Sustainable Business & Climate Change (ESG)

• Sustainable business

  It may be legal, but is it right? As companies feel increasing pressure from all stakeholders to act responsibly, responsible business conduct has firmly established itself as a top priority for boards and management. We believe that its importance as differentiator that adds value to brands, increases long-term profitability and mitigates financial, legal and reputational risks will grow in the years to come. Businesses will find that their social license to operate will increasingly depend not only on what they do, but also on how and why they do it.

  Responsible business conduct permeates all business operations. But it begins with the integration of ESG principles and corporate governance because the tone at the top is of consequence. The role of in-house legal counsel will grow as soft law frameworks and human rights will increasingly yield ‘hard law’ by which corporates and their boards will be held accountable. Transparency in communication, product information and reporting matters.

  Ultimately, responsible business conduct strengthens shareholder value. Responsible business conduct is the best measure to maintain access to capital from institutional investors and financial institutions, who apply increasingly rigorous vetting of companies on non-financial criteria.

  In order to help clients gain insight into how ESG principles benefit the company, our team of experts speaks with the board and other stakeholders throughout businesses to discuss possible long-term scenarios, assess ESG related business risks and provide recommendations to mitigate these risks. We have developed an ESG Opportunity Audit through which we are able to assess how ESG policies can help clients to capture commercial opportunities and positively distinguish themselves from their competitors.

• Climate change & climate change litigation

  Climate change, the energy transition, the huge mitigation and adaption efforts that will be required to combat the worst-case scenarios in the course of this century and the resulting resource scarcity are going to reshape our world. For many companies, climate action has become a business imperative. It requires multinationals and financial institutions to re-imagine business models and reinvent their interaction with employees, shareholders, suppliers and customers.

  Legal issues around climate change go beyond compliance and risk mitigation. For those companies that want to be part of the solution, climate change is also about opportunity. Our firm wants to be active on the frontlines in the fight against climate change. The law can be an instrument for change.

  In the financial sector, regulators are increasingly outspoken with respect to the climate risk responsibilities and reporting obligations of financial institutions. Clients benefit from our firm’s unparalleled experience in regulated markets. Our financial law team regularly advises financial institutions on the regulatory aspects of climate change. Our Loan Finance team is helping lenders and borrowers to structure green finance deals. They have extensive experience on getting banks comfortable with regulatory uncertainty, specific business risks associated with decentralised renewable energy projects and forging the security packages that fit such projects.

  Our Dispute Resolution team are considered trailblazers in climate litigation, setting legal precedents for government accountability for climate change. We successfully represented (together with Höcker Advocaten) the Dutch NGO Urgenda before the Dutch Supreme Court in the landmark case against the Dutch government. The Supreme Court confirmed that the Dutch government has a binding legal obligation, based on international human rights law, to take measures to reduce carbon emissions. In her reaction to the Urgenda judgment, United Nations High Commissioner for Human Rights Michelle Bachelet commented “this landmark ruling provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights.”

• Business human rights

  Responsible business conduct entails that companies view adherence to human rights throughout their business value chain as a key element of their governance. Not respecting human rights is not only a severe reputational risk. Adverse human rights impacts can also lead to extensive legal liability. It requires businesses to implement policies aimed at mitigating human rights compliance and litigation risks into their daily operations. The legal dimension can include supply chain issues, contractual obligations, regulatory requirements and reporting guidelines. In the context of an M&A transaction, an ESG due diligence can be an important means to assess risks and opportunities. Our multidisciplinary team oversees the full field of work and works with our clients not only to do things right, but also to do the right thing.

• Highlighted work

  We regularly advise financial institutions, corporate clients and NGOs in the field of sustainable business, ESG and climate change. If needed, we litigate on behalf of our clients before domestic and European courts. We also work together with various governmental authorities, regulators and network organisations, including the Dutch Association of Banks (NVB) and the Dutch Private Equity and Venture Capital Association (NVP). 

  Highlights include: 

  • Representing Dutch NGO Urgenda in its landmark climate case against the Dutch government 
  • Assisting de Volksbank with the issuance of EUR 500 million subordinated Tier 2 bonds, the first issue of this type of green bonds by a bank in Europe 
  • Acting as transaction counsel in the first green and social bond issuance in Belgium, issued by Cofinimmo, the first European REIT to issue green and social bonds 
  • Advising various clients on the implications of the proposed Dutch Child Labour Due Diligence Act 
  • Advising impact investors Invest-NL on the implementation of ESG clauses in joint funding agreements
  • Advising Royal Dutch Shell on various matters relating to the implementation of a global access to energy project
  • Assisting GOGLA, the industry organisation for off-grid energy solutions, with the updating of their ESG policies
• What others say

  • Frans van der Eerden "is an excellent adviser who takes a lot of effort to pro-actively approach his clients and to stay involved with them. He cares!"
    Legal 500, 2020
  • Lauded as an "excellent guy" by his peers, Harm Kerstholt specialises in energy contracting and M&A transactions (Chambers Europe, 2016). Harm is listed as one of the 10 most innovative legal practitioners in the 2020 FT Innovative lawyers report for his efforts to integrate ESG principles and 'soft laws' into his energy practice.
  • Jens Mosselmans "is very knowledgeable" and "a fantastic expert in procurement and genuinely lovely to work with"
    Chambers Europe, 2020
  • Freerk Vermeulen is recognised as a "very good Supreme Court lawyer" (Chambers Europe, 2019). Interviewees say: "He is down to earth, practical, pragmatic and has a very good track record."
    Chambers Europe, 2016

Legal ESG tools and assistance we offer

• ESG Due Diligence

  Increasingly, businesses are expected to act as responsible corporate citizens. On the basis of prospective EU legislation, companies will be required to identify, address and report in relation to the impact of their business’ activities on, for example, the environment and on human rights. Ahead of ESG due diligence becoming a mandatory obligation, it is evolving into a market wide best practice.

  ESG performance is becoming a point of focus in the selection of business partners - in the context of an investment, a transaction or an important contract. Performing a legal ESG due diligence on a target company or potential business partner can be of key value. It is equally important to be aware of your own ESG performance and to understand the ESG performance of your value chain.

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• Transitions and ESG

  Businesses are faced with increasing challenges, implications and opportunities presented by the need to prioritise ESG factors that are driving the energy transition. We counsel clients on energy-transition related transactions, projects, financing, disputes and regulations that impact their business and strategy.

  We have earmarked the following topics: transition in the energy sector, taxation, hydrogen and real estate.

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• Sustainable Finance

  ESG engagement is often achieved through sustainable finance projects. The energy transition requires extensive funding, as does technical innovation to support the deeply required change. Many market parties and institutional investors are interested to provide sustainable financing. Mainstream finance is also rapidly incorporating changing requirements that take into account these funding needs while at the same time contributing to sustainability goals. New sustainability-linked forms of finance are on the rise.

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• Litigation and ESG

  ESG litigation is on the rise. Stakeholder groups are using litigation – and the threat thereof – to impact an organisation’s ESG strategy and communications. There have been a number of successes, notably related to the subject of climate change (e.g. the case against Royal Dutch Shell in first instance). At the same time, investors, regulators and society are closely scrutinising organisations’ sustainability policy and targets, and are monitoring the action they undertake – or fail to undertake – to achieve these targets.

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• Financial Institutions and ESG

  The European financial sector was the first to implement hard and fast rules in respect of ESG, with the introduction of the Sustainable Finance Disclosure Regulation (SFDR) and the Taxonomy Regulation. For financial institutions, specific requirements therefore apply in addition to the general ESG topics. ESG transparency requirements will continue to develop and are there to stay. SFDR and Taxonomy will become core to documentation for financial products.

  It is not only transparence. The EU, Dutch and Belgian financial regulators have put climate risk related supervision at the top of their agenda, also leading to the inclusion of ESG and climate risk topics in ongoing, governance and prudential supervision.

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