Environmental, Social & Governance Law 2021
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Environmental, Social & Governance Law 2021 A practical cross-border insight into ESG law First Edition Featuring contributions from: BAHR Herbert Smith Freehills LLP Schellenberg Wittmer Ltd Bowmans Herzog Fox & Neeman Stikeman Elliott LLP Brown Rudnick LLP Macfarlanes LLP SustainAdvisory Galicia Abogados, S.C. Mannheimer Swartling Travers Smith LLP Grimaldi Studio Legale Advokatbyrå Wachtell, Lipton, Rosen & Katz Haynes and Boone, LLP Maples Group Wolf Theiss Herbert Smith Freehills Nagashima Ohno & Tsunematsu Table of Contents Expert Chapters Moving Forward With ESG: Considerations for Boards and Management 1 David M. Silk & Carmen X. W. Lu, Wachtell, Lipton, Rosen & Katz Incorporating Sustainability into Debt and Equity Financing 7 Emma Russell, Emily Fuller & Deborah Low, Haynes and Boone, LLP ESG and UK Pension Schemes: Challenges and Opportunities 12 Andy Lewis & Jonathan Gilmour, Travers Smith LLP ESG and Litigation: The Outlook for Shareholders and Listed Companies 16 Ravi Nayer, Razzaq Ahmed & Tom McDonnell, Brown Rudnick LLP ESG and Corporate Strategy: A Cross-Sectoral View 28 Rebecca Perlman, Silke Goldberg & Iria Calviño, Herbert Smith Freehills LLP Q&A Chapters Australia Mexico 34 Herbert Smith Freehills: Heidi Asten, Timothy Stutt 85 Galicia Abogados, S.C.: Mariana Herrero, Maurice & Jacqueline Wootton Berkman, Carlos Escoto & Lorena Kiehnle Barocio Norway Austria 92 43 Wolf Theiss: Sarah Wared, Florian Kusznier & BAHR: Svein Gerhard Simonnæs, Asle Aarbakke & Claus Schneider Lene E. Nygård Poland Canada 97 48 Stikeman Elliott LLP: Vanessa Coiteux, Ramandeep Wolf Theiss: Marcin Rudnik & Joanna Gąsowski K. Grewal & Catherine Grygar South Africa 104 Bowmans: Ezra Davids & Ryan Kitcat Ireland 57 Maples Group: Peter Stapleton, Ronan Cremin & Sweden Jennifer Dobbyn 112 Mannheimer Swartling Advokatbyrå: Patrik Marcelius, Cecilia Björkwall & Joel Palm Israel 63 Herzog Fox & Neeman: Janet Levy Pahima, Switzerland Liat Maidler & Daniel Kaczelnik 119 Schellenberg Wittmer Ltd: Christoph Vonlanthen, Lorenzo Olgiati, Fabio Elsener & Giulia Marchettini Italy 71 Grimaldi Studio Legale: Riccardo Sallustio United Kingdom SustainAdvisory: Francesca Fraulo 126 Macfarlanes LLP: Tom Rose & Olivia Seeley Japan USA 79 Nagashima Ohno & Tsunematsu: Kiyoshi Honda 136 Wachtell, Lipton, Rosen & Katz: David M. Silk & Carmen X. W. Lu 28 Chapter 5 ESG and Corporate Strategy: A Cross-Sectoral View Rebecca Perlman Silke Goldberg Herbert Smith Freehills LLP Iria Calviño ESG and Corporate Purpose has not only been driven by regulation but also by the growing recognition (by long-term investors, in particular) that value can In 1999, former United Nations (UN) Secretary-General Kofi be assessed with reference to a company’s broader stakeholder Annan threw down the gauntlet at the feet of the global busi- groups, as well as its shareholders. As a result, a number of ness world and called on it “to embrace, support and enact a set of core businesses have voluntarily made ambitious commitments to the values in the areas of human rights, labour standards, and environmental ESG agenda. In 2019, 181 of America’s top business and finan- practices”, proposing that the business world and the UN jointly cial leaders signed the Business Roundtable’s Statement on the initiate a “global compact of shared values and principles, which will give a Purpose of a Corporation,4 publicly committing to lead their compa- human face to the global market ”. Kofi Annan’s speech and invita- nies for the benefit of all stakeholders, including customers, tion resonated with business leaders worldwide and in July 2000, employees, suppliers, communities and shareholders. The the UN Global Compact was launched. This global movement, following year, the World Economic Forum (WEF) released which began as a small initiative involving just 44 companies, the new Davos Manifesto – The Universal Purpose of a Company in now has over 12,000 signatories and is the world’s largest initia- the Fourth Industrial Revolution5 – stating that companies should tive to advance corporate sustainability.1 pay their fair share of taxes, show zero tolerance for corruption, Since its earliest iterations in the form of the Equator uphold human rights throughout their global supply chains, and Principles – a set of risk management guidelines launched in advocate for a competitive level playing field. 2003 to help financiers assess the environmental and social risks Companies are facing significant and growing pressure involved in projects in emerging markets to which they lend from investors, consumers, employees, activists, regulators and – the emerging environmental, social and governance (ESG) society to take strong positions on ESG issues and to be trans- framework has expanded rapidly. In 2004, the UN Global parent on their progress. As noted in the WEF’s recent white Compact published its report Who Cares Wins,2 which first coined paper, “Embracing the New Age of Materiality: Harnessing the Pace of the term “ESG”, making the case that embedding ESG factors Change in ESG”, the majority of Millennials (67% according to into capital markets makes good business sense, leads to more the Boston Consulting Group (BCG)) expect employers to have sustainable markets and delivers better outcomes for societies. purpose and want their jobs to have societal impact. Given that In 2011, the UN continued to advance the ESG agenda, estab- Millennials and Generation Z employees make up 59% of the lishing its Guiding Principles on Business and Human Rights.3 workforce in 2020, this is a call that businesses are unlikely to In the regulatory arena, ESG has grown to encompass a broad ignore. The same white paper stated that, according to BCG, range of “soft” and “hard” laws and regulatory requirements 72% of European consumers prefer to buy products with envi- that create a framework for businesses, investors and lenders to ronmentally friendly packaging and that, globally, 46% of better meet expectations regarding the incorporation of mate- consumers are willing to forgo preferred brand names in favour rial ESG considerations into their decision-making processes. of eco-friendly products. Some 38% of global consumers also In the last few years, ESG factors have risen to the forefront of indicate the willingness to pay a premium for eco-friendly and business and investor mindset. This shift is largely due to (i) sustainable materials. growing demands from consumers, voters, activists and inves- Shareholder activism in relation to ESG matters also continues tors in relation to corporate transparency, and (ii) increasing to rise. The raft of shareholder resolutions in recent UK company regulatory and litigation risks associated with ESG, as soft law annual general meetings (AGMs) have covered ESG matters measures continue to be transposed into hard laws with “teeth”. across the board. In addition to broader corporate governance issues, particular concerns have included executive remuneration and pensions, board diversity and gender equality, and human Key drivers: Why does ESG matter for business? rights issues in supply chains. As some of the world’s largest asset managers, including BlackRock and Vanguard, step up their Businesses are increasingly cognisant of their duties to the activism in relation to climate change, the pressure for greater communities within which they operate. This shift in focus corporate transparency and disclosure is mounting. Environmental, Social & Governance Law 2021 Herbert Smith Freehills LLP 29 ESG investing has seen a meteoric rise, as asset owners and ESG factors into investment decisions suggest that ESG perfor- asset managers seek to reduce investment risk and maximise mance will play a growing role in the cost of, and access to, capital. risk-adjusted returns.6 One of the challenges that the growing This can already be seen amongst lenders, with demonstrably interest in sustainable investment products has underscored is “green” borrowers facing lower financing costs than “brown” the importance of ensuring that businesses and asset managers borrowers, and with a growing number of lenders incorporating produce clear and comparable ESG disclosures. The difficulty ESG metrics in their credit analysis and borrower evaluation. lies in the absence of a global, standardised ESG reporting framework; however, there are moves in that direction. New approach to due diligence Regulation Traditionally, buyers have focused primarily on a target’s histor- ical financial and operational performance and compliance, Businesses operating within (or with links to) developed econ- being more sceptical of medium- to longer- term projections. omies have been regulated for many years in areas such as anti- Non-financial issues used to be considered on the basis of the bribery and corruption, anti-money laundering, health and target’s current compliance with law and regulation as they safety, environmental concerns and employment matters. These stood at the time of the review. obligations are increasingly accompanied by disclosure and Due diligence for ESG issues requires a much broader ana- reporting requirements aimed at driving greater transparency, lysis of potential risk exposures for the target company, having which in turn is leading to increased levels of activism and litiga- regard to sector, products and jurisdiction. Now, more than ever tion risk as it becomes easier to scrutinise corporate behaviour. before, buyers need to examine carefully whether a target will Europe remains the leader in