ESG and climate change: A coming wave of litigation?

The global law firm Clyde & Co predicts a wave of climate related litigation.

The global law firm Clyde & Co warns in its podcast clients of a “wave of litigation”.

Nigel Brook, partner at Clyde & Co, identifies new liability risks to business, directors and officers. Businesses are vulnerable to climate change risk. There is a growing body of standards in law and regulation and increasing scrutiny of companies’ approach to climate risk, form investors, lenders and regulators. This triggers new vulnerability for businesses and a rising number of climate-related cases.

In its 2019 report on Global Trends in Climate Litigation, LSE's Grantham Institute reports its findings that more than 40% of all climate-related cases in the US, and almost a quarter of cases across the rest of the world, have occurred over the last 2.5 years. Plaintiffs are not only activist law firms, but – and that is a new trend – claims are now being brought by litigation funders, property owners, insurers, municipalities, states, shareholders and public organisations.

Plaintiffs in several jurisdictions have made claims against investment funds and companies for failing to incorporate climate risk into their decision-making, and for failing to disclose climate risk to their beneficiaries.

Nigel Brooks: “It will become increasingly important for companies to understand, mitigate and, if appropriate transfer their liability risk.”

This insight also applies to Switzerland, especially regarding the climate protection initiative. Sooner or later, the litigation wave will reach Switzerland, most probably in the finance sector. The Swiss government has made clear that there is a fiduciary duty for asset managers.

September 2019 | Author: Dr. Martin Eckert

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