The Latin American M&A Market from an ESG Perspective

This is an Insight article, written by a selected partner as part of Latin Lawyer's co-published content. Read more on Insight

The incorporation of environmental, social and governance (ESG) practices in guiding corporate decision-making in Latin America is following a growing global trend of focus on sustainability, ESG and impact investing by shareholders, customers and employees. Attorneys practising in the region should be prepared to address ESG matters in transactional preparation, due diligence investigations, acquisition documentation and post-closing operations as ESG practices are adopted by financial institutions, strategic investors and regulatory authorities throughout Latin America. However, even ahead of regulation, in most cases, ESG is considered both a driver of value in M&A and a means of reducing risks associated with operations post-acquisition.

Defining ESG

ESG criteria are standards that seek to integrate ESG data related to company performance into the decision-making and risk management process for investors, financial institutions and regulators, among others. Environmental criteria are used to consider how a company performs to reduce its impact on the natural environment (e.g., climate, energy emissions, water). Social criteria examine how companies manage their relationships with all stakeholders (e.g., employees, suppliers, customers and the communities in which they operate) rather than just shareholders. Governance risks concern how a company is run and are often tied to areas such as company leadership, anti-corruption, executive pay, auditing, internal controls, transparency in disclosure, corporate governance and shareholder rights.

Background on ESG

ESG investing can potentially increase value and mitigate governance and social risks, such as loss of assets due to lawsuits, social discord, political intervention, environmental harm or regulatory fines and penalties. The market seems to agree, as asset managers are expected to emphasise ESG-specific investments. Asset managers worldwide are expected to increase their ESG-related assets under management to US$33.9 trillion by 2026,[2] as compared to approximately US$18.4 trillion in ESG-related assets in 2021. This increase represents a potential 84 per cent increase in ESG-specific investments between 2021 and 2026.[3] Stated differently, ESG-specific assets are anticipated to comprise up to 21.5 per cent of total global assets under management within three to five years.[4] However, Latin America is expected to capture only a small portion of that ESG market share, with ESG-specific investments in the region expected to amount to approximately US$25 billion.[5]

Moreover, between 2019 and 2022, index fund investment with an ESG focus increased from 3 per cent to 5 per cent and is expected to increase further in 2023.[6] Green, social or sustainability-linked bond issuances are forecasted to range between US$900 billion and US$1 trillion in 2023.[7] But the ESG debt market could increase to approximately US$15 trillion by 2025.[8] Start-ups focused on clean and renewable energy sources raised US$12.3 billion in 2022, up from US$1.9 billion in 2019.[9] This growth is linked to an accelerating push from governments globally to encourage climate-friendly investments, many of which are held by ESG funds, by transitioning to low-carbon energy economies and updating their market rules and tax regimes.[10] In Latin America and the Caribbean, foreign direct investment increased by 55 per cent between 2021 and the end of 2022 (approximately US$225 billion in 2022[11]) – growth that has rebounded from a 45 per cent drop in 2020, mainly due to the global pandemic – in large part due to a paradigm shift by multinational companies operating in the region to push a sustainable development agenda.[12]

BlackRock, State Street, T Rowe Price, Vanguard and other large fund managers have stated that ESG-focused companies create long-term value for stockholders. Some credit rating agencies have begun assessing ESG risk with the same rigour as traditional metrics like credit and liquidity risk. Meanwhile, law firms worldwide have started tailoring their services to provide clients with a comprehensive examination of their targets from an ESG perspective.

Tracking and analysing ESG information remains a work in progress, as no uniform reporting standard has been universally adopted. To further complicate matters, ESG considerations differ depending on the sector and region in which a company operates. Although there is currently no one globally accepted ESG measurement standard, the leading ESG standard organisations are:

  • the Global Reporting Initiative;
  • the Sustainability Accounting Standards Board (SASB);
  • the Carbon Disclosure Project;
  • the Carbon Disclosure Standards Board (CDSB); and
  • the International Integrated Reporting Council (IIRC).

These leading organisations are aware of the need to set one standardised measuring system for ESG and, in 2020, they published a prototype climate-related financial disclosure standard and a joint statement of intention to work with each other and other key institutions, including the International Organization of Securities, the International Financial Reporting Standards, the European Commission and the World Economic Forum’s International Business Council, to develop global standards.[13]

ESG framework providers attempt to provide guidance as to which factors and indicators should be prioritised in different sectors. The SASB, for example, has worked to implement a uniform ESG reporting standard to aid investors in identifying the minimum set of sustainability issues likely to be material for companies within a given industry. The SASB’s ‘Materiality Map’ highlights the types of risks prevalent across a multitude of sectors. The risk types span five major categories:

  • environment;
  • social capital;
  • human capital;
  • business model and innovation; and
  • leadership and governance.

For example, the map identifies the following high-risk areas for a company that operates in the metals and mining sector: greenhouse gas emissions, air quality, energy management, waste and water management, waste and hazardous materials management, ecological impacts, labour practices, employee health and safety, and business ethics. A team working on an M&A deal can use this tool to identify the baseline risks in the target company’s sector. Nonetheless, although ESG framework and standard setting institutions provide guidance as to the factors to analyse in each industry, and the SASB tries to focus on those sustainability factors that are likely to have material financial impact, there is still difficulty quantifying the financial impact or materiality of ESG data as ESG frameworks relate mostly to non-financial disclosures.

ESG standards may be broken down further into three separate classes:

  • compliance;
  • ESG issues material to a company’s operations; and
  • additional ESG policies that surpass those that are required by law or by regulatory authorities.

Compliance is an area where legal departments are heavily involved, and covers risks such as human rights, trafficking, slavery, conflict minerals, anti-corruption compliance, privacy and cybersecurity. ESG standards that are ‘material to operations’ flag and track those ESG standards imposed by regulations (e.g., Securities and Exchange Commission guidelines and SASB compliance), which carry reporting requirements and potential penalties for non-compliance. Finally, certain companies incorporate ESG policies that surpass those that are required by law or by regulatory authorities, such as having a corporate social responsibility policy and other philanthropic initiatives (e.g., carbon reduction, responsible sourcing, responsible AI development and inclusive economic opportunity commitments) that the company may, but is not legally required to, have.

State of ESG in Latin America

Although Latin America lags behind other regions in adopting ESG practices, Latin American companies are increasingly working to improve ESG standards following criteria established by growing international investor focus on ESG, and credit rating agencies that focus on ESG when evaluating a company’s creditworthiness.[14] The shift of Latin American companies towards a more ESG-driven approach is reflected in the IndexAmericas[15] created by the Inter-American Development Bank, which highlights the top 100 sustainable firms operating in Latin America and the Caribbean, measured against ESG criteria. The IndexAmericas, which initially comprised mostly multinationals operating in the region, has seen an increase in recent years in the number of Latin American companies on the index of more than 30 per cent.

In Latin America, the financial industry and government regulators are driving ESG efforts, as evidenced by economic trends. Latin American governments are increasingly using ESG as an instrument to address social and environmental matters and the consequences of the covid-19 pandemic. Countries in the region are promoting ESG policies to drive investment and address social unrest prevalent in the region. There is enhanced clarity that Latin America would benefit from low carbon energy solutions to address the growing threat of climate disasters, as well as stricter criminal laws, enforcement mechanisms and tools to address social inequality (such as exploitation, gender violence and poverty), environmental degradation and political corruption in the region. Commitments from local officials and governments to implement ESG policies attract investors focused on ESG to the region. Notable advancements by Latin American regulators in the ESG arena include the following.


Approximately 73 per cent of the Mexican sustainable development goals (SDG) issuance went to ‘sustainable investors’, which incorporate ESG criteria into their investment decision-making process. Mexico has earmarked the proceeds from the bond issuance to finance ESG-related projects across 1,345 cities grappling with low literacy and school attendance rates, poor health services, lack of toilets, sewage and potable drinking water in homes, and lack of access to electricity.[16]

Mexico’s pension fund regulator (CONSAR) has published rules regarding investment strategies that include an obligation to analyse companies’ social responsibility credentials, which became effective in January 2022. As a result of this rule, retirement funds will be required to incorporate sustainability criteria in their methodologies and prioritise ESG investments in their portfolios, as well as advocate within the public companies in which they are represented for compliance with sustainable principles. In addition, companies that list their securities with the National Securities Registry must disclose in their annual reports the existence of any environmental policies, any projects impacting the environment and natural resources and any impacts of climate on the business of the listed company. In addition, the internal regulations of the Mexican stock exchange (BMV) require publicly traded companies to adhere to the Code of Professional Ethics and certify this compliance in the annual report of the listed company.[17]

Mexico was home to Latin America’s second ESG index. Additionally, the BMV has created exchange traded funds that replicate the performance of their ESG indices and as many as 21 sustainable (green, social and sustainable) bonds.[18] Lastly, in connection with the Climate Bonds Initiative, the BMV founded the Green Finance Advisory Council with the aim of promoting sustainable finance and public policy changes driven by ESG.


A resolution passed by the Brazilian National Monetary Council (CMN) in 2018 requires pension fund asset managers to consider ESG risks as part of their investment decision-making process.[19] This development is a significant advancement from prior resolutions, as it increases the obligation from mere disclosure of ESG considerations to a mandate to integrate ESG issues whenever possible. On 30 April 2021, the Central Bank of Brazil (BCB) implemented regulatory initiatives to increase banks’ ESG disclosures.[20] In 2021, the S&P Dow Jones Indices and the Brazilian stock exchange (B3) developed the S&P/B3 Brazil ESG Index to highlight strong ESG companies traded on the Brazilian stock exchange.[21]

On 23 December 2021, the Brazilian Securities and Exchange Commission (CVM) issued CVM Resolution 59, which provides changes to the reference form, including new disclosure obligations by publicly held companies in categories ‘A’ and ‘B’, especially regarding information relating to ESG matters. CVM Resolution 59 became effective on 2 January 2023, and applies to information concerning 2022. In early 2023, the CVM announced a package of technical cooperation agreements and regulatory innovations, which have a direct impact on agribusiness, strengthening the mechanisms for entrepreneurs in that sector to access capital markets and leverage the green finance market in Brazil.[22]

In 2022, the CMN and the BCB issued a number of resolutions aiming to improve the rules for the management of social, environmental and climate risk applicable to financial institutions and other institutions authorised to operate by the BCB. These resolutions also include the requirements for institutions in the establishment of their social, environmental and climate responsibility policies and in the implementation of actions designed to ensure effectiveness.[23]

Upon the approval of Decree No. 11,129/2022, the methods used by public authorities to evaluate companies’ compliance programmes has changed. Bill No. 572/2022, which is still under discussion in the Brazilian Congress, aims to establish compliance parameters for companies to respect and enforce human rights within their organisations. Both regulations bring Brazilian legislation closer to international ESG practices.

The Brazilian government has published several federal decrees to reorganise and establish a new governance and improved legal framework for climate change and the reduction of greenhouse gases.[24] Pursuant to one of these decrees, technical committees were created to provide public policies and private initiatives to advance the SDGs and low-carbon transition plan.[25] Another decree established the Sovereign Sustainable Finance Committee as an inter-ministerial body responsible for creating governance rules for the issuance of sustainable government bonds backed by projects related to environmental and social issues outlined in the government budget.[26]

In January 2023, the CVM announced its Sustainable Finance Policy, whose goal is to prioritise the ESG agenda and sustainable finance by outlining general and strategic guidelines.[27] In May 2023, several associations and companies signed a cooperation agreement entitled the ‘Brazilian Pact for Renewable Hydrogen’ to accelerate the development of green hydrogen in the Brazilian energy matrix by pursuing the following five goals:

  • defining legal regulation;
  • promoting socio-economic development through the renewable hydrogen economy;
  • communicating new opportunities arising from green hydrogen;
  • boosting the competitiveness of production and use of alternative energy; and
  • developing a green hydrogen market.

In April 2023, the Ministry of the General Comptroller’s Office launched the integrity programme of the Human Rights Ministry, aiming at increasing transparency and targeting vulnerabilities that may threaten the Human Rights Ministry’s reputation, public interest and social values.[28]


In November 2021, the Chilean Commission for the Financial Market (CMF) published General Rule No. 461 (NCG), which modifies the structure and content of ESG matters to be included in annual reports for entities issuing securities registered with the CMF Securities Registry. Under the new regulation, the NCG eliminates the former social responsibility and sustainable development section from the annual reports, replacing it with the obligation to report on ESG factors in all sections, increasing the minimum informational disclosure requirements for issuers. Every registered entity should describe how it integrates a sustainability and environmental approach in its business and detail its strategy to minimise the negative environmental aspects of the core business.

Registered entities should also provide information on ESG policies’ risk management undertaken by their boards of directors in monitoring and adhering to ESG models and programmes. Additionally, the entities should disclose the frequency with which environmental and social matters are reported, especially with respect to climate change, and whether these matters are included when discussing and adopting strategic decisions, business plans or budgets.

Finally, the entities should disclose their ESG models and programmes containing information on the definition of their ESG obligations, compliance modality, implementation deadlines, reporting unit, environmental risk matrix and any related relevant background. If ESG models or programmes are not available for a registered entity, this fact must be clearly disclosed in annual reports indicating the reasons they are not available. In addition, the entity should disclose to the public the number of enforced sanctions registered in the Public Registry of Sanctions of the Environment Commission of Chile or its equivalent in foreign jurisdictions, along with:

  • the total amount of fines;
  • the number of approved compliance programmes; and
  • details of:
    • compliance programmes successfully executed;
    • environmental damage repair plans presented; and
    • repair plans for environmental damage executed satisfactorily.

Registered issuers could voluntarily comply with the regulations for the 2022 tax year (for the report to be delivered in 2023); however, the regulations became mandatory on 31 December 2022, for entities that exceed the equivalent of approximately US$800 million in total consolidated assets, and will become mandatory on 31 December 2023, for stock exchange-registered corporations that exceed the equivalent of approximately US$45 million in total consolidated assets.

In March 2022, Chile became the first country in Latin America to issue a sovereign sustainability-linked bond. This US$2 billion bond adheres to the Paris Climate Accords, and includes commitments to reduce carbon dioxide emission and increase renewable energy production to 60 per cent of electricity needs by 2032. With this new issuance, Chile has placed over US$33 billion in socially and environmentally responsible bonds in the past three years, making it a pioneering country in terms of green, social and sustainability-linked bonds.[29]

On 13 June 2022, Chile published its Climate Change Framework Law, which includes a binding target of net zero emissions by 2050. It creates cross-agency and departmental coordination and cooperation beyond the Ministry of the Environment to make carbon emissions compliance, targeting and goals a matter of national importance, and not exclusively within the purview of solely environmental agencies.[30]

In June 2023, Chile’s Ministry of Finance published its updated Sustainability-Linked Bond Framework, which sets out the country’s strategy for achieving social sustainability, which is the third of three key pillars[31] that have been developed to help realise Chile’s inclusive and sustainable development strategy. The strategy involves a new social key performance indicator (KPI), which ‘focuses specifically on increasing the percentage of women board members’ in Chilean companies. The issuance of sustainability-linked bonds is tied to this KPI, which will enable Chile to reinforce the importance of gender equality at the highest levels of management in both the public and private sectors. This will impact the workforce and governance structures of Chilean companies, while contributing towards the country’s inclusivity and sustainability targets. Achieving the targets set out by the government in this Framework will require material efforts by all companies reporting to the CMF.[32]


The Colombian National Council on Economic and Social Policy (CONPES) enacted laws and policies such as the Green Growth Policy (CONPES 3934) and the Strategy for the Implementation of Sustainable Development Objectives in Colombia (CONPES 3918), which exemplify a commitment to exploring new sources of sustainable economic growth.[33] These policies incorporate ESG into Colombia’s strategic initiatives to maintain sustained development. The CONPES policies prioritise the diversification of Colombia’s economy based on commitments to sustainable use of the country’s natural resources, strengthening the nation’s human capital, and transparent incorporation of ESG metrics in evaluating future projects and investments.[34]

Colombia has also made concrete strides to solidify ESG initiatives in its financial infrastructure. In April 2021, Colombia’s Financial Superintendence (SFC) adopted Circular 007, which requires that all Colombian institutional investors, as part of their mandated disclosures, discuss the ways in which ESG factors were evaluated when making investment decisions.[35] Colombia has enacted other laws, through different ministries and departments, which increase the disclosure requirements by domestic companies of their adoption and compliance with ESG policies. Lastly, the SFC has also promulgated laws such as Circular 028, which outlines the best practices for the issuance of green bonds by Colombian issuers.[36] The SFC has recently established goals for developing sustainable finance in Colombia, focusing on green taxonomy, financial innovation, data metrics and innovation, ESG and methods for measuring climate and nature risks.

ESG in Latin American M&A

Large international investors, companies and regulators stressing the importance of ESG are driving exponential growth in ESG diligence and disclosures during the life cycle of M&A transactions. As investors incorporate ESG performance metrics into a target’s valuation and risk assessment, ESG key performance metrics are being gathered and measured during the diligence process and throughout the negotiation of acquisition contracts. ESG is being woven into M&A in the following areas: the diligence process, negotiation of contractual protections and post-closing integration of the target business into the overall ESG regime of the acquirer.

ESG due diligence

ESG is not a one-size-fits-all proposition for every company operating in every industry and every jurisdiction. While there are measurements used across industries that are of particular importance for most companies (Foreign Corrupt Practices Act and anti-bribery, privacy and cybersecurity, climate (risk and emission), diversity, equity and inclusion (DEI), and human rights and labour practices), other ESG indicators measured by investors vary based on a company’s industry or region. Sell-side advisers should guide a target company to focus on ESG by identifying:

  • applicable regulatory and compliance regimes;
  • areas of ESG focus particular to a region; and
  • ESG initiatives that can enhance value in the target’s particular industry or sector together with ESG initiatives to reduce potential risk or legal liability.

While some ESG diligence may relate to topics traditionally covered in the ordinary due diligence process, ESG due diligence typically goes further, focusing on the target’s values, culture and social responsibility. For instance, traditional due diligence typically addresses the target’s compliance with labour and employment laws; however, ESG due diligence may address workplace diversity, gender inequity, sexual harassment and workplace misconduct.

ESG due diligence is still evolving and there is no defined process to properly measure ESG risks associated with a target; however, sell-side advisers should prepare their clients in advance to be evaluated and rated by potential acquirers in accordance with at least one of the commonly used ESG measurement standards discussed above.

In connection with the ESG diligence process, target companies should be prepared to provide key ESG data tailored for their particular industry based on the measurement standards by one of the above-listed ESG standard organisations, including relevant information regarding the following:

  • corporate social responsibility;
  • compliance with international conventions and agreements regarding hazardous chemicals or banned substances;
  • environmental performance;
  • labour practices, including working conditions;
  • DEI (equal opportunities, board diversity, gender pay gap, etc.);
  • land use practices involving indigenous peoples or cultural heritage sites;
  • health and safety practices;
  • community health impact; and
  • compliance with permits and licensing requirements.

As further discussed below, sell-side advisers can also assist target companies in establishing and implementing corporate governance initiatives where practicable in advance of a diligence process, including:

  • policies regarding political contributions and government relations;
  • appointment of independent directors and audit committees;
  • conflicts of interest;
  • related-party transaction reporting and approval;
  • anti-corruption policies and procedures;
  • whistle-blower protection; and
  • the establishment of a code of ethics and code of conduct.

Target companies preparing for the M&A process should also develop their own system of record-keeping and evaluation of its compliance with any mandated reporting regime and compliance with the self-imposed policies described above.

Contractual protections

Representations and warranties regarding compliance with anti-money laundering laws, data privacy laws, anti-corruption laws and trade laws are customary in M&A transactions in the region, together with representations regarding compliance regimes, monitoring and compliance testing. However, Latin America may slowly start to see more specific ESG-focused provisions such as ‘Weinstein clauses’ (where a target represents and warrants that its officers or executives have been the subject of allegations of sexual harassment or misconduct). Additionally, other ESG-focused representations will include those regarding the target’s compliance with applicable ESG policies (assuming the target has committed to comply with these standards) or representations particular to the target’s industry and region regarding social, labour, health and safety, security or environmental incidents.

Notwithstanding the above, the ESG focus in M&A contracts is likely to also focus largely on ESG post-closing covenants regarding the implementation of and adherence to ESG policies and procedures, especially in the event of a partial or staggered sale or a contingent value right pricing element, such as earn-outs. To ensure a robust data gathering and reporting process in an M&A deal, the transaction should include, as a preliminary matter, a covenant to implement any of the more widely accepted ESG reporting standards (e.g., SASB, CDSB or IIRC) if the target has not already done so. The covenant can be robust and include establishing KPIs upon which to measure ESG performance and setting a timeline for implementing the ESG reporting standards along with the frequency that the data is reported and measured. Other covenants can address ESG risks pertinent to the target. For instance, acquirers might use a covenant to implement cybersecurity and data privacy initiatives, sustainably source raw materials, commit to reducing carbon emissions by a specific date, diversify the workforce, and more. The key is to ensure that the covenant emphasises the reporting and data collection efforts required to achieve these ESG goals.

Given the evidence that positive ESG results can drive long-term shareholder value, experts believe that executive incentive plans designs would be better served by including ‘quantifiable’ ESG measures.[37] As such, M&A transactions may also include covenants in executive compensation packages that provide incentives to drive ESG goals. However, covenant drafters should pay special attention to addressing the reliability of the ESG metrics used to quantify these outcomes. One way to avoid questionable reporting practices by executives is to peg non-executive employee compensation and promotions to ESG reporting goals (as opposed to ESG outcome). According to experts, when companies decide to incorporate ESG measures into annual incentive plans for executives, they can measure progress for between three and five years, or towards longer-term objectives when ESG goals cannot be measured over a 12-month period, such as climate-related issues that warrant a much lengthier view (10 years and longer).[38] These covenants must be structured in a way that will provide flexibility for uncertainties such as evolving market trends and ESG standards, and be limited to a focus on up to three ESG measures to guarantee focus, efficacy and compliance.

Buyers can also use pre-closing covenants and closing conditions to address ESG issues identified during the due diligence phase of the M&A transaction.[39] For example, buyers can cause the target company to adopt any of the internationally recognised ESG reporting frameworks and provide a deliverable by the closing date that shows it adopted the framework while disclosing all actual and anticipated ESG risks. In addition, buyers can request a special indemnification agreement to address all known ESG issues and risks, to be reassured and to mitigate risk pre-closing. The use of pre-closing covenants and closing conditions is particularly useful in transactions with longer wait times between signing and closing, such as those requiring regulatory approvals (e.g., Mexican National Banking and Securities Commission approvals in Mexico or Administrative Council of Economic Defence approvals in Brazil). In deals with shorter pre-closing periods, the target company can covenant to implement an ESG compliance programme within a specified period post-closing. Notwithstanding the length of the pre-closing period, incorporating pre-closing covenants and closing conditions in the M&A agreement will ensure a smooth transition during the post-closing integration of the contemplated ESG programmes.

Post-closing integration

After completion of diligence and the closing of an acquisition, acquirers will likely implement programmes to address and monitor any ESG risks or shortfalls discovered during the diligence process (in addition to integration, compliance and monitoring of any ESG programmes already in place pre-acquisition). Acquirers will generally want to align a target’s overall ESG philosophy and culture to its own by monitoring implementation and compliance of any ESG policies. ESG compliance is bespoke to each company while being guided largely by the global ESG measurement standards issued by the institutions discussed above.

However, there are certain strategies and initiatives to consider when completing a successful post-closing implementation of ESG metrics into a target operation:

  • ensure that the acquired company’s organisational documents and shareholder agreements contain provisions that mandate a board seat be allocated to an independent director;
  • create positions for a chief sustainability officer, chief compliance officer, or both;
  • empower the chief compliance officer or chief sustainability officer to coordinate ESG efforts with the organisation and oversee ESG employees;
  • undertake a formal risk assessment, including contracting with third-party consultants and auditors covering the complete supply chain, and including an evaluation of resource accessibility, usage and sustainability; talent recruitment, engagement and retention; financial performance and risk; and reputational impacts;
  • implement ESG data reporting and measurement systems by working with third-party consultants and auditors that have developed systems to ‘quantify’ ESG results, and adjust accordingly as the ESG data collection process evolves;
  • draft policies and procedures in compliance with local environmental, safety and health laws and regulatory frameworks, rectify any wrongdoing and assist the company in completing any regulatory filings to comply with local laws, issuing disclosure statements (internal or external) if required and coordinating any employee terminations, as applicable;
  • establish a code of conduct and code of ethics;
  • implement training and communication of the new policies and procedures; and
  • remain current with the legal and regulatory changes pertaining to ESG in the target’s industry, and make timely updates to the policies and procedures to reflect these changes.

Additionally, while the above examples lend some insight into ESG post-closing integration, attorneys in Latin America should tailor their ESG approach to meet more specific regional needs and the regulatory environment in each jurisdiction. Ideally, where possible, ESG initiatives identified above can be part of a pre-transaction planning to emphasise a commitment to ESG prior to a sale process to uncover and remediate any systemic risks in advance of a change of control transaction or outside investment.


As ESG continues to evolve in Latin America, attorneys should expect to play a larger role in the analysis of more detailed, ESG-driven information and the exploration of uniquely Latin American ESG issues. With these regimes continuing to grow and develop, ESG matters will increase in importance in transaction planning, negotiation and post-closing integration. Accordingly, attorneys in the region must work to familiarise themselves with the types of issues capable of halting a deal in its tracks and remain abreast of decisions by local regulators, relevant government priorities and global trends that may be adopted in the region.


[1] Randy Bullard is a managing partner, Giselle C Sardiñas is an associate and Daniel Villa was a 2023 summer associate at Morrison & Foerster LLP.

[2] See Ryan Stanton, ‘ESG-Focused Institutional Investment Seen Soaring 84% to US$33.9 trillion in 2026, Making Up 21.5% of Assets Under Management: PwC Report’, PWC (10 October 2022),

[3] ibid.

[4] ibid.

[5] ibid.

[6] See Shakked Noy, ‘Investors’ Willingness to Pay for ESG Funds’, National Bureau of Economic Research (1 January 2023),

[7] Patrice Cochelin, Bryan Papoola and Dennis Sugrue, ‘Global Sustainable Bonds 2023 Issuance To Exceed $900 Billion’, S&P Global, 14 September 2023,

[8] See Veronika Henze and Samantha Boyd, ‘ESG May Surpass $41 Trillion Assets in 2022, But Not Without Challenges, Finds Bloomberg Intelligence’, Bloomberg (24 January 2022),

[9] See Tommy Reggiori Wilkes, ‘Venture capital investment in clean energy startups soars’, Reuters (19 May 2023),

[10] UNCTAD, World Investment Report 2022,, and UNCTAD, ‘Foreign Direct Investment to Latin America Rebounded by 56% In 2021’,

[11] See Natalia Ramos and Sarah Morland, ‘Latin America, Caribbean Saw Record 2022 Investment, UN Commission Says’, Reuters (10 July 2023),

[12] ibid.

[13] Impact Management Project, World Economic Forum and Deloitte, ‘Statement of Intent to Work Together Towards Comprehensive Corporate Reporting’, September 2020,

[15] Inter-American Development Bank, ‘The Four Dimensions of Sustainability Captured by IndexAmericas: ESGD’,

[16] United Nations Development Programme, ‘Historic $890 million Sustainable Development Goals Bond issued by Mexico’, 14 September 2020,

[18] Nasdaq, ‘Leading in an Era of Impact: Inside Bolsa Mexicana de Valores’ Decade-long Journey to Build Sustainable Finance in Mexico’, 30 July 2021,

[19] United Nations Environment Program Finance Initiative, ’Brazilian Monetary Authority Approves New ESG Requirements in the Investment Rules of Occupational Pension Funds’, 10 July 2018,

[20] Central Bank of Brazil (BCB), ‘BCB Public Consultation No. 86/2021 – Regulation on the disclosure of social, environmental, and climate-related risks by financial institutions’, 30 April 2021.

[23] National Monetary Council (CMN) Resolution No. 4,943/2021, CMN Resolution No. 4,945/2021 and BCB Resolution No. 151/2021, which became effective on 1 July 2022, and CMN Resolution No. 4,944/2021 and BCB Resolution No. 139/2021, which became effective on 1 December 2022.

[24] Federal Decree No. 11,555/2023, Federal Decree No. 11,546/2023, Federal Decree No. 11,548/2023 and Federal Decree No. 11,549/2023.

[25] Federal Decree No. 11,547/2023.

[26] Decree No. 11,532 of 16 May 2023.

[27] Ordinance CVM/PTE No. 10/2023.

[28] Decree No. 11,529 of 16 May 2023.

[29] Ryan Jeffrey Sy, ‘World’s 1st sovereign sustainability linked bond issued by Chile’, S&P Global Market Intelligence, 4 March 2022,

[30] Robert Currie Ríos and Tiffany Challe-Campiz, ‘Chile Adopts New Climate Change Framework Law: A Paradigm Shift’, 22 June 2022, Climate Law, Sabin Center for Climate Change Law, Columbia Law School,

[31] The three key pillars are economic, environmental and social sustainability.

[32] ‘Chile’s Sustainability-Linked Bond Framework’, Public Debt Office of the Ministry of Finance of Chile, June 2023.

[33] Colombian National Council on Economic and Social Policy (CONPES), ‘Estrategia para la Implementación de los Objetivos de Desarrollo Sostenible (ODS) en Colombia’, 15 March 2018,

[34] Brigard Urrutia, ‘CONPES for sustainable economic recovery’, 26 February 2021,

[35] Vlex, ‘Circular externa 007 de Superintendencia Financiera, de 26 de Abril de 2021’, 26 April 2021,

[36] Jose V Zapata, Daniel Fajardo Villada and Camila Del Villar, ‘Superfinanciera expide reglamento sobre emisión de Bonos Verdes en Colombia’, Holland & Knight, 10 September 2020,

[37] R Boffo and R Patalano, ‘ESG Investing: Practices, Progress and Challenges’, OECD Paris, 2020,

[38] Kristen Sullivan and Maureen Bujno, Deloitte LLP, ‘Incorporating ESG Measures Into Executive Compensation Plans’, Harvard Law School Forum on Corporate Governance, 24 May 2021,

[39] John A Terry, et al., ‘Canada: The Growing Importance of ESG in M&A Transactions’, Mondaq, January 2021,

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