6 - Corporate Environmental Responsibility and the Investor’s Principal Claims

Summary

This chapter discusses ways of reflecting investors’ environmental and human rights responsibility in the assessment of the investor’s principal claims, focusing on investors’ environmental misconduct during the operation of their investment (performance-phase misconduct). In the merits phase, it discusses the impact of such misconduct on assessment of the protection of the investor’s legitimate expectations. The analysis seeks to reflect the interests of victims in this assessment by examining the role that the concept of ‘social licence to operate’ (SLO), which is based on the perceptions of local stakeholders, may play in this context. Specifically, it argues that the loss of an SLO brought about by the investor’s conduct may, in certain circumstances, reduce the grounds for protecting the investor’s legitimate expectations. It then discusses ways to address the risk of abusing the SLO in balancing this context. At the remedy phase, this chapter examines contributory fault as a concept that may reflect investor misconduct in a direct and value-based manner, and discusses selected controversies over its application.