Environmental, social and governance disputes: Is arbitration the answer?

To say that businesses are witnessing an 'ESG revolution' is not hyperbole. Active engagement with ESG issues is no longer a choice; ESG impacts are increasingly permeating public and private decision making across all sectors of the economy, as recent discussions around the COP26 climate change conference have shown.

As outlined in Corrs' ESG Guide for General Counsel, "The message from corporate stakeholders is clear: companies must rise to meet demands for ESG accountability and transparency with proper risk management, due diligence and reporting, or risk shareholder and employee activism, investor divestment and exclusion."

Those demands are producing new forms of risk (requiring allocation) that businesses need to grapple with in their operations and contractual relationships. In turn, these new forms of risk are and will continue to give rise to disputes. In that context, we ask: what role can arbitration play in resolving ESG-related disputes?