Cross-border Protection of Human Rights: The 2021 German Supply Chain Due Diligence Act
Borg-Barthet, Živković et al (eds), Gedächtnisschrift in honor of Jonathan Fitchen (forthcoming 2022)
12 Pages Posted: 3 Feb 2022
Date Written: January 2, 2022
TIn the summer of 2021, after long and heated debates, the German legislature has adopted the Act on Corporate Due Diligence Obligations for the Prevention of Human Rights Violations in Global Supply Chains, also known as the Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG). Following the footsteps of other European countries, notably France, the new law establishes mandatory human rights due diligence obligations and, hence, requires German companies – for the first time – to protect human rights in their supply chains. The Act has, therefore, rightly been described as a “milestone”.
However, in addition to praise the new law has also attracted a lot of criticism and not only by opponents of mandatory human rights due diligence obligations, but also by supporters: While they welcome the establishment of a legally binding framework to better protect human rights in global supply chains, they argue that the reach of the Act is too limited. In particular, they be-moan that the Act relies on public enforcement mechanisms only and refrains from imposing any civil liability on companies for violations of the newly established due diligence obligations.
The following chapter takes this criticism – and the adoption of the German Supply Chain Act more broadly – as an occasion to take a closer look at the newly created obligations to better protect human rights in global supply chains. In particular, it sheds light on the effects of the Act under private law and discusses whether private international law may (or may not) help to effectuate the new provisions in a cross-border context.
Keywords: Human rights; supply chain; civil liability; private enforcement; applicable law; private international law; overriding mandatory provisions; rules of conduct and safety; Rome II Regulation
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