An Open Goal for Investors

Richard Gardiner, EU Public Policy Lead at the World Benchmarking Alliance, says CSDDD offers a rare opportunity to improve corporate human rights risk accountability.

The EU’s recently approved Corporate Sustainability Due Diligence Directive (CSDDD) has the potential to systematically change the way corporations approach their human rights risks, both within their operations and supply chains. It will do this by setting a legal baseline outlining exactly how the largest multinationals operating in the EU are expected to address these risks across their global supply chains.

The passing of this law has been hailed as a significant victory in the sustainability community. Investors in particular should be paying close attention to these developments, as CSDDD presents both challenges and opportunities that can significantly impact their portfolios.

Why CSDDD matters to investors

One of the most compelling reasons for investors to care about and invest time in understanding CSDDD is the enhanced leverage it provides. The law offers a legal and political framework to mandates companies to proactively tackle their human rights risks, which investors can utilise to push for greater corporate accountability. By directly referencing these legal obligations, investors can exert pressure on companies to engage more deeply with human rights issues within their value chains. Unlike the existing voluntary global standards, the leverage provided by CSDDD is not just theoretical. It has practical implications for improving corporate behaviour and, by extension, protecting the long-term value of investments.

Investors are not merely passive observers of corporate performance but have a proactive role to play. By incorporating CSDDD in their responsible investment practices, investors can ensure that the leverage provided is not just a by-product of the law but becomes a mainstream expectation across the investment community. This mainstreaming is vital for preventing and addressing both current and potential negative impacts on people, managing financial risks, and meeting the evolving expectations of beneficiaries, civil society, regulators and clients.

Current landscape and investor opportunities

This pressure point is more important now than ever. Data from the World Benchmarking Alliance’s Corporate Human Rights Benchmark (CHRB) underscores the urgency of CSDDD. Although 66% of benchmarked companies in high-risk sectors have demonstrated improvement on key human rights indicators, a staggering 40% still disclose no or insufficient evidence of a human rights due diligence process. This indicates a significant gap between current practices and the standards that the CSDDD aims to enforce. Investors, armed with the

Labour’s Green Plan to Seduce Pension Funds

The UK’s main opposition party is predicted to claim an emphatic win at the upcoming election on a bold climate agenda – and pension funds are being asked to fund it.

How do you pay for a multi-trillion-pound energy transition when you have no money? That’s an awkward question facing the British Labour Party, which polls suggest is on track to win a landslide victory in the UK general election next week. Most forecasts predict the biggest ever defeat for the…

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Policy Taskforce will Drive Government Action on Net Zero

Appointments signal growing momentum behind UN-sponsored efforts to promote policy consistency to support non-state actors’ commitments.  

The recently-confirmed members of a taskforce created to increase the quality and consistency of private sector net zero pledges are targeting COP29 for their assessment of enabling environments in Group of 20 (G20) countries.   The Taskforce on Net Zero Policy will play a pivotal role in ensuring policymakers effectively enable…

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Take Five: Goodnight Vienna

A selection of the major stories impacting ESG investors, in five easy pieces. 

A big step forward was taken this week by Europe to protect nature, or was it?

Viennese waltz – Sighs of relief rather than celebratory cheers greeted the formal adoption of the Nature Restoration Law (NRL) by the Council of the European Union. The NRL, which commits to restoring at least 20% of member states’ land and sea areas by 2030, had failed to secure sufficient backing from governments in March. And it only scraped through this week after Austria’s climate and environment minister defied senior coalition partners, prompting fury and threats of legal action from Chancellor Karl Nehammer. It remains possible that the NRL – which barely survived a bumpy passage through the European Parliament last year – could yet face a reverse. This would be embarrassing for Europe to say the least, and far from helpful to efforts in Colombia in October to build out the Global Biodiversity Framework, particularly given the limited progress made on setting COP16’s agenda at an interim summit in Kenya last month. Even if the NRL remains untrammelled by Austrian political strife, intergovernmental negotiations on how its objectives are met via member states’ national restoration plans will be instructive, given Europe’s recently redrawn electoral landscape.

The next big thing – It can take a long time to become an overnight success. And many other factors besides. Chipmaker Nvidia took 25 years to reach a market capitalisation of US$1 trillion, before more than trebling in value to US$3.3 trillion in 12 months, overtaking Microsoft and Apple this week to become the world’s largest company. The firm’s meteoric rise stems from its strong positioning to profit from the explosion of investment in AI, which is rapidly expanding beyond the IT sector to early adopters in fields such as finance and healthcare, and predicted use cases elsewhere. But does Nvidia deserve a place in a sustainable investment portfolio? The California-based firm’s ESG scores are impressive, which is not a given for a sector known for resource consumption, especially water. But a bigger sustainability question might be raised with regard to Nvidia’s client base, which has yet to prove it can deliver on AI’s promises reliably or ethically. Governance concerns and social risks have worried policymakers and investors increasingly, with rules being introduced in multiple jurisdictions and questions being asked at the recent

ESAs Add More Ideas into SFDR Mix

In a bid to simplify the regime, the European Supervisory Authorities run the risk of adding complexity, regulatory specialists say. 

The European Supervisory Authorities’ (ESAs) proposal for a revamped Sustainable Finance Disclosure Regulation (SFDR) may seek to clarify the regime, but lawyers are concerned it could make it diverge from other jurisdictional rules, creating disruption for fund managers.  The European Banking Authority (EBA), European Insurance and Occupational Pensions Authority (EIOPA), and…

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Take Five: Balance of Power

A selection of the major stories impacting ESG investors, in five easy pieces. 

A stark message in Bonn underlined the tensions between electoral cycles and long-term sustainability.  

Climate “collusion” – Republican politicians faced off against US institutional investors on Capitol Hill this week, in the latest round of the war on ‘woke’ capitalism. Having published a report claiming “bullying” of members by the investor-led Climate Action 100+ (CA100+) coalition, the House Judiciary Subcommittee on the Administrative State, Regulatory Reform, and Anti-trust heard from investor network Ceres, shareholder advocacy group As You Sow and CalPERS – the US’s largest public pension fund. Ceres CEO Mindy Lubber opened her testimony asserting: “Climate change, water scarcity and pollution, and nature loss … pose material financial risks to investment portfolios, business operations and supply chains, thus to the long-term stability of our markets and the economy.” As a member of its global steering committee, Lubber was also representing CA100+, which insisted its members “act as independent fiduciaries, responsible for their individual investment and voting decisions”. The stated purpose of the hearings was to decide whether current laws are sufficient to “deter anti-competitive collusion” to promote ESG-related goals in the investment industry. A legal memo recently secured by the US Sustainable Investment Forum found that firms and investors acting in concert on climate risks “are not violating fiduciary duty and are at negligible risk for anti-trust claims”. Even so, the hearings could be contributing to rising outflows from sustainable investment vehicles, with investor behaviour in the US diverging from elsewhere. Among the evidence cited for reduced appetite was the closure of several funds by BlackRock, some sustainability focused, others – less so, including one targeting opportunities arising from remote working. But it’s far from clear whether the world’s largest asset manager has given up on sustainable investing, given its launch this week of a series of climate transition-focused exchange-traded funds.

Slightly right – The rightward shift of the European Parliament following last week’s elections has prompted divergent views on its implications for the Green Deal that MEPs spent much of the past five years constructing. Centre- and far-right parties swelled their presence largely at the expense of the Greens and the moderate liberal Renew grouping – albeit with voting outcomes contrasting vastly across member states. There is scope for this new cohort to weaken some measures that are still being finalised, such as the

France’s Fight Against Fast Fashion

Sylvie Gallage-Alwis, Partner at Signature Litigation, explains how a bill passing through the French Parliament aims to challenge unsustainable business models in the apparel sector.   

Fast fashion has transformed how we buy our clothes, generating more than US$1.7 billion in global sales revenues last year. More recently, ultra-fast fashion clothing has emerged, providing greater choice at an even lower cost. Despite the obvious benefits to consumers, the French Parliament wants to limit its environmental and sustainability impact through regulation. A bill (no. 2129) passed in March 2024 by the National Assembly, the lower house of the French Parliament, is a first step in that direction.

As a relatively new phenomenon, no legal definition exists. Although the English phrase ‘fast fashion’ is commonplace in France, specific French terms are also used, which translate as: short-lived fashion, express fashion, flash fashion, and disposable fashion. Such label diversity makes itdifficult to define legally.

It could be argued that a company creates fast fashion when production cycles are shortened to ensure a constant renewal of product lines at low prices. Mass production now dominates, representing seven out of every ten items of clothing sold in France. But companies producing ultra-fast fashion go further still: even cheaper than their competitors, they offer up to 10,000 new items in real time online – up to 900 times more products than traditional French brands.

Fast fashion was clearly targeted in a report published in February 2024 by France’s General Inspectorate for the Environment and Sustainable Development (IGEDD). Using the criterion of synthetic fibres in the manufacture of clothing, it accused fast fashion companies of creating pollution through their use of microplastics.

Other attempts to define fast fashion have focused on the number of new product lines, known as ‘references’, an industry-specific practice. Following discussion in the French National Assembly over Bill no. 2129, the definition of fast fashion was extended to include sales made online.

Included in the bill’s definition is a calculation of the number of references “displayed on the electronic interface” by e-market suppliers – to be based on thresholds set by decree by the French Council of State. Notably, the number of unsold items will not be considered in the calculation, provided that these unsold items were not originally owned by the sellers.

The French Parliament has tried to regulate fast fashion before – for example, the 2020 ‘anti-waste’ law, which introduced a

ESMA Tackles Greenwashing with New Tool

The EU watchdog plans to ramp up scrutiny of sustainable financial products, warning providers not to make “unsubstantiated” claims.

The European Securities and Markets Authority (ESMA) has developed a new tool that will enable it to better identify cases of greenwashing in the investment management industry. In a new report, the watchdog said it had recently increased its analytical efforts to detect mismatches between green claims and actual investment…

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Take Five: Modi Feels the Heat

A selection of the major stories impacting ESG investors, in five easy pieces. 

Climate wasn’t high on the ballot in India’s election, but Modi must soon face uncomfortable truths on coal.

Modi feels the heat – Conducted in record temperatures, the world’s biggest exercise in democracy dealt a blow to the ego of incumbent Prime Minister Narendra Modi, but it’s less clear how the outcome of India’s general election will impact its net zero transition. Stock prices were down this week on the assumption that reliance on coalition partners would slow the pace of the infrastructure investment plans of Modi’s ruling Bharatiya Janata Party (BJP). The impact of the election on India’s climate policy might be less significant, for a number of reasons. First, other priorities regularly topped polls of voter concerns, notably inflation and unemployment, although this has evolved recently, partly due to increased instances of climate-induced physical impacts, from landslides to floods to severe crop losses. Second, both the BJP and its leading opponent, Congress, are strongly committed to India’s continued adoption of renewables, albeit via different means – with the challenger party promising in its manifesto a new green transition fund and more resources for India’s National Adaptation Fund. A third reason, which leads on from the first two, is that neither major party has been forced to properly address India’s biggest climate problem – vast and rising emissions from coal. Indeed, current policy is for domestic production to increase up to 2040 to reduce reliance on imports. Coal – and Modi’s close relationships with the controversial Adani Group – notwithstanding, the BJP’s record on solar and hydrogen investments, and fossil fuel subsidy reductions is impressive. But regardless of the make-up of the coalition, India’s next government will need to up the ante to have a hope of meeting even its existing climate commitments, such as installing 500GW of renewables, which will handle 50% of electricity demand, by 2030.

Down, not out – Support for climate-related resolutions at the AGMs of US firms has been closely watched this proxy season for further signs of a “stewardship depression” witnessed since 2021. But climate votes only tell part of the story, with a high number of social-themed filings also vying for investor backing. These include four shareholder proposals seeking more action and transparency on pay, working conditions and racial equity by Walmart, the world’s largest private employer. Prior to

When is an Asset Manager an ESG Ratings Provider?

Lewis Saffin, Associate at Herbert Smith Freehills, highlights the key takeaways for asset managers from incoming ESG rating regulation in Europe.

Having the support of the European Council and the responsible European Parliament committee, the final compromise text in relation to a regulation on ESG rating activities (the regulation) is expected to start applying 18 months after its entry into force following formal approval and publication. Once live, the regulation will represent the first compulsory rules governing ESG rating activities in Europe.

ESG rating providers are the primary focus of the proposed regulation. However, alternative investment fund managers, UCITS management companies and portfolio managers which use ESG ratings for their products and services carried out in or marketed into the EU (collectively, asset managers) may be in scope if they procure these ratings from third parties or generate them using proprietary ESG methodology.

Asset managers should consider:

whether they are subject to regulatory obligations as an ‘ESG rating provider’ for the purposes of the regulation; and whether they are subject to disclosure obligations as the provider or user of ESG ratings. Can an asset manager be an ‘ESG rating provider’?

The regulation defines an ESG rating provider as “a legal person whose occupation includes the issuance and publication or distribution of ESG ratings on a professional basis”.

ESG ratings are broadly defined and could potentially include any sort of ESG scoring system.

As such, any asset manager which uses a proprietary methodology to generate ESG scores would potentially be issuing ESG ratings and fall within the definition of an ‘ESG rating provider’. However, there are certain exemptions from the substantive licensing, organisational and methodological obligations for ESG rating providers which could be availed of by asset managers.

Relevant exemptions for asset managers

The main carve-outs from the regulation which will be relevant to asset managers relate to:

private ESG ratings which are “not intended for public disclosure or for distribution”; ESG ratings issued by regulated financial undertakings that are used exclusively for internal purposes or for providing in-house or intragroup financial services or products; and disclosures mandated by certain provisions within Regulation (EU) 2019/2088 (the Sustainable Finance Disclosure Regulation; SFDR) and Regulation (EU) 2020/852 (Taxonomy Regulation).

Moreover, where an asset manager issues an ESG rating which is both (i) incorporated in a product or a service which is already regulated under EU law; and (ii) disclosed to