Corporate Due Diligence and Reporting Requirements for Climate Change and Human Rights in the Special Issue of International Community Law Review (“ICLR”)

We are proud to announce publication of our article ‘Corporate Due Diligence and Reporting Requirements for Climate Change and Human Rights in the Special Issue of International Community Law Review (“ICLR”), on Sustainable Development, Business and Human Rights: A Comparative Study’ by one of the leading publishers in International Law, Brill Nijhoff.

For the full article, see here.

The article and the Special Issue of ICLR follow up the themes first explored at a Conference organised jointly by Clyde & Co and Queen Mary University of London on Turning Aspirations into Reality: Go Green, Be Ethical and Protect your Company, 30 March 2022. For full programme, click here.

In this article, six Clyde & Co offices review the existing and evolving environmental and climate-based regulatory and legal frameworks in eight jurisdictions based on four continents and discuss the current trends in climate related litigation across those jurisdictions. 

Although globally characterised by a general transition towards low carbon initiatives and a subsequent net zero future, the eight jurisdictions of focus: Australia, Chile, Colombia, France, Hong Kong, Mainland China, South Africa and the United Kingdom, all place different reporting standards on companies making navigation of the different requirements and any attempts at finding uniform approaches in addressing those requirements challenging, in particular, for companies that operate in more than one jurisdiction.  

Moreover, many of the jurisdictions considered in this article are characterised by having a fragmented approach to reporting and due diligence obligations. There is an emphasis on the voluntary nature of ESG disclosure regimes, but there are exceptions in respect of certain regulated entities which are subject to more stringent disclosure and reporting obligations depending on different factors. Such factors can be monetary, such as the revenue thresholds in Australia, which require annual reports from entities generating over $100 million. Similarly in French legislation, the provision of the Duty of Vigilance Act focuses on the volume of the business’ employee network, with disclosure being compulsory if employees exceed 5,000 at a national level. In Chile on the other hand, publicly traded companies and pension fund management companies will now have to report, among other issues, specific environmental and climate change impacts of their activities to the Chilean Financial Market Commission. The reporting requirements, however, are not finally set in stone and are continually being refined. 

The scope and purpose of the reporting and disclosure requirements not only differ between each jurisdiction but are continually evolving with obligations being clarified and tightened with the enactment of new legislation. In Mainland China, for example, the recently adopted Administrative Measures for Enterprise Environ[1]mental Information Disclosure clarified the scope of environmental information subject to disclosure, which now includes, for example, corporates’ environmental management information, and carbon emission information. 

The article also explores measures adopted in jurisdictions like South Africa or Hong Kong, where there is no single legislation governing corporations’ due diligence or reporting requirements but where environmental and climate related due diligence is being addressed through requirements imposed by specific regulators, various voluntary disclosure guidelines, legislative tools dealing with director’s and officer’s liability as well as with shareholder and parent company liability.   

Finally, the article looks at how corporate compliance with voluntary ESG regimes and compulsory reporting and due diligence obligations have been accelerated in various jurisdictions by increasing levels of stakeholder engagement on these issues and the increasing number of climate change related litigation. 

Clyde & Co

We have long been aware of the threats posed by climate change to our modern life. Our Climate Change Risk Practice helps clients assess and manage the particular risks they face and successfully manage the transition to a low-carbon economy.

Our International Arbitration Group specialises in representing its clients in complex, big-ticket, multi-jurisdictional international arbitrations across sectors and in the world's established and emerging markets. For any enquiries relating to the article or other, please contact Milena Szuniewicz-Wenzel or Ben Knowles.