ESG In Latin America And The Rise Of The Social Pillar – Corporate Governance

What is ESG?

Environmental, social and corporate governance (collectively
referred to as ESG) is generally used to describe criteria or
standards by which companies can be measured with respect to a
broad range of socially desirable ends. These data points are then
incorporated into the decision-making and risk management process
for investors, financial institutions, customers and government
agencies or regulators, among others. Each of the three areas of
ESG (referred to herein as ‘Pillars’) are defined by
different factors. Environmental criteria are used to assess the
Environmental Pillar and a company’s impact on the natural
environment (e.g., reductions in carbon emissions, use of renewable
energy sources, and waste management). The Social Pillar (also
referred to as the ‘Stakeholder Pillar’) considers how a
company manages its relationships with stakeholders, which includes
shareholders, employees, suppliers, customers and the communities
within which the company operates. Under the Corporate Governance
Pillar, various criteria examine how a company is operated –
most notably focusing on the role and composition of executive
management or the board of directors, the distribution of rights
and responsibilities among directors, shareholders, and other
participants in the company, and how these participants
interconnect to promote the company’s ongoing success.

The Social Pillar of ESG is often overshadowed by the other two
pillars because it is more difficult to define and measure. The
Social Pillar has a broad remit, covering how companies manage
their relationships with all stakeholders, not just shareholders,
as noted above. Because of this coverage, risks under the Social
Pillar can affect company performance, growth and reputation.
While, for example, environmental matters are particularly
significant in certain industries (e.g., oil and mining), the
Social Pillar affects every company, regardless of geographical
location or sector.

ESG awareness and implementation in Latin America have generally
trailed behind when compared to Europe, North America and East
Asia. That said, in recent years, the disruption and changes caused
by the covid-19 pandemic have helped put social matters top of mind
for organisations globally, including in Latin America. Indeed, the
Latin American and Caribbean economies have suffered more compared
to the rest of the Western world. Almost 45 per cent of jobs in
these economies require close physical proximity in
contact-intensive sectors (e.g., restaurants, retail stores, and
public transportation), compared to around 30 per cent for emerging
markets. Furthermore, only around one in five jobs in Latin America
and the Caribbean can be performed remotely, which is half of the
percentage of advanced economies and below the emerging world
average of 26 per cent.2

Against this backdrop, we see an increased focus in Latin
America on the adoption of ESG practices to help guide corporate
decision-making and manage corporate risk, specifically related to
how companies impact on their employees and other stakeholders. For
example, during the covid-19 pandemic, salary subsidies and loans
to support employment and retention became common in Argentina,
Brazil, Chile, Colombia, Mexico and Peru, assuming certain criteria
were met (e.g., firm size, compensation levels, and financial loss
as a result of the covid-19 pandemic).3

We have also seen how government regulation has pushed companies
towards a greater focus on social issues – one example being
the US sanctions on goods connected to Xinjiang, imposed in
December 2021. These sanctions prohibit imports from the Xinjiang
region of China unless businesses can prove that their goods were
produced without the use of forced labour.4 Though
outside Latin America, such regulations are illustrative of a
broader shift and increasing emphasis on ESG-related issues, and
the Social Pillar in particular. Moreover, such regulation in Asia
likely foretells the future for similar issues in Latin America,
where awareness and implementation of ESG practices have generally
lagged relative to other regions in the world. Put simply, ESG (and
specifically the Social Pillar) has the world’s attention and
is here to stay, even if different regions are at different phases
of implementation.

Unpacking the ‘S’ in ESG

As noted above, the Social Pillar predominantly concerns how a
company manages its relationships with stakeholders other than just
shareholders. This assessment covers a number of key areas

  • employees (e.g., labour rights and conditions, salaries and
    benefits, diversity and inclusion, workplace harassment and
    discrimination, health and safety, and whistle-blower

  • suppliers (e.g., corruption and exploitation within supply

  • customers (e.g., product safety and liability, product
    labelling or selling practices, and data privacy protection);

  • general stakeholders (e.g., human rights violations, human
    trafficking, and intrusions on local indigenous groups or other
    community groups).

The importance of the Social Pillar is increasingly evident
through the focus of governments, regulators, consumers, and
citizens on one element in particular, the supply chain. Indeed,
many jurisdictions, such as the United States, the United Kingdom
and the European Union, have introduced a legal framework imposing
obligations on companies in relation to the sources of their goods
and services and the impact on their supply chains. A key example
in recent years is the growth of legislation against modern slavery
(i.e., slave-like exploitation, including human trafficking and
forced labour).5 Other aspects of the Social Pillar also
include an increased focus on issues around diversity and
inclusion, indigenous rights, personal privacy and other social
issues – all of which are relevant to a wide range of
stakeholders in a globalised world.

For its part, Latin America has not yet established a rigorous
legal framework against which social issues can be assessed;
however, consequences for non-compliance in this area can still be
far-reaching and apply more broadly to a company – even if
the conduct is contained within Latin America. In particular, if
the underlying concern has any nexus to another country, whether
through the organisational structure or location of the principal
office, it can result in potentially significant consequences for a

Making progress under the Social Pillar can often require
significant effort. Nevertheless, the potential impact of failings
in this area can be serious. Reputational harm and negative brand
publicity can discourage consumers from purchasing goods or
services, dissuade investors from providing financing, and even
result in stifling business to a halt. Other consequences of
non-compliance or ineffective measures include financial risk
(e.g., fines and injunctions), legal risk (e.g., employment law and
other legal violations) and regulatory risk (e.g., financial
criminal offences related to proceeds from illicit activity).

Measuring the Social Pillar

Although there is no global standard against which to measure
success in this area, a number of frameworks are nonetheless
instructive – including the UN Sustainable Development Goals
(UN SDGs), Global Steering Group for Impact Investment (GSG),
Global Reporting Initiative (GRI), UN Guiding Principles Reporting
Framework, World Benchmarking Alliance, Sustainability Accounting
Standards Board, Impact Reporting and the Investment Standards, and
World Economic Forum.

The UN SDGs, adopted by all UN Member States in 2015 as part of
the 2030 Agenda for Sustainable Development, contain 17 sustainable
development goals aimed at tackling systemic global economic,
social, and environmental challenges.6 Of particular
relevance to the Social Pillar are:

  • UN SDG 4: Quality Education (e.g., providing training
    opportunities to employees, including women, to help increase the
    number of adults who have technical and vocational skills);

  • UN SDG 5: Gender Equality (e.g., implementing policies to end
    all forms of discrimination against women within the company,
    ensuring women have full and effective participation and equal
    opportunities for leadership at all levels of company

  • UN SDG 8: Decent Work and Economic Growth (e.g., promoting
    decent job creation, providing equal pay for work of equal value,
    taking immediate and effective measures to eradicate forced labour
    and end modern slavery within company operations and supply chains,
    securing the elimination of child labour from business activities
    and supply chains, protecting the labour rights of workers, and
    promoting safe working environments for all workers including
    migrant workers);

  • UN SDG 10: Reducing Inequality (e.g., ensuring equal
    opportunities in company recruitment and promotion criteria or
    processes, implementing non-discrimination policies and reporting
    procedures, and providing training on discrimination including
    unconscious bias); and

  • UN SDG 16: Peace, Justice and Strong Institutions (e.g.,
    considering human rights violations, exploitation, and trafficking
    in compliance risk assessments).

In 2019, the World Economic Forum’s International Business
Council (IBC) flagged the lack of consistency and comparability of
metrics, arising from the existence of multiple ESG reporting
frameworks, as preventing companies from credibly demonstrating
their progress on sustainability and their contributions to the UN
SDGs to all of their stakeholders.7 Consequently, the
IBC invited the World Economic Forum, in partnership with Deloitte,
EY, KPMG and PwC, to coordinate a set of universal ESG metrics and
recommended disclosures that could be consistently reflected in a
company’s annual report. This process culminated in a set of 21
‘core metrics’ and 34 ‘expanded metrics’ related to

The core metrics comprise more established quantitative metrics
that are likely already being recorded by companies (e.g., employee
diversity statistics) or metrics that can be calculated based on
readily available information (e.g., pay equality ratios through
comparative compensation analysis for each employee category taking
into account gender and ethnic considerations). The expanded
metrics are a combination of more advanced metrics and disclosures
which are less likely to be found in existing practice and
standards. These include the number of discrimination and
harassment incidents within a company, the status of the incidents
and actions taken, and the total amount of monetary losses as a
result of any related legal proceedings.

The Social Pillar in Latin America

We have seen a few examples of how the increased focus on the
Social Pillar in Latin America has worked in practice –
examples that also underscore how these issues can have a real
impact on businesses operating in the region.

One example highlights a focus on supply chain issues –
specifically, Olam International is facing an enforcement action by
Brazilian prosecutors for allegedly failing to address child and
slave labour abuses in its supply chain.8 Brazilian
prosecutors filed the lawsuit against the cocoa processor in
January 2021 and are seeking around 300 million reais
(approximately US$58 million) in damages. In another example, over
200,000 Brazilian claimants (comprising individuals, businesses and
municipal governments) affected by the devastation of the collapse
of the Fundão dam in 2015 launched proceedings in the United
Kingdom against the English ultimate parent company of the
Brazilian dam operator.9 This case is one of the latest
in a trend by which English courts have shown their openness to
consider claims of alleged violations of business and human rights

Of course, company strategy does not operate in a vacuum and so
any decisions are necessarily influenced by the local economy and
political landscape, as well as pressure from the media and other
organisations. The unique circumstances of different Latin American
countries across these factors means that any individual
company’s approach to the Social Pillar, including the
practical steps that can be taken to mitigate risks under the
Pillar, must be tailored with that context in mind. Nonetheless, as
these examples illustrate, multinational companies operating in
Latin America should remain vigilant as to the possibility of
labour and human rights violations (among other areas covered by
the Social Pillar) that could affect other parts of its corporate
brand and structure.

Relevant social legal frameworks in Latin America

Governments of Latin American countries are at different stages
of implementing legal frameworks on social issues. In addition to
governmental regulation, a number of private companies and
non-government bodies have created voluntary initiatives along
these lines. For example, some Latin American countries are members
of GSG. Established in 2015, GSG is dedicated to impact on
investment and entrepreneurship to benefit people and the
environment. It currently covers 33 countries through 28 National
and Regional Advisory Boards, including Central America and Latin
American countries (including Argentina, Brazil, Chile, Colombia,
Mexico and Uruguay). The Regional Advisory Boards promote and
facilitate the development of impact investment in the countries in
which they operate. GSG encourages the incorporation of ESG factors
into decision-making or reporting activities, even when not
required by local legislation. GSG also encourages taking positive
steps to combat social issues (e.g., pledging to end forced labour
and cutting ties with businesses profiting from slavery, including
marginalised groups and victims of conflict in employment).

In addition, a number of private companies in the region
participate in the UN Global Compact, a non-binding UN pact calling
for private businesses worldwide to respect labour rights, the
environment, and human rights by adopting sustainable and socially
responsible policies.

Countries Member of GSG Number of companies participating in UN Global
Argentina Y 411
Brazil Y 1,525
Chile Y 117
Colombia Y 597
Costa Rica N 37
Mexico Y 883
Peru N 87


Brazil has an established legal framework for employment and
labour rights at both a national and federal level. Specifically,
Brazilian Law (Law No. 13,146/2015) sets quotas for the employment
of disabled persons depending on the size of the organisation. In
addition, Brazilian Law (Law No. 7,716/1989) criminalises
situations where employment is denied or impeded by a private
company based on race, ethnicity, religion or national origin.
Finally, Brazilian Law (Law No. 14,133/2021) prohibits companies
that have been legally convicted for the exploitation of child
labour or the submission of workers to conditions analogous to
slavery from participating in bidding processes.

In general, there is no unified standard with respect to
upholding human rights in companies in Brazil. The November 2018
National Guidelines for Business and Human Rights (Decree No.
9,571/2018) detail the concepts in the UN Guiding Principles on
Business and Human Rights for companies operating in Brazil.
Although there is no express legal obligation to present reports or
disclosures relating to human rights issues, companies in certain
sectors, such as the mining industry, are subject to disclosure
requirements for violations in these areas. In addition, although
there is no legal obligation to conduct due diligence related to
human rights matters, some Brazilian companies have done so anyway
(for example, in the context of an M&A transaction or to
monitor the supply chain).

As a private sector initiative, the Brazilian Business Council
for Sustainable Development (CEBDS) is a non-profit civil
association that brings Brazilian organisations together to
implement sustainable business practices – including
providing employees with human rights awareness training,
establishing diversity and inclusion committees to develop
inclusive strategies, and encouraging support networks (e.g., for
LGBTQ+ employees).11

Since 2004, Brazil has maintained a ‘dirty list’ of
employers, made up of companies and individuals who have been found
guilty of using slave labour. Although there is currently no legal
punishment for a company or individual who is on this list, those
featured are barred from receiving public financing and have
limited access to private loans.


Since becoming the first Latin American country to launch the UN
Global Impact in October 2001,12 Chile has continued to
put social issues at the forefront of companies’ agendas. In
2017, the Chilean government published its first National Action
Plan (NAP) on Business and Human Rights
(2017–2019).13 The NAP sets out 158 action points
for specific government institutions based on stakeholder
recommendations and other relevant agendas, including the UN 2030
Sustainable Agenda and UN SDGs.

Recently, the Financial Market Commission (CMF), the Chilean
financial regulator, issued secondary legislation, General Rule No.
461, in November 2021, which amends the structure and content of
annual reports of certain organisations, including banks, insurers,
issuers of publicly offered securities and general fund
managers.14 General Rule No. 461 specifically sets out
the obligation to report on ESG factors, such as information on
people who provide services to the company, including aspects of
diversity, pay gaps, occupational safety, and workplace harassment
and discrimination.

Although there is no single government body dedicated to
promoting ESG in Chile, there are a number of public agencies that
have implemented initiatives to promote sustainability and
responsible investment practices.15 For example, the CMF
is currently working on an amendment of the new reporting
obligations under NCG 386 aimed at strengthening the adoption of
ESG principles.


Colombia published its first National Action Plan (NAP) on
Business and Human Rights (2015–2018) in December 2015, and
its second edition (2020–2022) in December 2020, which
captured covid-19 considerations. The second NAP serves as a tool
for companies, regardless of size or sector, to promote, protect,
and repair the human rights of workers and families affected by
decreased income and suspended employment contracts, among other
negative impacts of the covid-19 pandemic.16

An online platform, the SDG Corporate Tracker Colombia, assists
companies in assessing their contribution towards achieving the UN
SDGs.17 The initiative is supported by the GRI, the
National Planning Department of Colombia, and the UN Development
Programme. Over 400 companies have registered on the platform. The
tracker assists with the information collection process as well as
reporting and analysis of ESG performance against GRI standards
related to (1) employment rights and labour
conditions;18 (2) community interests;19 (3)
supply chain risks;20 and (4) customer


Mexico’s Constitution sets out a general framework on human
rights, child labour and slavery issues, implemented at both the
national and the federal level. Relevant legislation includes the
State Trafficking in Persons Law prohibiting forced labour; the
Federal Labour Law concerning working conditions and employment
issues, including striking and unionisation; and the Federal
Regulations on Health and Safety at Work, which sets minimum
standards of environmental, health and safety conditions in the

In 2020, the Mexican government published a National Human
Rights Programme 2020–2024, which includes a section
dedicated to business and human rights.24 This followed
an attempt to develop a specific Human Rights and Business
Programme (2015–2018) to promote greater respect for human
rights in business activities.25 In its third UN
Voluntary National Review in 2021, the Mexican government
underscored a continued commitment to correct historical social
debts by implementing measures focused on closing inequality gaps,
eradicating poverty, and ending corruption, among other

In Mexico, like in Colombia, progress in these areas and towards
achieving other UN SDGs is being tracked via an online platform,
which was launched in 2018.27 The platform, titled
‘Information System of Sustainable Development Goals
(SIODS)’, provides a centralised location for data from various
Mexican governmental departments and agencies.28 It also
allows users to track indicator data and targets related to the UN
SDGs at a provincial level, and compare them against the national
average collected by the government.


In 2018, Peru adopted its third National Human Rights Plan
(PNDH) 2018–2021, setting forth five strategic alignments
that correspond to the UN SDGs. The fifth strategic alignment
highlights the duty of private and public companies to
progressively implement international human rights
standards.29 Following the Organisation for Economic
Co-operation and Development (OECD) Responsible Business Conduct
Policy Review on Peru in 2020,30 the Peruvian government
published a National Action Plan (NAP) on Business and Human Rights
(2021–2025) in 2021.31 The NAP contains
recommendations for companies to strengthen measures across a range
of issues, including forced labour and child labour within supply
chains, employment rights and non-discrimination.

Practical considerations

Companies assessing performance under the Social Pillar should
consider the key risks that could exist across the following


Issues to consider here could include the risk of undocumented
remuneration; underage workers or children; workers seemingly
working without any formal employment contracts in place; employees
working long hours without breaks; underpayment or deductions from
salaries (e.g., to repay loans); the presence of hazardous
materials, dangerous working conditions or a lack of necessary
safety equipment; and a general lack of safeguarding policies and
training and reporting procedures in place to protect workers
(e.g., health and safety policies and incident logs, harassment or
discrimination reporting and disciplinary procedures, whistleblower
channels and protections, and employee data privacy policies).


In terms of suppliers, companies are increasingly requiring
suppliers to have the same safeguarding policies, training and
checks in place as are applied to their own businesses. Supply
chain audit rights are increasingly utilised as a way to confirm
that suppliers adhere to the agreed standards (e.g., organising a
periodic inspection of a farm or factory to assess working

Customers and the community

Related to customers and the community, companies should
consider (among other areas) product quality, safety and general
fitness for purpose; the manner in which products are labelled,
advertised, or otherwise marketed to consumers (e.g., the accuracy
or fairness of the product labelling or description, the tone of
the marketing materials and advertisements, and the intended
audience of the marketing approach); how the company or company
website collects and manages personal data from the individuals who
interact with it; and general customer and community engagement
(e.g., review processes, complaint handling procedures, and
participation in wider community events).


ESG has captured the world’s attention, and the ‘S’
in particular has increasingly become a focus for a variety of
stakeholders. Given the breadth of this pillar’s application,
and its significance for companies, tackling and managing the
Social Pillar is an involved task. Nonetheless, companies that have
taken action to pre-emptively mitigate risk in these areas enjoy an
increasing competitive advantage as governments begin imposing
requirements on managing and measuring compliance on social

Given these trends, companies in Latin America should start
actively assessing the risks and consider what proactive risk
mitigation measures can be implemented now as part of the
company’s broader compliance programme and environment. It is
just a matter of time before local law and private initiatives in
Latin America start to close the gaps and render serious
consequences for non-compliance. While it may be difficult to gain
traction in these areas, particularly given the ongoing challenges
posed by the covid-19 pandemic, companies that choose to be more
forward-leaning when it comes to ESG compliance will be well served
in the long run.


1. Ruti Smithline, Hayley Ichilcik and James M Koukios
are partners, and Stephanie Pong and Lauren Navarro are associates
at Morrison & Foerster LLP. The authors would like to thank
Georgia-Louise Kinsella, a trainee solicitor in the firm’s
London office, for her contributions to this chapter.

2. Samuel Pienknagura, Jorge Roldós and Alejandro
Werner, ‘Pandemic Persistence Clouds Latin America and
Caribbean Recovery’, IMF Blog, October 2020,

3. International Monetary Fund, ‘Latin American Labor
Markets during COVID-19’, October 2020,

4. Aamer Madhani, ‘U.S. imposes sanctions on China
over human rights abuses of Uighurs’, PBSO News Hour, December

5. Arathi Sethumadhavan, ‘How to Stop Modern
Slavery’, World Economic Forum, January 2021,

6. United Nations, ‘Transforming our world: the 2030
Agenda for Sustainable Development’, August 2015,

7. Deloitte, EY, KPMG, PwC and World Economic Forum,
‘Measuring Stakeholder Capitalism Towards Common Metrics and
Consistent Reporting of Sustainable Value Creation’, September

8. Fabio Teixeira, ‘Olam International is being sued
by Brazilian prosecutors for allegedly failing to address labor
abuses in its supply chain’, Thomas Reuters Foundation News,
August 2021,

9. Jason Allen, ‘Case Note: Município de
Mariana & Ors v BHP Group plc, BHP Billiton plc and BHP Group
Ltd: [2020] EWHC 2930 (TCC)’, Blackstone Chambers, February

10. As at 18 February 2022.

11. CEBDS, ‘Breaking down walls and building bridges:
diversity, inclusion and equity’, June 2019,

12. UN News, ‘Chile first in Latin America to launch
Global Compact, UN agency reports’,

13. Chile National Action Plan on Business and Human
Rights, 2017,

14. Comisión Para El Mercado Financiero, ‘CMF
issues regulation incorporating sustainability and corporate
governance requirements in Annual Reports’, November 2021,

15. Cristián Eyzaguirre, Francisco Guzmán,
and Benjamín Sáa, ‘Getting The Deal Through, ESG
and Impact Investing 2021, Chile’, 2021, Carey,

16. Colombia National Action Plan on Business and Human
Rights, December 2020,

17. UN SDG Corporate Tracker Colombia,

18. e.g., GRI 401: Employment, GRI 403: Occupational
Health and Safety, GRI 404: Training and Education, GRI 405:
Diversity and Equal Opportunity, GRI 406: Non-discrimination, GRI
407: Freedom of Association and Collective Bargaining, GRI 408:
Child Labour, GRI 409: Forced or Compulsory Labour.

19. e.g., GRI 411: Rights of Indigenous Peoples, GRI 413:
Local Communities.

20. e.g., GRI 414: Supplier Social

21. e.g., GRI 416: Customer Health and Safety, GRI 417:
Marketing and Labelling, GRI 418: Customer Privacy.

22. Carlos Escoto, Mariana Herrero, Marianela Romero
Aceves, Lorena Kiehnle Barocio, ‘Mexico: Environmental, Social
& Governance Law 2022’,, December 2021,

23. US Department of Labor, ‘Child Labor and Forced
Labor Reports: Mexico’, December 2020,

24. Mexico National Human Rights Program 2020–2024,
December 2020,

25. Government of Mexico, ‘Addressing Human Rights in
All Spaces and Environments: Working Group on Business and
#DDHH’, March 2017,

26. Mexico Voluntary National Review, 2021,
InfNalVol_FPAN_DS_2021_es.pdf (

27. International Institute for Sustainable Development
SDG Knowledge Hub, ‘Mexico’s SDG Portal Brings
Functionality to Reporting’, August 2018,

28. Information System of Sustainable Development Goals,

29. Peru Support Group, February 2018,

30. Organisation for Economic Co-operation and
Development, ‘OECD Responsible Business Conduct Policy Reviews:
Peru’, 2020,

31. Peru National Action Plan on Business and Human
Rights, June 2021,

Originally published by Latin Lawyer’s Guide to
Corporate Compliance

Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular

© Morrison & Foerster LLP. All rights reserved

Zubair Q Britania

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