Process or Performance? Corporate Due Diligence and the Translation of Soft Law into Binding Obligations

Legislators cannot simply make due diligence and corporate remediation mandatory. The concepts of ‘due diligence’ and ‘corporate remediation,’ popularised by the UN Guiding Principles on Business and Human Rights, draw upon competing rationales from law, management, and policy, requiring legislators to determine what due diligence and corporate remediation mean. When translated into binding legislation, these tensions crystallize into a choice between process-centric approaches, which treat due diligence as an impact management framework and remediation as corrective action (aligning with administrative oversight), and performance-centric approaches, which treat due diligence as a standard of means to discharge the responsibility to respect and remediation as remedy owed to affected persons (aligning with liability-based enforcement). Analysis of four European legislative regimes demonstrates that conceptualisation and enforcement are inseparable: misalignments produce structural contradiction. Following the EU Omnibus Directive’s dismantling of the Corporate Sustainability Due Diligence Directive’s civil liability regime, Member States will have to traverse residual tensions between performance-centric obligations that presuppose judicial enforcement and national process-centric enforcement frameworks that may not be equipped to deliver.