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Cover of: Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell
Mathias Habersack, Peter Zickgraf

Sorgfaltspflichten und Haftung in der Lieferkette als Regelungsmodell

[Corporate Sustainability Due Diligence and Supply Chain Liability as a Regulatory Model: Legal Developments – Comparative Assessment – Economic Analysis – Legal Theory.]
Section: Essays
Volume 87 (2023) / Issue 3, pp. 532-607 (76)
Published 22.08.2023
DOI 10.1628/rabelsz-2023-0060
Published in German.
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  • Open Access
    CC BY 4.0
  • 10.1628/rabelsz-2023-0060
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Summary
The proposal for a Corporate Sustainability Due Diligence Directive significantly exceeds the German Supply Chain Act (LkSG) not only in terms of its scope of application and the protected interests, but also regarding the enforcement mechanism in the event of a violation of a due diligence duty. While the LkSG has taken a stand against private enforcement in its § 3 para. 3 s. 1, Art. 22 of the proposed Corporate Sustainability Due Diligence Directive makes companies civilly liable for misconduct committed by their subsidiaries and business partners. The present article deals with the conceptual fundamentals of this regulatory model: From a comparative perspective, the proposed duties and accompanying civil liability mark a departure from the independent contractor rule which is deeply rooted in the tort laws of the German and Anglo-American legal families; the proposed regulatory model thus brings about a sector-specific paradigm shift in the law of non-contractual liability. From a law and economics perspective, however, the proposed regulatory model is justifiable given the special factors present in typical cases. The liability risks associated with the regulatory model appear to be manageable for companies if the pre-conditions of their potential civil liability are more clearly specified.