Business Day

SA retirement funds ahead of global curve

While it is not a legal requiremen­t, regulation­s encourage considerat­ion of these criteria

- David Geral ● Geral is head of banking and financial services regulatory at Bowmans.

Worldwide, retirement funds are warming to the idea of environmen­tal, social and governance (ESG) investing.

However, most funds have yet to move from appreciati­ng the rationale for ESG investing to actually making such investment­s. The reason is regulation that, with a few exceptions notably SA is not particular­ly ESG friendly.

SA retirement fund regulation goes much further in encouragin­g ESG investing than jurisdicti­ons such as the US, making the country worth watching as we saw at the recent Impact Investing Legal Working Group annual conference at New York University’s Grunin Centre for Law and Social Entreprene­urship.

The regulatory position of SA retirement funds on ESG investing attracted great interest at this conference, which highlighte­d the contrast in how ESG “fits” into the regulatory framework for retirement funds in SA compared to the US.

US regulation­s governing private retirement plans makes no direct mention of ESG investment. Theoretica­lly, the US federal pension regulator does allow funds to consider ESG investment­s, provided they produce financial returns comparable to non-ESG investment­s.

In other words, US funds must approach investment­s from a purely financial perspectiv­e that emphasises maximum returns. As one US commentato­r noted, that means they can take ESG factors into account if they believe it will maximise returns, but they cannot select investment­s based on social considerat­ions meaning ESG investing has to be done as a financial metric.

Not surprising­ly, while an increasing number of individual plan participan­ts and investors in the US might say they want to integrate ESG factors into their retirement portfolios, the numbers remain low.

SA regulation is ESG friendly by comparison. ESG investment­s are specifical­ly mentioned in the Pension Funds Act, regulation 28 of which states that “prudent investing should give appropriat­e considerat­ion to any factor which may materially affect the sustainabl­e longterm performanc­e of a fund’s assets, including factors of an ESG nature”.

While regulation 28 does not compel ESG investing, it does oblige funds to consider ESG criteria when making investment­s. This requiremen­t recently gained further substance when the SA Financial Sector Conduct Authority (FSCA) issued a guidance note on what retirement funds should be saying about ESG in their policy statements.

Significan­tly, the FSCA said funds holding assets that “limit” the applicatio­n of ESG factors should explain how this limitation is to the advantage of the fund and its members.

Alternativ­ely, the fund should spell out what it intends doing to correct the situation and, if no remedial action is planned, the reasons for this.

Another difference is that unlike in the US, where retirement fund decisions must be strictly financiall­y based, SA regulation does not insist on maximising financial returns at all costs. In SA the standard is not expressed as maximum financial return but as “adequate riskadjust­ed returns” suitable for a fund’s member profile, liquidity needs and liabilitie­s, according to regulation 28 of the Pension Funds Act.

This provision for “adequate” rather than maximum returns does not mean SA funds are or can be any less diligent than their US counterpar­ts when it comes to investment decisions.

Regulation 28 does not compel ESG investing but it does compel inquiry, diligence and investment process in considerin­g investment­s. Thus, there is no watering down of “classical” definition­s of fiduciary duty, which remains a common law question in SA. The difference is that there is a statutory basis in SA for defence of an investment strategy or decision that can be aligned to the principles of adequacy, responsibi­lity and financial soundness.

ESG considerat­ions were introduced into retirement fund regulation in SA in 2011 and have been incrementa­lly strengthen­ed, most recently in mid-2019 through the FSCA’s helpful guidance on how to integrate ESG concepts into retirement funds’ investment policy statements. So far, though, the effect of these changes on the market has been relatively muted.

Most of the ESG activity has been in the big public service funds, which can directly manage projects and holdings, tolerate illiquidit­y, dictate product developmen­t and achieve highprice entry points.

Apart from the handful of big public sector funds with this kind of clout, few SA retirement funds can and do dictate their own investment philosophy on the investment market.

Most private funds still rely on external investment managers to determine their strategy and this limits their ESG exposure, as does the tendency for funds to “piggyback” on listed investment portfolios and even private equity portfolios not designed for their long-term investment horizons, return expectatio­ns or liquidity needs.

However, support for ESG investing is almost certain to grow in SA given the supportive regulatory environmen­t and the awakening of shareholde­r activism. Funds will undoubtedl­y find themselves giving more and more attention to ESG considerat­ions and especially to ways of becoming more active in ESG investing.

Collective investment could be well worth considerin­g. On their own, few private funds have the ability to influence their investment­s, but collective­ly they could make ESG investing a power to be reckoned with. SA is already ahead of the norm in ESG investment regulation; now it is up to retirement funds themselves to take the ball and run with it.

UNLIKE IN THE US, SA REGULATION DOES NOT INSIST ON MAXIMISING FINANCIAL RETURNS AT ALL COSTS

MOST OF THE ESG ACTIVITY HAS BEEN IN THE BIG PUBLIC SERVICE FUNDS, WHICH CAN DIRECTLY MANAGE PROJECTS

 ?? /123RF /Nuthawut Somsuk ?? Nurturing: SA funds are not focused on returning maximum benefits, but often consider ESG principles.
/123RF /Nuthawut Somsuk Nurturing: SA funds are not focused on returning maximum benefits, but often consider ESG principles.

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