ESG and Disputes: Flash in the Pan or Game Changer?

ASA Special Series

'We must measure what we value, not just value what is simple to measure.' This statement from the US White House encapsulates the global trend dubbed ESG - an insistence on attending to the natural environment, social values, and responsible governance in business affairs. A salient aspect of this trend is the 'explosion' of human rights and environment-related disputes that have come to the fore on the international legal landscape. In this timely and crucially important volume, distinguished jurists, representatives of governments and NGOs, and in-house counsel identify and analyse the sources of ESG-related litigation and arbitration, providing an extensive treatment of the nature of ESG disputes and their resolution across both commercial and investment fora.

The contributions are based on papers presented at a conference organized by the Swiss Arbitration Association in February 2023. Among the issues and topics raised, many of them relatively new to legal theory and practice, are the following:

• emergence of nature-related assets and markets dealing in nature-related products;

• intensification of ESG-related regulation;

• which disputes could trigger which type of arbitrations;

• ESG-specific arbitration clauses as risk mitigation measures;

• controversial role of the Energy Charter Treaty;

• ESG-compliant supply chains;

• ESG scoring;

• rights of nature - recognizing ecosystems as subjects with rights; and

• the criminal act of ecocide.

Of immediate interest is a discussion focused on concrete ways in which each and every arbitration practitioner can contribute to a more environmentally friendly and socially responsible arbitration practice.

In its recognition that ESG is profoundly linking environmental and social protection values with the monetary aspects in the life of both corporations and states, the book identifies key drivers for future ESG-related disputes and enables stakeholders to position themselves in an emerging field. It will prove of inestimable value to all practitioners, policymakers, and other professionals dedicated to the protection of natural resources and of human life itself.