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How To
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Acknowledgements
We hope you find this toolkit informative and useful. The book is the product of collaboration across many
practices at Hughes Hubbard & Reed. We could not have completed it without the generous efforts of many
members of our ESG Practice, whom we wis
How To A Resou for Esta an ESG for your ESG: rce
Acknowledgements We hope you find this toolkit inf
Foreword “[T]he challenge is in the moment; the
Table of Contents DEFINING ESG FOR YOUR FIRM . .
ESG FOR FUNDS AND ADVISERS. . . . . . . . . . . .
1 Defining ESG
Defining ESG For Your Firm 1.1 FRAMEWORKS FOR DI
Many organizations launched efforts to offer guid
Issuers’ efforts at ESG reporting and disclosure
and results. Much has been written on the subject
Second, on March 21, 2022, the SEC published a lo
The 2021 Guidance notes that the SEC Staff, in re
• Create a centralized or coordinated review f
Several organizations have developed (or are deve
o The Science Base Targets Initiative (SBTi) i
o SBTi also publishes field-building work on me
2 Establishing
Establishing the ESG Response Team
2.1 THE GOAL SETTERS The first step in assemblin
The remit of the Program Developers is to assess
2.4 THE OUTSIDE CONSULTANTS There are several g
Survey findings: Perceptions of business imp
Fair prices, wages and labor conditions motivate
supporting ESG priorities.7 Accordingly, the ESG
2.5 THE GOVERNMENT There must be a role on a co
2.7 THE COMPLIANCE TEAM Last, but not least, th
3 Regulations an
Regulations and Foreseeable Developments 3.1 EU
• certain undertakings which are subject to th
Enforcement will play a key role in ensuring the
Under the SFDR, financial market participants are
It is important to note that the SFDR does not pr
The CSRD aims to harmonize and simplify sustainab
3.2 UNITED STATES SEC Regulation of Environment
Meanwhile, the SEC wrestled with its duty and aut
While the 2010 Guidance was a first step in the ri
the availability of the new information proposed
SEC Regulation of Social and Governance Disclosur
Also, on August 6, 2021, the Commission approved
5. postponed the effectiveness of a 2019 rule t
Other Agencies and the Executive Branch Presiden
• descriptions of governance arrangements and
In December 2021, China’s Ministry of Ecology and
In December 2021, the Singapore Exchange publishe
India In May 2021, the Securities and Exchange B
These tools have several objectives: to assist lo
More recently, in December 2021, the Tunis Stock
Kenya Since the adoption of the Nairobi Securiti
In addition, Australia has introduced, at the fed
3.7 LATIN AMERICA Introduction Over the last s
In 2020, Suzano, one of the largest pulp and pape
These developments come at a time when Mexico’s g
Paraguay Paraguay has had a strong commitment to
4 ESG for Lende
ESG for Lenders and Borrowers 4.1 OVERVIEW OF S
Recent Developments in the ESG Market The focus
• Occidental Petroleum Corporation (“Occidenta
For the environmental indicator, a renewable-ener
Deciding what qualifies as “green,” “social” or “s
Documentation Loan Agreements. In the ESG contex
Some lenders seek to build long-term relationship
Islamic Finance Overview Islamic finance is a typ
As discussed in Chapter 4.1—Overview of Sustainab
A sustainable sukuk is a sharia-compliant investm
Even in the case of a true sale of assets to the
Further Considerations Modern Islamic finance has
5 ESG for Operat
ESG for Operating Companies 5.1 PUBLIC COMPANY
The SEC’s voluminous March 2022 release, proposin
• The 2010 interpretative guidance,6 focused p
4. The physical effects of climate change on op
3. Reputational risk; 4. Physical effects of
• Financial statement metrics: The audited fina
Each registrant would provide these disclosures i
Because these disclosures will be mandatory to th
5.2 STAKEHOLDER CAPITALISM “In essence, the New
However, in the second half of the twentieth cent
Stakeholder capitalism is not just a salve for pr
The Conference Board ESG Center held a series rou
CLOs: The Conference Board’s CLO participants vie
5.3 SHAREHOLDER ACTIVISM "[W]e are on the front
Activist campaigns that are well-planned29 have g
• Interest in cultivating the attention ESG-re
5.4 PUBLIC VS. PRIVATE COMPANIES Much of the fo
Impact investing in particular, as a style of ESG
6 ESG for Funds
ESG for Funds and Advisers A vast proportion of
6.2 APPLICABLE LAW AND REGULATION United States
The SEC has not adopted any specific rules around
The second proposal prescribes new disclosure req
• Impact Funds are a subset of ESG-Focused Fun
Recent Enforcement Actions. In 2021, the Division
In October 2021, the UK’s economic and finance min
• Funds and Advisers that claim to follow part
in March 2021, and Level 2 technical standards go
The FCA proposed two initiatives relating to sust
• French authorities have adopted an SRI label
• Principles for Responsible Investment (PRI),
• The Investor Agenda publishes a comprehensiv
• The IFRS Foundation established the ISSB, wi
6.5 QUALIFIED BENEFIT PLANS/FIDUCIARY DUTY Qual
The DOL withdrew the 2008 guidance and confirmed i
In 2021, as part of an omnibus executive order,41
7 Topics Your ES
Topics Your ESG Program May Cover 7.1 NET ZERO
2. Identifying and quantifying the company’s Sc
In February 2022, the New Climate Institute and C
• Measurement criteria: Measurement criteria c
• Offsets versus reductions: Ten of the 25 ass
It is not just operating companies that are findin
The rationale behind TNFD is that natural resourc
• Guidance for TNFD’s risk assessment methodol
TNFD plans to publish subsequent beta versions of
starting to tackle these challenges.47 In other w
o ENCORE (Exploring Natural Capital Opportunit
• The EU Business @ Biodiversity Platform is a
7.3 DIVERSITY, EQUITY, AND INCLUSION The “Socia
• Inclusion: Inclusion focuses on ensuring tha
Nasdaq Rules 5605(f), 5606, and 5900-9 On Augus
Shareholder derivative lawsuits In past years,
7.4 DUTY OF CARE AND ANTI-SLAVERY Regulatory Fr
While certain bills are intended to prevent speci
The extent of the above obligations varies depend
8 ESG Investigat
ESG Investigations and Enforcement A need for
Where an allegation involves a potential violatio
From the earliest stages of an investigation, the
Team (cf. Chapter 3), who should be subject-matte
important to note that a company’s obligation to
The Department of Justice also offers leniency or
Similarly, a company may consider voluntarily rep
At the outset of an interview, the investigation
8.3 REMEDIATION Remediation efforts should begi
GLOSSARY OF ESG-RELATED TERMS Carbon Footprint
Dynamic Materiality o A concept that acknowl
Greenwashing o When an organization presents
Stewardship o The use of influence by ESG-min
ESG TOOLKIT INDEX OF ORGANIZATIONS Business Roun
Climate Action 100+ o An investor-led initia
European Commission High-Level Expert Group (HLEG
Net Zero Asset Managers Initiative o An inte
Task Force on Climate-related Financial Disclosur
World Economic Forum International Business Counc