¹ A sample of titles from the SRPN Socially Responsible Investment and Corporate Social Responsibility e-journals for the month of August 2012 include Ivan Tchotourian, Investors, Investment Funds and New French Law: The Clouded Crystal Ball – Is There Really More Power to Promote CSR? UNIVERSITY OF NANTES – FACULTY OF LAW AND POLITICAL SCIENCE 2012, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115835. Joshua Humphreys et al, Environmental, Social and Governance Investing by College and University Endowments in the United States: Social Responsibility, Sustainability, and Stakeholder Relations, TELLUS INSTITUTE 2012, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2112158. Julie Cotter & Muftah Najah, Institutional investor influence on global climate change disclosure practices 37:2 AUSTRALIAN JOURNAL OF MANAGEMENT 169 (2012). Franz Fuerst et. al., A Green Winner's Curse? Investor Behavior in the Market for Eco-Certified Office Buildings, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2114528 (last accessed: 1 December 2012). I am aware that this paper is contributing to the onslaught.Google Scholar

² These organizations include the Social Investment Organization and SHARE (Canada), US SIF, UK SIF, and Eurosif.Google Scholar

³ The John Molson School of Business at Concordia University offers a Sustainable Investment Professional Certification. The Haas School of Business at the University of California, Berkeley, offers students the opportunity to act as principals of the student-led Haas Socially Responsible Investment Fund, with over $1.5 million in assets under management. For prospective business school students, the Aspen Institute publishes The Sustainable MBA: The 2010-2011 Guide To Business Schools That Are Making a Difference. See http://www.aspeninstitute.org/publications/mbaguide (last accessed: 1 December 2012).Google Scholar

⁴ David Hess calls 2006 a “break-out year” for responsible investing. David Hess, Public Pensions and the Promise of Shareholder Activism for the Next Frontier of Corporate Governance: Sustainable Economic Development, 2 VA. L. & BUS. REV. 221, 223 (2007).Google Scholar

⁵ Principles for Responsible Investment, Signatories to the Principles for Responsible Investment, available at: http://www.unpri.org/signatories/#psp (last accessed: 1 December 2012).Google Scholar

⁶ Excluding companies from an investment portfolio solely on the basis of ESG factors, however, is not viewed as essential to practicing new wave responsible investing. See UNEP FI Asset Management Working Group, Fiduciary Responsibility: Legal and practical aspects of integrating environmental, social and governance issues into institutional investment at 27 (“ The object of ESG incorporation into mainstream investment decision-making therefore is not to exclude socially or ethically unacceptable stocks or shares but to focus a brighter light on the impact of all material considerations on investment value”). For Canadian public-sector pension funds, divestment is considered a “last resort”, or applied very selectively. See, e.g., bcIMC, Responsible Investing Report Annual Summary – April 2010 to March 2011 at 7, available at: http://www.bcimc.com/publications/pdf/ResponsibleInvesting/ResponsibleInvestingSummary2010-2011.pdf (last accessed: 1 December 2012).Google Scholar

⁷ Responsible investing also encourages investors to take a long-term perspective on their investments: see, e.g., UN Principles of Responsible Investment, Principle 2, possible actions: “File shareholder resolutions consistent with long-term ESG considerations”, Principles for Responsible Investment, available at: www.unpri.org/principles (last accessed: 1 December 2012). A more specific time period is seldom provided in discussions of responsible investment, but the Marathon Club, a group of institutional investors, senior executives and senior specialists whose purpose is to encourage institutional investors “to be more long-term in their thinking and actions”, suggests an investment horizon of five to seven years. Marathon Club, Guidance Note for Long-Term Investing (2007), available at: http://www.usshq.co.uk/Documents/MarathonClub%20Guidance%20on%20Long%20Term%20Investing%202007.pdf (last accessed: 1 December 2012).Google Scholar

⁸ See Preamble to the PRI, online: www.unpri.org/principles/ (last accessed: 1 December 2012, “we believe that environmental, social, and corporate governance (ESG) issues can affect the performance of investment portfolios (to varying degrees across companies, sectors, regions, asset classes and through time). We also recognize that applying these Principles may better align investors with broader objectives of society.”).Google Scholar

⁹ Knoll, Michael, Ethical Screening in Modern Financial Markets: The Conflicting Claims Underlying Socially Responsible Investment, 57 BUS LAW 681, 683 (2002).Google Scholar

¹⁰ Although “socially responsible investing” or “SRI” is still the popular terminology, I use “responsible investing” or “RI” to distinguish the “new wave”, which emphasizes the relevance of ESG factors to maximizing investment returns, from its ethical predecessor, discussed in Part IV, below. See Mercer LLC, Best Practices in Responsible Investment for Canadian Pension Funds (November 2009), available at: www.socialinvestment.ca/…/PensionsReport_Nov2009_ENGL.pdf ((last accessed: 1 December 2012, using “responsible investment” “to refer to the developments among institutional investors”).Google Scholar

¹¹ Steve Waygood, Rory Sullivan & Morley, Alan, Harnessing investors to support the implementation of health and safety public policy in Responsible Investment 326 (Rory Sullivan & Craig Mackenzie, eds., 2006); Hess, supra note 4 at 226 (public-sector pension funds “have the potential to serve a valuable role” in new regulatory approaches to controlling environmental harm caused by corporations).Google Scholar

¹² Lake, Rob, Henderson Global Investors: Engagement and activism in Responsible Investment 175 (Rory Sullivan & Craig Mackenzie, eds., 2006).Google Scholar

¹³ Puri, Poonam, The Future of Stakeholder Interests in Corporate Governance, 48 CAN. BUS. L.J. 427, 438 (2010) (“The underlying theory [of the PRI] is that in encouraging investors to become more active owners, senior corporate leadership will take a more active interest in extra-financial drivers of risk and reward.”).Google Scholar

¹⁴ Corporate governance can be defined narrowly as “the structure and functioning of boards of directors or the rights and prerogatives of shareholders in boardroom decision-making” or broadly as “the whole set of legal, cultural, and institutional arrangements that determine what…corporations can do, who controls them, how that control is exercised, and how the risks and returns from the activities they undertake are allocated.” See Margaret M. Blair, Ownership and Control 3 (1995).Google Scholar

¹⁵ See e.g., Henry Hansmann & Kraakman, Reinier, The End of History for Corporate Law 89 Geo. L. J. 439 (2001).Google Scholar

¹⁶ Although some large institutional investors, such as the Canada Pension Plan Investment Board, refer to the members of their governing board as directors rather than trustees, I use trustees here in order to distinguish them from corporate boards of directors.Google Scholar

¹⁷ Knoll, , supra note 9 at 684 (dating SRI back to nineteenth century screening of “sin” stocks).Google Scholar

¹⁸ Richardson, Benjamin, Socially Responsible Investment Law: Regulating the Unseen Polluters 74 (2008), noting that one of the first “ethical” shareholder proposals was filed against Dow protesting the manufacture of napalm).Google Scholar

¹⁹ These continue to be popular exclusions for funds applying ethical screens. See Humphreys et. al., supra note 1 at 6, 14. Tobacco and weapons manufacturers are excluded from the Canadian Jantzi Social Index. See Jantzi Sustainalytics, available at: http://sustainalytics.com (last accessed: 1 December 2012).Google Scholar

²⁰ There is still a strong, but niche, market for SRI funds in the “values” investing vein. See e.g., Russell Sparkes, A historical perspective, in Responsible Investment (Rory Sullivan & Craig Mackenzie, eds., 2006), 52.Google Scholar

²¹ See, e.g., James Hawley & Williams, Andrew, The Universal Owner's Role in Sustainable Economic Development, 9 Corporate Environmental Strategy 284, 285 (2002); Richardson, supra note 18 at 540 (“In the UK, the amount of all shares held by individuals fell from 54 percent in 1963 to below 13 percent in 2006.”).Google Scholar

²² Richardson, , supra note 18 at 302.Google Scholar

²³ Urwin, Roger, Pension Funds as Universal Owners: Opportunity Beckons and Leadership Calls, 4:1 Rotman Int'l L. J. of Pension Mgmt 26, 28 (2011).Google Scholar

²⁴ Shelley Marshall, Kirsten Anderson & Ramsay, Ian, Are superannuation funds and other institutional investors in Australia acting like ‘universal investors’?, 51:4 J. of Industrial Rel. 441 (2009).Google Scholar

²⁵ Roderick Martin, Peter Casson & Nisar, Tahir, Investor Engagement: Investors and Management Practice under Shareholder Value 27 (2007).Google Scholar

²⁶ HAWLEY, JAMES & WILLIAMS, ANDREW, THE RISE OF FIDUCIARY CAPITALISM (2000); Hawley & Williams, supra note 21.Google Scholar

²⁷ Hawley, & Williams, , The Universal Owner's Role, id., 287-88. These positions might – and Hawley and Williams argue should – include support for environmental regulation that would reduce environmental risks to the economy.Google Scholar

²⁸ See, e.g., CPPIB's Proxy Voting Principles and Guidelines (February 9, 2012), available at: http://www.cppib.ca/files/F2012 – Other_documents/Proxy_Voting_Guidelines_Feb2012.pdf (last accessed: 1 December 2012). In addition to indicating how CPPIB is likely to vote on a given proposal, the policy is also intended to “communicate our views on other important issues that boards will deal with in the normal course of business.” Id. at 1.Google Scholar

²⁹ See, e.g., Public Sector Pension Investment Board, 2012 Annual Report at 44, available at: http://www.investpsp.ca/pdf/PSP-AR-2012-fin-statements-not-included.pdf (last accessed: 1 December 2012).Google Scholar

³⁰ Richardson, See also, supra note 18 at 517 (responsible investing is part of the “third way” between command-and-control regulation and “unbridled deregulation”.); Hess, supra note 4 at 232.Google Scholar

³¹ Thanotheram, Raj, A critical perspective on activism: views from a pension fund professional in Responsible Investment (Rory Sullivan & Craig Mackenzie, eds., 2006), 302 (noting that pension funds may be most comfortable engaging with companies in their home jurisdiction); bc IMC, Corporate Governance Principles and Proxy Voting Guidelines (August 2010) at 2, available at: http://www.bcimc.com/publications/pdf/ResponsibleInvesting/CorporateGovernancePrinciplesProxyVotingGuidelines.pdf (last accessed: 1 December 2012, discussing engaging with foreign companies on corporate governance issues).Google Scholar

³² Eurosif, , Pension Programme SRI Toolkit (2004-05), 23, available at: http://www.eurosif.org/sri-resources/pension-fund-toolkit (last accessed: 1 December 2012, “institutional investors are increasingly investing beyond their domestic borders. Voting thus becomes de facto a cross-border issue.”).Google Scholar

³³ Morgera, Elisa, “From Stockholm to Johannesburg: From Corporate Responsibility to Corporate Accountability for the Global Protection of the Environment?” 13 RECIEL 214 at 221.Google Scholar

³⁴ Monks, Robert & Minow, Nell, Corporate Governance, 2d ed (2001), 109. Of course, this promise has not always been fulfilled: Puri (note 13), 445 (The global financial crisis of 2008/2009 has been attributed, at least in part, to…a failure of institutional investors to “act as owners” in holding management and the board of directors accountable for their decisions.”).Google Scholar

³⁵ Eurosif, , supra note 32 at 31; Hawley & Williams, Fiduciary Capitalism, supra note 26 at 64 and 131.Google Scholar

³⁶ Richardson, Benjamin, Financing Environmental Change: A New Role for Canadian Environmental Law 49 McGill L. J. 145, 159 (2004) (noting that most private pension plans in the corporate sector ignore environmental issues); Martin, Casson & Nisar (note 23), 43; Monks & Minow, supra note 34 at 125; Robert Monks & Allen Sykes, Companies run in shareholders’ long-term interests also serve society's long-term interests in Responsible Investment 232 (Rory Sullivan & Craig Mackenzie, eds., 2006).Google Scholar

³⁷ Monks, & Minow, , supra note 34 at 111 and 113.Google Scholar

³⁸ 2011 Ontario Budget: Chapter III: Tax and Pension Systems for Ontario's Future, available at: http://www.fin.gov.on.ca/en/budget/ontariobudgets/2011/ch3.html#c3_secB (last accessed: 1 December 2012); UNEP FI Asset Management Working Group, Fiduciary Responsibility: Legal and practical aspects of integrating environmental, social and governance issues into institutional investment, 15 (2009); Hess (note 4), 253.Google Scholar

³⁹ Richardson, , Financing Environmental Change, supra note 36 (discussing Sweden and New Zealand).Google Scholar

⁴⁰ Companies Act, 2006, 2006, c. 46.Google Scholar

⁴¹ Id., s. 172(1)(a) and (d). Subsections (b), (c), (e) and (f) instruct board members to consider the interests of employees, the need to foster business relationships with customers and suppliers, the company's reputation, and the need to act fairly between shareholders. The legislation has been criticized for providing little guidance to directors as to how to apply this provision in practice: Andrew Keay, Tackling the Issue of the Corporate Objective: An Analysis of the United Kingdom's ‘Enlightened Shareholder Value Approach’ (2007) 29 Sydney L. Rev. 577 at 597.Google Scholar

⁴² See e.g., Hess, , supra note 4 at 227 (the goal of RI is to ensure corporations focus on long-term value creation through sustainable economic development).Google Scholar

⁴³ Hawley, & Williams, , Fiduciary Capitalism, supra note 26, at 97 (describing the finance model of capitalism). Hawley and Williams’ “fiduciary capitalism” or “universal owner” theory does not challenge the objective to maximize shareholder value, just shifts the focus from individual firms to the portfolio as a whole: id., 99.Google Scholar

⁴⁴ See, e.g., Rory Sullivan, Craig Mackenzie & Waygood, Steve, Does a focus on social, ethical and environmental issues enhance investment performance? in Responsible Investment (Rory Sullivan & Craig Mackenzie, eds., 2006), 58. See also David Vogel, The Market for Virtue: The Potential and Limits of Corporate Social Responsibility (2005), 29-33 for a summary review of the various studies.Google Scholar

⁴⁵ Under Canadian securities regulation, information is “material” if it would affect a “reasonable” investor's decision to buy, hold or sell a security. The OSC has noted that the “reasonable investor” test has shifted to include more environmental information. See Ontario Securities Commission, Corporate Sustainability Reporting Initiative: Report to the Minister of Finance at 14 (2009), available at: http://www.osc.gov.on.ca/documents/en/Securities-Category5/rule_20091218_51-717_mof-rpt.pdf.Google Scholar

⁴⁶ Hanley, Nick, Jason Shogren & Ben White, Environmental Economics: In Theory and Practice, 2d ed (2007), 322. The Enhanced Analytics Initiative defines ESG factors as sharing the characteristic of not readily quantifiable, which would seem to add to the difficulty investors face in actually practicing new wave RI. See Freshfields Bruckhaus Deringer, A Legal Framework for the Integration of Environmental, Social and Governance Issues into Institutional Investment, 18 (2005), available at: http://www.unepfi.org/fileadmin/documents/freshfields_legal_resp_20051123.pdf (last accessed: 1 December 2012).Google Scholar

⁴⁷ See, e.g., Vogel, supra note 44 at 158; Richardson, supra note 18 at 513.Google Scholar

⁴⁸ Hawley, & Williams, , Fiduciary Capitalism, supra note 26 at 23 and 33.Google Scholar

⁴⁹ See, e.g., Nicholas Stern, Stern Review on the economics of climate change, available at: National Archives, http://webarchive.nationalarchives.gov.uk/+/ http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm (last accessed: 1 December 2012).Google Scholar

⁵⁰ Richardson, , supra note 18 at 135 and 486.Google Scholar

⁵¹ Henderson, See Gail, A Fiduciary Duty to Minimize the Corporation's Environmental Impacts, INTL. & COMP. CORP. L. J. (forthcoming).Google Scholar

⁵² Eight of the shareholder proposals filed against US publicly listed companies in 2012 asked the company to start producing an annual “sustainability” report. Many others asked the company to provide a report on the environmental risks of a specific activity, such as oil sands development, natural gas hydraulic fracturing, and mountaintop removal coal mining.Google Scholar

⁵³ The situation is different for private equity funds, which tend to take a controlling interest in a smaller number of companies. Given the volatility of public markets, pension funds are becoming bigger players in private equity.Google Scholar

⁵⁴ Monks, & Minow, , supra note 34 at 151 (discussing the limits on the ability of institutional investors “for optimal monitoring”); Richardson, supra note 18 at 194.Google Scholar

⁵⁵ CPPIB, 2011 Report on Responsible Investing, 3 and 6, available at: www.cppib.ca/files/PDF/CPPIB_RI_Report.PDF (last accessed: 1 December 2012).Google Scholar

⁵⁶ Thanotheram, , supra note 31 at 303.Google Scholar

⁵⁷ Although distinctions may be made between publicly listed and privately held corporations.Google Scholar

⁵⁸ Different methods of oil and natural gas extraction, for example, raise different environmental issues.Google Scholar

⁵⁹ Richardson, , supra note 18 at 147 (citing the absence of universal benchmarks to measure sustainability performance as inhibiting investment analysis of environmental issues).Google Scholar

⁶⁰ UNEP FI Asset Management Working Group, supra note 38 at 26. See also id., 434 (discussing the role of sustainability ranking agencies or indices).Google Scholar

⁶¹ A number of shareholder proposals filed against North American companies between 2009 and 2012, which received a significant level of institutional investor support, asked companies to set GHG emission targets and to report on their progress in meeting those targets.Google Scholar

⁶² Vogel, , supra note 44 at 110.Google Scholar

⁶³ See OECD Guidelines for Multinational Enterprises, Ch IV, 31 (2011), which has incorporated the United Nations Framework for Business and Human Rights ‘Protect, Respect and Remedy’.Google Scholar

⁶⁴ Id., Ch IV, Commentary, 32.Google Scholar

⁶⁵ See, e.g., Corruption of Foreign Public Officials Act, SC 1998, c. 34. See also OECD Guidelines, id., Ch VII -Combatting Bribery, Bribe Solicitation and Extortion, 47 (“Enterprises should not, directly or indirectly, offer, promise, give, or demand a bribe or other undue advantage to obtain or retain business or other improper advantage.”). The OECD has recommended that countries eliminate exceptions for “small facilitation payments”, making the prohibition on bribery absolute: Recommendations of the Council for Further Combating Bribery of Foreign Public Officials (26 November 2009).Google Scholar

⁶⁶ National Instrument 58-101 – Disclosure of Corporate Governance Practices. Google Scholar

⁶⁷ Ontario Teachers’ Pension Plan, Listening to members, available at: http://www.otpp.com/wps/wcm/connect/otpp_en/Home/Responsible+Investing/Qs+and+As/ (last accessed: 1 December 2012).Google Scholar

⁶⁸ Public Sector Pension Investment Board, Responsible Investing Policy 2 (12 November 2009), available at: http://www.investpsp.ca/pdf/responsible-investment-policy.pdf (last accessed: 1 December 2012). See also bcIMC, Responsible Investing factsheet, 1, available at: http://www.bcimc.com/publications/pdf/Factsheet_ResponsibleInvesting_20120331.pdf (last accessed: 1 December 2012, “[w]here possible without sacrificing returns, we include ESG factors in our investment decisions.”).Google Scholar

⁶⁹ See, e.g., Julie Cotter & Najah, Muftah, Institutional investor influence on global climate change disclosure practices, 37 Aus. J. of Mgmt. 169, 174 (2012) (“the shareholder engagement perspective concerns itself solely with the long-term interests of shareholders.”).Google Scholar

⁷⁰ Eurosif, , supra note 32, at 32.Google Scholar

⁷¹ Supra note 36, s. 172 (1)(e). See Gudula Deipenbrock & Mads Andenas, Directors’ Duties to Promote the Success of the Company and ‘Enlightened Shareholder Value’. Comparing English and German Company Law, 7 International and Comparative Corporate Law Journal 1, 28 (2010). The Supreme Court of Canada arguably took a similar approach to directors’ duties in BCE Inc v 1976 Debentureholders, 2008 SCC 69. Although the Court states that directors “may be obliged” to consider the interests of non-shareholder stakeholders (para. 66), any consideration must tie back to the “best interests of the corporation” [emphasis added]. For this reason, it seems unlikely that BCE will lead to significant improvements in corporations’ environmental performance.Google Scholar

⁷² National Round Table on the Environment and the Economy, Capital Markets and Sustainability – Investing in a Sustainable Future (2007), 8, available at: http://nrtee-trnee.ca/wp-content/uploads/2011/08/NRTEE-capital-markets.pdf (last accessed: 1 December 2012).Google Scholar

⁷³ Richardson, , supra note 18 at 102. Lawrence Mitchell makes a similar observation about shareholder wealth maximization as the object of the corporation: Mitchell (note 60), 5.Google Scholar

⁷⁴ Henderson, Gail, Rawls & Sustainable Development, 7 MCGILL INT'L. J. OF SUS. Dev. L. & Pol'y. 1 (2011).Google Scholar

⁷⁵ Richardson, , supra note 18 at 16.Google Scholar

⁷⁶ See Larry Catà Backer, Sovereign Wealth Funds as Regulatory Chameleons: The Norwegian Sovereign Wealth Funds and Public Governance Through Private Global Investment, 41 GEORGETOWN J. OF INT'L. L. 101, 125 (2009) (noting that this argument is made against SWFs, on the ground that as government investment funds they will make investments for the purpose of achieving the political aims of their governments).Google Scholar

⁷⁷ Vogel, See, supra note 44 at 166 (suggesting that responsible investing would have a greater impact on environmental protection if investors “were more willing to also invest in companies that earned less because they had chosen to act more responsibly.”).Google Scholar

⁷⁸ Richardson, , supra note 18 at 514.Google Scholar

⁷⁹ Id., 523. Richardson suggests that if responsible investors dominated the capital markets, they could raise the cost of capital enough to impose a type of Pigovian tax on environmentally unfriendly firms: id. at 152.Google Scholar

⁸⁰ See, e.g., id. 73-74; and 111-20 (regarding faith-based investing).Google Scholar

⁸¹ Vogel, , supra note 44 at 22 (“The students who demanded that their universities sell their holdings in firms with investments in South Africa or firms with defense contracts did not believe that this investment strategy would financially benefit their institutions.”).Google Scholar

⁸² Hess, , supra note 4 at 246.Google Scholar

⁸³ Supra note 43 and accompanying text.Google Scholar

⁸⁴ Richardson, , supra note 18 at 21.Google Scholar

⁸⁵ Deringer, Freshfields Bruckhaus, supra note 46 at 7; Richardson, Financing Environmental Change, supra note 36 at 153.Google Scholar

⁸⁶ Richardson, , Financing Environmental Change, id.; Freshfields Bruckhaus Deringer id. at 8, although the duty to diversify is not a duty to diversify “maximally”: id. at 110.Google Scholar

⁸⁷ UNEP FI Asset Management Working Group, supra note 38 at 15; CPPIB, Policy on Responsible Investing at 1, s. 2.0. But see Eurosif, “Toolkit” at 18 (“pension funds using norms-based screening [i.e., based on international standards such as the UN Global Compact] report insignificant changes in risk levels.”).Google Scholar

⁸⁸ A “best in class” approach selects for an investment portfolio those companies which have the best environmental performance within their sector, thus ensuring that the portfolio is still diversified across industries. This is the approach taken by the Dow Jones Sustainability World Index. See DJSI, Index Family Overview, available at: http://www.sustainability-indexes.com/dow-jones-sustainability-indexes/index.jsp.Google Scholar

⁸⁹ Supra note 67.Google Scholar

⁹⁰ Hess, , supra note 4 at 246; Freshfields Bruckhaus Deringer, supra note 46 at 27. See also Humphreys et al, supra note 1 at 12 (noting that officials at the endowment funds of University of Pennsylvania, Yale and Princeton “went to great lengths to convey that their refusal to make future investments [in HEI funds] was financial rather than ‘social’ or ‘ethical’.”).Google Scholar

⁹¹ USS, Responsible Investment: Background & Rationale, available at: http://www.uss.co.uk/UssInvestments/Responsibleinvestment/BackgroundRationale/Pages/default.aspx (last accessed: 1 December 2012) [emphasis in original]. See also Thanotheram (note 27), 308-09; Hawley & Williams, Fiduciary Capitalism, supra note 26 at 28.Google Scholar

⁹² Gladman, Kimberly, Why the PRI is Not Just PR: Perspectives on the Principles for Responsible Investment, The Corporate Library, 4 (2010); Hawley & Williams, id., xvii (profits from investing in tobacco offset by the health care costs imposed on beneficiaries). See David R Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy (2003), 66 (although estimates vary widely, from 5,000 to 16,000 premature deaths are caused by air pollution each year, and environmental NGOs and both levels of government agree “that air pollution costs Canada billions of dollars annually in health care.”).Google Scholar

⁹³ See, e.g., Catà Backer, supra note 76 at 189 (Norway's Government Pension Fund Global “deliberately seeks to project Norwegian policy preferences on a host of private actors otherwise beyond its reach.”).Google Scholar

⁹⁴ WEISS, EDITH BROWN, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL LAW (Tokyo: The United Nations University, 1992) at 27.Google Scholar

⁹⁵ Carbon Disclosure Project, Catalyzing Business and Government Action, available at: https://www.cdproject.net/en-US/Pages/About-Us.aspx (last accessed: 1 December 2012).Google Scholar

⁹⁶ Waygood, Sullivan & Morley, , supra note 11 at 328.Google Scholar

⁹⁷ Id. at 83 (speaking with respect to the financial sector).Google Scholar

⁹⁸ Statement by Director General Martin Skancke, Asset Management Department, Norwegian Ministry of Finance, to the Subcommittee on Domestic and International Monetary Policy, Trade and Technology and the Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises, US House of Representatives, Hearings on “Foreign Government Investment in the US Economy and Financial Sector” (5 March 2008), 4, available at: http://www.regjeringen.no/upload/FIN/Vedlegg/aff/Congress_testimony_martin_skancke.pdf (last accessed: 1 December 2012).Google Scholar

⁹⁹ A Fine Balance, Report of the Expert Commission on Pensions (31 October 2008), 173, available at: http://www.fin.gov.on.ca/en/consultations/pension/report/Pensions_Report_Eng_web.pdf (last accessed: 1 December 2012).Google Scholar

¹⁰⁰ Freshfields Bruckhaus Deringer, supra note 46 at 12. The Freshfields Report cites the example of child labor as such a “widely recognized norm”.Google Scholar

¹⁰¹ Richardson, , supra note 18 at 218. CPPIB holds biennial public meetings, although the purpose appears more informational than consultative. See CPPIB, “Public Meetings”, available at: http://www.cppib.ca/About_Us/public_meetings.html (last accessed: 1 December 2012).Google Scholar

¹⁰² See, e.g., shareholder proposal filed against KBR, Inc. in 2011. The company amended its Code of Ethics after this proposal received a record 61.7% shareholder support. See KBR, Inc., Form DEF 14A, 4 April 2011 and 5 April 2012, available at: www.sec.gov/edgar.shtml (last accessed: 1 December 2012); Ted Allen, “Greater Support for Shareholder Proposals on E&S Issues”, ISS Governance blog (20 June 2011), available at: http://blog.issgovernance.com/gov/2011/06/greater-support-for-shareholder-proposals-on-es-issues.html (last accessed: 1 December 2012).Google Scholar

¹⁰³ Even having this kind of policy does not save trustees from having to make potential contentious decisions. For example, are shareholder proposals requesting gender parity on boards consistent with Charter values or an unjustified interference in the appointment process?Google Scholar

¹⁰⁴ Supra note 53, and accompanying text.Google Scholar

¹⁰⁵ Richardson, , supra note 18 at 25; Hess (note 4), 260 (regarding preventing the politicization of US public pension funds).Google Scholar

¹⁰⁶ Supra note 38, and accompanying text.Google Scholar

¹⁰⁷ Henderson, Gail, supra note 51.Google Scholar

¹⁰⁸ Hogg, Peter, Constitutional Law of Canada, 5^th ed., Supplemented, Vol. 1, 5-12 (2007).Google Scholar

¹⁰⁹ 114957 Canada v Hudson, [2001] 2 SCR 241, para 3; Hogg at 5-14.Google Scholar

¹¹⁰ Canada Business Corporations Act, RSC 1985, c. C-44, s. 102(1) (“Subject to any unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation.”).Google Scholar

¹¹¹ Supra note 86, and accompanying text.Google Scholar