The Legal Character of Due Diligence: Standards, Obligations, or Both?
K.L.H. Samuel, 'The Legal Character of Due Diligence: Standards, Obligations or Both?', 1 Central Asian Yearbook of International Law (2018/2019 Forthcoming ).
51 Pages Posted: 3 Nov 2018
Date Written: October 11, 2018
The concept of due diligence and its associated legal principles and obligations are of increasing significance in the global arena. Yet its definition, parameters and potential reach are often not clearly identified or understood. Notably, there can be a tendency, including by academics, courts and tribunals, to conflate due diligence standards with corresponding obligations, in part attributable to unclear and fluid definitional contours.
Attaining increased clarity between what is merely influential and what is formally binding is important since different legal consequences can ensue in the event of their breach. Whereas no formal consequences will accompany non-compliance with a non-legally binding standard, the breach of a primary rule or obligation can trigger international responsibility as articulated in the ILC Articles on State Responsibility 2001.
Specifically, the article examines: whether due diligence constitutes a non-binding interpretative standard for other obligations and/or creates its own binding obligations; in what contexts standards and obligations tend to exist; and the associated normative parameters of these findings. These issues are examined in legal contexts where due diligence is most developed - diplomatic law, the protection of aliens, international environmental law, law of the sea, and international human rights law – though its findings are of wider significance. An overarching aim is to develop a generically applicable framework of global relevance on this important but largely under researched issue. As such it is expected to have significant impact potential.
Keywords: Due Diligence, Standard, Obligation, Diplomatic Law, Protection of Aliens, International Environmental Law, Law of the Sea, International Human Rights Law
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