Duty of Care
Duty of Care (French: Devoir de Vigilance) is a legal concept requiring corporations to prevent human rights violations and environmental damage throughout their operations and supply chains. France's 2017 Law on the Duty of Vigilance represents the most comprehensive implementation of this principle.
Definition
A duty of care establishes that entities with power over others bear responsibility to:
- Identify potential harms their activities may cause
- Implement measures to prevent those harms
- Respond when harms occur
- Accept accountability for failures
This contrasts with systems where harm must be proven before responsibility attaches.
The French Law on Duty of Vigilance (2017)
Background
The law emerged from decades of corporate human rights abuses:
- Rana Plaza factory collapse (Bangladesh, 2013): 1,134 deaths
- Child labor in supply chains
- Environmental destruction by subsidiaries
- Tax haven structures avoiding local responsibility
Previous approaches (voluntary guidelines, corporate social responsibility) failed to create accountability.
Key Provisions
The law requires large French companies to:
- Establish a vigilance plan covering:
- The company itself
- All subsidiaries
- Suppliers and subcontractors with established commercial relationships
- The plan must include:
- Risk mapping
- Regular assessment procedures
- Mitigation actions
- Alert mechanisms
- Monitoring systems
- Scope of covered risks:
- Human rights violations
- Fundamental freedoms
- Health and safety
- Environmental damage
Enforcement
- Companies failing to establish plans can be ordered to comply
- Victims can sue for damages when harm results from inadequate vigilance
- Burden shifts: company must prove adequate prevention measures
Covered Companies
- Companies with 5,000+ employees in France
- OR 10,000+ employees worldwide (including French subsidiaries)
- Approximately 150-200 companies affected
Why This Matters
The Accountability Gap
Traditional corporate law creates an accountability gap:
| Entity | Control | Liability |
|---|---|---|
| Parent company | High (sets policy, profits) | Low (separate legal entity) |
| Subsidiary | Medium | Limited (often undercapitalized) |
| Supplier | Low | Bears most direct liability |
| Workers | None | Bears the harm |
Duty of care closes this gap by attaching responsibility to those with power.
Beyond Voluntary Measures
| Approach | Limitation |
|---|---|
| Corporate Social Responsibility | Voluntary; no enforcement |
| Industry codes | Self-policing; weak sanctions |
| Shareholder activism | Requires investor alignment |
| Consumer boycotts | Inconsistent; information asymmetry |
| Duty of Care law | Mandatory; legal enforcement; victim recourse |
International Developments
The French law has inspired similar initiatives:
European Union
- Corporate Sustainability Due Diligence Directive (CSDDD)
- Adopted 2024
- Applies to large EU companies and non-EU companies with significant EU revenue
Germany
- Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz)
- Effective 2023
- Covers companies with 3,000+ employees (1,000+ from 2024)
Other Jurisdictions
- Netherlands: Child labour due diligence law (2019)
- Norway: Transparency Act (2022)
- UK: Modern Slavery Act (2015) — disclosure only
- Australia: Modern Slavery Act (2018) — disclosure only
Connection to OMXUS
The duty of care principle aligns with OMXUS values:
Prevention Over Punishment
Like Justice as Prevention, duty of care emphasizes preventing harm rather than punishing it afterward. The system requires:
- Anticipating risks
- Implementing safeguards
- Continuous monitoring
Structural Accountability
OMXUS implements accountability through architecture:
- Cryptographic verification of actions
- Transparent decision trails
- Universal witness networks
Duty of care laws implement accountability through legal structure:
- Mandatory vigilance plans
- Legal liability for failures
- Victim access to courts
Power Implies Responsibility
Both frameworks share a core principle: those with power bear responsibility for its effects.
| OMXUS | Duty of Care Law |
|---|---|
| Token holders respond to emergencies | Companies prevent supply chain harms |
| Vouchers responsible for those they vouch | Parent companies responsible for subsidiaries |
| Proximity weighting links influence to impact | Scope extends to commercial relationships |
Critique and Limitations
Challenges
- Scope limitation — Only largest companies covered
- Enforcement resources — Courts need expertise in international supply chains
- Proof difficulties — Linking harm to inadequate vigilance
- Jurisdictional limits — French courts judging global supply chains
Responses
- EU directive expands scope beyond France
- NGO litigation support
- Specialized judicial training
- Extraterritorial application precedents
Case Studies
TotalEnergies (Uganda Pipeline)
- Lawsuit filed under duty of care law
- Allegations: forced displacement, inadequate community consultation
- Status: Ongoing litigation (2024)
Suez (Chile)
- Water rights and environmental concerns
- First judgment under the law
- Outcome: Court ordered compliance with vigilance obligations
See Also
References
- Assemblée Nationale. (2017). Loi relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre. Law No. 2017-399.
- Business & Human Rights Resource Centre. (2023). French Corporate Duty of Vigilance Law: Frequently Asked Questions.
- European Commission. (2022). Proposal for a Directive on Corporate Sustainability Due Diligence.
- Sherpa. (2021). Vigilance Plans Reference Guidance.
- UN Human Rights Council. (2011). Guiding Principles on Business and Human Rights.