The Normative Effects of ESG Expectations on Companies and their Directors
Résumé
Most companies face a growing number of environmental,
social and governance (ESG) expectations arising
not only from their shareholders, but also from a wide
array of stakeholders such as clients, investors, States,
financial institutions and not-for-profit organisations.
Even though a significant number of these expectations
are not imposed by hard or soft law, they cannot be disregarded
in view of the significant non-financial and
potentially financial impacts they may have on companies’
operations, performance and reputation if they
are not duly addressed. In this paper, we first classify
these expectations depending on their nature (environmental,
social or governance-related) and the persons
expecting them to be complied with (e.g. shareholders,
consumers and employees, or other stakeholders). We
then suggest a legal characterization of these ESG expectations
and highlight that, over time, they tend to
get codified. But we also draw on well-established legal
theories, notably the legal normativity theory of Hans
Kelsen and the European theory of legal constructivism,
to advocate the sui generis normative nature of
ESG expectations. We thus conclude that, de lege lata,
ESG and sustainability expectations are to be considered
as an autonomous normative source of required
behaviours, which therefore have material implications
on the directors’ and managers’ duties.