How fiduciary duty law incentivises investors to manage sustainability risks

Abstract

The compatibility of Environmental, Social and Governance (ESG) risk management with the investment management requirements under the investors’ fiduciary duties (FD) figures among the key questions in today’s context of a rapid growth of sustainable investment strategies. Despite some legal developments, namely, in Europe, investors still have no clear answer to this question, which leaves them inert in the face of these new, unconventional types of risk. In our research, we explore the recent advancements in the EU and the US legal practice with the objective to establish to what extent the FD actually requires investors to consider ESG risks in their investment management decisions. Through analysis, we define a theoretical decision-making pattern for ESG risk management set by the current FD law as applied to investors and identify: 1) ESG risk materiality and 2) the effectiveness of ESG risk hedging as its fundamental elements. Then, we design a theoretical representation of ESG risk materiality under the FD legal constraints and identify that the current FD law binds investors to assimilate ESG risks to financial risks; thus, their management is required only if they are financially material for investments. We show that this principle equally applies to long-term ESG risks (like climate change); investors are incentivised to manage only those that are sufficiently financially material considering the applied hypothetical discount rate. Also, through the case study of a recent US ERISA ESOP lawsuit, we reveal that risk aversion towards probability to successfully hedge material ESG risks could impede efficient risk management by incentivising investors not to hedge a material ESG risk, i.e. to breach their FD.