ESG and impact litigation: identifying and governing the causes through strategic accountability patterns

Abstract

PurposeAs financial firms incorporate impact strategies more extensively into their operations, they are asked to sustain their impact claims and thus face increased risks of regulatory scrutiny and lawsuits from private and public parties. The lack of reliable frameworks to measure impact gives rise to phenomena like impact washing, leading to litigations. This article aims to explore the main factors contributing to the impact litigation risk and the mechanisms employed by practitioners in the impact investing field to navigate and address this challenge.Design/methodology/approachWe conducted semi-structured interviews involving three impact investors and three impact lawyers with specific knowledge of ESG and impact controversies, adopting the Gioia Methodology for the analysis. We triangulated such information with the analysis of secondary data.FindingsThe “great noise” around the impact investing world and the rise of impact washing, the lack of shared standards for measuring impacts and the misalignment of interests among actors involved in the initiatives constitute a potential “litigation bomb”. Such a scenario is detrimental to an investment strategy, which has the potential to tackle societal issues.Originality/valueThis study represents an initial effort to connect the academic debate on impact litigation with the expert’s active “on-field” standpoints. The identified and validated drivers of impact litigations provide valuable insight to enhance the governance and accountability of impact investing. Implementing Impact Measurement and Management (IMM) tools, participatory governance models, clear impact-focused contracts and a proactive approach could serve as prospective solutions to mitigate the risk of disputes.