"Human rights due diligence laws: key considerations", 20 October 2021

Aiming to increase corporate respect for human rights throughout their global operations, some states have enacted or are considering new laws to require or encourage businesses to undertake human rights due diligence. These developments are happening in parallel with a forthcoming proposal on mandatory human rights and environmental due diligence at the EU level. While the precise scope of the various laws differ, common features include requirements on companies to identify human rights impacts, take action to address those impacts, monitor actions taken and in some cases report on their due diligence efforts. One additional feature of such laws may be rules allowing civil proceedings to be brought against companies.

This briefing is intended to support those designing, advocating or analysing supranational or national human rights due diligence laws, whether in government, business, civil society, trade unions, the media or national human rights institutions. It provides an overview of civil liability measures in existing or proposed due diligence laws and:

• situates the discussion of civil liability for corporate conduct in the wider international human rights law context;
• identifies existing types of liability (or “causes of action”) for corporate human rights abuses, including under tort, administrative, criminal and contract laws;
• focuses on how corporate “human rights due diligence” may be defined in due diligence laws and sketches implications of different definitions of due diligence for civil liability; and
• considers other issues pertaining to the design of a civil liability mechanism, such as the inclusion of strict liability offences, extending liability across the supply chain and the availability of due diligence defences...