Sustainability: recent ESG developments
Environmental, Social and Governance ("ESG") factors have fast risen to the top of the board agenda across all sectors, with increasing awareness that a failure to address these matters can be detrimental both financially and reputationally. Investor pressure, internal governance and the proliferation of regulatory requirements and voluntary standards across the globe makes this a complex area to manage.
This newsletter is intended to assist banks, financial investors and corporates in keeping up to date with ESG developments.
Further details of these and previous developments can also be found on our Green and Sustainable Finance Topic Guide on the Clifford Chance Financial Markets Toolkit and further related resources can be found on our Clifford Chance ESG page
This regular newsletter is a digest of key developments on Sustainability and ESG from around the Clifford Chance network, including:
- Legal and regulatory developments
- Official publications
- Industry guidance, voluntary codes and publications
- Advocacy group publications
- Clifford Chance briefings and blogs
- Clifford Chance events
The Section on Legal & Regulatory requirments is published below
LEGAL & REGULATORY DEVELOPMENTS
- (23 April 2022): The European Parliament, the French presidency of the Council of the European Union and the European Commission reached an agreement on the scope of the Digital Services Act (DSA). The DSA sets out an "unprecedented new standard" for the accountability of online platforms regarding illegal and harmful content and aims to provide better protection for internet users and their fundamental rights, as well as define a single set of rules in the internal market which should assist smaller platforms to scale up their businesses and operations. The DSA will also include EU-wide due diligence obligations that will apply to all digital services that connect consumers to goods, services or content.
- (13 April 2022) The Committee of Permanent Representatives (Coreper) approved the EU Council's negotiating position on the EU Commission's proposed regulation on a European green bond standard (EuGBS). | EESC opinion
- (13 April 2022) The European Insurance and Occupational Pensions Authority (EIOPA) published for consultation draft guidelines on integrating customers' sustainability preferences in the Insurance Distribution Directive (IDD) suitability assessment process. Comments are due by 13 May 2022. | Press release
- (6 April 2022) The European Commission adopted a delegated regulation setting out regulatory technical standards (RTS) under the Sustainable Finance Disclosure Regulation (SFDR). The RTS specify the content, methodologies and presentation of the information that must be provided by financial market participants and financial advisers in relation to sustainability-related disclosures in the financial services sector and are accompanied by annexes setting out templates on disclosure. The delegated regulation has been transferred to the European Council and Parliament for scrutiny and is scheduled to apply from 1 January 2023.
- (5 April 2022) The European Parliament announced that it would enter into negotiations with EU governments on a European Commission Proposal for a Pay Transparency Directive. The proposed directive would require EU companies with at least 50 employees to disclose information allowing their employees to compare salaries and expose any existing gender pay gap. The proposed Directive is fully in line with the EU’s commitment to the UN 2030 agenda and contributes to the implementation of the UN Sustainable Developments Goals (SDG), in particular SDG 5 on achieving gender equality and empowering all women and girls | Press release.
- (4 April 2022) The European Commission has published a call for evidence and targeted consultation on the functioning of the ESG ratings market in the EU and on the consideration of ESG factors in credit ratings. The call for evidence seeks views aimed at strengthening the reliability and comparability of ESG ratings and ensuring that relevant ESG risks are captured in credit ratings, in particular by improving transparency of the impact of ESG risks on individual credit ratings. The targeted consultation sets out a questionnaire aimed at informing the Commission of the need for possible EU intervention in relation to the functioning and potential shortcomings of the ESG ratings market and possible shortcomings relating to the consideration of sustainability factors in credit ratings, and disclosures made by credit rating agencies. Comments are due by 6 June 2022.
- (5 April 2022) The Australian Federal Executive Council approved the ratification of the International Labour Organization (ILO) Protocol of 2014 to Forced Labour Convention 1930 (No. 29) (the Protocol), following a recommendation by the Joint Standing Committee on Treaties that binding treaty action be taken with respect to the Protocol. The Protocol includes obligations to prevent and suppress forced labour, protect victims and provide access to appropriate and effective remedies, and penalise the perpetrators of forced labour and end their impunity.
- 20 April 2022) Canada's Labour Minister Seamus O'Regan announced that the Liberal government is preparing a "comprehensive" bill that would require Canadian businesses and government departments to examine their supply chains and corporate practices. The bill would have a transparency element, requiring businesses to report on their supply chains, as well as a due diligence component.
- (20 April 2022) The National People's Congress of the People’s Republic of China approved the ratification of the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105). The ratification of these two Fundamental Conventions brings the total number of International Labour Organization (ILO) Conventions ratified by China to 28, six of which are Fundamental Conventions.
- (12 April 2022) The Ministry of Economic Affairs and Employment of Finland prepared a memorandum investigating the options for the content of a due diligence obligation in national legislation that would apply to Finnish companies. The memorandum considers, among other things, the legislative alternatives for meeting businesses' due diligence obligations and the effect of the obligation on human rights, the environment and companies, and the necessary conditions for implementing such legislation.
- (27 April 2022) The Association Française de la Gestion Financière, the French Asset Management Association, published an explanatory guide (in French) drawn up by a working group to help asset management companies implement specific provisions regarding gender balance. The new provisions are included by Law n° 2021-1774 of 24 December 2021(“RIXAIN” law) in the Monetary and Financial Code (L. 533-22-2-4).
- (5 April 2022) The Lower House of the Netherlands Parliament submitted a draft bill (in Dutch) on the Amendment of the Pension Act and the Occupational Pension Scheme (Obligatory Membership) Act to the Lower House. The aim of the draft bill is to regulate the Accountability Body (Verantwoordingsorgaan - Vo) and the Stakeholders’ body (Belanghebbendenorgaan - Bo) to acquire a right of consultation on the exclusion and socially responsible investments policy pertaining to pension funds.
- (1 April 2022) The National Treasury of South Africa announced the first national Green Finance Taxonomy. The Taxonomy is designed for investors, issuers, lenders and other financial sector participants to track, monitor, and demonstrate the credentials of their green activities in a more confident and efficient way.
- (21 April 2022) The UK government tabled an amendment to the Health and Care Bill which aims to eradicate the use of goods and services in the NHS that have been produced by or involving any kind of slave labour. The power would allow the government to impose regulations that set out the steps that the NHS should be taking to assess the level of risk associated with individual suppliers and the basis on which the NHS should exclude them from a tendering process. The amendment was considered in the House of Commons on 25 April 2022.
United States of America
- (20 April 2022) The State of Mississippi, passed the equal pay bill into law and is the last state to pass such legislation. Mississippi's new law is solely focussed on gender unlike many other states where race-based pay is referenced. However, the legislation allows an employer to pay someone less based on salary history or if there any gaps in their employment history. This new law comes into effect 1 July 2022.