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Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence

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This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

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Professor of Law and Notre Dame Presidential Fellow at Notre Dame Law School, Indiana, USA. Views expressed are those of the author and not necessarily of any organization with which he is affiliated.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Olivier De Schutter , ‘Towards a New Treaty on Business and Human Rights’ (2015) 1 Business and Human Rights Journal 41

Kenneth Abbott , ‘Rule-Making in the WTO: Lessons from the Case of Bribery and Corruption’ (2001) 4 Journal of International Economic Law 275

Samuel D Warren and Louis D Brandeis , ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193

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Business and Human Rights Journal
  • ISSN: 2057-0198
  • EISSN: 2057-0201
  • URL: /core/journals/business-and-human-rights-journal
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