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The most thought-provoking questions can sound devilishly simple. Sometimes, we are doing the asking. For instance, the question, “Are you sure the products of the company you’re about to buy aren’t made by children?” sparked one of our clients to conduct a global supply chain review, and opened the door to a more ESG- centric compliance framework. At other times, the answers come from us, in response to questions that can come from our clients or from within our firm. “Can we engage in climate litigation on behalf of Urgenda against the Dutch State, and at the same time advise companies whose business heavily relies on fossil fuels?” Or: “To what extent should we take into account climate or other ESG considerations when considering whether to accept a new client mandate?”

Our clients 2022

We welcome these questions and the exchange of ideas that they fuel. It sets us thinking and can help to change perspectives. Coincidentally, the three questions above have something in common: In answering them, for our clients or for ourselves, we consider whether – and if so, how – we can help to instigate positive change.

Helping to bring about change
We see everyday client counsel as a key space in which we can make a difference. We do so by regularly advising clients on relevant ESG developments, such as green bond and sustainability-linked bond issuances, sustainable finance regulations, corporate governance and transparency requirements, and liability risk analysis related to climate change and ESG litigation.

However, our clients do not simply have legal issues. They face broader challenges to which solutions can often only be found by taking into account a wide range of perspectives and expertise. This is where our multidisciplinary Benelux Sustainable Business & Climate Change team fits in. It advises our clients and prospects regarding the effects of ESG developments on their operations, their strategy, and their reputation. The team also now reviews clients’ climate strategies against legal obligations.

Not all businesses are on the same page where ESG issues are concerned. This is why we consider sharing our knowledge and entering into partnerships that we regard as key to helping to effect positive change. In 2021, we shared our expertise in round tables with clients, especially about the impact of the far-reaching ruling by the Hague District Court with respect to the climate obligations of Royal Dutch Shell. We contributed to several events of our partner, MVO Nederland, the Dutch network organisation for sustainable entrepreneurs. And we participated in the Climate Tables of the Dutch sustainability initiative for lawyers Jurist Doet WAT. Another way for us to create positive impact is through our pro bono work for
non-profit organisations and other actors that promote sustainability, for instance the Urgenda Foundation and GOGLA, the global association for the off-grid solar energy industry.

Three ways in which we use the law as an instrument for change is by supporting the energy transition; by anticipating a shifting regulatory framework; and by integrating a focus on responsible business conduct in our client work. In so doing, we help our clients to meet sustainable business challenges, to mitigate
ESG-related risks, and – above all – to grasp the opportunities in the new economy.

Supporting the energy transition
We believe we have a role to play to help mitigate the risks imposed by climate change. And as a full-service law firm with expertise spanning sectors that are central to the transition to a low-carbon future – including energy, real estate and construction, and finance and insurance – we are well positioned to do so.

Combining sector and ESG expertise with a multidisciplinary approach, we have established a market-leading energy transition practice. Our firm works for both traditional energy companies and renewable energy companies on projects, transactions, financing, and litigation. However, in the last few years we have transitioned our energy practice from its historical focus on oil & gas work to energy transition mandates. Currently, more than 70% of our energy practice revolves around energy transition projects (wind, solar, renewable heat, hydrogen, CCS, and smart grids) and M&A transactions concerning target companies that exclusively focus on renewable energy and related services.

Anticipating a shifting regulatory framework
The regulatory landscape for sustainability in which our clients operate is multifaceted and complex – and changing continuously. As a firm, we are particularly strong in regulated markets, and so consider it our task to not only point to the dot on the horizon, but also help our clients see around corners.

We see that soft law frameworks are gradually shifting into hard law obligations. Reputation risks are increasingly becoming litigation risks for both companies and their boards. Financial regulators are increasingly prioritising sustainability. The EU Commission strongly pushes financial institutions to green the ‘real economy’, for instance through the EU Taxonomy Regulation and the SFDR (Sustainable Finance Disclosure Regulation), which entered into force in 2021. These regulations lead to obligations for financial institutions as well as for their clients.

In this shifting landscape, we help our clients stay one step ahead of changing legislation. Our Corporate Governance team advises at the C-suite level about increasing transparency obligations. Our ESG Due Diligence Audit helps clients to develop and implement an appropriate ESG governance framework. We advise clients in the chemical sector on how to anticipate upcoming legislation affecting financial institutions, since this undoubtedly will affect their eligibility for investments.

Integrating responsible business conduct
Responsible business conduct has firmly established itself as a top priority for boards and management. In the past years, we have worked with clients to identify the ESG risks and opportunities, developing the future-proof solutions required for the complex and inter-connected challenges of responsible business conduct, and discussing the reputational and operational risks of inaction in face of these challenges.

Our Sustainable Business & Climate Change team strives to incorporate sustainability and responsible business conduct into our advisory services across all practices. They encourage and enable our lawyers to go beyond the strict current legal framework and provide clients with the broader context by including the UN Sustainable Development Goals and soft laws such as the OECD Guidelines, UN Principles on Business and Human Rights, and UN Principles for Responsible Investments as an integral part of their legal assessment.

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