Due Diligence

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Companies are increasingly recognising that climate risk poses “strategic and operational risk” that could severely impact business operations. On 3 August 2023, United Nations Global Compact released Just Transition in Supply Chains: A Business Brief (the “Brief”).  At the heart of the Brief is a call for businesses to embed the concept of ‘just transition’ into supply chain risk management, taking into account both the environmental and social impacts of their supply chains. There is real concern that as companies increase their climate mitigation and adaptation activities, such actions may have unintended consequences that negatively affect workers, small businesses and local communities that drive global supply chains. On the other hand, integrating climate and social risks into a business’ core business and risk management could be “mutually reinforcing” and could “deliver valuable co-benefits”.…

Continue Reading UN Global Compact Publishes Business Brief on Just Transition in Supply Chains

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On 8 June 2023, during their Ministerial Council Meeting in Paris, the Organisation for Economic Co-operation and Development (“OECD”) launched an updated version of its Guidelines for Multinational Enterprises (the “Guidelines”). This is the first update to the Guidelines since 2011 and the changes represent substantial and far reaching new expectations for multinationals, particularly in relation to areas of their operations or business which may have human rights or environmental implications. This update sets out a brief overview of the OECD Guidelines and some of the key updates since the 2011 Guidelines.…

Continue Reading A new era for human rights and environmental due diligence: the OECD launches updated Guidelines for Multinational Enterprises

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On 31 May 2023, the European Parliament and the Council of the European Union adopted Regulation (EU) 2023/1115 regarding the marketing and export of certain commodities and products associated with deforestation and forest degradation from the European Union. In this Legal Update, we delve into the regulation and highlight what operators and traders should know…

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On 1 June 2023, the European Parliament (the “EP“) plenary session adopted its proposed amendments to the draft EU Corporate Sustainability Due Diligence Directive (“CSDDD“).

The adopted text largely mirrors the version voted on by the EP’s Legal Affairs Committee in April 2023 (which we discussed in our earlier blog post), in that it confirms that:

  • asset managers and institutional investors will be in-scope;
  • the due diligence requirements will apply to: (i) EU companies with over 250 employees and a global turnover of over €40 million; (ii) parent companies with over 500 employees and a global turnover of over €150 million; and (iii) non-EU companies with a global turnover of over €150 million if at least €40 million of this was generated in the EU; and
  • directors of companies with more than 1,000 employees will be responsible for ensuring the company implements a transition plan that is compatible with the goals of the Paris Agreement.

The adopted text also confirms that non-compliant companies may be liable for damages and could be sanctioned by the national supervisory authorities of EU member states. Sanctions include taking a company’s goods off the market and/or the imposition of fines of at least 5% of a company’s net global turnover. Non-EU companies that fail to comply may also be banned from public procurement in the EU.…

Continue Reading Human Rights and the Environment – European Parliament adopts amendments to draft Corporate Sustainability Due Diligence Directive

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On 25 April 2023, the European Parliament’s Legal Affairs Committee voted in favour of a revised version of the EU draft Corporate Sustainability Due Diligence Directive (“the Draft Directive”).

The revised version differs from the versions that we have previously commented on here, here and here in the following key respects:

  • Inclusion
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Risk Management

Companies must recognise that they are subject to increased expectations in terms of effective identification and management of social issues. A failure to do so – and the resulting inequality – is increasingly seen as representing a systemic risk to the resilience of business operations and value chains. Expectations are reinforced by the wave of new due diligence regulations and reporting standards focussed on addressing both the ‘E’ and ‘S’ in ESG (see, for example, our earlier blog posts on the EU’s Corporate Sustainability Reporting Directive here, as well as on the UK Financial Conduct Authority’s Greenwashing rules here).

CFOs have a critical role in communicating how companies are addressing wider social issues linked to their business operations and ensuring companies’ compliance with related regulations and reporting standards. To help CFOs execute this role effectively, the World Business Council for Sustainable Development (the “WBCSD“) and Shift have released a primer for CFOs for advancing the ‘S’ in ESG (the “Report“). The Report aims to provide a starting point for CFOs working to address the demands and challenges associated with the ‘S’ in ESG, covering both an overview of the what, the who and the how of corporate social performance and key recommendations for improving the measurement of that performance.…

Continue Reading Business and Human Rights – a “primer” for CFOs for advancing the ‘S’ in ESG

Governance

On 28 February 2023, the Judicial Court of Paris (the “Court”) issued an interim order (the “Order”) in the context of a judicial dispute concerning compliance with the French Law n°2017-399 of 27 March on the Duty of Vigilance (the “French Vigilance Law”). This decision is the result of a lengthy judicial process that started back in 2019 when the defendant was summoned by several NGOs before the Court for an alleged lack of compliance with its obligation of vigilance.…

Continue Reading Business and Human Rights: first French case-law on the Duty of Vigilance – judges adopt a cautious approach to avoid judicial interference in corporate management

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On 24 January 2023, each of the European Parliament’s trade committee and economic affairs committee reached agreed positions on the financial aspects of the draft Corporate Sustainability Due Diligence Directive (the “Draft Directive”). The agreed positions mark a departure from the European Commission’s and the Council of the European Union’s previous positions on the…

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By far the largest focus in recent years in terms of ‘responsible investment’ has been on the ‘Environment’ limb of ESG. The UN Principles of Responsible Investment (“PRI“) – an international organisation working to encourage the integration of ESG factors into investment decision making – is now seeking to change this with the launch of its ‘Advance‘ initiative, which is a “collaborative stewardship initiative where institutional investors work together to take action on human rights and social issues”. This forms part of a renewed effort to reinvigorate the ‘Social’ and ‘Governance’ limbs to ESG and bring social initiatives to the forefront of ‘responsible investing’.…

Continue Reading Business and human rights: investors commit to action on human rights and social issues via the world’s largest human rights stewardship initiative

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On 6 December 2022, the Council of the European Union (the “Council“) and the European Parliament (the “EP“) reached a provisional agreement on a proposal to minimise the risk of deforestation and forest degradation with products that are imported into, or exported from, the EU (the “Agreed Position“). The…