Securities

IOSCO report on sustainability-related disclosures, speech by IOSCO Chair

Jun 29, 2021

The Board of the International Organization of Securities Commissions (IOSCO) has published a report on issuers’ sustainability-related disclosures that elaborates on IOSCO's vision and expectations for the IFRS Foundation’s work towards a global baseline of investor-focused sustainability standards to improve the global consistency, comparability and reliability of sustainability reporting. In addition, the manuscript of a speech by IOSCO Chair Ashley Alder on the 'crucial' IFRS global baseline has been made available.

The report, developed by IOSCO’s Sus­tain­able Finance Taskforce (STF), re­it­er­ates the urgent need to improve the con­sis­tency, com­pa­ra­bil­ity and re­li­a­bil­ity of sus­tain­abil­ity reporting for investors. It describes IOSCO’s en­gage­ment with the IFRS Foun­da­tion’s efforts to develop a common set of global sus­tain­abil­ity standards to help meet investor needs and to set a sound baseline for ju­ris­dic­tions to consider when setting or im­ple­ment­ing their sus­tain­abil­ity-re­lated dis­clo­sure re­quire­ments. It notes:

IOSCO recognizes that in­di­vid­ual ju­ris­dic­tions have different domestic arrange­ments for adopting, applying or otherwise availing of international standards. It will be important for in­di­vid­ual ju­ris­dic­tions to consider how the common global baseline of standards might be adopted, applied or otherwise utilized within the context of these arrange­ments and wider legal and reg­u­la­tory frame­works, in a way that promotes con­sis­tent, com­pa­ra­ble and reliable sus­tain­abil­ity dis­clo­sures across ju­ris­dic­tions.

In a speech given at City Week 2021 on June 23,  2021, IOSCO Chair Ashley Alder stressed the same point:

Within IOSCO, we fully accept that ju­ris­dic­tional-level ap­proaches are bound to differ. But for corporate reporting, it is essential that these domestic ap­proaches will be fully in­ter­op­er­a­ble with the emerging global baseline, avoiding the rule conflicts or overlaps that could devalue the overall effort. We cannot work in ju­ris­dic­tional silos when the climate emergency does not respect national bound­aries. It is ab­solutely essential that we resist frag­men­ta­tion, which is a real risk all reg­u­la­tors are very aware of.

Please click for the following ad­di­tional in­for­ma­tion:

In addition, the International Fed­er­a­tion of Ac­coun­tants (IFAC) has published a statement sup­port­ing IOSCO's approach (link to IFAC website).

Primer on Climate Change: Directors’ Duties and Disclosure Obligations

Jun 28, 2021

This primer provides an overview of contemporary evidence that climate change presents foreseeable, and in many cases material, financial and systemic risks that affect corporations and their investors. It then discusses general climate obligations in the jurisdictions where The Climate Governance Initiative is present though its global network of national Chapters; how company law and directors’ duties in these jurisdictions require directors to incorporate climate change into their strategies, legal oversight, and supervision of the companies entrusted to their care; disclosure obligations; and then advice to directors.

In brief: The issue of climate change has evolved and now has serious implications for the duties of directors and officers as well as the potential for additional disclosure obligations for companies. This primer discusses climate change as a financial and systemic risk; it covers directors’ duties and disclosure obligations regarding climate change and current litigation around climate change, as well as providing recommendations that can help directors prepare their companies for the effects of climate change.

This resource can provide your board with valuable insights:

  • This primer features jurisdictional overviews for 21 countries/regions.
  • Learn more about current litigation on climate change.
  • Gain valuable recommendations for proactive steps that your board can take now to prepare your company for the effects of climate change.

Most relevant audiences: risk oversight committee members, audit committee members, the full board

SEC Commissioner's speech regarding ESG reporting

Jun 28, 2021

On June 28, 2021, SEC Commissioner Allison Herren Lee gave a keynote address at the 2021 Society for Corporate Governance National Conference entitled: Climate, ESG, and the Board of Directors: “You Cannot Direct the Wind, But You Can Adjust Your Sails”

Noting the increasing interest in climate change disclosures, Ms. Lee spoke to the following topics:

  • Putting ESG in context in the recent proxy season;
  • Understanding ESG and Board obligations; and
  • Mitigating ESG risks and maximizing ESG opportunities.

Re­view the full text of Ms. Lee’s speech on the SEC's web­site.

Canadian securities regulators adopt new nationally harmonized start-up crowdfunding rules

Jun 23, 2021

On June 23, 2021, the Cana­dian Se­cu­ri­ties Ad­min­is­tra­tors (CSA) adopted harmonized rules for securities crowdfunding. The new National Instrument 45-110, Start-up Crowdfunding Registration and Prospectus Exemptions, will introduce a single, uniform set of rules that replaces and enhances the requirements currently in effect in Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Québec and Saskatchewan.

Following stakeholder consultation, the CSA made targeted amendments to improve the effectiveness of start-up crowdfunding as a capital-raising tool, including:

  • Increasing the maximum total amount that an issuer can raise under the crowdfunding prospectus exemption in a 12-month period to $1.5 million (from the current $500,000).
  • Increasing the maximum investment a purchaser can make in an offering to $2,500 (from the current $1,500), with a higher limit of $10,000 if a registered dealer advises that the investment is suitable for the purchaser.
  • Removing barriers preventing federal and provincial co-operatives or associations from using the start-up crowdfunding prospectus exemption.
  • Requiring funding portals relying on the registration exemption to certify on a semi-annual basis that they have sufficient financial resources to continue operations for the following six months.
  • Requiring issuers to have operations other than the acquisition of an unspecified business before using the start-up crowdfunding prospectus exemption.

Provided all necessary ministerial approvals are obtained, the Start-up Crowdfunding Rule (and the consequential amendments to NI 13-101 and NI 45-102) will come into force on September 21, 2021.

Re­view the press re­lease on the CSA’s web­site and the new National Instrument 45-110, Start-up Crowdfunding Registration and Prospectus Exemptions, on the OSC’s website.  

CSA 2020/2021 Enforcement Report highlights commitment of Canadian securities regulators during unprecedented times

Jun 22, 2021

On June 22, 2021, the Canadian Securities Administrators (CSA) released its fiscal year 2020/2021 Enforcement Report, which provides details on enforcement efforts and outlines how securities regulators are protecting investors and the integrity of Canada’s capital markets.

The report outlines how CSA members continued to strengthen their technical knowledge on critical and emerging topics, such as open-source intelligence and mobile forensics, and implement best practices and tools across the country to recognize and target fraudulent activity. 

The CSA also formally launched the Market Analysis Platform (MAP) in October 2020. MAP is a data repository and analytics system designed to help all CSA members identify and analyze market misconduct. The system has increased efficiency and speed in accessing and analyzing trading activity, which is critical as capital markets continue to evolve.

Re­view the press re­lease and re­port on the CSA’s web­site.

Can the SEC Make ESG Rules that are Sustainable?

Jun 22, 2021

On June 22, 2021, SEC Commissioner Elad L. Roisman made a speech at the Virtual Conference of the National Investor Relations Institute entitled, “Can the SEC Make ESG Rules that are Sustainable?”.

Noting that the Commission has increased its attention on ESG matters recently, and that the Chair of the Commission has expressed his intent to propose new disclosure requirements relating to climate change and human capital, Mr. Roisman focused on three questions during his speech:  

  • What precise items of “E,” “S,” and “G” information are investors not getting that are material to making informed investment decisions?
  • If the SEC were able to identify the information investors need, how would the SEC come up with “E” and “S” disclosure requirements—now, and on an ongoing basis? What expertise does the SEC need?
  • If the SEC were to incorporate the work of external standard-setters with respect to new ESG disclosure requirements: how would the agency oversee them—in terms of governance, funding, and substantive work product—on an ongoing basis? And what kind of new infrastructure would be required inside the SEC and at the standard-setters themselves?

Re­view the speech on the SEC's web­site.

OSFI consults on expectations to advance climate risk management

Jun 20, 2021

The Office of the Superintendent of Financial Institutions (OSFI) issued a draft version of Guideline B-15: Climate Risk Management. This guideline proposes a prudential framework that is more climate sensitive and recognizes the impact of climate change on managing risk. The draft Guideline sets the stage for OSFI’s expectations of federally regulated financial institutions.

Climate-related risks, including physical and transition risks, could have significant impacts on the safety and soundness of financial institutions, and the broader Canadian financial system. Building financial resilience against intensifying climate-related risks requires institutions to address vulnerabilities in their business model, their overall operations, and ultimately on their balance sheet.

OSFI is also introducing mandatory climate-related financial disclosures aligned with the international Task Force on Climate-related Financial Disclosures (TCFD) framework. These disclosures will incentivize improvements in the quality of the institutions’ governance and risk management practices related to climate. In doing so, this contributes to public confidence in the Canadian financial system by increasing transparency. This also aligns with a commitment made by the federal government to require financial institutions to publish climate disclosures starting in 2024.

Given the pace of change in climate risk management, OSFI intends to review and amend this Guideline as practices evolve and standards harmonize. OSFI welcomes public comments to draft Guideline B-15 before August 19, 2022.

Review the press release and guideline on the OSFI's website.

Climate Change Disclosures and Private Companies

Jun 19, 2021

On June 19, 2021, Ann Lipton posted an item on the Law Professor Blogs Network regarding climate change disclosures and U.S. private companies.

Noting that the SEC recently called for public comment on the issue of mandatory climate reporting and that  comments are in the process of being posted on the SEC’s site, she observed that, in the original request for information, one of the questions that the SEC asked was as follows:

What climate-related information is available with respect to private companies, and how should the Commission’s rules address private companies’ climate disclosures, such as through exempt offerings, or its oversight of certain investment advisers and funds?

Not all commenters have responded to this question, but the blog posting by Ms. Ann Lipton highlights a number of interesting responses made by certain commentators to this question.

Re­view the blog posting for more details.

AMF 2020-2021 Enforcement Report published - Positive results amid the pandemic

Jun 17, 2021

On June 17, 2021, the Au­torité des marchés fi­nanciers (AMF) pub­lished its Enforcement Report for the 2020-2021 fiscal year. Despite the pandemic, the AMF reports that its inspection, investigation and prosecution teams were very proactive and able to maintain their operations remotely, achieving more-than satisfactory progress and results.

During the period, the AMF instituted a large number of prosecutions and obtained important rulings that sent deterrent messages. Throughout 2020-2021, the AMF also continued its offensive on the crypto asset front and initiated major proceedings when investigations found a number of offences being committed via virtual spaces in the crypto asset ecosystem.

The inspection team was very busy, particularly as it had to integrate mortgage brokerage into its inspection activities and oversee registrants’ management of the pandemic.

Fiscal 2020-2021 was also a landmark year with the rollout of major projects such as electronic evidence management (AÉP) and the Market Analysis Platform (MAP). These projects have now been completed, and the tools developed under them are being used daily by the AMF’s market surveillance specialists, intelligence analysts, data science experts, investigators, and prosecutors.

Re­view the press re­lease and re­port on the AMF's web­site.

IIRC publishes its latest Annual Report, ahead of its merger with the SASB

Jun 03, 2021

On June 3, 2021, the International Integrated Reporting Council (IIRC) published its latest Annual Report, entitled ‘Driving Cohesion‘, ahead of its merger with the Sustainability Accounting Standards Board (SASB) to form the Value Reporting Foundation.

The report was developed through a process of integrated thinking led by the IIRC Board and management. The process enabled a better understanding of the strategic big picture and external environment to build agreement that the merger with SASB is the most effective next step to achieve its focus of driving adoption of integrated thinking and reporting and simplifying the corporate reporting landscape.

The report takes stock of the long shadow cast by the COVID-19 pandemic and its daily reminder of the interconnectedness between our economy and society, as well as the shared challenges we face as an international community.

The report also highlights some of the positive responses, including an acceleration in digital innovation, rapid business model adaption and a renewed commitment from political, business and investment leaders to “build back better” – integrating sustainability considerations into all aspects of financial and business decision-making, creating a platform for sustainable prosperity.

Re­view the press re­lease and report on the IIRC’s website for more in­for­ma­tion.  

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