Hosted by GAIL UK Regional Board

The GAIL UK Regional Board held their virtual event, Navigating Challenges in Implementing Impact: 3 Perspectives on 10 June 2024.

This event explored how the legal profession stands at a critical intersection today with practitioners, increasingly responsible for leveraging their role and influence to ensure the credible upscaling and implementation of impact and sustainability in business, finance and investment decisions and projects. In this session, our panellists offered diverse observations on how a maturing ESG environment is impacting their work and fiduciary obligations.

Moderated by Christina Bartholomew: Co-Founder of Stories Evolved, Sustainability Teaching Fellow (Advance Higher Education), GAIL UK Board Member (Moderator), we heard from three panellists:

– Simon Colvin: Specialist ESG Lawyer, Weightmans – Head of Environment Team and Energy & Utilities Sector Lead
– Aimée Girdwood: Co-Founder of Stories Evolved, Senior Associate to the Cambridge Institute for Sustainability Leadership (CISL) GAIL UK Board Member
– Cillian Moynihan: General Counsel at the Global Innovation Fund

They discussed how they are advocating for impact both within and beyond their organisations, how they are driving breakthrough success in a rapidly shifting business environment, and how they are balancing the requirements of different and sometimes conflicting stakeholders. Finally, we learnt about how they became impact lawyers including lessons learnt along that journey.

Summary Transcript: Navigating Challenges in Implementing Impact

I am Christina Bartholomew and we are here to talk about Navigating Challenges in Implementing Impact. I am a member of GAIL UK but also a member of the Texas Bar. I’m American but I’ve been living in England (London in particular) for 17 years. A teaching fellow for sustainable business and the co-founder for Stories Evolved. 

We’re very lucky to be joined by 3 impact lawyers; a general counsel, an outside counsel and a non-practicing sustainability advisor about how they became impact lawyers, how they advocate for impact in their organisation and beyond and how they navigate obstacles to drive purpose. 

In the EU and the UK we are now required to disclose environmental and social impacts, many of our businesses are. Banks and financial institutions are doing the same with their portfolios. They are allocating capital towards businesses that can demonstrate better sustainability bona fides. There’s an awareness of the need to decarbonise, leading to sector-by-sector transition plans. We are also beginning to scale change through the measurement of scope 3 emissions, which include supply chains. Additionally, we are scrutinising human rights violations within those chains.

The notion of a social licence to operate is becoming increasingly understood. Businesses are looking to partner with stakeholders, find new customers or clients, and recruit and retain a new generation of workers. Regulations topped by the EU’s CSRD, SFDR, and CSDDD are refining what that social licence to operate means in the commercial sector. We’ve developed a more nuanced view of what an energy transition might mean to people and communities. With the notion of a just transition, we are incorporating plans to mitigate negative impacts.

As the notion of impact matures, we also see the maturing of obstacles to the goals we’ve set for ourselves. Political backlashes, stubborn mindsets, and difficult trade-offs really cut to the heart of the stakeholder versus shareholder primacy debate. Our panel is here to talk about their work and experience in impact law and how they approach these and other challenges.

Simon Colvin, Specialist ESG Lawyer at Weightmans

Simon is a partner at Weightman’s Law Firm. Having trained as an environmental biologist, he converted to environmental law over 20 years ago. He’s recognised as a leader in the field and has worked on leading UK environmental matters and projects, including the Buncefield Incident Court of Appeals cases defining the definition of waste and working as part of the Broadway initiative to help shape the new Environment Act.

Simon is a fellow of IEMA and supports clients on things like gap assessments related to SA8000 standards, PAS2080 advice in relation to greenwashing prevention programs and related claims and allegations, and the creation of ESG guidelines and delivery of bespoke ESG training programs. He also sits in a non-executive role on a key client ESG committee and has more recently helped shape and launch his firm’s own ESG program.

Simon, you have worked within your law firm to develop an impact-driven practice and have managed to amplify impact not just with your clients but also within your firm. Can you tell us a little bit about that journey?

I suppose our journey started about seven or eight years ago now. I’ve been with the firm for 11 years, and when I joined, one of the things I was asked to take responsibility for was not just supporting clients with their environmental needs at that time but also looking at my firm’s own environmental program. I think it’s probably fair to say that at that time it was probably a bit agricultural – a bit of paper use, a bit of travel – but it wasn’t particularly formal. Seeing what my clients were doing at the time and knowing a bit more about the environmental compliance space, we started a journey of implementing an environmental management system which was then accredited to ISO 14001. We then moved on to an energy management system, which is now accredited to ISO 50001.

But like a lot of professional services organisations, you think actually we’re quite boring from an impact point of view when we look at what some of our clients were doing, particularly in an environmental context. So my approach was to say, ‘How can we make this more interesting? How can we make this more engaging?’ Around that time, the Sustainable Development Goals were becoming a thing, and it seemed like a natural step for us to go from focusing on the environment and energy, to the SDGs. We went through a process of identifying the SDGs that were relevant to our people and our stakeholders and created a plan around that. But if I’m honest, I suppose I started to reach a glass ceiling in terms of my own knowledge and capability.

When I joined Weightmans, we were probably about 800 or 900 people; we’re now 1500. This has always made sense to me because of the area I work in, but one of the challenges I’ve faced, and I think others will face, is joining the dots for everybody else and getting them to see what you can see. That means working in all areas of the organisation, engaging with your board and getting them to understand and see the importance from different perspectives. We often talk about the 3Ps: people, planet, and profit. We’ve certainly used that with our board, but it’s also about the owners of the business, the partners within the law firm, getting them to see the importance to the people that work for us, their clients, our regulators, and all the people we engage with.

One of our stated ambitions now is to be one of the most socially and environmentally conscious law firms in the UK. We do very well in various rankings and assessments in this space. It takes time, and you’ve got to persevere, but it’s definitely worthwhile. Now, we have built up so much momentum that it’s no longer about me doing it all. There are lots of different people doing great things across the business, and it’s really about capturing and articulating that, making sure we tell people about all the good things we are doing as a firm.”

Evidence and Convincing Colleagues

Just a quick follow-up because I have a question about evidence. Within your firm, what evidence have you marshalled to convince clients? Is it a matter of education, mindset, or what battle are you fighting?

Law firms and lawyers are naturally cautious. When you’re engaging with management and board level, there’s always that question: do we want to be the first to do this? Is it the right thing to do? So my approach was to look at what other firms are doing. To be honest, because we’re at the forefront, we can’t just look to other law firms. We’re at the cutting edge. So, we look outside the legal space at other successful businesses and companies putting sustainability and impact at the heart of what they do. That’s helping them succeed in various ways. Additionally, I let the board hear from external speakers, bringing in experts from different businesses and positions to share thoughts. This gives senior people the opportunity to ask questions and learn. We did this at a board level and at our leadership conference last year.

In terms of evidence, it’s actually quite hard because there aren’t many law firms doing this. Everyone is starting to catch up, but when you’re at the forefront, it’s tough. So, we’ve been looking at what the big accountancy practices are doing and the annual surveys they do with directors and officers about the importance of this topic. It’s really about being creative, gathering all available information, absorbing it, and then articulating it within the business.

Cillian Moynihan, General Counsel at the Global Innovation Fund

Cillian is a General Counsel at the Global Innovation Fund. He is responsible for structuring and negotiating all of GIF’s investments around the globe and oversees both legal and ESG functions. He is part of the Global Innovation Fund’s executive team and chairs their investment committee and risk panels. Before that, Cillian was a partner in the corporate M&A team of Kirkland and Ellis in London, advising private equity funds, corporates, and venture capital funds on various investments worldwide. Prior to that, he worked for nonprofit organisations in Kenya and Madagascar. Cillian is admitted to practise in England and holds a Bachelor of Law and Business from University College Dublin.

The Global Innovation Fund aims to transform the lives of people who live on less than $5 a day. Can you tell us about your journey from an M&A attorney to General Counsel of an enterprise with such a purpose?

From quite early on in my career, I had a strong interest in development work. Following university, I had the opportunity to spend some time in the field working on development and humanitarian projects. Firstly in Kenya with an educational nonprofit and then in Madagascar for a UNICEF-supported local aid program. In both roles, I really witnessed up close the severe challenges faced to affect real impact in the poorest developing communities, where basic needs of water, sanitation, and primary education were really not guaranteed.

I was inspired to do more at that stage in my career, but I didn’t feel like I had a huge amount to offer in terms of tangible skills other than my time and enthusiasm at that point. So I decided to move back to London to train and qualify as a solicitor with the aim of developing some legal and technical skills that I could ultimately leverage for benefit back in the development and impact space. I did my training contract at SJ Berwin and then, upon qualification, moved to Kirkland and Ellis into their M&A team.

There, I spent almost seven years, most recently as a partner, working for private equity and venture capital funds. I really enjoyed the investment transactional side of the work. It was a brilliant training ground to come up with creative solutions to deploy capital in ways that met commercial needs and goals. But the opportunity to marry that interest and the skills I developed on the investment side with a business like GIF, which had a real strong purpose and operated in the impact field that I had a strong personal passion for, just seemed like a really good opportunity. So I moved into the role of General Counsel at GIF about two years ago, and I’ve really enjoyed it.

For those who don’t know GIF or aren’t aware of their work, we were set up by the UK and US governments about 10 years ago with about $150 million of seed capital with a mandate to invest in innovations that improve the lives of the world’s poorest. Since then, we’ve done about 70 investments in about 40 countries across equity, debt, and grants. This is sector-agnostic, so we’ve invested in everything from recycling companies in East Africa to pharmatech in Indonesia, across three main funds: a core fund, a gender fund, and a climate fund.

Impact Measurement and Evidence

Part of what really attracts me to GIF, and part of what’s really motivating to work there, is the fact that impact measurement and rigorous evidence are at the core of what it does. It forms a central part of the investment decision process. Anytime we look at a potential innovation, there’s a lot of data and analytics done by our team on what type of impact this will generate for the world’s poorest, how it will be generated, and then that impact is tracked over the life of our investment. I sit alongside very impressive, inspiring professionals who’ve worked in the field across ESG, sustainability, and analytics, and really know their business. It’s been an exciting place to work for the last few years.

Aimée Girdwood, Co-Founder of Stories Evolved, Senior Associate to the Cambridge Institute for Sustainability Leadership (CISL), External Advisor to the Cambridge Institute for Sustainability Leadership (CISL) Global Board Programme

Aimée, you are based in Johannesburg. Together, we work with clients across the US, UK, Europe, and Africa as a result of our broad geographical scope. Aimée holds a Master’s degree in Sustainability Leadership from the University of Cambridge and has more than 20 years of experience as a lawyer and sustainability specialist in South Africa and these other places I mentioned.

Aimée is a frequent contributor to CEL’s executive online programs, where she specialises in strategic sustainability advice and leadership development. She helps organisational leaders translate what sustainability means for them and rethink what they take for granted by asking critical questions about their context, purpose, and strategy. She emphasises leadership, good governance, trust, and integrity for long-term organisational stability.

Aimée practised law at Bowman’s in Johannesburg and Allen & Overy in the UK. Aimée, your interest in impact brought you away from legal practice, but now you draw on your appreciation of legal risk to make the case to law firms and businesses about the urgent need to develop sustainability strategies both internally and with clients. 

Can you tell us a bit about your journey to this type of impact work?

I’m grateful that you use the word ‘journey’ because I’m still very much on it, and I’m glad to be here today to learn and share my experiences.

When you decide you’re going to become a lawyer, your path is somewhat predetermined. There’s a specific set of qualifications you need to get, then you need to achieve certain results to move on into your articles and hopefully receive an offer to stay on as an associate. It can be quite easy to keep your head down, focusing on doing all of that well and not seeing much of what’s going on around you.

Shifting Perspectives in Energy and Development

My journey began in 2005 as a construction and energy lawyer. I was working on coal-fired power stations, which were then massive transactions in our country. These power stations were desperately needed for our economy and its continued development. At that time, environmental considerations were not the priority; approvals were sought, but well-being was looked at from an economic and social perspective.

After working on power projects for a while, both in South Africa and the UK, I returned to South Africa as a senior associate. I decided to leave practice because renewable energy projects were not financially viable at that time. There wasn’t an enabling environment for them. So, I moved into policy work, collaborating with the government, development banks, and nonprofit organisations to make renewable energy financially viable. Eventually, I worked with law firms advising banks on renewable energy projects.

Initially, the focus was on adding more power to the grid quickly and economically. While these renewable energy projects were seen as more socially acceptable, they weren’t fully integrated into social well-being strategies, such as employment opportunities and community development around the power plants. This lack of integration sometimes hindered the development and societal buy-in for renewable energy, especially in contexts where carbon-intensive industries supported many jobs and opportunities.

Marikana Incident and Corporate Accountability

A pivotal moment for me was the Marikana incident in 2013, where miners from various companies protested their working conditions, leading to violence and fatalities among both miners and police officers. This tragedy highlighted a significant disconnect between the decisions made at the boardroom level of global, profitable mining companies and the actual conditions on the ground. It raised questions about how businesses, despite their resources and reporting mechanisms, could allow such a chasm to exist.

Reengaging with Legal Practice and Sustainability

My involvement with Cambridge’s Executive Education Program came at a time when I had become somewhat disillusioned with the ability of law to lead impact. However, working with businesses again reminded me of the critical role lawyers play in creating an enabling environment and driving both profitability and responsible business practices.

Evidence and Credibility in Sustainability

In our work, evidence is crucial. In a context where there has been much commitment but historically less action, credibility is the currency of sustainability. Showing credibility involves demonstrating how a business operates in a way that builds and maintains trust—how it profits while keeping people and the environment safe, and how it makes decisions aligned with these principles.

Cillian, you mentioned the rigorous data collection at GIF. How do you use evidence in your work?

Cillian Moynihan – Detailed Approach to Evidence at GIF

At GIF, our mandate is to invest in innovations that serve those living on less than $5 a day. This is a mandatory obligation explicitly stated in our articles and part of our board-approved five-year strategy. We cannot proceed with a deal unless the impact case is demonstrated to the investment committee and the board.

We assess a potential investment’s impact by forecasting its risk-adjusted long-term impact through a data-driven exercise. Our analytics team, led by our chief economist, measures potential impact using PYI units, where one PYI means one person’s living standards are improved by 100% for one year. This calculation considers the investment’s breadth of reach, depth of impact per beneficiary, and likelihood of success over ten years.

Once we deploy capital, we work collaboratively with innovators to gather data on the innovation and the ultimate beneficiaries, continually assessing impact on the ground. Our contracts and term sheets are structured to facilitate this ongoing flow of information.

We use this data to:

1. Track each investment’s performance from an impact perspective, and compare innovations across sectors

2. Publicise our results and show our work through annual reports, demonstrating figures like generating half a billion dollars in net social value or benefiting 140 million poor people by 2032.

3. Share lessons learned to influence the field and enhance collective knowledge and effectiveness.

4. Raise more capital by showcasing hard data on the impact generated.

For example, our investment in S4S in India, which recently won the AOP prize, uses solar power to dry smallholder farmers’ produce that would otherwise be wasted. This innovation intersects climate and gender, improving lives and increasing income for 300,000 smallholder farmers.

Measuring Qualitative Impact

Some impacts are more qualitative and harder to measure. We take a holistic view, using the $5 a day benchmark to focus on innovations serving the poorest, then targeting specific metrics tied to each investment’s thesis, such as climate or gender impacts, for reporting and measurement purposes.

Aimée Girdwood on Building Evidence 

Aimée, how does evidence factor into your/our work, and what are some challenges you face in collecting that evidence?

Evidence is crucial, especially in an environment with many commitments but less historical action. Credibility is the currency of sustainability. We look at how businesses build and maintain trust, profit while keeping people and the environment safe, and make decisions aligned with these principles.

Collecting evidence in sustainability can be challenging because it involves qualitative aspects and requires continuous engagement and alignment across different sectors and stakeholders. However, through robust data collection, transparent reporting, and collaboration, we strive to measure and demonstrate the impact effectively.

Let’s explore three different examples where we’ve worked with clients to build evidence in varied contexts.

1. Navigating COVID-19 Vaccination Decisions

During the COVID-19 pandemic, we worked with an international bank operating in multiple countries. The executive team needed assistance in making decisions about employee vaccinations amid varying national regulations and diverse opinions on vaccine efficacy and access. Collaborating with ethics researchers from Harvard who had studied corporate collapses and governance failures, we developed a decision-making framework. This framework ensured the bank considered not only legal obligations but also its policies, ethical considerations, and risk management. The goal was to maintain employee trust by transparently showing how decisions were made, debating potential outcomes, and justifying them based on factual evidence.

2. Assessing Sustainability in a Corporate Law Firm

Another project involved a large corporate law firm seeking to understand and enhance its sustainability practices. We reviewed the firm’s policies and procedures, conducted confidential interviews with a diverse sample of employees, and identified areas of strength and opportunities for improvement. For example, while the firm excelled in pro bono practices, there were gaps in diversity and inclusion efforts despite strong policies. These insights, derived from detailed interviews, helped align the firm’s purpose with employees’ day-to-day experiences. This alignment fostered a common understanding of ESG and sustainability, enabling the firm to communicate its efforts more effectively internally and externally.

3. Evidence-Based Approach for Sector-Specific ESG

We also worked with individual teams within law firms, helping lawyers in various sectors understand why ESG and sustainability matter to them. For sectors like healthcare, real estate, and employment, we demonstrated how these challenges and opportunities are evolving. By bringing in thought leaders, conducting research, and reporting industry trends, we helped lawyers see the relevance and importance of ESG in their practice. This evidence-based approach facilitated the integration of sustainability into their day-to-day work, although the implementation of these practices remains an ongoing challenge.

Simon Colvin’s Perspective on Evidence and Client Engagement

Simon, you’ve highlighted how evidence varies across different contexts and client needs. Laws and policies, self-governance trends, and case studies all serve as forms of evidence. You mentioned the importance of tailoring messages based on a client’s maturity in sustainability. Can you share some examples of how you’ve used evidence to engage clients at different stages of their sustainability journey?

We worked with UK membership organisations that initially needed to understand sustainability themselves. We helped them get their house in order, creating a credible message for managing their organisation before providing guidance to their members.

Addressing Human Rights Risks in Global Supply Chains

In another case, we assisted a global packaging company with a sophisticated sustainability program to implement SA8000, a global standard for human rights in supply chains. The company needed to convince internal stakeholders of the importance of this standard. The most compelling evidence came from the supply chain’s demand for accountability in managing human rights risks. Adopting SA8000 demonstrated the company’s commitment to ethical practices, thus gaining stakeholder buy-in.

Pursuing Evidence for Greener Litigation

Currently, we’re working on gathering evidence for the Greener Litigation Pledge, which aims to promote sustainable litigation practices. This involves demonstrating how adopting a green approach in litigation can positively impact outcomes and processes. Evidence in this context is crucial as large organisations demand proof of the benefits before committing to such changes.