The Linklaters multidisciplinary ESG team has deep experience advising clients across a wide range of sectors and contexts on the full spectrum of environmental, social and governance issues. In this regular series, we hear from members of the team about their ESG experience, their career journey and their views on the evolving ESG landscape.
Guillaume Croisant ponders the question carefully when asked about the ideal skill-set for a good dispute resolution lawyer. “An objective mind-set is a good starting point,” he says. “It is a myth that a litigator has to be primarily aggressive – you should be assertive, certainly, but that is not the same thing as aggression. To be strategic is essential – you must think not only of your own objectives but also of those that your opponent may have because you will need to counter them. In that sense, it is a little like chess.”
Guillaume’s own fascination with dispute resolution has led to a remarkably varied practice with Linklaters, encompassing international arbitration, cross-border litigation and compliance. “It touches on so many areas of law and the diversity of my caseload is a big part of why I enjoy it so much,” he says. “The argumentative aspect of the job is another and every day offers a new and different challenge.”
In the Brussels office, Guillaume’s career received particular impetus from the influence of Linklaters’ former global head of litigation and arbitration, Françoise Lefèvre. “She also had a very broad practice, which was quite inspiring, and I was lucky enough to work with her on many different cases,” Guillaume recalls. “Françoise was a real mentor, and she played a big part in helping me get a secondment for a year to the London office.”
It was in London that Guillaume met two other lawyers who have had a notable impact on the arc of his career. “I worked with Vanessa Havard-Williams and Rachel Barrett, among others, on the UN Global Compact Guide for General Counsel on Corporate Sustainability, which allowed me to interview a number of GCs at the forefront of the thinking on the integration of sustainability considerations into business as usual,” he remembers. “They were exceptional people to work with and that experience opened my eyes to the growth of ESG issues and the intersection of dispute resolution and corporate sustainability.”
“When I returned to Brussels in 2018, we set up a cross-office task force and started a series of ESG-related seminars for our lawyers and clients,” Guillaume continues. “At the first one, maybe two dozen people showed up but two years later, ESG had become such a big deal for every practice area that we were turning people away because we were booked out. Of course, climate change and transition concerns have only risen more since the pandemic and the regulatory agenda has been turned up by the EU and other government organisations, which has trickled down to every industry sector.”
As Guillaume explains, the specific requirements of the increased focus on ESG are still interpreted somewhat differently by people in different sectors and jurisdictions. “While we see a wave of regulations, in particular around corporate disclosure, supply chain issues and sustainable finance, the extent to which companies and their directors have duties to take sustainability considerations into account in their business decisions is still mostly based on general principles of law and court interpretation,” he says. “But the vagueness and uncertainty is what make it so fascinating and allows lawyers to work on landmark precedents. It will be a few years before case law is firmly established in ESG-related climate change or supply chain disputes.”
The nature of the advice that clients are seeking in this sphere from Guillaume and his colleagues has accordingly changed over the years. “The questions that we deal with are certainly more complex and sophisticated today,” he says. “A lot of them concern evolving ESG regulatory obligations, such as the nitty-gritty of disclosure obligations, and the upcoming general supply chain obligations. There is also great demand for advice on the “big picture” and the likely future direction of travel. Fundamental changes will have to be made by everyone if we are to reach the goal of carbon neutrality by 2050.”
Most plaintiffs in ESG-related litigation currently tend to be NGOs or activist organisations. “I suspect that we shall eventually see a different type of commercial plaintiff emerging in the near future,” Guillaume predicts. “We already see post-M&A disputes pertaining to the target’s exposure to climate change or its management of ESG risks and obligations. Green-washing and broader corporate disclosure issues are also constant concerns and I’m certain that cases of investors querying misleading claims of green credentials will increase. The landmark cases will be few and far between, however, and after they are heard we shall move from shaping the laws of ESG to looking at claims that are largely part of our existing different practices.”
“ESG fits into nearly every commercial and legal matter,” Guillaume concludes. “The breadth of the law that it entails is very exciting; these are the kinds of cases for which we became dispute resolution lawyers in the first place!”
This article was written for the Linklaters Alumni Newsletter by James Fairweather, Lexicon, June 2023.