Abstract

The article discusses one the main legal deficiencies of the new EU Directive on corporate sustainability due diligence (CSDDD), informally agreed by EU co-legislators on 14 December 2023, with the aim at creating a more responsible corporate behaviour throughout global value chains. Large EUdomiciled companies, as well as third-states companies with substantial business activities within the internal market, will be required to implement mandatory due diligence measures in their business relationships – direct or indirect – across their value chain. In-scope companies that fail to comply with their due diligence obligations with respect to the environment and human rights may be subject to sanctions and may be exposed to civil liability arising from the resulting adverse effects. The directive, thus, will provide for a combination of public and private enforcement. Nonetheless, once officially adopted, the directive will lead to an uneven playing field for companies active in the internal market: while third-country companies are covered by the due diligence rules the same way as their EU counterparts, the (partial) harmonization of the new civil liability regime is (essentially) limited to EU company only, by reason of the choice made by the European legislator not to introduce into the future directive specific private international law rules on jurisdiction regarding third-countries companies. The current version of Article 22 simply introduces the obligation for Member States to ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State. This article investigates the reasons of the two different approaches to the extraterritorial reach of the future EU legislation, particularly by reason of limits imposed by public international law. The exclusion of a ‘real exterritorial’ European Adjudicatory Jurisdiction on civil liability issues stemming from third-country companies’ failure to execute their due diligence obligations, will indeed deprive of effective compensation and damages the victims of adverse human rights and environmental impacts. Consequently, the article suggests some possible de jure condendo private international law solutions to enhace victims’ access to justice, including a utopic forum legis (inspired by favor laesi), derived in an interpretative way by the European judges from the overriding mandatory application of the substantive rules of the future directive