根据汇丰银行近期关于ESG政策的一份报告，财务回报是将ESG纳入投资决策过程的头号驱动因素——有48.4%的投资者将此列为最大考量。社会影响力融资正持续快速成长，而在此过程中，这种类型的融资开始变得像是传统商业型风险投资和私募股权融资，同时仍然保持对“多重底线”（multiple bottom line）的尊重。孖士打与扶贫协商小组（CGAP）合作开发了用于小额信贷领域私募股权投资构建及文件编制的领先形式。我们还曾就小额信贷史上一些最成功的私募股权投资提供法律意见，也曾帮助该等机构设计和记录一些最大型和最先进的结构性债务工具。
- Advising a foreign embassy to the EU on the content, practical implementation and expected implications of the EU Plastics Strategy and related measures.
- Successfully represented 14 major industry groups in challenging the legality of the United States Environmental Protection Agency’s 2015 regulation defining “the waters of the United States” within the meaning of the Clean Water Act (CWA). We served as lead counsel and obtained certiorari over the United States’ opposition and prevailed 9-0 on the merits of the issue of where challenges to EPA’s “Waters of the U.S.” rule may be litigated.
- Advised a leading financial information services, news and media company on issues arising out of carbon emissions trading, legal framework, implementation models and development of climate exchanges in China and also on issues arising out of PRC environmental rules and regulations including China RoHS and WEEE directives.
- Advising multiple clients in the acquisition of brownfield project sites, evaluating the nature and extent of any possible contamination, estimating the cost of remediation and defining the potential return if remediated. Where projects proceed, we coordinate with landlords, tenants, developers, environmental consultants, lenders, insurance providers, regulatory agencies and other legal counsel to create a legal strategy that provides the greatest return and protection.
Safeguarding the Environment
- Advising one of the world’s leading apparel brands on the proposed establishment of a joint venture in Asia. The JV partner was a well-known worldwide organization that helps collect waste plastics and process them into environmentally friendly products that can be used for clothing. One of the key purposes of the JV was to establish suitable controls over collection practices.
- Assisting a multinational Australian-based mining conglomerate in understanding and addressing the exposure of its directors, officers and members of relevant committees to potential environmental liabilities in cases of environmental incidents. This included the planning and development of ESG directives to better address environmental liability risks.
- Assisted the company in charge of the largest Brazilian hydroelectric power plant in assessing the status of implementation and recommended adjustments to several projects for managing socio-environmental impacts caused by the plant’s reservoir operation.
- Advising on a range of Emissions Reduction Purchase Agreements (ERPAs) in respect of CDM and JI projects under the Kyoto Protocol, including in respect of CDM Programs of Activities, advance payment mechanisms, standard switching language and option provisions.
- Advising on a broad array of renewable energy financing transactions, green loans and green bond issues of the type that can form part of a company's carbon reduction strategy.
- Representing an industry trade organization in investigating, evaluating and responding to climate change litigation.
- Advising a global organization on the implementation of benchmarking under the EU ETS Directive, including providing legal opinions and engaging in detailed discussions with the European Commission.
- Advising a Brazil-headquartered global mining company on PRC regulatory and policy developments on climate change, emission reduction and renewable energy.
- Representing a diversified chemicals manufacturer in efforts to develop climate change legislation. Our work in this area has included activity on both comprehensive and focused initiatives.
- Representing a US-based fund in the formation of a fund-of-funds that invests in private equity funds that adhere to the UN Sustainable Development Goals. For this client, we also reviewed the fund documentation and policies and practices of the target funds to assess compliance with the UN goals.
Land and Community Rights
Enhancing rural development and livelihoods is another important element of environmental management. Mayer Brown lawyers have been active in sustainability initiatives involving rural development, environmental protection and supply chain management, including by:
- Assisting a major Brazilian sugarcane and biofuels company with several ESG challenges pertaining to its operations, including as to the legal implications of moving to 100 percent mechanized sugarcane harvesting, eliminating the use of fire and manual labor.
- Counseling a Brazilian client in dealing with environmental and social consequences of a major fire in one of its fuel distribution plants, which impacted nearby communities and entailed settlement negotiations with several stakeholders (public prosecutors, environmental agencies and residents’ associations).
- Advising a client on the land, environmental, town planning and construction aspects of a pilot co-combustion plant project involving the incineration of waste and the recycling of the end product into building materials in Hong Kong.
- Assisted Georgia Renewable Power in the $525 million of term project financing arranged by AMP Capital for GRP's 2 (60 MW each) biomass power plants in Franklin and Madison, GA. The financing was certified as a green loan by Kestrel Verifiers.
- Acted as lenders’ counsel in connection with the closure of the first US sustainable use-of-proceeds syndicated subscription finance facility for the KKR Global Impact Fund. Standard Chartered Bank acted as sustainability coordinator and co-lead arranger, and Morgan Stanley acted as administrative agent and co-lead arranger.
- Represented the underwriters in a public offering of $500 million 2.45 percent senior notes due 2026 and issued by Starbucks Corporation. This transaction marked the first-ever US corporate sustainability bond, which raises capital for projects with a mix of social and environmental benefits.
- Represented Canada Pension Plan Investment Board (CPPIB) on a $1.2 billion offering of green bonds led by CIBC World Markets Inc. and RBC. This is the first green bond sold by a pension fund globally. This transaction was a record size for a single green bond transaction in Canada according to Bloomberg data. Sold via the CPPIB Capital Inc. unit, the 10-year bonds were sold at a spread of 71 basis points over similar-maturity federal government bonds and offer a 3 percent coupon.
- Represented Citigroup, Bank of America and Morgan Stanley as underwriters in a public offering of $1.75 billion in auto loan-backed notes issued by the Toyota Auto Receivables 2014-A Owner Trust. This transaction marks the first-ever green bond in the auto finance market, and the proceeds of the offering will be used to finance new Toyota and Lexus gas-electric hybrid or alternative fuel powertrain vehicles that meet certain green standards.
- Represented the investors in connection with the issuance of an investment grade bond of $64.75 million to refinance debt for the 50 MW La Jacinta solar park in Uruguay.
- Represented Morgan Stanley and MUFG as underwriters in a public offering of ¥85 billion 0.372% senior notes due 2024 and issued by Starbucks Corporation. This transaction marked the first-ever sustainability bond issued in the domestic Japanese market.
- Represented the noteholders on the private placement of approximately $135.8 million in green bonds, investment-grade rated project bonds issued to partially re-finance the 70 MW Campo Palomas wind energy project in Uruguay. This deal was named “Project Finance Deal of the Year” by Bonds & Loans in 2017.
- Advised Unicredit Bank AG and other banks on the issuance of a £500 million Green Mortgage Pfandbriefe by Berlin Hyp AG under its debt issuance program.
We advise on a wide range of matters relating to business and human rights. (For more on our experience in this area, see our Business & Human Rights page.) In addition, we have:
- Represented Vakifbank on its issue of €750,000,000 of Sustainability Notes, the first-ever offering of a sustainability bond by a Turkish commercial bank, advising the client on its Use of Proceeds (UoP) disclosure for its prospectus and marketing materials, ESG-related investor due diligence, ESG related representations and warranties for the subscription agreement and listing on Euronext Dublin’s Green Bond Segment. The net proceeds of the issue of the Sustainability Notes are to be applied by Vakifbank for green and / or social projects.
- Represented Novartis AG on an offering of €1.85 billion sustainability-linked bonds by Novartis Finance S.A., guaranteed by Novartis AG. The €1,850,000,000 0.000% Sustainability-Linked Notes due 2028 were listed on the SIX Swiss Exchange and were the first-ever sustainability-linked bonds in the healthcare sector, the first-ever sustainability-linked bonds incorporating “social” targets, with bondholders entitled to receive a higher amount of interest if Novartis fails to meet its targets for expanding access to its innovative medicines and addressing key global health challenges, as well as only the second-ever sustainability-linked bond since the publication by the International Capital Markets Association (ICMA) of its Sustainability-Linked Bond Principles in June 2020.
- Advised LeapFrog Investments, a leading social impact investor focusing on Asia and Africa, in connection with its investment in Series B Preferred Shares of PT PasarPolis Indonesia, one of Indonesia’s first and leading insurtech companies. This was one of the top 10 insurtech transactions globally in 2020 (Insurtech Report).
- Advised a leading international development finance institution with respect to its investment in a financial institution based in Thailand operating in the high-growth segments of microfinance and micro-SME loans and providing financial services to small businesses, traders and other self-employed individuals who have historically had limited access to bank loans.
- Advised FMO (the Dutch development bank), Belgian Investment Company for Developing Countries (BIO) and Dragon Capital Group on the auction process and strategic sale of their collective 67 percent shareholdings in PRASAC Microfinance Institution, Cambodia's largest microfinance institution, with more than US$1.3 billion in assets. The transaction closed in March 2017 and was recognized as being one of the most innovative transactions in 2017.
- Advised clients on using AI legally and ethically. We have advised and provided training sessions on the potential use cases for AI in their organizations, the broader international legislative and policy landscape on the use of AI, the challenges and key issues that typically have to be addressed to ensure the legal and ethical use of AI and the steps to take and the controls to put in place to address these issues.
- Advised a major Norwegian mining company in navigating ESG issues connected with its operations in Brazil, involving negotiations with “quilombolas” (slaves’ descendants) and other stakeholders (public prosecutors, environmental and regulatory agencies). The negotiations seek to put an end to disputes with and among the quilombolas so that such disputes do not jeopardize the renewal of client’s environmental licenses (social licensing).
- Assisted a multinational Brazilian-based meat-processing conglomerate in improving and implementing ESG guidelines focused on preventing the acquisition of cattle from noncompliant suppliers (deforestation, human rights protection).
- Represented FMO on its divestment from a Sri Lankan microcredit institution.
- Advised FMO as international counsel on bilateral and syndicated financings to microcredit institutions in Vietnam, Mongolia, Bangladesh, Cambodia and Sri Lanka.
- Represented Partech International in its investment in EcoVadis SAS, a leading platform that helps companies monitor suppliers' environmental, social and ethical practices across global supply chains.
- Advising leading global insurers on ESG-related exposures of their financial institution policyholders.
- Counseling companies on directors’ duties required under various exchange listing standards, as well as the development of open forums for shareholders to discuss ESG values—including the social aspects of their corporate governance, such as diversity in boards.
- Counselling both public and private companies to establish and maintain a comprehensive governance framework, including as to key sustainability and environmental priorities.
- Supporting the development of investor relations strategies and shareholder communications and outreach activities.
- Advising company boards of directors and management with respect to addressing ESG-related shareholder proposals, shareholder engagement efforts, proxy advisory firm recommendations, institutional investor issues related to ESG matters, and ESG disclosure requirements and trends.