Symposia on Directors' Liability for Climate Change Damages
Johannesburg, 16 January 2018 | Cape Town, 18 January 2018
The Commonwealth Climate and Law Initiative (CCLI) organised two high-level symposia in South Africa on the legal basis for directors and trustees to consider, manage, and report on climate change-related risk, and the circumstances in which they may be liable for failing to do so. These events are relevant to a wide range of organisations working on or interested in climate change issues.
The first symposium was held at The Westcliff Hotel in Johannesburg on Tuesday 16 January 2018. The second symposium was held at the Vineyard Hotel in Cape Town on Thursday 18 January 2018.
Both events saw attendance from a broad range of industry representatives, legal practitioners, auditors, consultants and members of the non-profit sector. The panelist presentations and subsequent discussions amongst attendees covered a wide range of topics and contributed to the growing awareness of the potential legal consequences of company directors’ approaches to climate change risk management and disclosure.
They revealed that South Africa is confronted with some unique challenges in how to address climate-related transition risks affecting most of its carbon intensive industry sectors and the portfolios of investors holding stakes in the latter. At the same time, the symposia also revealed numerous opportunities for more advanced collaboration and transparency between the various stakeholder groups. Our symposia were fora for open dialogue providing a platform for the exchange of innovative ideas and multifaceted points of view.
The discussions and presentations reinforced the need for rapid action, as the country is particularly exposed to physical climate change risks and its legal frameworks already mandate companies to appropriately assess, manage, and disclose these risks to regulators and shareholders. Therefore inactivity on behalf of companies and investors will likely engage the liability of directors for violation of their fiduciary and competence duties.
Directors' duties and liabilities around climate risk: the TCFD recommendations
7 December 2017 | Webinar
In this webinar CCLI UK convenors Alice Garton and Alexia Staker exposed the regulatory landscape in relation to the TCFD recommendations and climate risk.
Gone are the days when companies’ boards of directors could ignore the issue of climate change and its financial impacts. We are seeing growing momentum for disclosure of climate-related financial risks, particularly after the release of the TCFD recommendations.
Regulators and legislators are also catching up. A number of European jurisdictions are considering mandatory disclosure requirements similar to those under Article 173 of the French Energy Transition Law, while the UK is looking at implementaion options for the TCFD recommendations. Furthermore, the Australian Prudential Regulation Authority has announced that climate change presents a prudential risk, and shareholders of the Commonwealth Bank filed a lawsuit alleging inadequate disclosure of those risks.
This webinar provided an overview of the regulatory landscape in relation to the TCFD recommendations and climate risk, in addition to a detailed analysis of the current situation in Australia and the UK. It helped to generate a better understanding of the duties directors are responsible for, as well as the liability risks they may be exposed to.
- Adam Peirce, Technical Director, CDSB
- Alexia Staker, Lawyer, ClientEarth
- Sarah Barker, Special Counsel, Minter Ellison
For furher information see: https://www.cdsb.net/events/746/directors-duties-and-liabilities-around-climate-risk-tcfd-recommendations
Symposia on Climate Change and Liability Risks to Directors, Officers and Companies in Canada
Vancouver, BC, 18 October 2017 | Toronto, ON, 20 October 2017
The symposia highlighted what leading companies are doing to manage climate change risk and to develop opportunities from the policy transition underway to a low-carbon economy.
The symposia did involve leading members of Canada's business, law and investment communities to discuss the liability risks to Canadian directors and companies from failing to take seriously the need to transition to a low-carbon economy, and to think through strategies to ameliorate those risks and to promote strong, facilitative governance and regulatory policies for both companies and investors. Discussions addressed boards' and investment trustees' fiduciary obligations to develop climate-resilient strategies; securities disclosure requirements and liability risks; and the best thinking on operationalizing Canada's transition to a low-carbon economy.
These symposia were orgranised and hosted by the founding Canadian CCLI partners. Osgoode Hall Law School of York University as well as the Peter A. Allard School of Law at the University of British Columbia.
Further information including the agendas and proceedings can be found below:
Vancouver, BC, 18 October 2018: http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/uploads/ncbl/pdfs/ccli_van_2017.pdf
Toronto, ON, 20 October 2018: https://hennickcentre.ca/wp-content/uploads/2017/10/Directors-at-Risk-Conference-Final-Agenda-October-20.pdf
Conference Materials: https://hennickcentre.ca/researchers/ccli/conference-materials/
National Environmental Law Association Annual Conference 'Addressing Past Harm, Managing Future Risks'
4 August 2017 | Brisbane
The 2017 NELA conference brought together a range of experts to discuss the state of Australia’s environment, how various States are addressing past impacts, and innovative mechanisms being explored to avoid future harm. Examining mining rehabilitation, groundwater management, climate risk disclosure, sustainable business practices were among the topics of particular interest.
Sarah Barker, Special Counsel, Minter Ellison and CCLI - Climate Change: Why are the Corporate Lawyers Getting Involved?
Roundtable on The Climate Disclosure Challenge – Can existing accounting, reporting and assurance standards accommodate the Financial Stability Board Taskforce recommendations?
31 July 2017 | MinterEllison, Melbourne
This Roundtable was arranged by Chartered Accountants ANZ and CPA Australia, in cooperation with the Commonwealth Climate & Law Initiative (CCLI).
About the Roundtable
The Financial Stability Board (FSB) Taskforce on Climate-Related Financial Disclosures (TCFD) presented its final Recommendations to the FSB and G20 in Hamburg on 7-8 July, 2017. Whilst 'voluntary', the TCFD Recommendations are an influential statement on those forms of analysis and disclosure required to present a 'true and fair view' of material climate change risks, and their impact on corporate performance and prospects. With most Australian listed entities having a 30 June year-end, Australia was amongst the first jurisdictions to consider the application of the TCFD Recommendations in the preparation of annual reports and audited financial statements.
By Invitiation Only
FT Climate Finance Summit: Scaling up Finance for Climate Action
23rd May 2017 | London
Alice Garton, co-investigator at CCLI and Company and Financial Project Leader at ClientEarth, spoke at the FT Climate Finance Summit in London, which gathered some of the leading decision makers, policy makers and investors, to explore the role of international finance in global efforts to combat climate change, as well as the risks and opportunities for businesses, financial markets and investors in the new climate economy.
Her presentation titled "Climate Change Disclosure and Liability-Implications for Companies and Investors" provided insights into how recent legal action in the United States initiated by the New York Attorney General against companies that failed to adequately disclose material, physical, regulatory, legislative and reputational risks to their business from climate change might have serious implications for climate vulnerable companies, and for those who invest in them-from the potential for criminal and civil actions, restitutions as well as loss of social license.
To the question of how climate disclosure laws and regulations might evolve, and what are the risks for companies and investors, the World Bank's head climate official John Roome argued in a prior presentation that the reporting duties for companies still merely remain voluntary in most instances.
In response Ms. Garton counter-argued that corporate and legal risk requirements already apply to climate risks in places such as the UK. According to Garton "It's clear that the law requires these risks to be taken into account when making investment decisions," "It's not the laws that need to evolve, it's the understanding [of companies and investors] of how laws apply to new risks." (Quotes taken from Carbon Pulse)
For further information see: https://live.ft.com/Events/2017/FT-Climate-Finance-Summit and https://carbon-pulse.com/34794/
Castle Debate: Legal Liability for Climate Change
9th February 2017 | DLA Piper, 3 Noble Street, London, EC2V 7EE
Jessica Fries, A4S / CCLI
Alice Garton, ClientEarth / CCLI
Mark Lewis, Barclays
Philippe Joubert, Prince's Corporate Leaders Group
Anthony Hobley, Carbon Tracker
Pamela Castle OBE
As business steels itself to deal with seismic changes in the world's climate, what is legally expected of directors is becoming more stringent. The Paris Climate talks in December 2015 confirmed what we already knew - that more serious action is required from the corporate world in future. Business leaders must understand how to respond to this cultural, regulatory and economic shift - which means legal and financial experts must collaborate to elucidate the law and give the right information to business leaders.
As the Bank of England's Prudential Regulation Authority and others have recently warned, there is the potential for company directors to be exposed to liabilities in relation to:
- their company's contribution to anthropogenic climate change,
- a failure to adequately manage the risks associated with climate change and
- inaccurate disclosure or reporting of these factors.
These emerging exposures have implications for corporate governance in climate-risk exposed industries (from financial services to mining, infrastructure, agriculture, and beyond), and for the insurance sector (in terms of professional indemnity and directors' and officers' insurance). Despite these risks, there remains little in-depth analysis of how prevailing corporate governance laws and fiduciary duties facilitate - or constrain - the actions of company directors confronted with complex climate change challenges.
Climate Change Liability: Directors and Officers
31st January 2017 | Clyde & Co London, The St. Botolph Building, 138 Houndsditch, London, EC3A 7AG, United Kingdom
Alice Garton, part of CCLI, joined a panel examine international developments in the emerging field of climate change litigation. This seminar addresses warnings given in 2015 in a major report by the Prudential Regulation Authority, highlighting potential liabilities for companies and directors in relation to:
- contribution to loss and damage caused by anthropogenic climate change;
- a failure to adequately manage the business risks associated with climate change; and
- inaccurate disclosure or reporting of climate related business risks.
These emerging exposures have implications for corporate governance in climate-risk exposed industries (from financial services to mining, infrastructure, agriculture, and beyond), for pensions trustees and for the insurance sector (in terms of professional indemnity and directors' and officers' insurance).
Value Creation in a Sustainable Manner
12th January 2017 | CPA Australia, Melbourne
Panel featuring Prof Mervyn King SC and CCLI's Australian convenor, Sarah Barker (Minter Ellison), hosted by CPA Australia and Melbourne Law School's Centre for Resources, Energy and Environmental Law (CREEL) and Centre for Corporate Law and Securities Regulation (CCLSR). This event explored the changing role of the corporation and how this may play out in complex regulatory and legal environments. The panel discussions revolved around the potential effects of local and international developments in climate change litigation. Some of questions that being addressed included whether or not and how increased shareholder activism will force corporate decision-makers to consider and manage climate change risks, and if this will drive a longer term perspective and preserve corporate value, among others.
Event agenda here.
Climate Risk and the Law Breakfast Seminar
3 January 2017 | The Royal Exchange, 3 Royal Court, London
CCLI through ClientEarth, together with IIGCC, PRI, CDP, Influence Map and Bentham Europe, co-organised a breakfast seminar to explore the liability risks that climate change poses to companies, and what the law can do to help you to avoid risks and recover losses.
Recent high profile corporate scandals involving VW, as well as the collapse of the US coal sector, demonstrate that there are serious risks associated with the shift to a lower carbon economy. In both these cases, significant shareholder value was destroyed by either fraudulent or imprudent managerial practices. In the coming transition, additional regulatory pressure together with rapid technological change is guaranteed to create both winners and losers.
This event considered both how investors can seek to avoid backing losers, and how they can recover losses which may occur. In light of the recent release of the recommendations report of the FSB's task force on climate-related financial disclosures, the event provided a forum to discuss how investors can confidently act on the additional information expected to become available, avoid systemic risk, and be confident active stewards of the companies they own.
Climate Change Risk and Corporate Governance Directors' Duties and Liability Exposures in a post-Paris World
29-30 August 2016 | University of Melbourne
Climate change presents material - if not unparalleled - economic risks and opportunities. These emerging exposures have implications for corporate governance in climate-risk exposed industries (from financial services to mining, infrastructure, agriculture, and beyond), investors (banks, asset owners and managers) and for the insurance sector (professional indemnity and directors' and officers' insurance).
Despite these risks, there remains little in-depth analysis of how prevailing corporate governance laws and fiduciary duties facilitate - or constrain - the actions of company directors and trustees confronted with complex climate change challenges.
The symposium will consider international developments in the law and liability for climate change damages, with a practical, inter-disciplinary perspectives provided by leading directors, economists, investors and insurance-sector executives.
International Symposium on Directors' Liability for Climate Change Damages
10am-6pm, Wednesday 8 June 2016 | Lady Margaret Hall, University of Oxford
The Commonwealth Climate and Law Initiative (CCLI) has the pleasure of inviting to you to the first of three high-level international symposia on the legal exposures of company directors for climate change damages. The first symposium will be help at Lady Margaret Hall, a college within the University of Oxford, on the 8th June 2016. Each symposium will facilitate a cross-institutional and cross-jurisdictional exchange of legal thought leadership on director liability risks relevant to plaintiff and defence lawyers, regulators, investors, accountants, and insurers.
It is now clear that climate change presents material - if not unparalleled - economic risks and opportunities. The Bank of England's Prudential Regulation Authority and others have recently warned of the potential liability exposure of company directors for i) their company's contribution to anthropogenic climate change, ii) a failure to adequately manage the risks associated with climate change, and iii) inaccurate disclosure or reporting of these factors. These emerging exposures have implications for corporate governance in climate-risk exposed industries (from financial services to mining, infrastructure, agriculture, and beyond), and for the insurance sector (in terms of professional indemnity and directors' and officers' insurance). Despite these risks, there remains little in-depth analysis of how prevailing corporate governance laws and fiduciary duties facilitate - or constrain - the actions of company directors confronted with complex climate change challenges.
In light of this and related developments, CCLI has been established as a research, education, and outreach project by the University of Oxford's Smith School of Enterprise and the Environment, HRH The Prince of Wales's Accounting for Sustainability Project, and ClientEarth. CCLI is focused on four Commonwealth countries (Australia, Canada, South Africa, and the United Kingdom) and is examining the legal basis for directors in common law countries to take account of physical climate change risk and societal responses to climate change, under prevailing statutory and common (judge-made) laws.
In partnership with ClientEarth, The Prince of Wales' Accounting for Sustainability Project and Minster Ellison.
Download agenda here.
In pictures: University of Oxford hosts inaugural CCLI conference
Private high-level meeting on climate liability and litigation at Paris COP21
Cercle de l'Union Interalliée, Paris, France | Friday 4th December 2015
The Bank of England's Prudential Regulation Authority recently pointed out that fiduciaries, including company directors and pension fund trustees, could be held liable for i) contributing to anthropogenic climate change and ii) not reasonably managing the risks associated with climate change. The Bank, and others, have said that this could potentially have significant implications for the insurance sector (in terms of directors and officers insurance), but also for other parts of the financial system and for fossil fuel companies as well.
In light of these developments, the Oxford Sustainable Finance Programme at the University of Oxford's Smith School of Enterprise and the Environment, together with ClientEarth, are bringing together key people attending COP21 to help navigate the path ahead. ClientEarth is doing significant work in this area, and the Oxford Sustainable Finance Programme, together with ClientEarth and The Prince of Wales's Accounting for Sustainability Project, are looking at these issues across Commonwealth common law jurisdictions, particularly Australia, Canada, South Africa, and the UK.
At the meeting we will share information about these activities, explore how these issues might develop in 2016, and identify areas of potential mutual support and collaboration.
By Invitation Only