Using the practice of law to facilitate change and to accelerate a just transition

Slawomir Uss
Sołtysiński Kawecki & Szlęzak, Warsaw
Slawomir.Uss@skslegal.pl

Joint session of the IBA Regional Fora

The following IBA forums were included: African Regional Forum, Arab Regional Forum, Asia Pacific Regional Forum, European Regional Forum, Latin American Regional Forum and the North American Regional Forum.

Moderator

Rasem Kamal Kamal & Associates, Ramallah; Senior Vice Chair, IBA Arab Regional Forum^[1]

Speakers

Ambassador Julián Ventura Albright Stonebridge Group, Mexico City^[2]

Maha Balakrishnan National Democratic Institute Malaysia, Kuala Lumpur^[3]

Claudia Santos Cruz Morais Leitão/MDR Advogados/ALC Advogados, Lisbon; Conference Officer, IBA Oil and Gas Law Committee^[4]

Agnieszka Matłoka IRCenter, Warsaw^[5]

Discussion

The discussion focused on climate; social responsibility; and environmental, social and governance (ESG) related subjects, as well as the role of law and lawyers in a process leading to the implementation of the ESG principles. Given the geographical and professional diversity, we heard views from many different angles.

Ambassador Julián Ventura referred to the issue from the perspective of a former diplomat. Just transition is not a new thing – it has been in multilateral papers since 2015 and has been developed since then at subsequent UN COP (United National Climate Change Conference) summits. Certainly, this is a work in progress and some say the glass is half empty, whereas others say that it is half full. But the process is going on. When talking from a local perspective, Ventura stressed that, in the Mexican context, it is the banking sector which is setting the benchmark in ESG.

Maha Balakrishnan shared her thoughts on what it means to be ‘in transition’. Malaysia has two strategic businesses – critical minerals and data centres. At present, there are no policies, there is no regulatory framework related to ESG and there is no movement to have it. However, it is hard to speak about ESG and its far-reaching goals, when there is lack of basic rights, such as access to information and access to air quality. So first, the basic rights – very often related to procedures – should be secured. Balakrishnan stressed that such procedural justice is particularly important or even critical in developing countries, and this could be a starting point to next steps. Malaysia is a good example of what can be achieved collectively, especially in the human rights field where progress continues to be made.

Claudia Santos Cruz gave insights from the perspective of African countries inviting investors. There is an inherent conflict in the respective countries’ needs with quick transition, as quick transition is not necessarily a just one. There needs to be a balance between the investor’s needs and the local country’s needs.

Agnieszka Matłoka outlined key challenges in the ESG transition, presenting a wide spectrum of issues. It is sometimes hard to not only to find a proper balance between ESG and local needs, but it is a real challenge to find a proper balance between ‘E’, ‘S’ and ‘G’. For instance, while closing a coal plant may be good for the environment, massive lay-offs have an adverse impact from a social perspective. Matłoka put a lot of stress on the lawyers’ role in the ESG transition, saying that it simply cannot be done without lawyers, who are needed on different levels. From an organisational perspective, lawyers make structures more efficient. At board level, lawyers may not only give advice but also educate on ESG, raising the boards’ awareness. Lawyers may activate stakeholders’ engagement (eg, with non-governmental organisations), facilitate exchange of information on ESG (investors-employees) and, in the end, they may also make sure that ESG compliance is in progress.

In summing up the session, the take-aways for lawyers who want and should be engaged in the transition, making it a just transition are:

• bring technical skills and technical knowledge;
• engage in legislative works to secure that the transition is truly just; and
• take into account the ESG issues (eg, fair labour, ESG compliance, etc) when drafting contracts.