The legal operability of cross-thematic risk-based due diligence – reflections on mechanisms for prioritisation and hierarchisation of risks.

This paper contributes to the debates around legislative initiatives on risk-based due diligence to improve transnational corporate accountability for negative social, environmental and human rights impacts. The paper traces the development of mandatory risk-based due diligence obligations taking account of recent trends in this regulatory space (looking at regulations in Germany, France and Norway, as well as legislative proposals from The Netherlands, Belgium and the EU, and the soft-law frameworks that inspired them - the United Nations Guiding Principles and OECD Guidelines for Multinational Enterprises). Specifically, it describes a progressive transformation of due diligence regulations to include increasingly varied policy fields in their scope. It then analyses and conceptualises mandatory cross-thematic due diligence initiatives - mandatory due diligence initiatives covering issues relating to different policy fields - and focuses on understanding their operationalisation. It specifically focuses on understanding how mechanisms of hierarchisation and prioritisation of risks present in these frameworks can be operationalised in practice. It does so by exploring the interplay between different spheres of risk related to different policy issues in the context of due diligence. It then reflects on the implications of these mechanisms for corporate risk management in the different policy fields identified. It finally questions whether this feature can sometimes induce corporations to engage in a complex process that might require balancing several interests worthy of protection, ultimately forcing the primacy of some interests over others, permanently opening the doors to litigation against corporate actors.