Due Diligence Standard Research Articles

Countering Disinformation on Social Media Platforms: Developments in the EU and Poland

One of the biggest challenges to European democracies is the spread of malicious disinformation, facilitated by the increasing importance of online platforms as news sources. The present article sheds light on the initiatives to combat disinformation on social media platforms in the EU. Some insights from Poland are also drawn. The research reveals that the EU’s anti-disinformation activities can be traced back to 2015, which marked the establishment of the East StratCom Task Force, disinformation monitoring project EUvsDisinfo, and Hybrid Fusion Cell. Building on these initiatives, the EU prompted the development of a groundbreaking self-regulatory Code of Practice on Disinformation, followed up and complemented by the legally binding DSA. Both documents provide due diligence standards and promote best practices for combating disinformation on platforms. With regard to the developments in Poland, notwithstanding some legislative proposals the country lacks comprehensive national policies to address platform disinformation. It persists as a critical concern, exacerbated by the rule of law challenges since 2015. The article recommends complementing well-elaborated legal frameworks with media literacy initiatives, civil society engagement, and technological innovations to detect and counter disinformation more efficiently. Such a holistic approach can enhance society’s resilience against disinformation while upholding democratic principles and freedom of expression in the digital age.

Protection of the Rights of the Owner When Pledging Property

Property turnover is a rather complex phenomenon, for which actions related to the violation of rights and legal interests, the abuse of the right are not an exception. In particular, situations arise when property is pledged by an unauthorized person, which creates a situation in which the interests of the owner and the pledgee are opposed. The complexity of resolving these disputes is due to the fact that the legislator uses rather abstract categories that do not have a clear content and are interpreted ambiguously in science and law enforcement practice. The purpose of the article is to form a theoretically substantiated approach to resolving disputes related to the protection of the owner’s rights when property is pledged by an unauthorized person. Achieving the purpose of the article is carried out by solving the following tasks: determining the signs indicating the disposal of property from the owner’s possession against his will, determining the approach in assessing the due diligence of the pledgee when concluding a pledge agreement. The article was prepared using general scientific methods (systemic, logical) and special legal methods (comparative legal, formal legal). The author comes to the conclusion that when property is pledged by an unauthorized person, first of all, the circumstances related to the disposal of the subject of pledge from the owner»s possession are subject to assessment, in the event that the property has retired against the will of the owner, the pledge is terminated, if the property has retired due to will of the owner, then due diligence on the part of the pledgee is subject to assessment, and depending on this fact, the issue of maintaining the pledge is decided. When assessing due diligence in relation to citizens, the author proposes to adhere to a single standard, while for business entities it should be differentiated depending on the field of activity, i. e. for an entity carrying out business activities in a certain area, an increased standard of due diligence is assumed if the assessment of due diligence is related to the activities carried out.

The potential of international ‘State‐as‐polluter’ litigation

AbstractNational fossil fuel companies, public utilities and other State entities are responsible for vast amounts of greenhouse gas emissions. The pollution of these State entities represents a substantial departure from the due diligence standards of international law. This article evaluates the promise of international climate litigation against State pollution sources, or international ‘State‐as‐polluter’ litigation, as a tool to overcome the gap between international norms and State conduct. The analysis shows that the conduct of State‐controlled polluters may be attributable to States in certain situations. It further suggests that States can incur international responsibility for their failure to comply with heightened due diligence obligations in relation to State‐controlled polluters.

Standard "dužna pažnja" u oblasti radnog prava

One of the positive innovations in the field of labour law is the introduction of the "due diligence" standard. Altough this principle has long been known and applied in other areas of law, it is new in labour law. The global application of due diligence standard, found in UN, ILO, OECD documents, and soon in the EU directive, as well as in many national laws, should lead to better and more comprehensive protection of the human rights of employees, as well as of all other persons regarding that work. This paper discusses more about the meaning, development and application of due diligence standards in the context of employee rights.

International Water Law’s Role in Addressing the Problem of Marine Plastic Pollution: A Vital Piece in a Complex Puzzle!

Abstract The management and protection of water resources, and thus the practice of water law, is absolutely central to every aspect of human well-being. This is as true at the international level as at the domestic level. Water pervades every area of human activity and connects almost every form of pollution and environmental harm. This truism is clearly illustrated by the highly topical problem of marine plastic pollution (MPP) which, though it concerns the ubiquitous use and eventual accumulation in the marine environment of a broad category of environmentally persistent synthetic materials, is intrinsically linked to the environmental management of major rivers, many of which are shared international watercourses. While the general international obligation to prevent marine pollution by plastics can be derived from both international marine environmental law and international water law, evolving practice under the latter framework, and under related sub-fields of international and transnational environmental law, provides helpful clarity regarding the normative parameters of the due diligence standard of conduct expected of all States in this regard.

Overlap Between Complicity and Positive Obligations: What Advantages in Resorting to Positive Obligations in Case of Partnered Operations?

Abstract Partnered operations are very frequent and pose complex questions in international law, such as the allocation of responsibility in cases of violations of international human rights law and/or international humanitarian law (IHL). The present article deals with the question of complicity in partnered operations between States and between States and/or non-State actors, focusing on the possible overlap between responsibility for complicity and responsibility for breach of positive obligations in partnered operations in the light of the relevant case law of the International Court of Justice and of the European Court of Human Rights. As the requirements laid down by art. 16 of the International Law Commission Draft Articles on the Responsibility of States with respect to complicity are often difficult to meet, the author intends to explore the potential advantages of resorting to positive obligations in light of the due diligence standard. Although the article focuses primarily on human rights violations, in the final section the author investigates the benefits of this approach also with respect to breaches of IHL.

Standards for conducting legal due diligence: Current developments

This study aims to provide an overview of current legal due diligence standards. So that it can be an answer to the various due diligence models used in previous studies. This research is a desk research, with literature sourced from the lens.org database and garuda.kemdikbud.go.id for scientific articles, and book.google.com for books. The result of this research is that legal due diligence has the same objective as legal audit, namely risk mitigation. The absence of standards for legal due diligence in general, can be filled with existing standards in legal audits, except for legal due diligence conducted by stock market legal consultants within the scope of the stock market. Because they already have special standards set by their association. The results of this research are expected to facilitate legal practice in conducting legal due diligence in the future.Highlights:
 
 Legal due diligence and legal audit share the same objective of risk mitigation.
 Existing standards in legal audits can be used to fill the absence of standards for legal due diligence.
 Stock market legal consultants have special standards set by their association for conducting legal due diligence within the scope of the stock market.
 

Preparing for the new Supply Chain Law – An introductory paper discussing the Opportunities and Boundaries of a digitalized Supply Chain

Sustainability aims at a sound synergy of the economic, ecological and social dimension. To promote sustainable development and guarantee a high living-standard for future generations, all three elements must be balanced. The economy impacts the other two dimensions along the value chain. Particularly critical is the impact of the supply chain as human working conditions and environmental standards must be secured for procurement of materials along complex transportation routes. To tackle this issue, France has passed a Supply Chain Law (Loi de vigilance) in 2017, Britain has passed the Modern Slavery Act which prohibits child labor in 2015 and Germany has passed a Supply Chain Act (Lieferkettengesetz) in June 2021. Furthermore, a EU-wide supply chain law on due diligence and environmental standards for supply chains is expected for 2022. A transparent digitalized version of a company´s supply chain, including its human resources and environmental impact, would facilitate the identification of several sustainability intervention points. Such transparency could lead to not only better and supply chain law-compliant regulations for fairer working conditions and improved social sustainability, but also to optimized circular economy processes. However, there is also the risk that a high level oftransparency in complex supply chains entails very high bureaucratic efforts. With this conceptual outline, we would like to contribute to the discussion of the new German legislation and present a variety of IT solutions to improve and monitor the sustainability of supply chains as well as to reduce the bureaucratic effort which comes with supply chain supervision.

Litigating Terror in The Sinai After The Egyptian Spring Revolution: Should States Be Liable to Foreign Investors for Failure to Prevent Terrorist Attacks?

The ambiguity of the due diligence standard of the Full Protection and Security obligation in investment treaties persists to this day. A recent ICSID tribunal found a developing state liable for breaching the Full Protection and Security obligation due to its inability to protect a foreign investment against terrorist attacks in a remote deserted area. In this article, we analytically criticize the Ampal v. Egypt arbitral award against the comprehensive factual matrix behind the case. Based on our criticism of Ampal, we argue that developing states should not be liable for failing to prevent or stop terrorist attacks under the Full Protection and Security obligation when they exert efforts relevant to their limited capacity to offer such protection. Further, we argue that investors should also optimize political risk insurance offered by the Multilateral Investment Guarantee Agency when they choose to invest in a host state that might be vulnerable to terrorist attacks, might face potential insurgencies, or suffer from political turmoil. Finally, we highlight the importance of integrating other subfields of international law – such as international human rights law – to the international investment arbitration system, especially in defining what acts or omissions are required of a host state to fulfill the due diligence standard of the Full Protection and Security Obligation.

The Due Diligence Standard and the Prevention of Racism and Discrimination

The due diligence standard has played a significant role in preventing human rights violations, including racial discrimination. Yet, it is significantly articulated in neutral terms, often failing to grasp the specificities of violations of this type. Moreover, the positive structural impact that due diligence can produce is still subject to debate and is approached with reluctance by human rights courts and monitoring bodies. The principle of substantive (racial) equality has considerably contributed to improving the law on racial discrimination, but with limited impact on collective or structural claims. In the wake of new social events demanding responses to racism beyond the classical individual perspective, it makes it necessary to inquire whether, or to what extent, this standard can play a role in enhancing such structural responses by international human rights law. This article aims to analyze the main components of the due diligence standard (the preventive limb) to assess the relevant shortcomings, and to propose ways forward in order to enhance a structural perspective in racial discrimination.

The Role of Instructor Due Diligence in Volunteer Income Tax Assistance (VITA): Evidence From One University-Level Program

This paper reviews the tax preparation practice of one university-level Volunteer Income Tax Assistance (VITA) program to determine the role, if any, due diligence requirements for paid preparers should have on student preparers. The due diligence requirements as outlined in Circular 230 apply to paid preparers. The Volunteer Standards of Conduct are outlined in IRS publication 4012 and apply to VITA volunteers who are often students. This study analyzes the tax challenges faced by student prepares in a VITA program, and how the increased due diligence standards required of the IRS for paid preparers would be beneficial to the students participating in a VITA program. The study models tax return data to show the financial benefit application of due diligence standards would have for the Internal Revenue Service. The goal of this paper is to show the importance of higher due diligence standards, and we contribute to the literature by providing the first review of VITA tax preparation through the lens of paid-preparer due diligence requirements.

Breach of Afghanistan’s international obligations using the due diligence standard to combat violence against women

ABSTRACT Afghanistan was among the lowest ranking countries worldwide in the United Nations Development Programme 2018 Gender Inequality Index, ranking 168 out of 189. Amnesty International, Afghanistan’s Ministry of Women’s Affairs and the Afghan Independent Human Rights Commission have all reported a rise in gender-based violence against women by both State and non-State actors. Afghanistan is party to several international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women, under which the State is obligated to eradicate all types of discrimination, violence and other potential detrimental practices against women. Moreover, under the due diligence standard, States are urged to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women. This paper addresses the issue whether Afghanistan has met its international obligations to eliminate violence against women using the due diligence standard. It identifies the dismal shape of the current regulatory, institutional and policy frameworks concerning the elimination of violence against women in Afghanistan. This article concludes that Afghanistan has failed to protect women, potentially leading to a breach of its obligations under international law and proposes certain recommendation to improve the plight of Afghan women.

The first binding treaty on business and human rights: a deconstruction of the EU’s negotiating experience along the lines of institutional incoherence and legal theories

ABSTRACT When the UN Human Rights Council initiated negotiations towards the first international legally binding instrument for the accountability of transnational business activities, EU Member States opposed it, and EU institutions themselves endeavoured to obstruct it by making it conditional upon the widening of its scope, as to cover all domestic companies, too. This move, phrased in human-rights terms, might rather account for the EU's reluctance to have its subsidiaries in developing countries compete with domestic businesses subject to less rigorous due-diligence standards (and thus, lower labour costs). Developing countries replicated that human dignity resides in countries not being imposed harmful developmental trajectories for market-competition purposes, and in indigent workers not being prevented from seeking survival means in domestic employment. Mentioned stalemate exposed frictions between different EU institutions, and evoked issues of both EU law and public international law, including: competence demarcation between Brussels and Member States; 'extraterritoriality' of EU obligations in (negotiating) foreign policy; responsibility of non-state actors. Furthermore, these negotiations unearthed the problematic 'identity' of human-rights policymaking, in its intersection with the concrete needs of its addressees. The EU has risked to either disrupt the initiative, or lose sight of the stances of this project's actual stakeholders: the poorer.

Current Issues in European Cybersecurity The NIS Directive, Due Diligence And International Law

The 2016 EU Directive on security of network and information systems (NIS Directive) is arguably the most significant attempt at increasing cybersecurity and network resiliency in Europe. It includes Internet based services and their operators into the well established category of critical infrastructure (CI). This implies an increased reliance on business participation. Numerous categories of Internet based services will need to raise the level of security they provide for their infrastructure and software. They will also be required to share information on threats and best practices in preventing and combating cyberthreats with their peers and states agencies. The NIS Directive makes therefore cybersecurity one more area of international law and policy that relies on a good-business practice based standard of due diligence, required from critical infrastructures operators. This has thus far been the case for e.g. power plant operators, water suppliers or banking services. This paper seeks to put this latest development of cybersecurity in the context of contemporary international law, drawing analogies with the law of state responsibility and international liability, as developed by international environmental law, law of treaties or diplomatic relations.

The Convention Against Torture and Nonrefoulement in U.S. Courts

In 1999—nine years after Senate ratification and five years after submitting its instrument of ratification—the United States finally implemented domestic regulations to fulfill its nonrefoulement obligations under Article 3 of the Convention Against Torture (CAT). Since then, the U.S. domestic definition of torture may have become one of the most litigated treaty provisions in U.S. courts. Last year alone U.S. immigration judges adjudicated over 25,000 CAT claims, and in the past four years nearly every federal circuit court has grappled with the CAT regulations. Because CAT determinations are often the last step preventing migrants from be removed from the United States, consistent application of the United States’ treaty obligations is quite literally a matter of life or death. And yet differences remain. Two circuit splits have emerged regarding the CAT definition of torture: one examining government involvement and an implied “rogue officer” exception and another considering the “consent or acquiescence” required for non-State actors. Most recently, in June 2020, the Trump administration proposed to significantly alter the CAT regulations and take a side in both circuit splits. This article aims to recontextualize U.S. circuit court interpretation of CAT provisions from a merely domestic immigration process to an international law framework. In particular, the article will examine the U.S. history related to implementing CAT, how federal circuits have created two significant splits in their interpretations of CAT Article 1, why the public international law context is integral to domestic interpretation of the CAT Article 1, and how U.S. application of CAT compares to the treaty’s drafting history and the practice of international bodies and courts. The article shows how the CAT drafting history and interpretation by international bodies consistently frame the public official nexus requirement contained in the CAT definition of torture as part of a State responsibility analysis, particularly a due diligence standard. Understanding this State responsibility context and its application to refoulement cases can help U.S. courts harmonize their divergent interpretations of torture under CAT.

Transboundary watercourses, dams and human migration: an international water law perspective

This article examines the potential contribution of international water law (IWL) to alleviating the negative cross-border impacts of ‘dam-induced migration’, the displacement of individuals or communities resulting from dam construction. While much has been written on efforts to deal with this global problem in other areas of international law, the application of IWL in this context has yet to be meaningfully explored. But since dams are frequently constructed on transboundary watercourses, the principles of IWL (no significant harm, equitable and reasonable utilisation, and the duty to cooperate) may prove relevant and useful to mitigating the harmful cross-border impacts of dam-induced migration. The no significant harm principle requires States to comply with a due diligence standard of conduct designed to avoid, minimise, or compensate for significant harm that might result from the use of shared watercourses, including harm to human life or health. The equitable and reasonable utilisation principle obligates each basin State to use an international watercourse in a manner that is equitable and reasonable vis-à-vis the other States sharing it. The duty to cooperate requires States to collaborate in the management and use of shared watercourses and sets out concrete measures to enable collaboration, such as information exchange, consultations, and the establishment of joint institutions. Taken together, these IWL principles can effectively guide the planning, construction, and operation of dams on shared watercourses. Applying them to the specific issue of dam-induced migration, moreover, could promote inter-State cooperation and accountability, facilitate the resolution of disputes, and alleviate negative cross-border impacts. In this way, IWL can supplement other areas of international law in providing a comprehensive solution to the growing problem of dam-induced migration.

The role of international regimes and courts in clarifying prevention of harm in freshwater and marine environmental protection

The international legal architecture to manage freshwater and ocean ecosystems does not adequately provide for the interconnected nature of these ecosystems or the transboundary harm flowing between them. Pollution from land-based sources exemplifies this issue where plastic, agricultural run-off, discharge of nutrients and pesticides and untreated sewage accounts for approximately 80% of all marine pollution globally and is not adequately addressed by international law. This paper examines the following question: What role have international freshwater and marine regimes and courts played in clarifying the normative content of the due diligence rule to avoid significant transboundary environmental harm, including harm from land-based sources of pollution? The discussion demonstrates that although international regimes have made a substantial contribution to clarifying the no-harm rule, significant gaps remain. For example, the need for further guidance regarding the obligation to take ‘all appropriate measures’ to avoid transboundary harm or the previous absence of due diligence standards to prevent marine pollution from land-based sources. This paper demonstrates how courts have contributed to a coherent interpretation of the no-harm rule across international freshwater and oceans law. It pinpoints instances where courts have taken a progressive approach, taking account of the latest developments in technology, assessing an acceptable level of risk, considering the interconnected ecosystem impacts of developments and quantifying compensation for environmental harm and also identifies examples where courts have not gone far enough. Finally, this paper discusses how regional seas regimes and recent global soft law developments have taken progressive steps towards addressing harm from land-based sources of pollution.

The current state of development of the no significant harm principle: How far have we come?

The duty to prevent significant transboundary harm remains a cornerstone principle of international law, and especially of international environmental and water resources law. However, this rule focuses on the conduct of a State where harm originates, rather than on the fact that harm has resulted from such conduct, and thus requires that States exercise due diligence in anticipating and in preventing or mitigating such harm. At a practical level, the due diligence standard of conduct expected of States can be uncertain and difficult to determine, as it must be deduced from the applicable primary rules of international environmental or water resources law, which have traditionally been elaborated in rather vague terms. In addition, the standard of due diligence required under the no-harm rule may be influenced by a range of variable and context-specific factors which might prove relevant in the particular circumstances of any dispute. Such uncertainty is further compounded in the field of international water law by the complex interrelationship between the no-harm rule and the other key norms of international water law, particularly the cardinal principle of equitable and reasonable utilization, which embodies a high degree of flexibility and adaptability and suffers from a corresponding degree of normative indeterminacy. Thankfully, recent developments in international water law and related practice regarding the requirement to protect riverine ecosystems and maintain related ecosystem services lend a welcome measure of clarity as regards the preventive measures expected of watercourse States under international law. Judicial recognition of obligations to maintain minimum environmental flows and to preserve or restore riverine ecosystem services, based on the proliferation of such values in treaty and declarative practice, along with the continuing development of sophisticated technical methodologies for ecosystems assessment and evaluation, do much to inform the due diligence conduct required of States. Such advances can only enhance the practical utility of the no-harm rule, and thus of the entire corpus of international water law, in addressing the challenges emerging globally for water resources management in the twenty-first century.

Human rights due diligence in global supply chains: evidence of corporate practices to inform a legal standard

ABSTRACT Human rights due diligence in supply chains is increasingly important for companies, as mandatory due diligence standards are being drafted and considered in domestic jurisdictions, at the European Union level and in an international treaty negotiation process. In applying a legal standard of care for human rights due diligence, a core consideration will be what can reasonably be required of a company in a supply chain. Yet evidence of companies’ actual practices in this area remains rare. This article remedies this by exploring some specific examples of what companies do in this area, in order to assist in an assessment of what is possible, what is challenging, and what is already being done in terms of human rights due diligence in supply chains. It analyses how companies have identified human rights impacts, what actions have been taken to prevent and respond to impacts, to track and monitor actions taken, and to communicate this. This article identifies key themes and clarifies the relevant applicable standard of human rights due diligence in practice, which is relevant for judges, regulators and claimants. This analysis will assist all companies in understanding what is expected of them and in formulating good practices.

Recognising Biodiversity Conservation as a “Common Concern of Mankind”: A Legal Appraisal

By analysing the legal provisions of the UN Convention on Biological Diversity (CBD) and its Nagoya Protocol, this article focuses on the legal implications of recognising biodiversity conservation as a “common concern of mankind”. In this context, the “common concern” concept clearly involves precise environmental protection, through actions (and addressing resources) that transcend the territorial sovereignty of individual States; establish common responsibilities towards the international community; and develop international regulations and institutions to secure these objectives. When applied in this context, this concept poses a significant legal implication for national sovereignty and the international community. It restricts sovereignty by requiring States to meet a national-level version of the standard of due diligence, including by adopting laws, and developing strategic plans, as well as entering into partnership with local, indigenous communities, the private sector and international communities for their implementation. It also establishes among the States a “common but differentiated responsibility” towards the entire international community – a duty to cooperate and collaborate for the conservation of biodiversity. These legal implications have been subject to legal debates and challenges, especially when they require the setting of standards of due diligence applicable to all States and most particularly with regard to commitments they have made regarding technical and financial cooperation. It is clearly quite difficult to enforce such legal obligations precisely, particularly under the CBD’s regulatory regime. To uphold the “common concern” approach, all nations will need to participate and to accept both their respective differentiated responsibilities and the restrictions that this approach imposes on national sovereignty. The international regulatory regime also needs to develop a new compliance technique and enforcement mechanism. Such global responses and efforts are indispensable for sustaining life on earth.