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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
United Kingdom | Publication | August 2023
The Court of Appeal (CA) has ruled on whether a large pension scheme’s investments in fossil fuels breached the trustee directors’ fiduciary duties and duties towards contributors of the pension fund.
In McGaughey v Universities Superannuation Scheme Ltd, the CA dismissed an appeal brought by two members of the Scheme to continue several multiple derivative claims (MDCs) on behalf of the pension trustee company against certain of its directors and former directors. An MDC is a procedure under which, if certain conditions are satisfied, a Court may allow individuals to pursue a claim on behalf of a company.
The claimants alleged that the trustee directors had breached their general duties by failing to plan adequately for divesting from fossil fuels.
Dismissing the appeal, the CA upheld the earlier High Court decision that:
The CA stressed that the derivative claim procedure is available only in exceptional circumstances. Its purpose is not to allow members to monitor every step taken by directors nor is it to enable would-be claimants to avoid other procedural hurdles.
Comment
This judgment follows litigation brought earlier in 2023 by ClientEarth against Shell plc, in which the claimant alleged that Shell had mismanaged climate risk by failing to prepare properly for transition to its net-zero target. That claim was also dismissed, with the High Court ruling that it was for the Shell directors to decide how best to promote the success of the company in accordance with their duties, and an MDC was an unsuitable process for such a climate risk claim.
Company law affords directors significant freedom in how they discharge their statutory duties. However, directors of corporate pension scheme trustees should consider carefully the ESG requirements and the climate risk issues when making their investment decisions in order to avoid potential action from members.Publication
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