Legal Updates

 Asset Management and Investment FundsJanuary 23, 2019

Regulators react to the rise of ESG investing

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For further information on any of the issues discussed in this publication please contact the related contact(s) on this page.

Socially responsible investment (“SRI”) is not, or at least should not be, news to anyone. However, if one were to consider the recent proliferation of related activity from regulators you might think that SRI was a relatively new phenomenon when in actual fact its origins go back centuries to when early SRI principles were articulated by John Wesley.

SRI is today widely understood as the integration of environmental, social and governance (“ESG”) factors into the investment process. The term ESG was first used in 2005 and it is estimated that ESG currently accounts for almost one quarter of all professionally managed assets globally.

Investors are more sophisticated in their understanding and approach to ESG and increasingly are demanding greater stewardship from asset managers to ensure that their money is invested in a socially-responsible way. This places an onus on asset managers to better articulate how they integrate ESG factors into their investment process and this engagement is bringing about real change at investment companies.

Recently regulators have taken a more active interest to ensure that this integration of ESG does not take place to the detriment of investors. We have examined briefly some of this activity in so far as it might impact on Irish regulated investment funds.

The Central Bank of Ireland (“CBI”), while identifying some key features of the future regulatory landscape at the end of 2018, flagged to the industry that regulators will have a key role to play in ensuring asset managers consider risks associated with ESG investment and to disclose material ESG information to investors. You can read what the CBI said below.

…“ESG is something that in the past has been seen as an area of interest but perhaps not something that was at the centre of concerns for the financial services industry. It is fair to say that that period is coming to an end. The initiatives of the European Commission in this space during 2018, building on previous work of the FSB and the High-Level Expert Group on Sustainable Finance mark a significant moment. It is perhaps not the initiatives themselves, important though they are, that is the most significant thing to note. But rather how they have been received and how quickly they have gained traction and been the locus of a quickly developing consensus amongst policy makers and market participants that ESG factors have moved centre stage with the debate being not about whether but how to give them best effect from a regulatory perspective and to what timescale.”

Shortly after this CBI statement the European Securities Markets Association (“ESMA”) published their Consultation Paper outlining proposed amendments to the UCITS directive and AIFMD directive in order to integrate sustainability risks and sustainability factors in the internal processes and procedures of UCITS management companies and AIFMs. The European Commission in its mandate to ESMA to prepare technical advices, had stated that its objective is to explicitly require the integration of sustainability in the investment decision process. The proposals put forward by ESMA intend to impose obligations on UCITS managers and AIFMs to:

  1. incorporate sustainability risks (being the risk of fluctuation in the value of positions in the value of positions in a fund’s portfolio due to ESG factors) in their due diligence processes; and
  2. assess and manage the sustainability risks stemming from their investments.

It proposes changes to the following areas of both the UCITS and AIFMD frameworks to address the above:

  1. General organisational requirements;
  2. Resources;
  3. Senior management responsibilities;
  4. Conflicts of interest;
  5. Due diligence requirements; and
  6. Risk management.

The closing date for responses to the ESMA Consultation Paper is 19 February, 2019. We understand that ESMA intend to finalise draft technical advices in light of responses received for submission to the European Commission by the end of April, 2019.

Finally the International Organization of Securities Commissions (“IOSCO”) recently published the IOSCO Statement setting out the importance for issuers of considering the inclusion of ESG matters when disclosing information material to investors’ decisions.

The IOSCO statement does not supersede existing laws, regulations, guidance or standards or the relevant regulatory or supervisory frameworks in any specific jurisdictions, or any IOSCO Principles.

The IOSCO areas of focus are set out below.

  1. Developments in the disclosure of ESG Information;
  2. Investor perspectives;
  3. Issuer perspectives;
  4. Voluntary disclosure frameworks; and
  5. The role of securities regulation and existing obligations.

IOSCO is encouraging asset managers to consider the materiality of ESG matters and when such matters are considered to be material, they should be disclosed to investors. IOSCO are seeking clear disclosures in respect of methodologies and needs issues to ensure that plans of/or development in accordance with risk and also reflect opportunities in a balanced way.

IOSCO will monitor developments regarding the disclosure of ESG information, including private-sector initiatives that have promoted a voluntary framework. IOSCO will also continue to engage with different disclosure forums and task forces, issuers, and investor groups in order to be informed about the latest developments and their consequences, as well as to understand market participants’ perspectives and expectations regarding disclosure of ESG information.

ESG certainly seems to be on the regulatory radar and we expect that this will benefit investors understanding of how it impacts their assets being managed.

DISCLAIMER: This document is for information purposes only and does not purport to represent legal advice. If you have any queries or would like further information relating to any of the above matters, please refer to the contacts above or your usual contact in Dillon Eustace.

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