Due Diligence
| Autor | Luca Belli |
| Páginas | 125-126 |
125
Due Diligence
29 Due Diligence
Luca Belli
In several legal fields, both in international law and in domestic
legislation, the concept of due diligence corresponds to what a
responsible entity – be it a state or a business enterprise – ought to
do under normal conditions in a situation with its best practicable
and available means, with a view to behave responsibly and fulfil its
obligations (Dupuy 1977:13). In this perspective, due diligence refers to
a level of judgement, care, prudence, and determination that an entity
is reasonably expected to undertake under specific circumstances.
In some contexts, due diligence refers also to the process by which
an entity interested in a specific activity entailing potential risks, such
as a purchase or an investment, identifies, analyses and define how
to manage such risks before entering in an agreement or transaction.
Hence, due diligence entails a range of analyses and considerations
before performing given activities and/or during the performance,
in order to prevent and mitigate risks that could determine harm.
In the field of Environmental Law, for example, due diligence
signifies the conduct to be expected from a responsible stakeholder,
in order to effectively protect other stakeholders and the global
environment (Dupuy 1977:3). Failure to exercise due diligence,
therefore, means incapacity to fulfil the standard of conduct expected
from a responsible stakeholder in the specific situation.
The International Law Commission considers due diligence as
a primary environmental obligation of States. In Articles 3-7 of
the Convention on the Prevention of Transboundary Harm from
Hazardous Activities, for instance, four features of due diligence can
be distinguished and applied, by analogy, to other fields:
¡ taking all appropriate measures to prevent and minimize the risk;
¡ cooperating with other stakeholders;
¡ implementing obligations through all necessary regulatory
actions, including monitoring mechanisms;
¡ a prior assessment of the possible external harm should be done
before giving authorization for an activity or a major change.
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