Contracting for Forest Carbon : Elements of a Model ... - Forest Trends

individual or entity – a sellers’ representative –
who will be authorized to negotiate with buyers
and any third parties involved in the project on
behalf of the sellers as a group. Different
jurisdictions are likely to have distinct legal
requirements for authorizing a third party to act
on behalf of sellers. Accordingly, sellers will have
to consult local counsel to ensure compliance
with the law.
Potential buyers will verify the capacity and
authority of the sellers’ representative as part of
the due diligence process, in order to avoid
potential disputes over authorization that can
disrupt project activities. Buyers may also need
assurances that they are dealing with a valid,
authorized entity so as not to violate anti
money-laundering laws in their home country.
The sellers’ representative may also be entrusted
with leading project development and design, as
well as project governance once the project is up
and running. The sample agreement assumes
that the project is already underway. Therefore,
it deals with project governance but not project
development.
Good, transparent project governance, with
robust procedures in place to resolve disputes
and facilitate participatory collective decisionmaking,
can be expected to reduce the cost to
sellers of administering the project and to
contribute to the project’s success. Project
governance provisions should be agreed on by
all sellers in advance, and entrusted to a single
individual or entity to ensure that they are
carried out as agreed.
In addition, the sellers’ representative may be
authorized to collect revenues from buyers and
disburse funds to sellers according to agreed
procedures. Alternatively, this role may be
granted to a separate entity – a trust fund, for
example – that will be in charge of funds
management.
Procedures for seller representation, project
governance, and funds management must be
agreed in advance between all sellers, the sellers’
representative and any other participating
entities, and outlined in one or more written
agreements. For the sake of simplicity, the
sample purchase agreement described in this
document assumes that the sellers’ representative
is properly authorized in a single agreement with
all sellers to both negotiate on behalf of the
sellers (“Participating Landholders” in the
sample agreement), as well as to oversee project
governance and manage project funds.
On the buyer side, the sample purchase
agreement considers a single buyer. It is
recommended that sellers execute a separate
purchase agreement with each buyer.
In some cases, the government may participate
in forest carbon projects as a buyer or a seller.
Such government involvement will raise unique
issues that are not addressed in this document
but will be essential to address in the
development of successful agreements.
The Body of the Agreement:
Rights and Responsibilities
The Project
Forest carbon sellers can generate net emission
reductions by: (1) reducing forest emissions
from deforestation and degradation and (2)
increasing the amount of carbon stored in
forests via reforestation, restoration, or
improved forest management.
Emission reductions, however, do not become
readily marketable commodities until they are
validated and verified to an external standard
and become verified emission reductions (VER).
In theory, any VER that is verified to a certain
standard is equivalent to any other VER verified
to that standard, regardless of how it was
created. This approach provides the basis for
trading VER on carbon markets. In practice
however, VERs will sell for different prices
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