Issues for Boards 2023
Sailing into the wind
1)
Introduction
Boards face many challenges as they steer their companies through times of economic, geopolitical and technological change. Often the answer to dealing with these challenges will involve some basic principles of governance. Each year, in our Issues for Boards publication, we offer practical pointers to boards and general counsel on topical questions and actions boards should take.
In 2023’s edition, we look at how boards of listed companies should prepare to handle an activist investor. We discuss how to draw up a good climate transition plan, the merits of involving investors in “say on climate” and the increasing dangers of being accused of greenwashing. Regulation is a recurring theme, and we look at the regulatory direction of travel in the UK, new hurdles for European M&A, and the approaching tide of regulation in the digital sphere.
A bot did not write this publication, but we do provide you with some insights into the risks and opportunities of ChatGPT and similar AI tools.
Please get in touch with the very human contacts listed if you would like to discuss any of the issues covered in this publication.
2)
Navigating the shoals: the UK regulatory outlook for boards
After several years of instability at Westminster, the UK is facing a new tide of regulatory reform. While much of this is still under development, there are some clear, if arguably competing, objectives. There are three drivers that are defining the regulatory mood: UK competitiveness, higher standards, and international leadership.
3)
Activism: dealing with the rising tide
There is a growing trend of activist shareholders seeking to exert pressure on companies to change the way they operate. Having a third party trumpet your organisation’s financial, operational, social or environmental failings – whether real or imagined – is never a place a board wants to be. There are steps boards can take to make sure they stay in control.
4)
Charting a course towards net zero
Most listed companies will soon be obliged to have, and to disclose, a robust climate transition plan. Is the next step to give shareholders the opportunity to vote on it? Some investors say they should have this right. If a company does decide to put a climate resolution to shareholders for a vote, boards should bear in mind that any targets, strategy or transition plan presented to shareholders or otherwise made public will be a source of obligations.
5)
Greenwashing: stormier waters ahead
At the same time as companies are increasingly required to disclose what they are doing to meet climate change obligations and investor expectations, their public pronouncements on their climate and other sustainability credentials are being scrutinised ever-more closely. Boards will need to make sure they are on top of the regulations and litigation risks, have good governance systems in place and manage the information flow.
6)
EU scrutiny of “foreign subsidies”: the regulatory net for M&A deals widens
M&A transactions and public procurements in the EU are to be subject to new scrutiny to prevent unfair advantage through foreign subsidies. The information requirements may add a significant regulatory hurdle for deal makers. Early and careful planning will be essential for boards forming their M&A strategies in order to minimise delays and execution risks.
7)
The surge of digital regulation in Europe and the UK
The EU and the UK are on track to pass sweeping new regulations or measures to rein in Big Tech and, by the same token, offer greater protection for individuals. This will mean greater obligations for some, but bring new business opportunities for others. Boards will need to consider what the impact these new regulations will have on their business and manage the increasing divergence between the UK and EU digital regulatory environment.
8)
ChatGPT: seven rules to keep you shipshape
Last year saw “generative” AI tools reach the mainstream. It started with tools such as Dall*E and ended with ChatGPT. While the current iteration of ChatGPT still has its problems, future generations of this and similar technology are likely to be increasingly powerful. It is important that businesses engage with this technology now so they can exploit it as it starts to mature. Having a policy around its use will be needed.
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