Marieke Faber is one of NautaDutilh’s newly appointed partners. She is a corporate litigator, and over the past years her practice has increasingly pivoted towards ESG-related litigation and advice.
Her ESG practice lies at the centre of some contentious considerations that many companies are now facing: How does an oil major navigate the energy transition? Should a manufacturer put forward a climate plan that is cautious but more easily achievable, and risk litigation for not doing enough, or one that’s more ambitious but perhaps not entirely within reach, and risk litigation for greenwashing? Is it better for a financial institution to divest from heavy emitters, or to hold their securities so they can engage with them on the setting and meeting of climate targets? “These are really complicated questions,” Marieke says. “Our group is trying to help clients navigate these challenges, by providing hands-on legal advice where we can.”
Accelerating these debates within companies was last year’s ruling in Dutch court on the Shell case: In less than a decade, the company must reduce by 45% the emissions of its operations, and make a best effort to reduce, by the same amount, emissions from its suppliers and those resulting from consumption of its products. The decision sent shockwaves through boardrooms in the Netherlands, across Europe, and even to the US, where Marieke is now based.
“Shell triggered a lot of movement,” she says. “Clients were worried about what this can mean for them.” Unsettling companies and financial institutions further was a letter they received soon after, from Shell plaintiff Milieudefensie (Friends of the Earth Netherlands), an environmental NGO. The correspondence strongly implied that the companies could face litigation by the organisation if they failed to present a viable climate plan by mid-April, 2022.
Marieke has been advising clients on their climate policies ever since. “Clients are very open to revisiting existing climate policies and seeing where they can do better,” she says. “At the same time, each client faces unique challenges that are not resolved overnight and which oftentimes require a broader effort, for example across the whole supply chain.”
'Each client faces unique challenges that are not resolved overnight.'
“What also complicates matters is that the legal landscape remains very dynamic. There is not one set of rules that you can throw at a client. ESG- related legislation is still very much ‘under construction’, which can make it hard for clients to oversee their legal obligations. What is more, best practices are continually evolving, as new information and technologies become available.” For that reason, she says, “Climate policy – and ESG in general – is a living instrument; you have to stay on top of it. That is where we come in.”
An analytical background
This type of analysis seems to have been bred into Marieke. Both her parents were legal professionals; her father worked as a tax advisor for more than three decades. At 16, Marieke took part in Model United Nations. “I always enjoyed debating and problem solving,” she recalls. She enrolled in the honors law programme at Utrecht University (Utrecht Law College). A second Model UN programme brought her to New York for the first time. “I stayed in Midtown and did not think much of it,” she recalls. Only when she returned to New York some years later did it click. “I walked through the West Village and was like: This is where I want to live.” Following graduation and a masters in management at London Business School, she completed part of her training period at a large international firm before coming to NautaDutilh in 2016.
Marieke worked on many large corporate and commercial disputes, such as shareholder disputes and director liability suits. She was involved in a number of large arbitrations. In 2017, she started working on the Urgenda climate case. A secondment with a top-tier US firm took her to New York for a year. Shortly after her return to Amsterdam, the Dutch Supreme Court handed down its decision in the Urgenda climate case; it was the first time anywhere in the world that a government was sued successfully for not doing enough to address climate change. NautaDutilh, together with Höcker Advocaten, represented the Urgenda Foundation on a pro bono basis. The work, and the victory, “was a game changer,” she says.
Marieke wanted to continue working on climate- related topics and add ESG as a focus to her practice. She says she finds the firm to be “an encouraging environment. Every time I had an idea or I wanted to pursue something, I could count on the firm’s backing.” In 2020, for example, during the Covid-19 pandemic, she suggested launching a pro bono helpdesk for small and medium enterprises. “It was great to see how quick everyone rallied behind this initiative. Within two weeks we had the helpdesk up and running.”
'There are many ESG developments in Europe that can be relevant to US companies'
The same goes for Marieke joining NautaDutilh’s office in New York. “I saw a lot of opportunity there to expand our existing network,” she says. “There are many ESG developments in Europe that can be relevant to US companies – being on the ground provides a great opportunity to share insights, compare notes, and learn about the US perspective.” Besides, having a litigation presence in the New York time zone has many advantages. “US clients appreciate being able to talk to us in their afternoon or evening. And if need be, we can offer round-the-clock service.” She arrived in New York in March. “It’s an amazing place, with great energy,” Marieke says.
Marieke foresees an increasing amount of ESG related litigation. “It will no longer only be about climate ambitions, but also about climate commitments and disclosures. The focus will also likely shift towards internal processes: How is a company managing the adverse impact of its business operations?” She predicts ESG will only gain momentum in the coming years. “Climate is just a part of the ‘E’ and the ‘E’ is just a part of ‘ESG’.
There is a world to win and to discover and I would like to be at the forefront of the developments.”
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