Enforcing green commitments

Sustainability clauses and environmental, social and governance (ESG) provisions found in agreements are becoming mainstream. While private parties can freely include or exclude sustainable commitments into their contracts, regulation is increasingly mandating public entities to include ESG measures in their government contracts. 

In her recent work, lawyer and expert in public law Désirée Klingler not only examines the meaning and convergence of sustainability in the private and public law context, but also investigates enforcement of those clauses. “If we want sustainability clauses to be taken seriously, concrete enforcement measures – whether in private or public law – are needed.”

The gap lies in enforcement, not the law

Rather than requiring new legal frameworks, many sustainability obligations – also in public contracts – can be enforced through established contractual mechanisms such as performance requirements, contractual penalties, remedies for breach of contract, and termination rights.

The real barrier is not a lack of regulation but failure to implement the rules into daily practice. Whether better drafting guidance, model contracts and evolving case law will close that gap – or whether mandatory sustainability criteria will be needed – remains an open question.

New approaches with old means

Klingler also mentions that new approaches, such as incentive clauses that tie contractor profits to measurable sustainability outcomes, such as CO₂ reduction, and industry standards such as Switzerland's SIA Norm 112 on Sustainable Construction – are promising models for embedding ESG goals into contractual practice.
Her prevailing messages are that first, the sustainability understanding in private and public contracting is converging and second, that we do not need more regulation, but more effective enforcement of sustainability commitments.  

The chapter published in the 2026 book by Hart Publishing Public Procurement and Contract Law: Exploring Intersections, Defining Boundaries, authored by Désirée Klingler, Patrick Zimmermann and Steven Van Garsse, takes a closer look at these challenges.

Photo: Envato / GoldenDayz