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Opportunities and Challenges of Green Growth in Africa

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By Hon. Dr. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*

The concept of ‘green economies’ has received widespread attention since the Rio+20 conference. The outcome of the Conference affirmed the role of green economy in the context of sustainable development and poverty eradication as one of the important tools available for achieving Sustainable Development. It calls upon states to embrace green economies as a tool of eradicating poverty as well as sustained economic growth, enhancing social inclusion, improving human welfare and creating opportunities for employment and decent work for all, while maintaining the healthy functioning of the Earth’s ecosystems. The outcome of the Rio+20 Conference further recognizes the importance of green economy in enhancing our ability to manage natural resources sustainably and with lower negative environmental impacts, increasing resource efficiency and reduction of waste.

Since the outcome of the Rio+ 20 Conference, the concept of green economy has been embraced at the global, regional and national levels. The universal call for green growth is stipulated under the United Nations 2030 Agenda for Sustainable Development which envisions development which balances social, economic and environmental sustainability. The Sustainable Development Goals seek to promote green economies through measures such as ensuring access to affordable and clean energy; promoting sustainable industrialization, innovation and infrastructure; promoting the growth of sustainable cities and communities and combating climate change. Achieving the Sustainable Development agenda is essential in fostering green economies in Africa.

At the regional level, the Africa Union’s Agenda 2063 sets out the aspirations of prosperous Africa based on inclusive growth and Sustainable Development. It seeks to achieve this goal through measures such as promoting sustainable and inclusive economic growth; ensuring sustainable management of natural resources in Africa; fostering sustainable consumption and production patterns; fostering climate resilience and natural disasters preparedness and prevention and embracing renewable energy in Africa. Realizing the aspirations of Agenda 2063 is paramount in actualizing Africa’s green dream. In addition, the Agreement Establishing the African Continental Free Trade Area (AfCFTA) seeks to promote and attain sustainable and inclusive socio-economic development in the region. It recognizes the need to promote sustainable development in accordance with the Sustainable Development Goals as vital in achieving the economic integration of the African continent. There is need to promote the vision of the AfCFTA in order actualize Africa’s green dream.

In Kenya, the Constitution embraces Sustainable Development as one of the national values and principles of governance. It further encompasses several provisions that are vital in attaining green growth in Kenya including the recognition of the right to a clean and healthy environment. The Constitution also stipulates certain obligations in respect of the environment which include ensuring sustainable exploitation, utilisation, management and conservation of the environment and natural resources; achieving and maintaining a tree cover of at least ten per cent of the land area of Kenya; establishing systems of environmental impact assessment, environmental audit and monitoring of the environment and eliminating processes and activities that are likely to endanger the environment.

Implementing these among other provisions of the Constitution will enhance green growth in Kenya. Green growth has been embraced in Africa through measures such as promoting the use of clean and renewable sources of energy. There have been increased investments in renewable sources of energy such as solar, wind, hydro, geothermal and green hydrogen. Clean and renewable sources of energy are essential in climate change mitigation and adaptation and actualizing the green dream. Agenda 2063 recognizes the importance of renewable sources of energy in ensuring environmental sustainability and climate resilient economies and communities towards attaining Sustainable Development in Africa. Africa has vast resource potential in wind, solar, hydro, and geothermal energy and falling costs are increasingly bringing renewables within reach. It has been pointed out that renewable sources of energy can help address many of Africa’s social, economic, health and environmental challenges and foster the realization of a climate-safe future in which sustainable development prerogatives are met.

There is need for increased investments in renewable sources of energy in Africa in order to actualize the green dream. In addition, green revolution is also being witnessed in the agricultural sector in Africa. Technologies such as genetic engineering have been adopted to transfer the nitrogen-fixing capabilities of legumes such as peas and beans into cereal crops. This has facilitated the attainment of higher yields, without the use of expensive fertilizers. This approach also aids in the reduction in the use of chemical nitrogen fertilizers, which contribute substantially to both carbon emissions and environmental pollution.

Some African countries have also adopted regenerative agricultural practices such as crop rotation, agroforestry, use of drought- and heat-resistant crops, integrated pest control systems, water harvesting and irrigation. This has helped in fostering high-yielding, resilient, and adaptive practices that constitute an African approach to climate-smart agriculture. Greening of the agricultural sector is vital in actualizing Africa’s green dream. Further, there has been progress towards actualizing Africa’s green dream through the adoption of sustainable waste management practices. Countries such as Rwanda and Kenya have banned the use of plastic bags due to their negative environmental impacts. This has promoted improved waste management and environmental conservation in these countries.

In addition, there has been growth of sustainability startups aimed at promoting efficient waste management through measures such as treatment, recycling of waste and conversion of waste into useful products such as compost and biofuel briquettes. Progress has also been made towards fostering green growth in the African tourism sector through eco-resorts or family villages in countries such as Rwanda. Africa is a continent that is rich in cultural and ecological heritage and recreational development has been identified as one of the measures of promoting green growth in the tourism sector. This has enhanced sustainability and social growth through a combination of agriculture, the commitment of local businesses and educating and recruitment of local staff in such projects.

Despite the progress made towards actualizing Africa’s green dream, several concerns have hindered the attainment of this ideal. It has been pointed out that the transition towards renewable energy has not been fully embraced due to factors such as insufficient investments with only 2% of global investments in renewable energy in the last two decades being made in Africa, with significant regional disparities. This has significantly affected access to clean cooking fuels and technologies in most parts of Africa. Further, it has been asserted that African countries especially those in the North African region which have untapped renewable energy sources including hydrogen have struggled to meet their own renewable energy targets, often as a result of unattractive investment conditions, insufficiently developed legal frameworks for renewable energy development and uneven and inconsistent implementation of regulations. It is necessary to address these challenges in order to actualize Africa’s green dream in the energy sector.

In addition, it has been observed that agricultural practices that supported African communities in the past such as slash-and-burn cultivation and crop rotation are now driving the sector’s decline60. These practices combined with long-term ecological impacts of chemical-heavy farming systems contribute to land degradation and crop failure. The situation is worsened by changing weather patterns as result of the threat of climate change and unstable sociopolitical dynamics hindering the attainment of food security. There is need to address concerns in the agricultural sector in order to actualize Africa’s green dream. It also been asserted that despite the abundance of water resources in Africa including lakes, rivers, swamps and underground aquifers, there has been degradation and underutilization of these water resources.

Concerns such as pollution, poor agricultural practices and the effects of climate change have affected the quality and quantity of water resources in Africa. This has hindered actualizing Africa’s green dream in other areas including agriculture and food production, energy, manufacturing and processing, tourism and health due to the centrality of water in Africa’s pursuit of the Sustainable Development Goals. It is imperative that concerns in the water sector be addressed in order to foster Sustainable Development and actualize Africa’s green dream. As a result of the foregoing concerns, it has been observed that Africa continues to lag behind other regions of the world in achieving the Sustainable Development agenda66. The continent has huge potential to achieve green growth and the transition into green economies. There is need to deal with the above concerns in order to actualize Africa’s green dream.

*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood Publishers, Nairobi, October 2023) by Hon. Dr. Kariuki Muigua, OGW, PhDSenior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Dr. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023. 

 References

Africa Energy Forum., ‘Held on 20-23 June 2023 in Nairobi, Kenya’, Available at https://www.africa-energy-forum.com/ (Accessed on 27/06/2023)

Africa Union., ‘Agenda 2063: The Africa we Want.’ Available at https://au.int/sites/default/files/documents/33126-doc-framework_document_book.pdf (Accessed on 03/07/2023).

African Union., ‘Agreement Establishing the African Continental Free Trade Area.’ Available at https://au.int/sites/default/files/treaties/36437-treatyconsolidated_text_on_cfta_-_en.pdf (Accessed on 03/07/2023).

African Wildlife Foundation., ‘Sustainable Agriculture.’ Available at https://www.awf.org/community/sustainable-agriculture (Accessed on 03/07/2023).

Begashaw. B., ‘Africa and the Sustainable Development Goals: A long Way to go.’ Available at https://www.brookings.edu/articles/africa-and-the-sustainable-developmentgoals-a-long-way-to-go/ (Accessed on 03/07/2023).

Behuria. P., ‘Ban the (plastic) Bag? Explaining Variation in the Implementation of Plastic Bag Bans in Rwanda, Kenya and Uganda.’ EPC: Politics and Space, 2021, P 1-18 52.

Climate Champions. ‘How Regenerative Agriculture Can Increase Africa’s Food Production.’ Available at https://climatechampions.unfccc.int/call-to-action-for-climateresilient-sustainable-food-systems-in-africa/ (Accessed on 03/07/2023).

Conrow. J., ‘Borlaug’s Dream is Being Realized.’ Available at https://allianceforscience.org/blog/2017/04/borlaugs-dream-is-being-realized/ (Accessed on 03/07/2023).

Constitution of Kenya, 2010., Government Printer, Nairobi.

Constitution of Kenya, 2010., Government Printer, Nairobi.

Crane. D., ‘My Clean-Energy Green Dream.’ Available at https://www.greenbiz.com/article/myclean-energy-green-dream (Accessed on 03/07/2023).

Davis. L.R et al., ‘Farmer Led Regenerative Agriculture for Africa.’ Available at https://discovery.ucl.ac.uk/id/eprint/10106717/1/LunnRockliffe%2C%20Davies%20et%20al. %202020%20RA%20report.pdf (Accessed on 03/07/2023).

Economic Commission for Africa., ‘African Countries Urged to Prioritize Green Value Chains for Minerals.’ Available at https://www.un.org/africarenewal/magazine/february-2023/african-countries-urgedprioritize-green-value-chains-minerals (Accessed on 03/07/2023).

EN: Former., ‘North Africa’s Hydrogen Potential.’ Available at https://www.enformer.com/en/northafricashydrogenpotential/?etcc_med=SEA&etcc_par=Google&etcc_cmp=Energysystems&etc c_grp=135634609600&etcc_bky=hydrogen%20africa&etcc_mty=p&etcc_plc=&etcc_ctv=58 0888668376&etcc_bde=c&etcc_var=CjwKCAjw44mlBhAQEiwAqP3eViMmP67xkwkqMl4 FIRbBPvWOgaNcBckR9BJMhu0bOUf1sOG4JKuwhoCga4QAvD_BwE&gad=1&gclid=CjwKCAjw44mlBhAQEiwAqP3eViMmP67 xkwkqMl4FIRbBPvWOgaNcBckR9BJMhu0bOUf1s-OG4JKuwhoCga4QAvD_BwE (Accessed on 03/07/2023).

Energy Act, No.1 of 2019, Government Printer, Nairobi.

Energy Charter., ‘Members and Observers to the Energy Charter Conference.’ Available at https://www.energycharter.org/who-we-are/members-observers/ (Accessed on 26/06/2023).

Forbes., ‘Meet The African Green Entrepreneurs Showing the West How It’s Done.’ Available at https://www.forbes.com/sites/davidrvetter/2021/12/14/meet-the-african-greenentrepreneurs-showing-the-west-how-its-done/?sh=6d46b5bf51cb (Accessed on 03/07/2023).

Hafner. M et al., ‘Prospects for Renewable Energy in Africa.’ Energy in Africa, 2018, pp 47-75.

International Energy Agency., ‘Renewables.’ Available at https://www.iea.org/fuelsand-technologies/renewables (Accessed on 27/06/2023).

International Renewable Energy Agency., ‘Renewable Energy Market Analysis: Africa and its Regions.’ Available at https://www.irena.org/publications/2022/Jan/Renewable-Energy-Market-Analysis-Africa (Accessed on 03/07/2023).

Konoplyanik. A & Walde. T., ‘Energy Charter Treaty and its Role in International Energy.’ Available at http://konoplyanik.ru/ru/publications/articles/417_Energy_Charter_Treaty_and_its_Role_in _International_Energy.pdf (Accessed on 26/06/2023).

Koudstaal.R et al., ‘Water and Sustainable Development’ available at https://www.ircwash.org/sites/default/files/210-92WA-11000.pdf (Accessed on 03/07/2023).

Ministry of Energy., ‘National Energy Policy.’ Available at https://repository.kippra.or.ke/bitstream/handle/123456789/1947/BL4PdOqKtxFT_National %20Energy%20Policy%20October%20%202018.pdf?sequence=1&isAllowed=y (Accessed on 26/06/2023).

MTD., ‘Green Dream Rwanda.’ Available at https://www.mtdls.nl/en/news/newsarchive/q/nid/337/title/green-dream-rwanda (Accessed on 03/07/2023).

Muchiri. L., ‘Gender and Equity in Bioenergy Access and Delivery in Kenya’ Practical Action East Africa, 2008, available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8 &ved=2ahU KEwiy2P29z6PnAhUEiFwKHQlyCLoQFjAAegQIBRAB&url=http%3A%2F%2Fwww.cas. ed.ac.uk%2F__d ata%2Fassets%2Fword_doc%2F0007%2F24793%2FGender_and_Equity_in_Bio_energy_A ccess_and_Deliv ery_in_Kenya_final.doc&usg=AOvVaw2AKp1mvTSC9tafkIKJ-36 (Accessed on 27/06/2023).

Mugagga. F, & Nabaasa. B., ‘The Centrality of Water Resources to the Realization of Sustainable Development Goals (SDG). A Review of Potentials and Constraints on the African Continent.’ International Soil and Water Conservation Research, Volume 4, No. 3, 2016.

Muigua. K., ‘Nurturing Our Environment for Sustainable Development.’ Glenwood Publishers Limited, 2016.

Muigua. K., ‘Towards Energy Justice in Kenya.’ Op Cit 108 Ibid 109 Muigua. K., ‘Access to Energy as a Constitutional Right in Kenya’ Op Cit 110 Centurion., ‘Renewable Energy Growth in Kenya.’ Available at https://centurionlg.com/2022/02/01/renewable-energy-growth-in-kenya/ (Accessed on 27/06/2023).

Owusu. P. & Asumadu-Sarkodie. S., ‘A Review of Renewable Energy Sources, Sustainability Issues and Climate Change Mitigation.’ Cogent Engineering (2016).

Rural Electrification and Renewable Energy Corporation., Available at https://www.rerec.co.ke/our-work.php (Accessed on 27/06/2023).

Taghizadeh-Hesary. F & Yoshino. N., ‘Sustainable Solutions for Green Financing and Investment in Renewable Energy Projects.’ Available at https://www.mdpi.com/1996-1073/13/4/788 (Accessed on 27/06/2023).

The Energy Charter Treaty., Available at https://www.energycharter.org/fileadmin/DocumentsMedia/Legal/ECTC-en.pdf (Accessed on 26/06/2023).

UNDP., ‘New Africa SDGs Report shows Slow Progress, Calls for Greater Action to Meet Targets.’ Available at https://www.undp.org/africa/press-releases/new-africa-sdgsreport-shows-slow-progress-calls-greater-action-meet-targets (Accessed on 03/07/2023).

United Nations Development Programme., ‘Goal 7: Affordable and Clean Energy.’ Op Cit 74 Ibid 75 Treaty Establishing the East African Community., Available at https://investmentpolicy.unctad.org/international-investment-agreements/treatyfiles/2487/download (Accessed on 26/06/2023).

United Nations Development Programme., ‘Sustainable Development Goals.’ Available at https://www.google.com/search?q=undp&oq=UNDP&gs_lcrp=EgZjaHJvbWUqDwgAEAA YQxjjAhixAxiKBTIPCAAQABhDGOMCGLEDGIoFMhIIARAuGEMYxwEYsQMY0QM YigUyCQgCEAAYQxiKBTIJCAMQABhDGIoFMgYIBBBFGDwyBggFEEUYPDIGCAYQ RRg8MgYIBxBFGDzSAQgyNzM2ajFqN6gCALACAA&sourceid=chrome&ie=UTF-8 (Accessed on 03/07/2023).

United Nations Environment Programme, ‘Goal 6: Clean Water and Sanitation’ available at https://www.unep.org/explore-topics/sustainable-development-goals/why-dosustainable-development-goals-matter/goal-6 (Accessed on 03/07/2023).

United Nations General Assembly., ‘Report of the United Nations Conference on Environment and Development: Rio Declaration on Environment and Development’ 1992’ A/CONF.151/26 (Vol. I).

United Nations, Department of Economic and Social Affairs, Sustainable Development goal 6- clean water and sanitation, available at https://sdgs.un.org/goals/goal6 (Accessed on 03/07/2023).

United Nations., ‘Climate Action.’ Available at https://www.un.org/en/climatechange/how-communities-are-embracing-renewable-energy (Accessed on 27/06/2023).

United Nations., ‘The Future We Want: Outcome document of the United Nations Conference on Sustainable Development held in Rio de Janeiro, Brazil, from 20–22 June 2012.’ Available at https://sustainabledevelopment.un.org/content/documents/733FutureWeWant.pdf (Accessed on 03/07/2023).

News & Analysis

The Nexus between Environmental Social and Governance (ESG) and Arbitration

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Arbitration is form of Alternative Dispute Resolution (ADR) mechanisms. ADR refers to a set of mechanisms that are applied in management of disputes without resort to adversarial litigation. It has been described as a private and consensual process where parties to a dispute agree to present their grievances to a third party for resolution. It is argued that ESG principles have become a model for sustainable business development through which a corporations’ goal for solving environmental, social and governance problems is achieved. Consequently, ESG considerations have an increasing impact in international business as evidenced by the incorporation of sustainability clauses in investment contracts. In such contracts, investors are required to adhere to the concept of sustainable development as envisaged under the contracts and failure to do so may result in ESG related disputes.

In the wake of the climate change debate, there have been calls for responsible business practice towards climate change mitigation through measures such as reduction of carbon emissions. The Paris Agreement on Climate Change has raised the awareness of the need for global efforts to combat climate change and the role of responsible and ethical corporate behavior towards achieving this goal. Further, corporations are increasingly required to safeguard human rights as envisaged by ‘S’ pillar of ESG.

However, some corporations have been accused of violating these ESG concerns as a result of their business practices. Some corporations have been accused of failing to promote climate change mitigation through reduction of carbon emissions and transitioning to cleaner energy production. Further, some corporations have been accused of violating fundamental human rights such as the right to a clean and healthy environment especially in the investment sphere in Africa. These instances have resulted in an increasing number of ESG-related disputes. The growth of ESG concerns has seen corporations being increasingly required to embrace ESG principles in their business practices. Consequently, ESG clauses are being adopted in commercial and investment contracts.

In case of violation of such clauses, ESG related disputes are bound to occur. It has been asserted that adoption of ESG related practices into pre-existing social and governance models adopted by corporations would be disruptive. The inclusion of ESG clauses in commercial contracts not only points to the importance of ESG concerns to companies but it also serves as potential source of disputes where such considerations are not complied with. ESG issues are not only reshaping corporate behavior across the globe but can also be a potential battleground in international disputes25. This creates the need for an effective mechanism of management of such disputes in order to enhance ESG principles in the quest for Sustainable Development.

Arbitration has for a long time been the most viable mechanism for management of international commercial and investment disputes. It offers a neutral forum for the management of disputes and addresses some of the concerns that parties may have in relation to the other parties’ legal system. In international commercial and investment arbitration, parties are reluctant to submit to the jurisdiction of the other party due to the likelihood of favoritism by the host judicial system. Further, arbitration has the potential of facilitating expeditious management of disputes.

In international commercial and investment arbitration, there is need to manage disputes expeditiously in order to preserve the commercial interests of parties. The viability of arbitration in management of international commercial disputes is further enhanced by the availability of a legal framework for the recognition and enforcement of foreign arbitral awards. The New York Convention provides the legal framework for the recognition and enforcement of foreign arbitral awards across different jurisdictions. Consequently, the adoption of ESG elements in international commercial and investment agreements has resulted in the use of arbitration to manage disputes arising from such agreements.

ESG concerns have become prominent in investor-state arbitration with arbitral tribunals having to determine issues relating to climate change, corruption and human rights. It has been asserted that the growth of ESG will redefine the practice of arbitration as it seeks to adapt to the new concerns created by ESG. However, the flexibility of arbitration and its ability to adapt to emerging concerns means that it is well positioned to manage ESG disputes. However, there is need for reform in order to enhance the role of arbitration in managing ESG disputes.

*This article is an abridged version of the Article The Place of Environmental, Social and Governance (ESG) in Arbitration (Available for download at Kariuki Muigua & Co. Advocates Website, follow the link) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

Hamilton. J & Coulet-Diaz. M., ‘Arbitration & the ESG Era’ available at https://www.whitecase.com/news/media/arbitration-esg-era (accessed on 28/09/2022).

International Arbitration in 2022., ‘The Rising Significance of ESG and the Role of International Arbitration’ available at https://www.freshfields.com/en-gb/our-thinking/campaigns/internationalarbitration-in-2022/the-rising-significance-of-esg-and-the-role-of-international-arbitration/ (accessed on 28/09/2022)

Mazhorina. M.V., ‘ESG Principles in International Business and Sustainable Contracts’ available at https://aprp.msal.ru/jour/article/view/3223?locale=en_US (accessed on 28/09/2022).

Moses. L.M, ‘The Principles and Practice of International Commercial Arbitration’ 2 nd Edition, 2017, Cambridge University Press 28 Ibid 29Muigua. K., ‘Promoting International Commercial Arbitration in Africa’ available at http://kmco.co.ke/wp-content/uploads/2018/08/PROMOTING-INTERNATIONAL-COMMERCIALARBITRATION-IN-AFRICA.pdf

Muigua. K., ‘International Investment Law and Policy in Africa: Human Rights, Environmental Damage and Sustainable Development’ available at http://kmco.co.ke/wpcontent/uploads/2018/11/International-Investment-Law-and-Policy-in-Africa-AILA-Conference-Paper5-11-2018.pdf (accessed on 28/09/2022)

Muigua. K., ‘Realising Environmental, Social and Governance Tenets for Sustainable Development’ available at http://kmco.co.ke/wp-content/uploads/2022/07/Realising-Environmental-Social-andGovernance-Tenets-of-Sustainable-Development-Kariuki-Muigua-July-2022.pdf (accessed on 28/09/2022)

Muigua. K., ‘Settling Disputes Through Arbitration in Kenya’ Glenwood Publishers Limited, 4th Edition, 2022

Ross. A., ‘We need talk about ESG’ available at https://globalarbitrationreview.com/we-need-talkabout-esg (accessed on 28/09/2022)

The ALP Review., ‘The Importance of ESG and its effect on International Arbitration’ available at https://www.alp.company/sites/default/files/ALP%20Review%20- %20The%20Importance%20of%20ESG %20and%20its%20effect%20on%20International%20Arbitration.pdf (accessed on 28/09/2022).

United Nations Conference on International Commercial Arbitration, ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ United Nations, 1958

Von Wobeser., ‘The Role of Arbitration in ESG Disputes’ available at https://www.vonwobeser.com/index.php/publication?p_id=1650 (accessed on 28/09/2022)

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News & Analysis

Enhancing the Role of Arbitration in Management of ESG Disputes

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Arbitration represents a viable mechanism for management of ESG disputes. The following are proposals for interventions towards embracing arbitration in management of ESG disputes for Sustainable Development towards enhancing the use of arbitration in ESG disputes:

Enhancing Knowledge in ESG Concerns

Statistics show that many ESG related disputes are being managed through arbitration. According to the International Chamber of Commerce, engineering, construction and energy disputes represent the highest number of cases handled representing 38% of all cases registered so far. Such disputes entail ESG components such as renewable energy projects, environmental protection and human rights concerns. This demonstrates that ESG and arbitration are inextricably linked. Arbitration practitioners thus need to equip themselves with knowledge in ESG related matters in order to be better placed to manage ESG related disputes.

Promoting Sustainable Development

Sustainable Development has been defined as development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs. This concept entails a combination of elements including environmental protection, economic development and social issues. The importance of Sustainable Development has seen the adoption of the Sustainable Development Goals as the global blueprint of development. Most of the Sustainable Development Goals entail aspects of ESG such as clean water and sanitation, affordable and clean energy, industry, innovation and infrastructure and climate action. Arbitration practitioners should therefore promote the principles of sustainable development when managing ESG related disputes. This could entail requiring investors to comply with the host country environmental laws and ESG standards in mining, energy and construction disputes which have an ESG bearing.

Upholding Human Rights

The ‘S’ pillar in ESG seeks to promote responsible and ethical corporate behavior through aspects such as respect for human rights. However, corporate behavior especially in the investment sphere in Africa has resulted in gross violation of human rights. Some corporations which have invested in oil exploration have been accused of human right abuses, environmental degradation and unsustainable peace due to their business culture. In Kenya, a multinational corporation that has invested in the agricultural sector has been accused of human right abuses such as killings, rape, and other forms of sexual and gender-based violence allegedly committed by its guards, bad labour practices and land injustices against the neighbouring communities. Some of these disputes have ended up in arbitration where tribunals are called upon to adjudicate on human rights issues. Arbitrators should thus seek to uphold human rights in such disputes by rendering awards that are in line with human rights standards. By promoting human rights, arbitrators will be embracing the ‘S’ pillar that is fundamental in the ESG debate.

Promoting Good Governance

The Governance pillar in ESG seeks to achieve good financial and accounting standards as well as legal and regulatory compliance, such as transparency, corporate structures and ethics in corporate conduct. It also seeks to align Governance with the Sustainable Development Goals where governance issues include industry, innovation and infrastructure (Goal 9); peace, justice and strong institutions (Goal 16); and partnerships with public and private institutions (Goal 17). Good governance can be promoted through arbitration by rendering awards that adhere to good governance practices such as transparency, accountability, reporting and disclosure.

Seeking Expert Assistance in Complex ESG Matters

Arbitration has a significant role in promoting ESG tenets in areas such as climate change. Arbitrators play a significant role in shaping and adapting international law to respond to the climate crisis. However, in some instances, arbitration has been slow to act to act in response to the climate crisis. Some climate change concerns such as determining adherence to climate change commitments through low carbon transition requires arbitrators to be fully informed and engaged in such concepts. This may require expert analysis and guidance from persons with requisite knowledge in environmental matters. Arbitrators should therefore seek expert assistance in such issues in order to be fully informed and render awards that promote ESG principles.

Conclusion

The relationship between Environmental, Social and Governance (ESG) and arbitration continues to grow. Adoption of ESG by corporations as a means of promoting responsible and ethical business practices and the wide use of arbitration in management of international commercial and investment disputes points to increased use of arbitration in management of ESG related disputes. In managing such disputes, arbitrators should promote ESG considerations whilst balancing the needs and interests of parties involved in issues such as climate change. Arbitration represents a viable mechanism for managing ESG disputes while simultaneously promoting Sustainable Development. There is need to enhance the viability of arbitration in management of ESG related disputes.

*This article is an abridged version of the Article The Place of Environmental, Social and Governance (ESG) in Arbitration by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

Amao. O., ‘Corporate Social Responsibility, Human Rights and the Law: Multinational corporations in Developing Countries.’ Routledge, 2011.

Cummins. T et al., ‘ESG Litigation – How Companies Can Get Ready, Respond and Resolve Claims’ available at https://www.emerald.com/insight/content/doi/10.1108/JOIC-07-2021-0032/full/html (accessed on 29/09/2022)

Fitzmaurice, M., ‘The Principle of Sustainable Development in International Development Law’ International Sustainable Development Law, Vol. 1.

Greenwood. L., ‘The Canary is Dead: Arbitration and Climate Change’ Journal of International Arbitration, Volume 38, Issue 3 (2021).

Miles. W., ‘BVI: A Frontline Focus for Resolving Future Climate Change Related Disputes’ available at https://www.bviiac. org/Portals/0/Files/Publications/Wendy%20 Miles %20QC_BVI_ A%20Frontline%20Focus%20for%20Resolving%20Future%20Climate%20Change%20Related %20Disputes.pdf (accessed on 29/09/2022)

Krajewski, M. ‘Human Rights in International Investment Law: Recent Trends in Arbitration and Treaty-Making Practice.’ Available at SSRN 3133529 (2018).

Maiangwa.B & Agbiboa.D., ‘Oil Multinational Corporations, Environmental Irresponsibility and Turbulent Peace in the Niger Delta’ Africa Spectrum 2/2013: 71-83

Kenya Human Rights Commission., ‘Heavy price for… egregious human rights violations’ available at https://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/737-heavy-price-for-kakuzi-s-egregioushuman-rights-violations.html (accessed on 29/09/2022).

RL360, “Governance-The G in ESG,” Available at: https://www.rl360.com/row/funds/ investmentdefinitions/g-in-esg.htm (accessed on 29/09/2022)

Sustainable Development’ available at https://sdgs.un.org/goals (accessed on 29/09/2022)

The ALP Review., ‘The Importance of ESG and its effect on International Arbitration’ available at https://www.alp.company/sites/default/files/ALP%20Review%20- %20The%20Importance%20of%20ESG %20and%20its%20effect %20on%20International%20Arbitration.pdf

United Nations., ‘Sustainable Development Goals’ available at https://sdgs.un.org/goals (accessed on 28/09/2022)

World Commission on Environment and Development, Our Common future. Oxford, (Oxford University Press, 1987).

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Way Forward in Managing Risk and Liability of ESG Litigation

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

In order for companies to manage the risk and liability associated with ESG litigation, it is imperative for them to strengthen their ESG reporting and disclosure requirements. It has been observed that recent ESG trends have driven the requirement by businesses to report on ESG aspects such as human rights and environmental standards as evidenced by emerging legal frameworks requiring companies to report on human rights and environmental issues, emerging mandatory human rights due diligence legislation, and increased legal enforcement and litigation risks.

As a result, it is important for companies to treat public disclosures in relation to ESG matters seriously and consider taking independent auditing and verification steps, particularly for annual ESG-related reports and/or other material ESG disclosures. Such an approach can help companies effectively manage and reduce the risk of ESG related litigation.

In addition, it has been argued that there is need for companies to embrace best practices in order to mitigate the risks of ESG litigation and also address such litigation when it arises. For example, it has been suggested that companies should conduct risk assessments in order to determine the likelihood of ESG related suits and deal with such concerns immediately; undertake public engagement to order to ensure openness and transparency in ESG matters; build knowledge on ESG issues in order to be well equipped to handle ESG claims when they arise; and strengthen their management systems and internal practices in order to enhance compliance with ESG standards.

It has been observed that ESG litigation is associated with several risks to companies including regulatory and enforcement risk, reputational risk, damage to brand, potential disruption by activists and financial risks such as loss of access to capital and financial losses as a result of damages, fines and other forms of monetary compensation. It is also imperative to strengthen access to justice in ESG matters. It has been pointed out that in order for litigants to be given the right of access to courts in ESG matters, whether individually, collectively, or as a third party or amicus curiae, the criteria pertaining to standing, which differ from jurisdiction to jurisdiction, must be followed.

It is also necessary to widen and strengthen the jurisdiction of courts on ESG issues such as climate change. Further, it has been pointed out that there is need to embrace techniques such as litigation funding in order to provide the financial stability and support needed to pursue legal action without compromising on the quality of representation or legal strategy in ESG matters. It has been argued that litigation funding can be an effective strategy for needy claimants to pursue claims against a company that they may ordinarily not be able to afford, enabling them to ultimately to hold companies to account for ESG failures.

Finally, it is imperative for companies to think creatively and strategically in order to effectively resolve ESG claims. It has been pointed out that ESG claims may significantly differ from other types of litigation companies have previously faced, hence the need for creative solutions towards these claims. For example, in ESG claims, there is need to bear in mind both the litigation aspects of a dispute, and broader ESG concerns including those around reputation and access to capital. As a result, it has been suggested that there is need for companies to be alive to the potential for resolving ESG claims outside the court room, and what mitigation strategies could be deployed to avoid litigation.

Alternative Dispute Resolution (ADR) mechanisms are ideal in managing ESG disputes by fostering privacy, cost effective and expeditious management of disputes while also allowing parties to select experts to hear and determine contentious ESG matters. In addition, it has correctly been observed that businesses would normally prefer to have their disputes managed in a private manner in order to prevent ruining their image in public and also in an expeditious and cost-effective manner in order to protect business interests.

It has also been pointed out that the use of ADR mechanisms such as mediation in managing ESG related disputes is a practical demonstration of a sustainability-oriented business culture since mediation can offer a quick, flexible, consensual and win-win solution based on the mutually accepted interests of the parties. ADR mechanisms can therefore be an effective tool to enable companies manage the risks associated with ESG litigation.

*This is an extract from the Article: Fostering Environmental, Social and Governance (ESG) Litigation for Sustainability, Available at: https://kmco.co.ke/wp-content/uploads/2024/02/Fostering-Environmental-Social-and-Governance-ESG-Litigation-for-Sustainability.pdf (Accessed 2nd March 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

African Development Bank Group., ‘Environmental, Social and Governance (ESG).’ Available at https://www.afdb.org/en/topics-and-sectors/topics/environmental-social-and-governance-esg (Accessed on 05/02/2024).

Ahurst., ‘ESG Litigation – Get Ready Respond and Resolve.’ Available at https://www.ashurst.com/en/insights/esg-litigation—get-ready-respond-and-resolve/ (Accessed on 05/02/2024).

Banda ML and Fulton CS, ‘Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law’ (2017) 47 Environmental Law Reporter.

Barbosa. A et al., ‘Integration of Environmental, Social, and Governance (ESG) Criteria: Their Impacts on Corporate Sustainability Performance.’ Humanit Soc Sci Commun 10, 410 (2023). Available at https://doi.org/10.1057/s41599-023-01919-0 (Accessed on 03/02/2024).

British Business Bank., ‘What is ESG – A Guide for Businesses.’ Available at https://www.britishbusiness-bank.co.uk/finance-hub/business-guidance/sustainability/what-is-esg-aguide-for-smallerbusinesses/ (Accessed on 03/02/2024).

Fitzmaurice. M., ‘The Principle of Sustainable Development in International Development Law.’ International Sustainable Development Law., Vol 1.

Giovannoni. E., & Fabietti. G., ‘What Is Sustainability? A Review of the Concept and Its Applications.’ In: Busco, C., Frigo, M., Riccaboni, A., Quattrone, P. (eds) Integrated Reporting. Springer, Cham. Available at https://doi.org/10.1007/978-3-319-02168-3_2 (Accessed on 03/02/2024).

Global Campus of Human Rights., ‘Rethinking Environmental, Social, and Governance (ESG) Investing for Successful Sustainability and Human Rights.’ Available at https://gchumanrights.org/gcpreparedness/preparedness-development/article-detail/rethinkingenviron mental-social-andgovernance-esg-investing-for-successful-sustainability-and-human-rights5039.html (Accessed on 05/03/2024).

Gramatidis.B & Emvalomenos. D., ‘Sustainability in Dispute Resolution -Mediation as an ESG Practice.’ Available at https://www.bahagram.com/sustainability-in-dispute-resolution-mediation-as-anesgpractice/ (Accessed on 05/02/2024).

Hackett. D et al., ‘Growing ESG Risks: The Rise of Litigation.’ Available at https://www.bakermckenzie.com/- /media/files/insight/publications/2020/10/growing_esg_risks _the_rise_of_litigation.pdf (Accessed on 05/02/2024).

Heinberg. R., ‘What Is Sustainability?.’ Available at https://cdn.auckland.ac.nz/assets/arts/documents/What%20is%20Sustainability.pdf (Accessed on 03/02/2024).

Kemp. B et al., ‘The Rise of ESG Litigation and Horizontal Human Rights Enforcement.’ Available at https://www.lexology.com/library/detail.aspx?g=07a94453-f2aa-490a-a7e1-f6c25256cbf9 (Accessed on 05/02/2024).

Latham & Watkins LLP., ‘ESG Litigation Roadmap.’ Available at https://www.lw.com/admin/upload/SiteAttachments/ESG-Litigation-Roadmap.pdf (Accessed on 05/02/2024).

Li. T., et al., ‘ESG: Research Progress and Future Prospects.’ Available at https://pdfs.semanticscholar.org/0dd4/941ebea33330210daff5f37a1c8cdd0547d7.pdf (Accessed on 03/02/2024).’

Li. T., et al., ‘ESG: Research Progress and Future Prospects.’ Op Cit 24 Ahmad. H., Yaqub. M., & Lee. S. H., ‘Environmental-, Social-, and Governance-Related Factors for Business Investment and Sustainability: A Scientometric Review of Global Trends.’ Available at https://link.springer.com/article/10.1007/s10668-023-02921 (Accessed on 03/02/2024).

Mathis. S., & Stedman. C., ‘Environmental, Social and Governance (ESG).’ Available at https://www.techtarget.com/whatis/definition/environmental-social-and-governanceESG#:~:text= Environmental%2C%20social%20and%20governance%20(ESG)%20is%20a%20framework%2 0used,and%20opportunities%20in%20those%20areas (Accessed on 03/02/2024).

May. S., & Radcliffe. M., ‘The Evolving ESG litigation Landscape.’ Available at https://www.grantthornton.co.uk/insights/the-evolving-esg-litigation-landscape/ (Accessed on 05/02/2024).

McKenzie. S., Philippides. M., & De. Meyer., ‘A Look to the Future: Litigation Risks Faced by the Financial Sector in Relation to ESG Statements.’ Available at https://www.investafrica.com/insights-/a-look-to-thefuture-litigation-risks-faced-by-the-financial-sector-in-relation-to-esg-statements (Accessed on 05/03/2024).

Mikhaeel. M., ‘How Human Rights Due Diligence Affects the ‘E’ in ESG.’ Available at https://www.financierworldwide.com/how-human-rights-due-diligence-affects-the-e-in-esg (Accessed on 05/02/2024).

Muigua. K., ‘(Re) Examining Environmental, Social and Governance (ESG) and Human Rights.’ Available at https://kmco.co.ke/wp-content/uploads/2024/01/Re-Examining-Environmental-Social-andGovernance-ESG-and-Human-Rights.pdf (Accessed on 05/02/2024).

Muigua. K., ‘Greenwashing: A Hindrance to Achieving Sustainability?’ Available at https://kmco.co.ke/wp-content/uploads/2023/08/Greenwashing-A-hindrance-to-AchievingSustainability -Kariuki-Muigua-August-2023.pdf (Accessed on 05/02/2024).

Muigua. K., ‘Promoting Climate Litigation in Kenya for Sustainability.’ Available at https://kmco.co.ke/wp-content/uploads/2023/08/Promoting-Climate-litigation-in-Kenya-forSustainability-Kariuki-Muigua-August-2023.pdf (Accessed on 05/02/2024).

Norton. C., ‘Growing ESG Litigation Is Advancing Thinking on New Practices Needed.’ Available at https://www.linkedin.com/pulse/growing-esg-litigation-advancing-thinking-new-practicesnorton?utm_source=share&utm_medium=member_android&utm_campaign=share_via (Accessed on 03/02/2024).

Peterdy. K., & Miller. N., ‘What is ESG?’ Available at https://corporatefinanceinstitute.com/resources/esg/esg-environmental-social-governance (Accessed on 03/02/2024).

Runyon. N., ‘How Litigation Funding Drives Progress in the ESG Agenda.’ Available at https://www.thomsonreuters.com/en-us/posts/esg/litigation-funding-esgagenda/#:~:text=A%20driving %20force %20in%20access%20to%20justice&text=Litigation%20funding%2 0also%20provides%20the,of %20representation%20or%20legal%20strategy. (Accessed on 05/02/2024).

Stuart. L.G et al., ‘Firms and Social Responsibility: A Review of ESG and CSR Research in Corporate Finance.’ Journal of Corporate Finance 66 (2021): 101889.

Thailand Arbitration Center., ‘Alternative Dispute Resolution: Significance of ESG in Arbitration.’ Available at https://thac.or.th/alternative-dispute-resolution-significance-esg-arbitration/ (Accessed on 05/02/2024).

The 3 pillars of Sustainability: Environmental, Social and Economic., Available at https://www.enel.com/company/stories/articles/2023/06/three-pillars-sustainability (Accessed on 03/02/2024).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20Sustainabl e%20Development%20web.pdf (Accessed on 03/02/2024).

United States Environmental Protection Agency., ‘What is Sustainability.’ Available at https://www.epa.gov/sustainability/learn-about-sustainability (Accessed on 03/02/2024).

World Commission on Environment and Development., ‘Our Common Future.’ Oxford, (Oxford University Press, 1987).

Xia, F., Chen, J., Yang, X., Li, X. and Zhang, B., ‘Financial Constraints and Corporate Greenwashing Strategies in China’ (2023) 30 Corporate Social Responsibility and Environmental Management 1770.

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