In September we reported that shareholders in the Commonwealth Bank of Australia (CBA), Guy and Kim Abrahams, had filed an application in the Federal Court of Australia to obtain documents relating to the bank’s decision to finance certain oil, gas and coal projects in light of its public climate commitments (see our previous blog post here). The application referred to climate commitments published by CBA in 2019, and requested all documents which show how CBA assessed whether the projects were consistent with those commitments. In early November the Court held a case management conference and ultimately made the orders by consent that CBA produce the documents, which include documents provided to CBA’s board and executive leadership team, or which record decisions of the board or executive leadership team.
This is the first case worldwide in which a claimant has requested (and a Court has now ordered, albeit by consent) disclosure of the way in which a financial institution is monitoring and adhering to its climate commitments.
What was the basis for the application?
The application was made under s.247A of the Australian Corporations Act 2001, which allows a court to give shareholders the right to inspect and make copies of certain company documents if it is satisfied that they are acting in good faith and for a proper purpose.
The claimants’ application focussed on CBA’s commitment in its 2019 environmental and social policy (E&S policy) that: 'We ensure our business lending policies support the responsible transition to a net zero emissions economy by 2050, by… only providing Banking and Financing Activity to new oil, gas or metallurgical coal projects if supported by an assessment of the environmental, social and economic impacts of such activity, and if in line with the goals of the Paris Agreement'.
CBA’s environmental and social framework clarified that 'Banking and Financing Activity' encompassed direct corporate lending, project finance, trade finance, IPOs and their distribution, risk management and transaction banking services. The application identified certain projects associated with oil, gas and coal which CBA is reported to have been involved in after the date of the E&S policy, and requested all documents which were created for:
- carrying out an assessment of the environmental, social and economic impacts of the projects;
- carrying out an assessment of whether the projects are in line with the goals of the Paris climate agreement;
- discharging any obligation or responsibility that any CBA unit, division or employee has under the E&S policy; and
- implementing the E&S policy more generally, and around the decision to revise the E&S policy in 2021.
The claimants’ implication was that CBA’s financing of the projects cannot be consistent with its commitments, and that if the application was successful, that substantive proceedings would be brought (although the application did not say how any substantive claim would be framed). The application was heard at a case management conference on 4 November 2021.
What was ordered?
At the hearing, the Abrahams’ counsel made brief submissions about the proper purpose of the application, and the orders for disclosure were then made by consent, including:
- orders for the first three categories of documents listed above, excluding only communications between CBA’s deal team members on the various projects; and
- orders for all documents created by CBA for the purposes of implementing or reporting on the implementation or assessment of its financing commitments outlined above; and
- orders for all documents created by CBA in relation to whether its financing commitments should be adopted or implemented, that: (i) were provided to CBA’s Board or to its Executive Leadership Team, including committees of CBA’s Board or committees of CBA’s Executive Leadership Team in their capacity as governance forums; or (ii) record decisions of CBA’s Board or of its Executive Leadership Team, including committees of CBA’s Board or committees of its Executive Leadership Team in their capacity as governance forums.
Limited redactions in relation to commercially sensitive or privileged information were permitted, although the Abrahams were given permission to apply for any of those redactions to be lifted, or for the disclosure of additional documents.
While the orders for disclosure in this case were ultimately made by consent, and while shareholders’ rights to inspect documents in the UK under the Companies Act 2006 are much narrower than under the Australian Corporations Act 2001, this case remains a good reminder that claimants are scrutinising firms’ reported activities against the commitments they have made and finding novel ways of bringing claims to highlight any perceived gaps. It demonstrates the importance of firms having good governance and clear records, at all levels, including at board level, around the decisions they make and the monitoring of their climate commitments. The scrutiny in this area is only likely to intensify, particularly in light of the government’s recent indication that UK firms will likely be required to produce and disclose transition plans in the near future, setting out their path to net zero with milestones along the way (see our blog on the government’s new Roadmap to Sustainable Investing here), and in light of the challenging questions raised by transition planning, including how firms can and should support clients in carbon-intensive industries – as demonstrated by the debate at COP26 recently.
"The scrutiny in this area is only likely to intensify, particularly in light of the government’s recent indication that UK firms will likely be required to produce and disclose transition plans in the near future"