Prospect Theory: An Analysis of Decisions Under Risk” (1979) 47 Econometrica 263CrossRefGoogle Scholar.

9. See CLARK, Gordon L., “Risk Management and Institutional Investors” in Gordon L. CLARK, Adam DIXON, and Ashby MONK, eds., Managing Financial Risks: From Global to Local (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar; and SHILLER, Robert, “Bubbles, Human Judgement and Expert Opinion” (2002) 58 Financial Analysts Journal 18CrossRefGoogle Scholar.

10. CLARK, Gordon L. and URWIN, Roger, “Best-Practice Investment Management” (2008) 9 Journal of Asset Management 2Google Scholar; CLARK, Gordon L. and URWIN, Roger, “Innovative Models of Pension Fund Governance in the Context of the Global Financial Crisis” (2010) 15 Pensions: An International Journal 62Google Scholar [Clark and Urwin, “Innovative Models”]; see generally also “The Geopolitics and Governance of Sovereign Wealth Funds” Oxford School of Geography and the Environment, online: University of Oxford School of Geography and the Environment 〈http://www.geog.ox.ac.uk/research/transformations/projects/governance.php〉 (for more details on the rationale and publications from the project) and “Oxford SWF Project” University of Oxford, online: University of Oxford 〈www.oxfordswfproject.com〉 (another venue for related research on the nature and performance of sovereign wealth funds).

11. See generally Monk, “Recasting”, supra note 3.

12. See e.g., LERNER, Josh, SCHOAR, Antoinette, and WANG, Jialan, “Secrets of the Academy: The Drivers of University Endowment Success” (2008) NBER Working Paper No. W14341, online: SSRN 〈http://ssrn.com/abstract=1271374〉Google Scholar.

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14. BROWN WEISS, Edith, “Our Rights and Obligations to Future Generations for the Environment” (1990) 84 American Journal of International Law 198 at 202–204Google Scholar.

15. Ibid., at 202.

16. MAGGIO, Gregory F.. “Inter/Intra-Generational Equity: Current Applications Under International Law for Promoting the Sustainable Development of Natural Resources” (1996) 4 Buffalo Environmental Law Journal 161 at 212Google Scholar.

17. Universal Declaration of Human Rights, GA Res.217 (III), U.N. Doc A/810 (1948), at Preamble.

18. Convention on Biological Diversity, United Nations, 29 December 1993, 31 I.L.M. 818 at Preamble.

19. Ibid., art. 1.

20. See IUCN Draft International Covenant on Environment and Development, Commission on Environmental Law of IUCN, Environmental Law and Policy Paper No. 31 Rev. 2 (2004), art. 5 (stating that the “freedom of action of each generation in regard to the environment is qualified by the needs of future generations”).

21. See D’Amato, supra note 6.

22. Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, Separate Opinion of Judge Weeramantry, [1993] I.C.J. Rep. 38 at 242.

23. Nuclear Tests Case (New Zealand v. France), Order of 22 September 1995, Dissenting Opinion of Judge Weeramantry, [1995] I.C.J. Rep. 288 at 341.

24. AUSTIN, John, Austin on Jurisprudence: Lectures on Jurisprudence or The Philosophy of Positive Law (London: R. & R. Clark 1876) at 413–415Google Scholar.

25. Minors Oposa v. Secretary of the Department of the Environment and Natural Resources (DENR), Judgment of 30 July 1993, (1994) 33 I.L.M. 173.

26. GATMAYTAN, Dante B.. “The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory” (2003) 15 Georgetown International Environmental Law Review 457 at 459Google Scholar.

27. Constitution of the Republic of the Philippines (1987), art. 2(16).

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31. PEEL, Jacqueline and GODDEN, Lee, “Planning for Adaptation to Climate Change: Landmark Cases from Australia” (2009) 9 Sustainable Development Law and Policy 37 at 39Google Scholar. For more evidence on the incorporation of intergenerational equity within the broader principle of ecological sustainable development, see SANDS, Philippe and PEEL, Jacqueline, “Environmental Protection in the Twenty-First Century” in Norman VIG and Regina AXELROD, eds., The Global Environment: Institutions, Law and Policy (London: Earthscan, 1999)Google Scholar.

32. One might be able to argue that, in the case of the Australian Future Fund, the conservation of resource boom windfall profits was a type of fiscal conservation of environmental resources. By monetizing and saving these profits, the government was endowing them to future generations.

33. TABELLINI, Guido and PERSSON, Torsten, Political Economics (Cambridge, MA: MIT Press, 2000)Google Scholar.

34. For a modern treatment, see SLOTE, Michael, Beyond Optimizing: A Study of Rational Choice (Cambridge, MA: Harvard University Press, 1989)CrossRefGoogle Scholar. Elsewhere, this issue is discussed in terms of “weakness-of-will”, wherein the problem to be resolved is how and why people may choose a course of action for their long-term benefit only to be swayed at the last minute by some immediate payoff. See AINSLIE, George, Breakdown of Will (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar (for the seminal treatment); AINSLIE, George, “Précis of Breakdown of Will” (2004) 28 Behavioral and Brain Sciences 635Google Scholar (for the debate that this argument has engendered).

35. See generally SCHELLING, Thomas C., “Global Decisions for the Very Long Term: Intergenerational and International Discounting” in Richard ZECKHAUSER, Ralph KEENEY, and James K. SEBENIUS, eds., supra note 8, 152Google Scholar; and STERN, Nicholas, The Economics of Climate Change: The Stern Review (Cambridge: Cambridge University Press, 2007)CrossRefGoogle ScholarPubMed.

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37. WOLFE, Matthew, “The Shadows of Future Generations” (2008) 57 Duke Law Journal 1897Google Scholar.

38. RUNCIMAN, David, Political Hypocrisy: The Mask of Power, from Hobbes to Orwell and Beyond (Princeton: Princeton University Press, 2008)Google Scholar.

39. NOZICK, Robert, The Nature of Rationality (Princeton: Princeton University Press 1993) at 5–7Google Scholar and 10.

40. See SCHICK, Frederic, Making Choices: A Recasting of Decision Theory (Cambridge: Cambridge University Press, 1997)Google Scholar.

41. BLACKBURN, Simon, Ruling Passions (Oxford: Oxford University Press, 1998) at 84–121Google Scholar.

42. This last point is important in the sense that it suggests that governments can, and should, promote shared expectations of proper behaviour such that, over time, those expectations become integral to common understandings of what is right and proper. See GEORGE, Robert P., Making Men Moral: Civil Liberties and Public Morality (Oxford: Oxford University Press, 1993) at 44–45Google Scholar (on the distinction between regulating behaviour through the rule of law and inculcating a “good moral ecology [that] benefits people by encouraging and supporting their efforts to be good”).

43. SCANLON, Thomas M., What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998) at 191Google Scholar.

44. COSTELLO, Peter and COLEMAN, Peter, The Costello Memoirs (Melbourne: Melbourne University Press, 2008)Google Scholar.

45. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 6 December 2005, 3Google Scholar (Peter Costello, Treasurer) [Hansard, 6 December 2005].

46. Australian Bureau of Statistics, Australian Economic Indicators, “Consumer Price Index, All Groups” at Chapter 5, Prices, Table 1 Table 5.1, online: Australian Government 〈http://www.abs.gov.au/〉; and Australian Bureau of Statistics, Australian Economic Indicators, “Private Housing Investment” at Chapter 5, Prices, Table 12 Table 5.7, online: Australian Government 〈http://www.abs.gov.au/〉.

47. Australian Bureau of Statistics, “International Trade in Goods and Services” at Cat. no. 5368.0, Table 2, Goods and Services, online: Australian Government 〈http://www.abs.gov.au/〉 (in Australian Dollars (millions)). Converted from monthly to annual (data for 2008 includes January–November)); and the Hon. Wayne Swan MP, Treasurer of the Commonwealth of Australia and the Hon. Lindsay Tanner MP, Minister for Finance and Deregulation, Treasury of Australia, “Final Budget Outcome 2007–08” (2008), at 88, Appendix B: Historical Fiscal Data, online: Budget Office 〈http://www.budget.gov.au/〉 (in Australian Dollars (millions). Underlying cash balance is equal to receipts less payments less Future Fund earnings).

48. Treasurer Costello established the Wallis inquiry into financial regulation when the Liberal Party assumed office in 1996. The report of the inquiry sought to modernize regulation, recognizing the significance of new forms of communication, the growing role of intermediation, and the growth of different types of financial institutions. See generally Commonwealth of Australia, Financial System Inquiry: Final Report (Canberra ACT: Australian Government, 1997)Google Scholar. It took seriously the functional model of finance developed by Merton and his colleagues. See generally MERTON, Robert, “Operation and Regulation in Financial Intermediation: A Functional Perspective” in Peter ENGLUND, ed., Operation and Regulation of Financial Markets (Stockholm: Ekonomiska Rdet, 1993), 17Google Scholar; MERTON, Robert, “Financial Innovation and the Management and Regulation of Financial Institutions” (1995) 19 Journal of Banking and Finance 461CrossRefGoogle Scholar; see also MERTON, Robert and BODIE, Zvi, “The Design of Financial Systems: Towards a Synthesis of Function and Structure” (2005) 3 Journal of Investment Management 1Google Scholar.

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50. The World Bank, Averting the Old Age Crisis: Policies to Protect the Old and Promote Growth (Washington DC: Oxford University Press, 1994)Google Scholar.

51. See LEIBFRITZ, Willi, ROSEVEARE, Deborah, FORE, Douglas, and WURZEL, Eckhard, “Ageing Populations, Pension Systems and Government Budgets: How Do They Affect Saving?” (1995) OECD Economics Working Paper No. 156Google Scholar; GRUBER, Jonathan and WISE, David, eds., Social Security and Retirement Around the World (Chicago: University of Chicago Press, 1999)CrossRefGoogle Scholar.

52. See generally CLARK, Gordon L., European Pensions and Global Finance (Oxford: Oxford University Press, 2003)CrossRefGoogle Scholar.

53. See generally AUERBACH, Alan J., KOTLIKOFF, Lawrence J., and LEIBFRITZ, Willi, eds., Generational Accounting Around the World (Chicago: University of Chicago Press, 1999)CrossRefGoogle Scholar [Auerbach et al., “Generational Accounting”].

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57. Hansard, 6 December 2005, supra note 45 at 3.

58. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 February 2006, 42Google Scholar (Lindsey James Tanner, MP) [Hansard, 7 February 2006].

59. Ibid., at E18.

60. Ibid., at 48. This remains a significant point of contention, with some commentators arguing that infrastructure investment that boosts labour productivity has a more beneficial effect for the whole economy than a finance sector that invests assets through capital markets. There is considerable academic debate about this issue. See KING, Robert and LEVINE, Ross, “Finance and Growth: Schumpeter Might Be Right” (1993) 108 Quarterly Journal of Economics 717CrossRefGoogle Scholar; KING, Robert and LEVINE, Ross, “Finance, Entrepreneurship and Growth: Theory and Evidence” (1993) 32 Journal of Monetary Economics 513CrossRefGoogle Scholar.

61. Hansard, 7 February 2006.

62. In theory, it is clear that institutions are better governed if they have unambiguous mandates or objective functions. See generally CLARK, Gordon L. and URWIN, Roger, “Best-Practice Investment Management” (2008) 9 Journal of Asset Management 2Google Scholar [Clark and Urwin, “Best-Practice”] (developing this point with respect to best-practice pension fund governance and underlining the relevance of the argument that defined benefit and defined contribution pension plans serve very different interests over distinctly different time horizons).

63. Hansard, 7 February 2006. When the government came to sell the third tranche of Telstra shares, the National Party negotiated the establishment of another endowment fund whose income would be invested in rural telecommunications infrastructure. That fund was abolished with the support of the Liberal Party when the Labor opposition assumed government. I am indebted to Nick Howarth for pointing this out.

64. Future Fund Act 2006 (Cth), Part 1, Section 3 [Future Fund]. Note that a number of other funds have been established by the incoming Labor government since the Future Fund, administered through the guardians and managed by the Future Fund. See e.g., Nation-building Funds Act 2008 (Cth), Chapter 1, Section 3.

65. Clark, and Urwin, , “Best-Practice”, supra note 62Google Scholar; CLARK, Gordon L. and URWIN, Roger, “A Resource-Based Approach to Collective Decision-Making Under Risk and Uncertainty: Implications for Pension Fund Governance”, Oxford University Centre for the Environment, Working Paper G08-08, 2008Google Scholar [Clark and Urwin, “Resource-Based Approach”].

66. See generally ROE, Mark J., “Legal Origins, Politics and Stock Markets” (2006) 120 Harvard Law Review 460Google Scholar.

67. See generally TRUMAN, Edwin M., “A Blueprint for Sovereign Wealth Fund Best Practices” (Peterson Institute for International Economics, Policy Brief 08-3, April 2008), online: Peterson Institute 〈http://www.iie.com/publications/pb/pb08-3.pdf〉Google Scholar.

68. In fact, close scrutiny of Truman’s scoring suggests that the zero values attributed to four elements of transparency and accountability were mistaken given the recent establishment of the fund and the constitution of its long-term mandate. If that were the case, the FF would have scored the same as the CPPib and the New Zealand Superannuation Fund.

69. The Clark-Urwin governance scoring system was conceived to be a diagnostic tool for evaluating the form and functions of investment institutions, including SWFs, pension funds, and endowments. It has developed from our work on global best practice, and the nature of institutional innovation in the context of the global financial crisis. See Clark, and Urwin, , “Best-Practice”, supra note 62Google Scholar; Clark, and Urwin, , “Innovative Models”, supra note 10Google Scholar.

70. Clark, and Urwin, , “Resource-Based Approach”, supra note 65Google Scholar.

71. See CLARK, Gordon L., “Governing Finance: Global Imperatives and the Challenge of Reconciling Community Representation with Expertise” (2008) 84 Economic Geography 281Google Scholar [Clark, “Governing Finance”].

72. Future Fund, Statement of Investment Policies (Melbourne: Australian Government, 2008)Google Scholar; but see Future Fund, Statement of Investment Policies (Melbourne: Australian Government, 2009)Google Scholar, online: Future Fund 〈http://www.futurefund.gov.au/investment/investment_policies〉 (revising and reissuing the investment policies in April 2009).

73. See generally CLARK, Gordon L., “Expertise and Representation in Financial Institutions: UK Legislation on Pension Fund Governance and US Regulation of the Mutual Fund Industry” (2007) 2 Twenty-First Century Society: Journal of the Academy of Social Sciences 1CrossRefGoogle Scholar.

74. See generally CLARK, Gordon L. and URWIN, Roger, “Making Pension Boards Work: The Critical Role of Leadership” (2008) 1 Rotman Journal of International Pension Management 38Google Scholar [Clark and Urwin, “Making Pension Boards Work”].

75. See generally Clark, and Urwin, , “Resource-Based Approach”, supra note 65Google Scholar; SUNSTEIN, Cass R., “Group Judgments: Statistical Means, Deliberation and Information Markets” (2005) 80 New York University Law Review 962Google Scholar.

76. CLARK, Gordon L., CAERLEWY-SMITH, Emiko, and MARSHALL, John, “The Consistency of UK Pension Fund Trustee Decision-Making” (2007) 6 Journal of Pension Economics and Finance 67CrossRefGoogle Scholar.

77. See WAGNER, Richard K., “Smart People Doing Dumb Things: The Case of Managerial Incompetence” in Robert J. STERNBERG, ed., Why Smart People Can Be So Stupid (New Haven: Yale University Press, 2002), 42Google Scholar (for an exposition of the nature of expertise); see also Clark, , “Governing Finance”, supra note 71Google Scholar (for an exposition on the demanding nature of financial markets).

78. Future Fund, supra note 64 at Section 38.

79. Notice that Board members are also required to “discharge his or her duties with the degree of care and diligence that a reasonable person would exercise”. Future Fund, supra note 64 at Section 56. Elsewhere in the Act, the Board is required to formulate “written policies” pertaining to the investment strategy of the fund in a manner consistent with “international best practice for institutional investment”. Future Fund, supra note 64 at Section 24.

80. See Clark, , “Governing Finance”, supra note 71Google Scholar (for explanation of the significance of this norm for governing institutions),

81. See generally Clark, and Urwin, , “Making Pension Boards Work”, supra note 74Google Scholar.

82. See generally BAUER, Rob, HOEVENAARS, Roy, and STEENKAMP, Tom, “Asset Liability Management” in Gordon L. CLARK, Alicia MUNNELL, and Michael ORSZAG, eds., The Oxford Handbook of Pension and Retirement Income (Oxford: Oxford University Press, 2006), 441Google Scholar.

83. See e.g., Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 February 2006, E16-17 (exchange between Senator Stephens and an expert witness).

84. See generally CLARK, Gordon L., Pension Fund Capitalism (Oxford: Oxford University Press, 2000)Google Scholar; see also SHLEIFER, Andrei, “A Theory of Yardstick Competition” (1985) 16 RAND Journal of Economics 319CrossRefGoogle Scholar.

85. See generally Shiller, supra note 9.

86. See generally Future Fund, Annual Report 2007–08 (Canberra ACT: Australian Government, 2008)Google Scholar, online: Future Fund 〈http://www.futurefund.gov.au/annual_reports〉.

87. For a detailed analysis of the emerging third sector in venture capital and private equity product offerings—i.e. the clean tech (or climate change related) sector, see KNIGHT, Eric R.W., “The Economic Geography of Clean Tech Venture Capital”, Oxford University Centre for the Environment, Working Paper G10-06, 2010Google Scholar.

88. GROSSMAN, Gene M. and HELPMAN, Elhanan, “Outsourcing in a Global Economy” (2005) 72 Review of Economic Studies 135CrossRefGoogle Scholar.

89. LA PORTA, Rafael, LOPEZ-DE-SILANES, Florencio, SHLEIFER, Andrei, and VISHNY, Robert W., “Legal Determinants of External Finance” (1997) 52 Journal of Finance 1131CrossRefGoogle Scholar.

90. Commonwealth of Australia Treasury, Intergenerational Report 2007 (Canberra ACT: Australian Government, 2007)Google Scholar, online: The Treasury 〈http://www.treasury.gov.au/igr/〉.

91. The regard paid to social and environmental conditions more broadly in mainstream financial analysis by investment consultants, the advisers to institutions like pension funds and SWFs, is examined more closely in KNIGHT, Eric R.W. and DIXON, Adam, “The Role of Asset Consulting in Transforming Investment Decision-Making: The Integration of Environmental, Social and Governance Considerations into Corporate Valuation” in James P. HAWLEY, Shyam KAMATH, and Andrew T. WILLIAMS, eds., Institutional Investors, Risk/Return Tradeoffs and Corporate Governance Failures (Philadelphia: University of Pennsylvania Press, [2011 forthcoming])Google Scholar.

92. For early expositions of this argument in the legislative context, see NORTON, Bryan G., “Intergenerational Equity and Environmental Decisions: A Model Using Rawls’ ‘Veil of Ignorance’” (1989) 1 Ecological Economics 137CrossRefGoogle Scholar; see also BROWN WEISS, Edith, “The Planetary Trust: Conservation and Intergenerational Equity” (1984) 11 Ecology Law Quarterly 495Google Scholar [Brown Weiss, “Planetary Trust”].

93. Brown Weiss, “Planetary Trust”, ibid.

94. For a more detailed analysis of the relationship between intergenerational equity and fiduciary duty, see generally Woods, , “Intergenerational Justice”, supra note 30Google Scholar.

95. Compare the rationale of the Norwegian SWF formally known as Norges Bank Investment Management, which has a strong ethical mandate as well as a commitment to enhancing global standards of corporate governance. See generally CHESTERMAN, Simon, “The Turn to Ethics: Disinvestment from Multinational Corporations for Human Rights Violations—The Case of Norway's Sovereign Wealth Fund” (2008) 23 American University International Law Review 577Google Scholar. In the April 2009 Statement of Investment Policies, the Future Fund noted their responsibilities for promoting standards of corporate governance in Section 7—“Policy for management of ownership rights”. There may follow, in the near future, further communications about its social responsibilities, albeit framed in terms of risk management taking into account the “value” proposition that underpins any long-term investment strategy.

96. Another interpretation of this provision is that it means that the fund would not be a direct competitor to private infrastructure investors such as Macquarie Bank. Rather it will rely upon this growing sector of the Australian finance industry.

97. Weiss, Brown, “Future Generations”, supra note 13 at 206Google Scholar.