A strong contingent from Stewarts attended the 2022 AIJA half-year conference in Edinburgh – Emma Holland and Catriona Abraham from the Trust and Probate Litigation team, Lisette Dupre from the Divorce and Family team, and Elaina Bailes, Lucy Morgan and Aleks Valkov from the Commercial and Insolvency Litigation team.
The conference focused on environmental, social and corporate governance (ESG), with a number of interesting panel discussions regarding greenwashing (as well as the concept of ‘green hushing’) and the rise of climate litigation.
Does climate trump investment return?
Emma Holland moderated a panel discussion entitled, “Charitable purposes: investing responsibly to reflect ESG considerations. Does climate trump investment return?”. Emma was joined by lawyers from Switzerland, Singapore, Liechtenstein, Scotland and England, who gave their views on the duties placed on charities (including charity trustees) to balance ESG considerations with the need for investment returns.
The idea for the panel discussion originated from the recent English decision in Butler-Sloss & Ors v Charity Commission  EWHC 974 (Ch). In this case, the High Court found that charitable trustees can use their discretion under their general power of investment to exclude certain assets from the charity’s portfolio on the basis of non-financial considerations. It is yet to be seen how this case may have a wider application to all trustees. However, with the rise of ESG concerns being voiced among beneficiaries, it is likely it will not be long until we find out.
There was also discussion of two key English cases prior to the Butler-Sloss case, namely, Cowan v Scargill  1 Ch 270 and what is known as the Bishop of Oxford case (Harries v The Church Commissioners for England  1 WLR 1241). This led to the panel touching upon issues such as whether trustees (or other charity powerholders) should set aside their personal views when making investment decisions and situations of exception where they would not necessarily be expected to maximise investment returns.
Other interesting panel discussions
There were many different panel sessions available across the three days. Highlights included:
- Discussion regarding the relatively new term of ‘green hushing’, referring to the fact that companies are growing ever more hesitant to publish their green credentials for fear of public backlash, litigation and/or regulatory sanctions for accidental or intentional greenwashing. This highlights how contentious the world of ESG ratings in industry is and will likely continue to be.
- Hearing from climate litigation lawyers who have seen a rise in cases being brought on behalf of nature, eg a river in Canada or the Amazon rainforest. For those bringing such claims, the publicity that goes with the litigation is a big part of the motivation, setting the litigation battlefield on a different plain.
- Climate litigation is such a new area of law that the courts are playing catch up.
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