By MARCO ANTÔNIO RIBEIRO TURA

Professor of International Commercial Arbitration and Foreign Investment Arbitration at the Brazilian School of Law. Post-Doctorate in Economic Law from the Presbyterian Mackenzie University of São Paulo. Doctor of International Law from the State University of Rio de Janeiro. Master in Public Law from the Federal University of Santa Catarina. Judge of the V International Competition of Foreign Investment Arbitration at the Washington D.C. School of Law. Representative of Brazil on the Global Committee on International Investments and the Rule of Law of the International Law Association – HQ. Specialist at the International Association for Sustainable Economy. Scientific Advisor to the UIARA Institute-Company (ADR/ESG). Notary in the State of São Paulo. Prosecutor of the Public Ministry of the Union (2005⁄2017). Lawyer (1995⁄2005).

E-mail: contato@marcotura.com.br

Introduction

For some years now, the acronym ESG (Environmental, Social, and Governance) has invaded institutional spaces and captivated the formal time of countless professionals, companies, and governments around the world, guiding discourses that promise to be oriented towards pertinent actions, but invariably, their potential ends there.

It is true that sustainability is neither a fad nor a trend, as journalist Sônia Consiglio correctly states [1]. However, it is self-deception to follow her line of thought and conclude, in a completely mistaken way, that sustainability and ESG are synonymous.

As it has been established, the ESG discourse proposed to serve as a bridge for the exchange between fields of knowledge and practice that previously did not communicate or communicated poorly, allowing ethical values, legal norms, and economic imperatives to relate within technical rules capable of observable and measurable implementation.

Setting aside the belief in the uniformity and simplicity of mental structures [2], I must say that the ESG discourse is, like all language, a possible vision of sustainability that translates into terms of calculability and predictability to the taste of the capital world.

There is no role for the ESG discourse in subordinating capital to social and environmental concerns. On the contrary, what makes the ESG discourse palatable within the framework of the capital world is precisely the offer of treating difficult issues such as social and environmental ones in economically assimilable terms.

This means that the ESG discourse presents itself as a possibility for action guidance that, like everything in the world of capital, will have greater or lesser chances of success depending on the outcome of the cost-benefit formula, which is not reduced to a merely financial dimension. Let us, therefore, balance our assumptions about the nobility or vileness of sentimental behaviors [3].

To use HABERMAS’ terminology [4], being a discourse that guides actions towards success and not understanding, the ESG discourse suffers the fate of the defeats and victories of its promises, and precisely for this reason, it presents on its surface examples of successful initiatives that mask a much larger number of unsuccessful examples that inhabit its depths.

We must be clear that we live in the world of capital, and profit is the agenda. Either the ESG discourse becomes a rule of conduct, or it will not go beyond merely indicative plans for environmental sustainability, social equity, and corporate integrity.

Let’s be honest.

Promises to protect the well-being of individuals and communities are made even by criminal organizations as a way to ensure external adherence and internal cohesion. Therefore, promises are not enough!

The Reality of Promises and “Greenwashing”

The recent episode of the Federal Police operation in the Amazon is highly significant of this discursivity that is limited to what is declared and disregards meaning.

The operation occurred in June of this year, but it stems from a long investigation of something that has been reported for a long time and has become commonplace: the use of public lands as if they were private and the illegal extraction of wood under the guise of a project verified by organizations that do not even land in the locality [5].

“Greenwashing” and “fake news” are English names for something that in good old Portuguese we call lies. But they are not innocent lies, like those about our personal abilities in everyday life circumstances. They are in the field of weak or strong ideological manipulation, or both, depending on the expedient used [6].

These are elaborate lies with a specific direction. They are aimed at profit. The cost, in this case, is lower than the benefit, as long as the liars are not caught and lose. The problem is that they scramble our discernment and make it difficult to take collective directions, circumscribing us to increasingly restricted niches of trust [7].

The activity of organizations like VERRA consists precisely in making life difficult for liars. Establishing a relationship between sustainability and veracity is the minimum that the ESG discourse championed by these organizations should deliver because it is their product. But process and production failures have been news, at least, since January 2023 [8].

VERRA is not alone in this. But the case serves for analysis and hypothesis formulation. I argue that behind everything is the prevalence of technical, instrumental reason, to the detriment of critical, dialogical reason, and that, in a world of megacorporations with global reach, certification bodies are following the same organizational model, and that only individuals outside the corporate and governmental mechanism are able to perform this counter-hegemonic role.

And one individual in particular stands out in this significant moment in History: the notary. The notary, a delegate of public function who exercises it privately, the only agent of public faith with local action of transnational scope, can make the ideal technique subjected to the criticism of the real and, with that, just to give an example, make the global transit of carbon credits have concrete anchorage.

On the Proof of Availability

A new gold rush has begun, and it is not to the North American West that the pioneers are heading. They are heading to the Global South, its green areas, and its bodies of water. And with them go those who attribute to themselves the role of narrators of the saga and, why not say, of the frenzy.

It happens, however, that the narrative of official narrators has not always proven to be worthy of credit, to use an expression from contractual law, or of accreditation, to use an expression from international law.

The carbon credit market, dependent on environmental assets such as green areas and bodies of water, demands the offer of these assets by those who hold them, but according to certain parameters, because, as I said before, we are facing a matter of observation and measurement; predictability and calculability.

The legitimate expectations of those who trade in the carbon market must correspond to protection measures that are, evidently, legal measures, which demand the action of agents of the legal system guided by legal norms defining means (competencies) and ends (behaviors).

The assertion that a carbon credit generation project is within technical parameters has no aptitude beyond the limits of the project, saying nothing about the subjects, the object, and the facts surrounding them.

To be very clear.

A professional in charge of analyzing a carbon generation project for certification purposes, from his cubicle in New York or London, has no idea that the forest referred to in the said project even exists.

He also has no idea that the wood extracted from the forest, if it exists, was done with all legal authorizations and respect for the human rights of workers and residents.

He also does not know that such a forest, if it exists and is surprisingly managed with authorization, was so due to corruption of public agents, given that it was a forest located on public lands.

Verifying that it is a forest conserved on available lands of the credit generator with the appropriate legal authorizations and whose management observes rules of respect for the human rights of workers and residents is something that completely escapes a narrator who narrates secondhand what is declared to him.

Confirming these circumstances demands the presence of a firsthand narrator who observes and, at times, participates in the narrated circumstances, intervening as a specially designated and qualified third party. And, although many others can play the role, it is better that a notary does so.

It is, as can be easily concluded, about producing proof of the availability (in terms of existence, validity, and effectiveness) of goods that are the object of contracts and projects that serve as their basis or derive from them, proof production that is processed legally because normative messages only “manage to circulate throughout society through the language of law” which, although complex, is open “both to the world of life and to the system” [9].

There are many reasons that point to such a necessity, since, firstly, socially, given the relevance of patrimonial wealth and the imbalance between contracting parties, the intervention of an impartial third party generates bonds of trust among participants.

Secondly, economically, the intervention of an impartial third party allows the traceability of the conclusion and the enforceability of compliance with operations. Thirdly, legally, the intervention of the impartial third party finds sufficient reasons due to the parties’ ignorance of the law, with deficiencies in legal certainty and security, by demanding documents with probative and executive force [10].

The intervening third party, evidently, must possess qualities without which their presence would mean nothing, qualities that together translate the maximum qualification of the third party as someone trusted by the parties, namely, reliability due to their personal qualities, especially the guarantee that they will maintain secrecy and discretion and that they will employ all their specialized technical knowledge [11].

It is no coincidence that, in the most varied systems around the world, this third party is a notary. The notary is the only one to possess a special impartiality that, as previously stated, instead of acting in favor of the subjective rights of the contracting parties, of merely private interests, or, at least, solely or mainly in their favor, operates, in truth, in favor of objective law, of public interest. It could not be otherwise, given that it is to the notary that the legal system grants functional credibility and probative efficacy, ensuring to recipients that, given the control mechanisms, they will be responsible for any failures arising from the acts performed [12].

Now, it is necessary to be clear that the requirement of impartiality, unmistakable with non-existent axiological neutrality [13], intertwined, but not reducible to independence, is, in all evidence, a consequence not only of technical issues but also of an ethical dimension. Impartiality does not have a merely pedagogical character but represents something that, if lacking, is a serious flaw.

The presence of a jurist whose mission is precisely and organically the provision of a service guided by impartiality, not merely or only accidentally [14], argues in favor of the notary as an intervener “ex ante” and “ex post”, whose function, given its complexity, is irreducible to a single dimension of their professional activity, a function resulting above all from the principle of equality in the performance of public function, even beyond this narrow sphere, reaching the private sphere [15]. The notary, therefore, is always a public agent, always protecting the public interest as the ultimate goal, even if legitimized to act by private autonomy, even if performing acts of managing private interests.

To use a formula extracted from the analysis of the situation presented in the analysis of judges and arbitrators, we can say that, acting in different audiences, the expert is impartial insofar as they show an absence of ties with the parties, and the assistant is impartial insofar as they demonstrate an absence of prejudice, but especially demonstrate active participation in favor of the norms and values common to the parties [16].

The notary is, in this line, a person between two worlds, performing for two audiences, sometimes close to the judge, sometimes close to the arbitrator, in the curious condition of a “neutral lawyer” for that given situation, of an “impartial advisor” to both parties and not just a mere clerk [17].

The notary plays a decisive role in the construction of the legal order from the chaos of the economic system, based on specific rules of the activity that are highly efficient and that, ultimately, make the trust that appears to be in the person of the notary, strictly speaking, external trust, trust in trust, trust in the system that specializes and guarantees them [18].

Conclusion

In all circumstances, choices are given between being part of the problem or part of the solution.

I leave here the words of Celso Furtado [25] at the end of his magnificent treatise on development concerning the fourth of the trends identified in actions within the United Nations during his research:

“Global orientation of the development process, aiming to prevent external relations (the imposition of forms of consumption) and technical progress itself from deepening social inequalities and causing the degradation of the physical environment. Thus, the concern with efficiency criteria, previously considered an end in itself, tends to subordinate itself to the explication of social priorities. Production planning becomes an instrument of consumption planning, which requires the definition of a scale of preferences that translates the collective’s life project. Progress in this direction implies transformations in power structures that can be achieved through various paths, even in an extremely irregular way, in the heterogeneous underdeveloped world.”

The thinking and acting of individuals inserted in collectivities must be oriented towards development, which is a matter of quality and not quantity.

Life, broadly understood, encompassing the entire natural fabric, demands the acceptance that we are only part of an intricate process with a dramatic beginning where our absence was not felt and which, however, may have its tragic end precisely because of our increasingly aggressive or, at least, passive presence.

But we are a relevant part of this fabric. And our being matters because from being comes “feeling, which is the most elementary variety of cognition,” as António Damásio says [26].

The notary, an agent of feeling, who through their feeling formulates their preliminary cognition and through their action, reflectively, elaborates the judgment about the state of the evaluated situation, who throughout the History of the West and the East was there, with the most diverse names, narrating more than what the eyes could see, presents themselves as a participant in this qualitative transformation in the fight against disinformation, “greenwashing,” and “fake news,” against the falsifiability of reality.

In this vein, wanting to be part of the solution, contrary to the waves of submission to the hordes of economic irrationality, I recently proposed to the Notarial College of Brazil an amendment to a bill pending in the National Congress with the intention of altering, among others, the Public Records Law.

The text, which adds item 39 to subsection II of article 167 of the Public Records Law, aims to allow the annotation of a notarial deed that proves the existence of green areas and bodies of water, or other factual situations generating carbon credits. The deed must contain the indication, in the property area, of its measurements and positions, and the notary may use a report, prepared by a specialized professional designated by them, including, among other elements, photographic and cartographic reproductions of the area.

For a long time, I have been occupied with the theory of principles and their relationship with the lived world and social systems [27], and more recently, it caught my attention that the acceleration of time and the compression of space, so striking in the processes of globalization and virtualization [28], tends to elevate celerity, an economic imperative, to the category of a moral precept.

The time we have left, to use the words of the Apostle Paul, must be enjoyed with care.

Intelligence, natural or artificial, devoid of sentience, is of no use to us when adverse conditions that affect others finally reach our home.

Borrowing from François Ost’s categories, may our time be the fruit of the balance between the time of memory (with some touches of the time of forgiveness) and the time of promise (with many traces of the time of questioning) [29].

But may we have some time to swim in clean waters, breathe fresh air, and walk under a mild sun.

Social participation in political deliberation will tell.

References

1.CONSIGLIO, S. Apresentação. In: SZYMONOWICZ, L.C et. al. ESG Environmental, social and governance: reflexões jurídicas para sua compreensão. Belo Horizonte: Arraes Editores, 2023.

2.CHOMSKY, N. Reglas y representaciones. Mexico: Fondo de Cultura Económica, 1983.

3.SEN, Amartya. Desenvolvimento como liberdade. São Paulo: Companhia das Letras, 2013.

4.HABERMAS, J. Teoria de la acción comunicativa. Madrid: Taurus, 1988.

5.Esquema de crédito de carbono tentou grilar 3,5 milhões de hectares. Folha de S.Paulo.

6.STOPPINO, M. Ideologia. In: BOBBIO, N. et al. Dicionário de política. Brasília: EDUNB, 1992.

7.ARONSON, Elliot. O animal social. São Paulo: Goya, 2023.

8.Mais de 90% dos títulos da maior emissora de créditos de carbono do mundo são inúteis. Valor Investe.

9.Fraude na Amazônia: empresas usam terras públicas como se fossem particulares. G1 Globo.