This chapter critically discusses the proceduralisation of due diligence obligations. The chapter defines proceduralisation as a process gradually eroding the ‘reasonable’ standard traditionally linked to due diligence and substituting it with specific legal parameters. Through proceduralisation, the content of due diligence obligations is ‘spelled out’ into a series of sub-duties, tecnical standards and direct obligations (including procedural ones) whose fulfilment is required for assessing compliance with the standard of due diligece of the ‘principal’ obligation. The first part of this chapter critically explores this phenomenon, arguing that proceduralisation through interpretative practice raises challenges and comes close to creating new legal rules. The second part illustrates proceduralisation through two case studies taken from international environmental protection and due diligence obligations in international human rights law. The chapter argues that the proceduralisation of due diligence obligations fundamentally tests their dogmatic structure by affecting their nature and content.

This chapter examines the ‘direct obligations’ model which accepts that fundamental rights can impose legally binding obligations upon non-state actors. After briefly outlining the contours of this model, and its justification, I consider an important challenge, namely, whether recognising the obligations of non-state actors entails they have fundamental rights. At the international level, I consider the ‘sphere of influence’ approach and the ‘due diligence’ approach (enshrined in the UNGPs). I argue that the latter has an important normative gap at its core: understanding the impacts of a business on rights does not automatically translate into a conception of its obligations. The last part of this chapter considers two jurisdictions – South Africa and Colombia - and the principles they utilize to determine the direct obligations of non-state actors. Neither jurisdiction has articulated a clear legal analytical framework but what emerges is similar to the other models analysed and can form the building blocks of the multi-factoral approach developed in the following chapters.