Environmental, social and corporate governance has been high on agendas for the last few years, but 2020 saw focus sky rocket in boardrooms, in the media and amongst legislators and regulators. This piece looks at the impact over the last 12 months, and signs for developments in 2021, with a particular eye on what is changing offshore.

Investment

Bloomberg has reported that Exchange Traded Funds investing in companies focused on ESG practices brought in around USD 85 billion in the U.S and Europe last year. Investments in sustainable products in Europe are expected to reach over EUR 7.6 trillion by 2025. But what is driving this shift in the investment landscape?

To go back a step, 2020 sent shock waves across the world: the global pandemic saw companies, fund managers, investors and directors rally to analyse and manage their risk; unprecedented government-backed assistance schemes were rolled out to help struggling businesses; and the Black Lives Matter movement put a spotlight on diversity and social justice.

On a global level, market players pledged to do more. ESG considerations steered business decisions in a way never before seen, as the market increasingly saw both reputational and financial dimensions to ESG risk. The focus and belief in a single bottom line increasingly changed to a "triple bottom line" focused on people, planet and profit. A cynical view might be that a key driver during this time of volatility is that ESGlinked strategies have proven to be not only particularly resilient but have performed exceedingly well. According to Bloomberg Intelligence, the S&P 500 ESG Index, has outperformed the S&P 500 Index year to date 13.49% to 15.21%. But even this does not tell the full story.

Legislation

There is also a legislative agenda. New EU regulations targeting `bad practice' were introduced last year. Among other things, they provide a classification system for sustainable activities and a standard for ESG reporting. As of 10 March 2021, there will be mandated ESG general disclosures in the financial services sector, with Level II requirements applying as of January 2022.

The UK is likely to introduce similar regulations. As a practical point, fund managers promoting in the UK and the EU will need to consider any potential differences. In the US, one of President Biden's first acts was to re-commit to the Paris Climate accord. He has also joined world leaders including Europe, China, Japan and the UK in committing to net-zero carbon emissions by 2050. Further regulations at sectoral, national and multinational level are on the horizon.

Financings

On the loans side, the sustainable finance market has seen an influx of new products. Green bonds dominate the space and Institutional Asset Manager expects it to double in 2021. In addition, among other ESG related products, sustainability linked loans, green loans and green deposits are on the rise. Financial incentives, such as tying companies' debt to ESG performance indicators, are forecast to be increasingly used and the LMA, APLMA and LSTA have published (and recently updated) their Green Loan Principles and related guidance.

This trend is continued in the fund finance space, for example, EQT, who, supported by Channel Islands based lender, RBSI, recently secured the largest ever ESG linked subscription credit facility at EUR 2.7 billion. We are seeing, and expect to see more, demand for such facilities.

Activism

Investors are a key driver of the ESG focus. The Investment Association reported that over 7.1 billion flowed into responsible investment funds last year. According to the Financial Times, more than three quarters of 300 investors including pension funds, said they would stop buying into conventional funds in favour of ESG products by 2022. In a survey conducted last year, 72 percent of limited partners cited ESG as one of the most important factors when selecting a general partner. We are seeing increasing ESG related provisions and obligations in side letters and expect that as ESG related and sustainability linked facilities become more prominent (more on this below), such provisions will be built into the fund's constitutive documents (to the extent they are not already).

Asset managers are also meeting investor demands by dedicating fund strategies to ESG, repurposing existing funds and launching `Green' and `Impact' funds. Sponsors are also expected to include sustainability and governance factors in their investment guidelines.

It's not all about investor activism either. There is further impetus from the public with employees holding their companies accountable for their policies on diversity and social and political issues. For example, according to recent press coverage, the newly formed workers union at Google's parent company Alphabet isn't seeking better pay or benefits but rather trying to ensure the company "acts ethically and in the best interests of society and the environment".

That activism takes on a further dimension when you take in the massive global infrastructure spending now planned in response to the economic damage brought about by the pandemic with billions of dollars' worth of spending likely, and governments committed to "building back better", there are now three key investor groups pension funds, sovereign wealth funds and now governments all facing more pressure to demonstrate ESG impact as well as financial returns.

Jersey

Jersey is already home to regulated funds with aggregate net assets of at least 365 billion (as at June 2020).

With its proven and long-standing commitment to upholding the highest standards of regulation and governance, including the introduction of the economic substance regime and new registry law, and reputation as a leading international finance centre, Jersey is perfectly-positioned for fund managers with the increasing demands for thorough review and reporting on ESG-focused investments. It is therefore no surprise that Jersey is demonstrating its own commitment to global regulatory ESG standards. The JFSC is consulting on its own proposals and regime to combat the risk of `greenwashing' by enhancing disclosure for sustainable investments. These requirements are anticipated to apply to (i) unregulated funds, Jersey Private Funds and regulated funds, (ii) foreign funds with Jersey service providers; and (iii) persons regulated to carry on investment business under the Financial Services (Jersey) Law 1998 and, in each case, which invest in or advise funds with ESG investment objectives and are marketed on the basis of having a sustainable focus.

Jersey has also introduced the Jersey Fund for a Wilder World, a voluntary scheme where fund services providers can donate a proportion of annual fees received from clients with a sustainable focus to the Durrell Wildlife Conservation Trust in exchange for a Jersey Fund for a Wilder World kitemark. That, in itself, is a hint about the direction of travel fund administrators, managers and even lawyers are facing expectations that they can demonstrate their own ESG credentials, and the focus is on them as well as the underlying investments sitting within the structures on which they advise.

In addition, The International Stock Exchange has established TISE Green, as a market segment for green investments, including bonds, funds and trading companies, which enhance or protect the environment. It has recently listed four series of green bonds for an energy group involved in the production of solar energy.

Disclaimer The information contained in this advisory is necessarily brief and general in nature and does not constitute legal or taxation advice. Appropriate legal or other professional advice should be sought for any specific matter.

Guernsey

Similarly, Guernsey has sought to establish itself as a market leader for green-focused funds, with the launch of the Guernsey Green Fund Rules in 2018 a timely new product given what has happened in the world since their introduction.

The Rules allow Guernsey funds that meet certain eligibility criteria to apply to the GFSC for designation as a Guernsey Green Fund. This provides a kitemark that can be applied for marketing purposes, but more importantly, also provides assurance to investors that the fund's assets are not the subject of "greenwashing". Funds seeking Guernsey Green Fund status must adopt a set of approved green criteria and exclusion policies, which the GFSC has adopted from The Common Principles for Climate Mitigation Finance Tracking, an internationally recognised set of principles developed by the joint climate finance group of multilateral development banks and the International Development Finance Club.

Adherence to these criteria is assessed by certification. Funds are able to apply for certification using one of two routes either via an independent accreditation route, where the Fund is assessed by a suitable independent third party (such as a qualified audit firm), or alternatively by declarations to the GFSC from a licensee.

Obtaining designation as a Guernsey Green Fund via the independent accreditation route is also a key first step for equity products to obtain listing on the TISE Green market segment, as these funds are deemed to meet the criteria for a presence on TISE Green. Unsurprisingly, interest has been strong in Guernsey Green Funds. Seven schemes were designated by 30 September 2020, with a combined NAV of 3.3 billion. It is expected that many more will follow in the years to come.

Conclusion

All of the evidence suggests not only that ESG as a concept is here to stay, but that ESG considerations will become ever more prominent in investment and financing decisions. Whether driven by legislation, regulation, or by market behaviour, participants right across the financial services industry will be expected to play their part. As investors continue to drive behaviour towards more positive ESG outcomes, the challenge for the industry will be how to adapt and innovate in order to deliver on market demand, in particular, without materially impacting its ability to generate profits. How this conflict is resolved, as and when it arises, is likely to be central to whether there is a sustained shift in investment policy by the major players and the consistent application of the triple bottom line to business decisions.