Directors’ Liability and Climate Risk: White Paper on Singapore
by Dr. Ernest Lim, April 2021
Alongside the new Chan legal opinion on directors’ responsibilities and climate change under Singapore law, the CCLI are pleased to publish a new white paper: Directors’ Liability and Climate Risk: White Paper on Singapore.
Authored by Dr. Ernest Lim, Associate Professor, NUS Law who is also co-author of the Chan legal opinion, the white paper complements and extends the analysis in the Chan legal opinion. The white paper explores the legal risks to directors for breaches of their duties and disclosure obligations in relation to climate change, as well as how directors’ duties can be enforced using the techniques of derivative action and oppression.
Dr. Ernest Lim explained of the legal opinion and white paper: “The legal analysis is based on evidence. As the impacts of climate change on Singapore become more visible and legislative and regulatory responses strengthen, this affects the standards of conduct directors must meet to fulfil their duties. Just last year the Monetary Authority of Singapore issued environmental risk management guidelines, setting out their expectations that directors and senior management of financial institutions should maintain oversight of environmental risk management and be assigned specific responsibilities in this regard. The legal opinion draws on these and other developments to find that climate issues are within directors’ responsibilities.”
Legal Opinion on Directors’ Responsibilities and Climate Change under Singapore Law
by Jeffrey W T Chan, Joseph Chun, Ernest Lim, Peter Doraisamy, and Qek Wen Jiang, April 2021
Company directors in Singapore could face personal liability if they fail to take action to address climate change risks, according to a new legal opinion by a team of independent legal counsel.
The legal analysis finds that Singaporean directors are obliged to consider climate change impacts as part of their duties to act in the best interests of the company. Therefore, directors could be subject to litigation if they fail to respond to climate risk – particularly where those risks are material to the business.
Commissioned by the Commonwealth Climate and Law Initiative (CCLI), the legal opinion, Directors’ Responsibilities and Climate Change under Singapore Law is authored by Mr. Jeffrey Chan Wah Teck SC, Senior Director TSMP Law Corporation, Dr. Joseph Chun, Partner, Shook Lin & Bok LLP, Dr. Ernest Lim, Associate Professor, NUS Law, Mr. Peter Doraisamy, Managing Partner and Mr. Gerard Quek, Partner of PDLegal LLC.
Haida law of gina ‘waadluxan gud ad kwaagiida and Indigenous rights in conservation finance
by Terri-Lynn Williams-Davidson and Dr. Janis Sarra, March 2021
The report discusses the importance of protecting biodiversity and showcases how successful investments can be when they involve Indigenous partnerships.
Life, Health, Property, Casualty: Canadian Insurance Company Directors and Effective Climate Governance
by Dr. Janis Sarra, March 2021
This guide offers a detailed analysis of the risks to insurance companies from increasing severity and frequency of climate-related events.
Assurance vie, maladie et dommages: les administrateurs de compagnies d’assurance canadiennes et la gouvernance climatique efficace
par Dr. Janis Sarra, Février 2020
Directors’ Duties Regarding Climate Change in Japan
by Dr. Janis Sarra, Dr. Yoshihiro Yamada, and Dr. Masafumi Nakahigashi, February 2021
Duty to Protect: Corporate Directors and Climate-Related Financial Risk
by Dr. Janis Sarra, January 2021
The C.D. Howe Institute published an e-brief by our Principal Co-Investigator, Dr. Janis Sarra, Duty to Protect: Corporate Directors and Climate-Related Financial Risk.
Audit Committees and Effective Climate Governance, A Guide for Boards of Directors
by Dr. Janis Sarra, December 2020
CCLI launches a practical guide for corporate boards to respond to growing investor requests for effective management and disclosure of climate-related financial risks and opportunities.
Comités d’audit et gouvernance climatique efficace, Guide à l’intention des conseils d’administration
par Dr. Janis Sarra, Décembre 2020
“Troubling Incrementalism’: Is the Canadian Pension Plan Fund Doing Enough to Advance the Transition to a Low-carbon Economy?”
by Professor Cynthia Williams, September 2020
CCLI analysis of Canada Pension Plan’s private investments in high-carbon assets reveals a ‘troubling incrementalism’ in the public plan’s efforts to manage climate-related risks, leaving Canadians’ pension investments exposed to material financial risks.
Changements climatiques: Un enjeu incontournable pour les conseils d’administration
par Carol Hansell, 25 juin, 2020
Putting Climate Change Risk on the Board Room Table
by Carol Hansell, June 25, 2020
Time to Act: Response to questions posed by the Expert Panel on Sustainable Finance on Fiduciary Obligation and Effective Climate-related Financial Disclosures
by Dr. Janis Sarra and Professor Cynthia Williams, January 2019
The Expert Panel on Sustainable Finance was commissioned by the Canadian Government to determine how best to generate sustainable finance, a significant challenge given the carbon intensity of Canada’s economy. While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this report addresses two critically important issues: the fiduciary obligation of corporate and pension fiduciaries to consider climate and broader environmental, social and governance issues, and government’s responsibilities to promote the incorporation of ESG and climate issues in financial disclosure. This report proposes a comprehensive set of 25 recommendations on the legislative changes required to embed sustainability in fiduciary obligations and financial disclosure.
Disclosure of Information Concerning Climate Change: Liability Risks and Opportunities
by Professor Cynthia Williams, April 2018
Climate change presents material – if not unparalleled – economic risks and opportunities to companies and investors, given changes in the physical environment brought about by climate change, and given regulatory efforts to limit those changes and adapt to the environment as it changes. As a result of the increasing awareness of climate-related financial risks, shareholders are increasingly demanding strategic responses from their investee companies. Institutional investors, such as public pension funds and asset managers, and insurers, in particular, have significantly increased their corporate engagement on climate change risk management, driven in part by a number of high-profile inquiries into their own financial and fiduciary exposures.
One area of business practice to which regulators and investors have given particular attention is the disclosure by operating companies of risks and opportunities precipitated by climate change and transition initiatives, both mandatory disclosure pursuant to a country’s securities regime, and voluntary disclosure pursuant to leading initiatives such as CDP (formerly the Carbon Disclosure Project) or, more recently, the Financial Stability Board (“FSB”) Task Force on Climate-related Financial Disclosures (“TCFD” or “Task Force”). In this White Paper, we generally discuss the following questions related to (a) Canadian climate disclosure practices and (b) some liability issues engendered by those practices, in light of the transition to a lower-carbon economy: What is the Canadian federal and provincial framework for a transition to a lower-carbon economy? What are current requirements, if any, for climate-related disclosure in light of that framework, and what is the quality of current climate disclosure by Canadian public companies? Can disclosure as anticipated by TCFD help promote serious attention at board and management levels to transition strategies? What are the expectations by Canadian investors regarding disclosure of climate- relevant information? Finally, what liability risks are companies exposed to when they either misstate their opinions about the causes and consequences of climate change, or misstate or omit material facts about their businesses in light of climate change and the transition to a lower-carbon economy?
Fiduciary Obligations in Business and Investment: Implications of Climate Change
by Dr. Janis Sarra, April 2018
Dr. Sarra’s report examines how fiduciary obligation, under Canadian corporate law, securities law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing monitoring to ensure the strategies continue to be responsive to the risk.
The study also examines pension plan trustees and other investment fiduciaries in respect of their fiduciary obligations related to climate change. Pension fund trustees have a fiduciary obligation to pension beneficiaries to act prudently in their best interests in making investment decisions regarding fund portfolios. In fulfilling their obligations to beneficiaries, pension trustees and their investment managers have an obligation to identify and address climate-related financial risk. Fiduciary obligation also requires considering the benefits of investment in green adaption and mitigation technologies and other products and services that are likely to have upside financial potential for return on investment.
To date, there is no jurisprudence in Canada that expressly clarifies fiduciary obligation regarding climate risk, but existing Supreme Court of Canada judgments make clear that the obligations of fiduciaries are contextual and broad enough to recognize such a duty. The law as currently framed is a driver for positive action on climate change. While the focus of the study is Canada, it draws on international developments and its key findings have broad application internationally.
Directors’ Liability and Climate Risk: Canada – Country Paper: Commonwealth Climate and Law Initiative (CCLI)
by Dr. Janis Sarra and Professor Cynthia Williams, April 2018
The paper is a more accessible form of reporting the research in the first two papers. It is one of country studies from four jurisdictions, complemented by conferences in Australia (August 2016), Canada (October 2017), South Africa (January 2018) and the UK (June 2016). The national legal papers follow a uniform structure to facilitate comparison of the strengths, weaknesses, opportunities and threats in each jurisdiction. Moreover, the comparative work is being used to design an actionable framework for directors to integrate climate change issues into governance practice.