Corporate Oversight in the Sustainability Era

Abstract

Unlike previous harmonization efforts, which were primarily aimed at promoting transparency regarding their ESG commitments, the CSDDD Directive requires large enterprises to directly identify, map, and prevent adverse impacts on the environment and human rights. This regulatory shift raises significant questions from a corporate law perspective, particularly regarding its implications for the oversight duties and liabilities of corporate directors. This analysis first aims to demonstrate that the codification of ESG monitoring duties under the Directive does not necessarily imply a substantial expansion of the scope of directors' existing oversight duties. Adverse impacts that directors are now required to consider, thus ensuring compliance with the CSDDD, often entail legal and/or financial risks for the company itself—risks that directors are already obliged to map, identify, and manage, under general corporate law. Nonetheless, this work contends that the Directive’s most significant effects may lie in reshaping the criteria for assessing directors’ oversight decisions, particularly those concerning internal controls. Specifically, while oversight duties were previously justified solely by shareholder interests and evaluated through the lens of the BJR, the Directive reorients these duties towards external interests. This paradigm shift could significantly alter the traditional boundaries of judicial review over directors’ oversight and organizational decisions, as the BJR appears inapplicable to duties—however broadly defined—that are specifically intended to protect interests external to the company.