Board directors’ duties and ESG considerations in decision-making

Some may say sustainability is the ‘flavour of the month’. If that was ever the thinking pre COVID-19, the pandemic has certainly had an impact on corporates’ sustainability agendas – no longer a ‘nice to have’ but rather an operational and strategic imperative, at the heart of any business’s ability to compete and succeed in the long term.

Good governance, good decision making, is a cornerstone of good business. The double-headed health and financial crisis has accelerated the growing focus on both the purpose of the corporation and the role of the board in overseeing and leading in ways that promote sustainable business success. Alongside this, the push by investors has moved from talking purely of share price and returns to asking about resilience and long-term value creation. Put simply, society is forcing companies to focus on the link between values and value.

That is why we worked with the World Business Council for Sustainable Development (WBCSD) to finalise this paper on fiduciary duty which draws primarily upon perspectives and insights from UK and US legal and regulatory structures. We explain why sustainability matters and why it should be included by boards on their agendas as a matter within their remit. We consider how boards should address sustainability in the context of their company’s strategic objectives and business model.

Along with WBCSD, we are challenging directors to assess whether they are taking all relevant steps in the boardroom to ensure the company not only properly assesses and mitigates sustainability risks but also understands the opportunities that sustainability considerations can bring.

You can access the full report by clicking here.

PwC reports global revenues up 3% to US$43 billion

For the 12 months ending 30 June 2020, PwC firms around the world had gross revenues of US$43 billion – up 3% in local currency and 1.4% in US dollars.

During the first nine months of FY20 to the end of March, revenues grew by nearly 7% over the same period last year with increases across all lines of business and in every major market. From April to June, revenues were significantly impacted by the lockdown and subsequent slowing economies as countries around the world fought the COVID-19 pandemic. Compared to the same three months in 2019, revenues were down from April to June 2020 by 6%.

“First and foremost the COVID-19 pandemic has been a human tragedy that has deeply affected the lives of many people around the world including members of our PwC family, their relatives and friends and our heartfelt condolences go out to all those who have lost loved ones,” said Bob Moritz, Chairman of the PwC Network.

“Since the pandemic struck, our priorities have been the safety and wellbeing of our people, protecting and preserving jobs, and helping our clients and the communities in which we live and work deal with the impact of COVID-19. I am proud of what we have done over the last year and the way our people have adapted quickly to a huge amount of change while at the same time continuing to connect, collaborate and innovate for the benefit of our stakeholders across the world.”

“While the last few months have been very challenging for everyone, we have re-focused our business to help our clients manage the immediate impacts of the pandemic and reinvent their businesses for future success. It has never been more important to provide our stakeholders with high quality services. We have also continued our significant investments in technology and upskilling our people to help build a sustainable PwC for the future. Our investment in technology was borne out at the height of the lockdown when 95% of our 284,000 strong workforce were operating out of the office with no interruption to the service we were able to provide”, added Bob Moritz.

Revenues across the world

In the Americas, revenues rose by 3% with a particularly good performance from businesses in the United States and Canada. Revenues in Western Europe were up by 2%, while in Central and Eastern Europe, revenues grew by 4%.

Revenues from the Middle East and Africa rose by 10% with a strong result from the Middle East where revenues were up 14%. Across Asia, revenues grew by 5% while in Australasia and the Pacific, revenues were down 1% reflecting difficult trading conditions throughout FY20.

Regional growth numbers for the full year FY20 mask the impact of COVID-19, with all regions performing as anticipated up to the end of March 2020 and then feeling the full impact of the economic restrictions caused by lockdowns in the months of April, May and June. For the last three months of FY20, in most markets around the world we experienced declines in revenues compared with the same period in FY19 with falls in revenues of up to 30% in certain countries.

Revenues by line of business

Around the world, our businesses are focused on providing high quality services that help our clients respond to an ever more complex and challenging environment and address current and future opportunities. While all our lines of business continued to grow in FY20, each was impacted by the economic effects of COVID-19 and we expect market conditions to be challenging for all our operations as we go into our new financial year.

Assurance: Assurance remains PwC’s largest operation across the world and our brand defining business, serving key stakeholders and helping to build trust in the world’s capital markets. In FY20, revenues from our assurance operations grew by 3% to US$17.6 billion, driven by continued strong demand for our core audit. As management and other stakeholders seek insight into operations, risks and performance, and to increase confidence and resilience in business, we have seen continued strong growth in our broader assurance services, such as internal audit and governance, risk and controls. Demand for our digital risk solutions has also remained strong as companies look for support as they accelerate their transition to the Cloud. With almost 119,000 professionals, PwC is the world’s largest provider of assurance services.

Advisory: PwC Advisory operations grew by 4% to US$14.7 billion. This growth was driven by high demand across the world for advice on strategy, business transformation and value creation in the first nine months of the financial year. Our advisory business differentiates by bringing together consulting, deals and cybersecurity professionals, and our operations benefited from increased teaming with our tax and risk assurance colleagues to provide a more integrated service for our clients that gives the advice and support they need from strategy right through to execution. PwC Advisory now employs over 71,000 people.

Tax & Legal Services: PwC Tax & Legal revenues grew by 2% to US$10.7 billion, with demand for tax reporting and strategy, people and organisation and legal services in the first nine months of the year offset by the impact of the pandemic in the final three months. Guided by our PwC Global Tax Code of Conduct, the over 55,000 professionals in our Tax & Legal Services teams use their knowledge and expertise to help clients – ranging from individuals to the largest global corporations – to navigate complex and challenging environments, address people and legal issues, and comply with their tax and reporting responsibilities.

The year ahead

“While we adapted quickly to many of the new challenges that the COVID-19 pandemic brought, there is no doubt that the next 12 months and beyond are going to be difficult. Our economists are predicting that the global economy will contract by 5.5 % by the end of 2021 and while different countries will recover at different rates it is clear that the economic downturn will impact us and our clients across the world,” said Bob Moritz.

We are now very clearly focused on a number of priorities.

  • Jobs: Doing the right things to preserve jobs for our people, continue to invest in building the workforce PwC needs for the future, while maintaining the sustainability of our operations. Unfortunately we have seen some job losses in a few markets around the world, particularly in the advisory business, but we are working hard to limit these by containing non-essential costs and investments.
  • Safety and Wellbeing: Where we are returning to office based work, ensuring that our people are safe and comfortable and that we have processes and technologies in place to protect our people in line with relevant safety protocols. And where our people remain working from home, we continue to provide the support that they need to meet the challenges this can bring.
  • Quality: The uncertainty created by the pandemic and its economic impact has placed an even greater focus on the importance of trust in institutions, information and increased transparency. Investing in the enhancement of the quality of all of the services we provide to our stakeholders remains our number one priority, including continuing to invest the US$1 billion we announced last year to drive quality and innovation by making us the most cloud-enabled organisation in the world.
  • Clients: Supporting our clients across the world as they deal with the impact of the pandemic and look to restart operations, repair their balance sheets and rethink their business models.
  • Innovation: Driving and scaling up innovation right across our network and the development of new products and services. As our stakeholders grapple with the challenges of the current economic environment, it is vital that we are able to advise and support them on the best ways to construct sustainable businesses for the future.
  • Upskilling: Upskilling our own people and collaborating with UNICEF in support of Generation Unlimited to help upskill young people across the world has become even more important as the pandemic has accelerated the use of technology and remote working. Despite the economic uncertainty, we continue to invest heavily to help our own people and others better prepare for the new world of work.
  • Diversity and Inclusion: Redoubling our efforts to create a PwC culture where everyone feels valued, listened to and has the opportunity to grow and succeed and taking a leading role in the global dialogue on diversity. We have created our first global diversity and inclusion leadership council.

“The pandemic brought many challenges but it also brought the opportunity to reflect and to some degree rethink the future. How we work together, how we use technology, what real estate we need, whether we need to travel so much, how to innovate, how to connect with our stakeholders and how to prioritise our health and wellbeing. These are all issues that we are actively working on as we think about the PwC of tomorrow,” said Bob Moritz.

The PwC Global Annual Review will be published in October 2020 and will cover in more detail how PwC responded to the COVID-19 pandemic, the work that we do with our clients, stakeholders and the communities where we operate, how we supported our people, the results of our quality inspections and how we are embedding a high-quality culture across PwC, and the actions we are taking relating to important issues such as diversity and inclusion.

Brazil – Retention of title in international business

We commonly find, in contracts for the purchase and sale of movable property, and even in more generic documents (for example in General Conditions of Sale), the existence of the so-called “retention of title” (reserva de domínio) clause, the purpose of which is to ensure that the seller continues as owner of the goods sold until the price for the said goods has been paid in full by the purchaser.

Although the insertion of such a clause in credit sales is a common practice and is even to be recommended, it is important to emphasise that the contractual provision of a retention of title clause does not by itself guarantee the protection desired, and may not produce the practical effect expected.

Brazilian law contains certain rules that must be complied with in order for the title retention clause to be effective, but many international contracts do not in fact observe such rules, which can cause disagreeable surprises for the seller when it tries to exercise its rights in relation to the retention of title.

In most cases, this occurs because foreign sellers simply enter into contracts and/or establish general conditions of sale based on their own laws, and choose to submit any disputes to the jurisdiction of their own country.

It is understandable that the foreign seller may often prefer to choose the law and jurisdiction of its own country in order to govern its contracts, on the assumption that such choice offers it more facilities and security. However, in matters involving international business, this may prove to be a serious problem if the seller is not aware of the legal rules that exist in the country of the purchaser.

In this respect, it should be pointed out that, in certain cases, the simple choice of foreign law and jurisdiction may not be the best option, even though foreign companies may have the false impression that such option will always be the one that best meets their interests. It must be remembered that, taking as an example a retention of title clause, any legal action to recover possession of the goods in the event of the purchaser’s default, will take place in the country of the purchaser, and for this reason it is essential to know whether such action is likely to cause conflict with the laws of that country.

In Brazil, the choice of law in itself is frequently the subject of controversy and must be considered on a case-by-case basis, since Brazilian law imposes certain restrictions on the parties’ freedom of choice on this topic. There are cases where there exists an imposition of the law of the country of the offeror, while in others there are special Brazilian laws regarded as being rules of public policy.

The choice of forum must also be considered very carefully, because even if it is possible to take advantage of a foreign jurisdiction, it must be remembered that any foreign decision needs to undergo a process of validation by the Brazilian Superior Court of Justice in order to be recognised and be enforceable in Brazil, which could lengthen the procedure.

With specific reference to the retention of title, Brazilian law establishes, among other requirements, that the contract containing such clause must be registered at a notary’s office (Deeds and Documents Registry) of the purchaser’s domicile, within a period of 20 days as from its signature. Late registration does not invalidate the contract, but retention of title is only effective as from such registration.

If the contract is written in a foreign language, it is also necessary to have the document officially translated into Portuguese by a sworn public translator before applying for registration.

Absence of registration of the contract at a notary’s office does not guarantee protection to the seller, whether vis-à-vis the purchaser or third parties. Thus, the seller cannot claim the property if the purchaser has sold it to a third party, or pledged it to a third party as security, or if the seller becomes insolvent, as in cases of judicial restructuring, where the clause will not be effective against other creditors, and the seller may end up as an unsecured creditor.

Apart from the need to register the contract at a notary’s office, it is also essential to put the debtor officially in default, by notification or protest of the “security”, as only then will the seller be able to claim recovery of the property. Here too there is another peculiarity of Brazilian law, since the exercise of the right to repossess goods sold subject to retention of title presupposes the existence of a debt represented by an enforceable instrument (for example, a promissory note, bill of exchange or even a contract containing characteristics of an enforceable instrument under Brazilian law).

In addition, Brazilian law now allows contracts to establish the rules relating to procedural matters that may arise between the parties and, in this respect, it is recommended that contracts containing a title retention clause provide, for example, for the possibility of search and seizure of the goods in the event of non-payment, the manner of appraising the goods for the purpose of calculating a debit balance, who will be responsible for the cost of such appraisal, the possibility of sale or assignment of the goods to a third party to avoid the risk of deterioration, among others.

Apart from the measures referred to above, special care must be taken when General Conditions of Sale are concerned. This is because such documents have a generic characteristic and, unlike specific contracts of purchase and sale, do not contain a description of the merchandise, which is essential for the effectiveness of the retention of title, because the Brazilian Civil Code stipulates that “An object that cannot be described perfectly cannot be the subject-matter of a sale with retention of title”. In principle, there exist means of complying with the legal requirements even in cases of retention of title in General Conditions of Sale (for example, registration of the said general conditions together with the invoice containing a description of the merchandise sold, inclusion of an express reference to the general conditions in the invoice itself, among others), but this must be evaluated in each specific case.

These brief comments make it clear that protection of the seller’s rights as regards title to the goods requires more careful consideration than the mere inclusion of a retention of title clause. A wider examination of the issue is always to be recommended, taking into consideration the peculiarities of the laws of the country of the purchaser, in order to ensure maximum legal protection for the seller.

Frederico Amaral Filho and Charles Wowk

Associate lawyer and Partner in the Civil Area – São Paulo

[email protected] and [email protected]

Hogan Lovells advises Banco Industrial S.A. on DPR program

International law firm Hogan Lovells advised Banco Industrial S.A. in Industrial DPR Funding LTD.’s issuance of its US$200 million Series 2020-1 Fixed Rate Notes to the United States International Development Finance Corp. (“DFC”, formerly the Overseas Private Investment Corp.) to support women operated enterprises in Guatemala.

This financing will enable DFC to facilitate the financing of small to mid-size enterprises called “2X Eligible Enterprises” in Guatemala. These businesses promote enterprises founded or managed by women or are businesses where women comprise at least 40 percent of their workforce. These enterprises promote wage equality and childcare, and oppose discrimination and harassment.

The Hogan Lovells team was led by New York Finance partner Emil Arca, counsel Russell Slanover and associate Lauren Kimmel. In February, the team also advised Banco del Pacífico S.A. (BdP) on the establishment of, and first issuance under, its diversified payment rights (DPR) securitisation program in Ecuador.

Pinsent Masons advises Royal London on sale of Ascentric

Pinsent Masons has advised Royal London on the sale of its platform business, Ascentric, to M&G plc. Ascentric is a leading digital wrap and wealth management platform for advisers with assets under administration of £14 billion, around 1,500 adviser relationships and over 90,000 underlying customers. It has been part of Royal London since 2007.

The Pinsent Masons’ team acting on the transaction was led by Hannah Brader (Corporate Partner), Emma Dawe (Corporate Senior Associate) and Helen Siviter (Corporate Solicitor) and included Angus McFadyen and Praveeta Thayalan (TMT), Tobin Ashby and Matt Saward (Wealth), Alice Bell (Financial Regulation), Jon Fisher (Employment) and Jamie Robson and Rachel McConnell (Tax).

Commenting on the deal Hannah Brader said: “We are delighted to have worked with Royal London to successfully deliver this strategic disposal, conducted almost entirely during lockdown. This transaction reinforces our position as a leading firm in the wealth sector where we have advised on a number of the most significant recent transactions in the UK platform market, including advising Zurich on the sale of its UK Retail Wealth platform to Embark which completed in May.”

Duane Morris Joins Massachusetts COVID Relief Coalition

Duane Morris LLP has joined the COVID Relief Coalition for Small Businesses and Non-profits, a Massachusetts coalition of law firms, non-profits and government agencies providing pro bono legal support, access to emergency loans and other sources of relief to small businesses and non-profits impacted the COVID-19 pandemic.

Massachusetts small businesses and non-profits can visit covidreliefcoalition.com for access to free legal support on pandemic-related issues including real estate, tax and contractual matters. They can also apply for emergency loans and other sources of relief.

Coalition members include the Massachusetts Attorney General’s Office, City of Boston, Greater Boston Chamber of Commerce, Boston Bar Association, The Boston Foundation, the United Way of Massachusetts Bay and Merrimack Valley, Lawyers for Civil Rights and Lawyers Clearinghouse. Additional law firm partners include Brown Rudnick, Dechert, Fish & Richardson, Foley Hoag, Foley & Lardner, Goodwin, Goulston & Storrs, Kirkland & Ellis, Mintz, Morgan Lewis, Nelson Mullins, Ropes & Gray and WilmerHale.

About the Duane Morris COVID-19 Strategy Team

The Duane Morris COVID-19 Strategy Team is advising clients on all aspects of the legal issues and implications of the COVID-19 pandemic including contractual, employment, insurance and healthcare issues. Attorneys are fielding inquiries and providing advice in a wide range of areas, including human resources, travel and transportation, immigration and border entry, hospital and healthcare operations, medical and pharmaceutical supply, FDA, food handling and preparation, OSHA, ADA compliance, data privacy, HIPAA, environmental and EPA, international transactions, shipping, supply chain and logistics, financial reporting, insurance liability, real estate issues, including landlord and tenant matters, and all types of contracts and quasi-contracts.