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Embedding sustainability into the concept of shareholder value is now a mainstream way of doing business. The circular economy or triple bottom line theory are common parlance with academics and there is an abundance of successful companies that focus on people, planet and profit. However, the relationship between sustainability and shareholder value is one that cuts both ways, because ESG sits at a confluence of commercial opportunity and risk. Whilst ESG credentials can spiral success upwards by helping businesses to access markets, reduce costs and increase productivity, it can just as easily trigger multiple risks or stigmatise a brand.
This article provides a snapshot of the wide variety of sources of ESG related commercial disputes or regulatory investigations under English law and how they interrelate to each other. It considers existing legislation, the role of regulators, carbon emissions and financial disclosure requirements, trends in ESG related litigation and where the boundaries of the law are most likely to be tested (liability in global supply chains and director duties). It is of interest to boards of directors, business owners, investors, FCA regulated firms, General Counsel or in-house legal teams and consultants advising on ESG matters.
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