Environmental, Social & Governance (ESG)

The recommendations for good corporate governance have increased focus on sustainability and social responsibility. The recommendations especially focus on the companies’ role in the development of society and emphasise the importance of long-term value generation, including the companies’ increased dialogue with the shareholders and the surrounding community. We advise on:

• Articles of association, rules of procedure for the board of directors of the company and instructions for the executive board
• Remuneration systems in relation to the management, including “green” benefits and bonus and incentive programmes supporting sustainability.

We assist the company’s executive board and board of directors in ensuring that the strategic subjects of ESG and sustainability are incorporated in management systems and are an integral part of the management of the company, for example:

• Company and staff policies supporting the choice of environmentally friendly solutions and business procedures
• Holiday policies and agreements concerning e.g. freedom to do charity work.

We assist the company’s management in ensuring focus on gender balance, diversity and inclusion at all levels of the company, and we advise on:

• Target figures and policies concerning the under-represented gender and reporting
• Executive remuneration as an incentive to achieve the objects laid down by the company’s management
• We also advise funds that make sustainable investments and donations.

• Green/sustainability-linked loans
• Green/sustainability-linked bonds, including the EU’s Green Bond Framework
• The rules of the Sustainable Finance Disclosure Regulation on light green, dark green and other financial products
• The EU Taxonomy Regulation on sustainable financial activity and the technical standards issued thereunder
• Funds’ sustainable investments and donations.

Potential buyers of companies have great focus on ESG - irrespective of whether these are PE funds, industrial buyers, etc.

When assisting sellers of companies, we document and describe the areas and measures that are important and relevant from an ESG perspective and which will increase the company’s value and attraction for potential buyers. ESG matters are not relevant only in connection with the due diligence process but also in connection with the valuation and preparation of the transaction documents. This includes:

• Identification of trends and focus areas for buyers in the M&A market in relation to special ESG matters
• Contribution to the documentation and visibility of the company’s ESG profile as part of the sales preparation
• Documentation system as part of the establishment of the virtual data room
• Sparring with the seller and its financial advisers on how the company’s special ESG measures may contribute to increasing the company's value for potential buyers
• Preparation of contract clauses regulating special ESG matters or problems.

We also assist buyers of companies with the assessment of the target company’s ESG matters. We plan and carry out due diligence in relation to ESG matters in close dialogue with the buyer and its advisers, and we assess any risks arising out of ESG-related matters at the target company. We make recommendations as to how any risks may be limited in the best way possible, or how the risks ought to have an effect on the valuation. At the same time, we make recommendations for the subsequent integration. This covers among others:

• Due diligence with special focus on ESG matters - to uncover any risks but also to prove hidden ESG potential
• Set-up of a documentation and tracking system to uncover the target company’s ESG matters
• Preparation of contract clauses regulating special ESG matters or problems.

The energy and supply sector is quite central in relation to the green transition. The sector is also a comprehensive and complicated regulatory area. Our experts advise on:

• Transactions involving wind, solar and biogas plants
• Green transition to renewable energy sources
• Supply at cost price so that the consumers receive the exact services they need without having a profit in view
• Balancing of the consumers’ interest in price and the environment
• Carbon certificates
• Purchase of green energy and the connection with the utility companies’ price adjustment, especially within the heat sector
• Power Purchase Agreements (PPAs)
• Optimisation of resources and supply terms
• Reclaimed water/technical water
• Supply lines and other infrastructure for green energy
• ESG and executive liability: Training of public boards of directors
• Contract clauses in relation to sub-suppliers.

Electric cars and charging stations

We advise leasing companies on:

• Financing of electric cars
• Installation and financing of charging stations
• Electric car fleet management agreements, including supply of electricity.

We advise the property sector on:

• Legal requirements for installation of charging stations in connection with existing as well as new building projects
• Amendment of leasing agreements in connection with installation of charging stations at properties.

We advise municipalities on the following:

• Charging infrastructure and regulation
• Co-financing - municipal aid to the installation of charging stations.

We advise on:

• Energy labelling and certification according to international sustainability standards (DGNB and LEED)
• Reporting of property portfolios in relation to measurement of consumption and objectives of energy renovation
• Social clauses in connection with tenders for contracts
• Sustainable energy sources (e.g. solar cells on roofs), including energy charges when connected to the network.

The State makes procurements exceeding DKK 300 billion each year. Green purchases and sustainable tenders are concepts which very much influence public procurement.

When advising public contracting entities, we have special focus on:

• Tender strategies taking into account the contracting entity’s ESG agenda and the recent development in the relevant market
• Development and wording of tender requirements within the framework of procurement law, including application of grounds for exclusion, requirements for the supplier’s suitability and competitive parameters, with special focus on the possibility of documentation of the tender
• Contract clauses, including innovation clauses obligating the parties in the term of the contract to work on ESG matters in social clauses, including requirements for remuneration and terms and conditions and training clauses.

Our advice to the tenderers focuses especially on:

• Identification of trends and requirements for public procurement and contracts
• Assistance to improve the tenderer’s business and submission of tenders so that they best match (and are preferably at the forefront of) the requirements made for public tenders
• Compliance strategy in relation to tender and contract requirements, including ESG requirements
• Set-up of a documentation and tracking system
• Preparation of an innovation and effort catalogue.

A company’s marketing and communication must be consistent with the extent of the company’s environmental or ethical measures. When a company’s communication on sustainability, carbon emission or climate friendliness is not consistent with the actual facts, it is called “greenwashing”. We advise on:

• Marketing law, especially protection against misleading of consumers (greenwashing)
• Compliance review of marketing communication, e.g. marketing material and annual reviews compared to relevant legislation
• Strategy and policy concerning IP protection and enforcement of new sustainable solutions.

We advise on:

• Employee policies
• Company and staff policies concerning selection of environmentally friendly transport in connection with business trips
• Holiday policies and agreements concerning freedom to do charity work
• Alternative remuneration forms, including green benefits
• The management's contributory liability for reducing the carbon consumption and promote sustainable measures via the management's contractual obligations
• Possibility to incorporate ESG into standard contracts, e.g. benefits in connection with termination of the employment or participation in green projects
• Contract clauses concerning apprentices and vulnerable persons
• #Meetoo and the culture at the workplace.