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The Private Members Bill, if passed, would establish the UK’s first law mandating business due diligence on human rights and the environment.

By Paul A. Davies, Michael D. Green, and James Bee

On 28 November 2023, Baroness Young of Hornsey (Baroness Young) introduced the Commercial Organisations and Public Authorities Duty (Human Rights and Environment) Bill (the Bill) to the UK House of Lords. The Bill seeks to establish the UK’s first law mandating certain companies to conduct human rights and environmental due diligence, and would also introduce an overarching duty for companies to prevent environmental and human rights abuses within their operations and value chains.

The Bill aims to level the playing field among businesses, provide clarity on legal obligations, and enable a greater level of access to justice. It also aims to align UK law with voluntary international standards, such as the United Nations (UN) Guiding Principles on Business and Human Rights, the Organisation for Economic Co-operation and Development (OECD) Guidelines, and the International Labour Organization (ILO) Multinational Enterprises Guidelines.

With the recent UK “Green Day” announcements confirming the government’s support for CCUS, interest in UK CCUS projects is expected to continue to grow. While there are significant opportunities for investors, careful consideration will be needed to navigate a number of industry specific issues to achieve a successful CCUS project.

By Beatrice Lo, JP Sweny, Simon J. Tysoe, Evelyne Girio, James Richards, and Alexander Leighton

As governments and businesses around the world have committed to decarbonisation and achieving net zero by 2050, there has been growing activity in the development of, and investment in, carbon capture, usage and storage (CCUS) technologies. As the UK has one of the greatest carbon dioxide storage potentials of any country in the world (the UK Continental Shelf in the North Sea, accounting for approximately 85% of Europe’s carbon dioxide storage potential and able to safely store 78 billion tonnes), CCUS is a key focus for the government’s decarbonisation ambitions.

The discussion paper aims to encourage industry-wide dialogue on sustainability related-governance, incentives, and competence.

By Anne Mainwaring, Sara Sayma, and Dianne Bell

On 10 February 2023, the FCA published DP23/1: Finance for positive sustainable change: governance, incentives and competence in regulated firms.

The FCA considers that a firm’s governance, purpose, and culture are central to how it embeds environmental and social considerations into business, risk, and capital allocation decisions for the benefit of consumers. With this in mind, the FCA is seeking views on how it can move effectively beyond disclosure-based initiatives to help and encourage firms as they develop their arrangements for governance, incentives, and competence in the area of sustainability.

PE firms face growing regulatory and litigation risks from greenwashing claims as they navigate a fragmented anti-greenwashing landscape.

By Tom D. Evans, Nell Perks, Anne Mainwaring, David J. Walker, and Catherine Campbell

Amid concerns of exaggerated or misleading sustainability claims, the UK Financial Conduct Authority’s (FCA) recent proposal for new labelling and disclosure rules to combat greenwashing (see text box) should put PE firms on alert for a growing range of greenwashing risks. The FCA proposals are just the latest in a wave of new rules and requirements being enacted and contemplated as regulators across jurisdictions look more carefully at green claims and seek to hold regulated firms (including PE sponsors) to account for exaggerated credentials and misstated investment policies.

Similarly, investor and other stakeholder claims over greenwashing are on the rise as firms and portfolio companies come under greater scrutiny and are required to publish ESG disclosures in market-facing and other public information. These claims can be brought under different and overlapping laws, including statute, securities regulations, and “soft law” provisions, making a consistent and proactive risk management approach essential.  

The UFLPA aims to clamp down on the import of items produced by alleged forced labor in and relating to the XUAR.

By Erin Brown Jones, Les P. Carnegie, Paul A. Davies, Nathan H. Seltzer, James Bee, and Allison Hugi

On 16 December 2021, the US Senate unanimously passed the Uyghur Forced Labor Prevention Act (UFLPA), following its approval in the US House of Representatives earlier the same week. The UFLPA is one of several measures that the US hopes to use to prevent what it views as forced labor and human rights abuses in the Xinjiang Uyghur Autonomous Region (the XUAR) of China. The UFLPA is the culmination of bipartisan attempts over a number of months to introduce a bill that would restrict imports from the XUAR.

A relic of the dot-com era may prove useful in attracting investors seeking specific exposures that are ESG-aligned.

By Roberto L. Reyes Gaskin and Anna Ngo

Shareholders, regulators, and other stakeholders continue to drive the integration of environmental, social, and governance (ESG) considerations into corporate strategy and practice. Recent surveys of institutional investors revealed that 22% expected their portfolios to be more than 75% aligned with ESG in the next two years,[1] while 62% stated that an ESG-aligned portfolio was more likely to exceed the market rate of return.[2] Many publicly traded companies are therefore engaged in integrating ESG into their business models, value chains, practices, and reporting.

UK companies should be aware of the increasing focus on corporate culture by regulators on both sides of the Atlantic.

By Nathan H. Seltzer, David Berman, Stuart Alford QC, Christopher M. Ting, and Nell Perks

In a recent speech that has garnered significant attention, US Deputy Attorney General Lisa Monaco highlighted several important changes in how the US Department of Justice (DOJ) will pursue corporate crime during the Biden Administration. (Read Latham’s in-depth Client Alert analysing the speech and its potential impact, and Latham’s blog post highlighting matters of particular relevance to UK PLCs.)

This post highlights the DOJ’s particular emphasis on the importance of “corporate culture”.

By Paul A. Davies, Tom Evans, Nicola Higgs, Farah O’Brien, David Walker, Michael Green, Hannah Berdal, Anne Mainwaring, and Catherine Campbell

Green shoots emerge as PE firms consider new ways to incorporate ESG into dealmaking.

Market sentiment and the increasing importance of environmental, social, and governance (ESG) to firms’ competitiveness across the market, combined with wide-ranging and rapidly developing ESG regulatory reforms, are driving increased focus on ESG at both LP and GP levels across Europe. As a result, the market is showing demand for enhanced diligence, and a wider range of deal provisions are being considered in light of their potential to enhance the ESG outlook of PE investments.

Proposals reflect growing investor focus on the ESG performance of listed companies.

By Chris Horton, James Inness, Rob Moulton, Anna Ngo, and Johannes Poon

The UK Financial Conduct Authority (FCA) has launched a consultation setting out proposed changes to its Listing Rules (LRs) and Disclosure Guidance and Transparency Rules (DTRs). The proposals seek to: (i) increase transparency for investors on the diversity of listed company boards and executive management; and (ii) improve considerations of broader diversity aspects within diversity policies and related disclosures by listed companies.

The consultation opened on 28 July 2021 and will close on 20 October 2021. Subject to consultation feedback and FCA Board approval, the FCA will seek to finalise the relevant rules by late 2021.

A class action by 202,600 claimants arising from the collapse of the Fundão dam in Brazil was struck out as abuse of process.

By Sophie Lamb QC, Oliver Middleton, and Tom Watret

Background

In Município De Mariana & Ors v. BHP Group Plc & Anor (Rev 1),[1] the largest group action in English legal history (by number of claimants) was struck out as an abuse of process by Turner J in the High Court. The case is the latest in a series brought by groups of overseas claimants against the UK-listed parent company of a large multinational in respect of alleged misconduct by a subsidiary in a foreign jurisdiction.[2] The uptick in these large international class actions is likely to continue given the ever-increasing focus on environmental, social, and governance (ESG) fundamentals.

The Court’s decision in this case illustrates some of the important practical implications of attempting class action litigation of this scale and complexity, and highlights the importance of taking prompt remediation steps at a local level following major incidents. Where that includes establishing comprehensive compensation schemes, the decision makes clear that the English courts will be reluctant to allow litigation to proceed in England if such action would cut across the local remediation scheme, particularly if the claimants are entitled to and may already have obtained compensation through a local scheme or local litigation.