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Environmental, Social and Governance ("ESG") Practice

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Quinn Emanuel is at the forefront of the emerging field of disputes implicating “ESG”—Environment, Social, and Governance—issues. As a best-in-class, multi-disciplinary practice, we act in ESG-related disputes around the globe and also advise businesses on how to identify and address ESG and human rights risk in their operations and supply chain. Our expertise is truly international and cuts across sectors—from telecommunications, FMCG, technology and artificial intelligence to construction and engineering and the extractive sector.

As issues of sustainability and corporate citizenship dominate the headlines, consumer demand for ESG investments has surged. A recent Bank of America survey found that 40% of investable assets are now said  to be ESG friendly or compliant. Meanwhile, governments increasingly mandate ESG disclosures; for instance, the European Union’s March 2021 Sustainable Finance Disclosure Regulation imposes obligations on fund managers, financial advisors and certain other firms in the E.U. to disclose information on various ESG considerations to potential investors and on their websites. Similar type of regulations are being considered in the US and the UK. For instance, the UK has indicated that it will adopt the recommendations made by the Task Force for Climate-related Financial Disclosures to make climate-related financial disclosures mandatory for certain firms by 2025, positioning itself as a market leader in this area.

Given the exponential rise in ESG marketing and disclosures, we are likely to see even more government enforcement efforts and civil suits both attempting to ensure compliance with ESG standards and to police the accuracy of ESG disclosures. Indeed, in 2021, the United States  Securities and Exchange Commission (“SEC”) announced the creation of a Climate and ESG Task Force in the Division of Enforcement to identify ESG-related misconduct, including analyzing disclosures relating to investment advisers’ and funds’ ESG strategies. The SEC’s Division of Examinations also announced that one of its annual examination priorities would be to review ESG funds’ advertising for false and misleading statements.

The European Union is also in the final stages of settling the Corporate Sustainability Due Diligence Directive (“CSDDD”), which along with other related EU directives in the ESG space is expected to establish a framework for increased corporate reporting and expanded obligations in relation to human rights and environmental impacts in business’ value chains. The CSDDD, whose scope not only includes EU companies but also non-EU companies with a certain turnover in the EU that operate in high risk sectors, is expected to require public disclosures on the due diligence measures that companies have in place in their operations and value chains in Europe and beyond.

The increase in mandatory and voluntary ESG disclosures—and concomitant scrutiny of those disclosures—creates implications for both legal risk and reputational risk. The best way for businesses to address these concerns—as well as to future-proof against upcoming due diligence legislation—is to take action now to address ESG concerns. Our firm brings to bear multiple capabilities in this regard:

Disputes

Led by Chambers-ranked London partner Julianne Hughes-Jennett, the team has acted in some of the most important disputes in the field: in prosecutions for corporate complicity in crimes under international law brought by several European states; in “parent company liability” and duty of care cases in the English Courts; in class actions brought under the Alien Tort Statute in the US; in complex supply chain disputes involving legal entities in multiple jurisdictions which raise novel questions in tort law and unjust enrichment; in National Contact Point Communications pursuant to the OECD Guidelines for Multinational Enterprises in several States; and in communications made by UN Special Procedures mandate-holders. Our team has world-class expertise in issues of extra-territorial jurisdiction and conflict of laws—critical to cases which involve the responsibility of multinationals headquartered in North America or Europe for impacts which occur overseas. And we have deep knowledge of the legal issues that can arise when businesses operate in conflict zones.

Crucially, we understand how these disputes play out in the public domain. Our experience allows us to tailor a litigation strategy to your specific context and to ensure that it complements your public relations and wider stakeholder engagement strategies. Where appropriate, we can advise on operational grievance mechanisms which are consistent with international human rights standards and which protect your legal rights.

Internal investigations and crisis management

If an organisation is associated with an ESG impact, it needs to act quickly to understand what happened and respond with confidence. We understand that the decisions it makes in these early days can have huge, long-term significance—for the business’s reputation and legal exposure and for the affected rights holders. We have the right blend of expertise to help you get these decisions right. We have run internal investigations which span multiple jurisdictions, conflict zones and complex corporate structures. We can deploy large teams into challenging environments at short notice, engage with internal and external stakeholders and help you to establish what happened and where responsibility lies. We can place this into the appropriate legal framework so that you understand any litigation risk and we can advise on the appropriate response under internationally recognised human rights standards.

Advisory

Drawing on our deep knowledge of how ESG risk to a business’s stakeholders can create legal risk for the business, our advisory practice helps businesses to identify ESG issues in their operations and supply chains and implement practical and effective systems to prevent them from materialising. We carry out ESG impact assessments and ESG due diligence. We support businesses to comply with the growing web of legislation in the field, from the Modern Slavery Act in the UK and Australia to the Duty of Vigilance Law in France. We also guide businesses to anticipate changes in the legislative landscape, such as the CSDDD and proposed legislation in multiple national jurisdictions, by providing practical advice to help future-proof business operations and so that they can plan accordingly. Unlike many law firms, we can go beyond legal compliance and support businesses to substantively engage with ESG issues—thus reducing the ESG risk to rights holders and the legal and reputational risk to the business. Our team offers a blend of legal and consultancy expertise, enabling us competitively to offer a full service to our clients.

Chambers Global recognises us for our unusual mix of disputes and advisory work, describing Julianne Hughes-Jennett as a "passionate and driven practitioner" known for her "great deal of work in dispute resolution and human rights due diligence” and acknowledges her as a "very steady hand in guiding clients" on international human rights issues and liabilities.

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Recent Representations

Environment

  • Representing a leading car manufacturer in NOx emissions claims and in related investigations by national authorities
  • Advising funding investors in relation to a mass environmental damage claim in the English High Court
  • Advising a State-owned oil and gas company concerning business responsibility for harms linked to climate change and greenwashing pursuant to a communication made under the UN’s Special Procedures branch
  • Conducting an investigation on behalf of a multinational extractives company in relation to allegations concerning rights under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
  • Advising a natural resources company in respect of liability, remediation and human rights risks in connection with an environmental incident in its operations in sub-Saharan Africa
  • Acting in the English High Court for an international oil and gas major in a class action regarding environmental damage and parent company liability

Social

  • Representing the Government of Ukraine in inter-State proceedings before the European Court of Human Rights in respect of multiple human rights violations under the European Convention committed by the Russian Federation following its unlawful invasion of Ukraine in February 2022
  • International counsel for the executives of a listed extractive company in a cutting edge criminal investigation and subsequent domestic prosecution into their alleged complicity in crimes under international law
  • Representing one of the world’s largest mining companies in relation to personal injury claims arising out of police operations in and around one of its operations in sub-Saharan Africa. The company is currently defending proceedings commenced in the High Court of Justice in England, the claimants having bypassed the company’s local grievance resolution process
  • Advising a multinational consumer goods company in relation to the structuring of its human rights due diligence and remediation framework to address instances of child and forced labour in its supply chain
  • Advising a multinational energy company on a National Contact Point complaint regarding transparency and human rights due diligence in the ship-building sector
  • Advising a member of the board of directors of a French construction materials company in the scope of a criminal investigation opened in France for complicity in crimes against humanity, financing of terrorism, embargo violation and endangering the life of others in a war zone
  • Advising a French sugar cooperative group following the discovery of bags of sorbitol powder produced in its French factories in Daech warehouses in Iraq
  • Advising a French company specialized in the design and manufacture of passive components and electromechanical solutions in the scope of a criminal investigation opened in France pursuant to a complaint filed by a Palestinian family, with the support of a French non-governmental organization, for alleged manslaughter and complicity of war crimes in Gaza
  • Advising a French company specialized in mineral extraction and processing in the context of its interaction with an international non-governmental organization concerning the company’s alleged activity in Afghanistan
  • Acting in the English High Court for an international oil and gas major in a dispute regarding the ability of the English courts to supervise an operational grievance mechanism
  • Advising a multinational construction and engineering company on systems and processes to identify and address the risk of modern slavery in its supply chains and operations
  • Advising companies in the ICT, retail and energy sectors on their Modern Slavery statements
  • Advising on the human rights responsibility of financial institutions which lend to clients in the palm oil sector
  • Advising an international telco on how to manage the human rights related legal risk associated with their operations and joint ventures in high risk jurisdictions
  • Advising two multinationals with respect to claims related to alleged child labour in their supply chains.

Governance

  • Acting for an anchor investor in a landmark ‘securities claim’ connected to governance omissions, corruption and misrepresentations by a global natural resource company.
  • Conducting on behalf of a multinational consumer goods company a wholescale review of its human rights-related policies and procedures and their compliance with the UN Guiding Principles on Business and Human Rights
  • Advising a multinational technology company on how to develop artificial intelligence which respects human rights
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