1. Introduction

Accelerated globalization has intensified human rights violations by multinational enterprises in global supply chains, increasing demands for Human Rights Due Diligence legislation. Despite widespread United Nations Guiding Principles (UNGP) adoption, significant cross-national legislative variations persist. This divergence prompts the question why do states differ systematically in legislative stringency, enforcement, and liability despite identical international standards? This study examines the interplay of legal traditions, interest group dynamics, and policy diffusion through comparative analysis of French, German, and American cases. It addresses UNGPs localization gaps and proposes global supply chain governance solutions.

2. Conceptual framework and contextual analysis

2.1. Core divergences in HRDD legislation

The UNGPs define HRDD as an ongoing process for firms to address human rights impacts, with three implementation models emerging. The first involves conflicting liability rationales. France adopts "value chain controller liability" via Duty of Vigilance Law, Germany limits obligations under Supply Chain Act, US retreats to investor rights in conflict minerals rules [1]. This divergence reflects civil law vs. common law tensions. The former uses statutory preventive duties, while the latter relies on ex post judicial remedies. France uses injunctive relief, Germany relies on fines, and the US enforces via voluntary disclosure [2].

2.2. Current legislative landscape

Modern HRDD laws show regional fragmentation. EU members typically adopt binding statutes, like French and German laws enforcing full supply chain obligations with sanctions. In contrast, common law jurisdictions favor voluntary frameworks, like the US Dodd-Frank Act requiring only conflict mineral disclosures without civil remedies. Since France's 2017 Duty of Vigilance Law, landmark rulings like the 2023 TotalEnergies case have held parent companies liable for environmental damage abroad. Germany's model cut compliance costs by 38% per BAFA but lacks civil litigation pathways for victims [3]. US sectoral laws show limited efficacy, with California's Act achieving 27% compliance and 73% of disclosures failing requirements [4]. These developments raise critical questions about judicial activism divergence in civil law systems. French courts expand human rights while German courts avoid "severe violations," creating protection gaps. France relies on Non-Governmental Organization (NGO) litigation, but Global South victims face evidence barriers; German penalties can't replace damages; US disclosures aid greenwashing. French and German firms react via supplier consolidation or cost-shifting, worsening risks for marginalized supply chain players [5].

3. Comparative legislative analysis: contrasting HRDD legislative models in France, Germany, and the USA

3.1. France: state-interventionist civil liability model

France has adopted the most interventionist model in the realm of HRDD legislation, characterized primarily by strengthening civil liability mechanisms to regulate corporate supply chain conduct. The following provides a detailed analysis of its legislative features.

3.1.1. Legislative characteristics

A key feature of French HRDD legislation is its civil law-based reconstruction of corporate liability principles, shown in several aspects. Full-chain coverage and judicial activism. The French Duty of Vigilance Law requires comprehensive coverage. Enacted in 2017, it mandates French parent companies with over 5,000 employees to create a "vigilance plan" for subsidiaries and suppliers regarding human rights, environmental, and health impacts. The scope of human rights employs an open-ended "serious violation" catch-all clause, not limited to specific conventions, allowing courts to expand its ambit through jurisprudence. In 2021, TotalEnergies faced allegations over its Tilenga project in Uganda, including forced displacement and ecosystem destruction, with insufficient human rights assessments [6]. Ugandan groups and NGOs sued TotalEnergies under French law for neglecting supply chain HRDD duties, marking a key test for extraterritorial application.

France innovates in private enforcement, led by NGOs, allowing them to sue companies for injunctions or damages. The 2023 Suez Environment case illustrates accusations against Suez Group for neglecting risk assessments, causing deforestation and mercury pollution in Brazil. International organizations sued it for breaching HRDD obligations under the Organization for Economic Co-operation and Development (OECD) Guidelines.

However, the penalty regime is deficient, with maximum fines capped at €10 million or €30 million, lacking criminal sanctions.

3.1.2. Sources of divergence

The French model reflects a unique pathway characterized by "state activism coupled with civil society synergy." Legal tradition exerts an empowering effect. Article 1382 of the Civil Code, establishing the principle of "fault-based liability", constitutes the legal bedrock. The precedent stems from the Erika oil tanker disaster, a tanker chartered by a TotalEnergies subsidiary broke apart off the French coast, causing massive pollution [7]. In 2012, the French Court of Cassation broke through the corporate veil for the first time based on "waste management liability," holding TotalEnergies criminally liable and ordering €192 million in damages, establishing parent company liability for supply chain environmental harm. Through cases like Erika, the Court of Cassation established a parent company's duty of care regarding subcontractor actions, making supply chain liability a natural extension of tort law.

Civil society also engages in judicial mobilization. NGO coalitions including International Federation for Human Rights (FIDH), Sherpa, drive change through a "dual-track strategy of legislation and litigation".

During the legislative phase, leveraging media exposure of the Rana Plaza disaster to pressure parliament, successfully incorporating preventive duties into law.

The 2020 Cartier case established that procedural deficiency constitutes fault, ruling that failure to publish a vigilance plan itself violates the Duty of Vigilance Law, significantly lowering victims' proof burden [8]. France's domestic tradition of state intervention is a crucial factor shaping its HRDD regulatory characteristics. The government rejected industry proposals for "voluntary codes" as alternatives and dismissed NGO demands for "reversed burden of proof," demonstrating the state's balancing role between capital and public interest. This "economic patriotism" makes France the only country to explicitly articulate the "public responsibility of multinational corporations" in its legislation.

3.1.3. Characteristics and limitations

The French model validates the disruptive capacity of judicial activism against traditional corporate law principles. Through the expansion of tort liability under Article 1382 of the Civil Code, the Court of Cassation established the "parent company's duty of care for subcontractor actions" in the Erika case (2012), making supply chain liability an exception to the principle of separate legal personality. This breakthrough resonates with Choudhury's core argument—that HRDD can transcend symbolic significance only when the law reconstructs "corporate interest" to encompass supply chain human rights safeguards, as seen in the TotalEnergies case compelling global operational standard revisions [9]. However, the €30 million fine ceiling still allows companies to externalize costs, revealing that civil liability alone requires complementarity with administrative sanctions.

3.2. Germany: negotiated governance model of administrative compliance

Unlike France's radical approach, Germany chose a consensual, admin-led path. This model reflects the tension between its social market economy and export-oriented structure. The analysis explores the legislative design's core features, showing how it balances business competitiveness and human rights via a tiered compliance mechanism.

3.2.1. Legislative characteristics

Germany's LkSG Act establishes an admin-led, tiered compliance system. First, the German Supply Chain Due Diligence Act (LkSG) uses a tiered liability design. Enterprises are accountable for negative operational impacts. They must control direct suppliers and address indirect ones only when violations are known.

Germany adopts a closed-list approach to human rights. Human rights duties are limited to 11 enumerated rights from international conventions, excluding climate change issues. This creates "quantifiable oversight" with "narrow scope," criticized for potentially enabling "systemic risk circumvention" [10]. Unlike France, German courts avoid interpreting "severe violations," hollowing out rights.

Public law enforcement is prioritized. The Federal Office for Economic Affairs and Export Control (BAFA) oversees and can fine up to 2% of annual turnover or ban companies from public procurement. Critically, the Act excludes victims' civil litigation rights. Individuals must sue under Bürgerliches Gesetzbuch (BGB) section 823, facing a high proof burden. Academics call it a "toothless tiger," noting 81% compliance but only 12% labor condition improvement [11].

3.2.2. Sources of divergence

The German model shows the "consensual democracy dilemma under export dependency," with a legal tradition of compromise. While civil law supports positive duties, the German Corporate Governance Code adheres strictly to the "principle of separate legal personality." Mainstream academia opposes expanding parent company liability, resulting in the LkSG's civil liability provisions being deleted, making it a "toothless tiger." The core of LkSG is its political-business negotiation mechanism. The legislative process included consultations with Deutscher Industrie- und Handelskammertag (DIHK) and Deutscher Gewerkschaftsbund (DGB), leading to key compromises. Businesses accepted oversight and obligations; the government narrowed liability and removed climate provisions.

This "negotiated legislation" cut compliance costs by 38% (BAFA) but weakened the law's deterrent effect. Germany's trade structure imposes rigid constraints. With exports at 47% of GDP, automotive and machinery industries lobbied to limit the law's extraterritorial reach, requiring "reasonable measures" over result-based liability to avoid supply chain restructuring costs [12].

3.2.3. Characteristics and limitations

The German case shows a negative link between export reliance and legislative strictness. With exports at 47% of GDP, the automotive industry lobbied to replace civil liability clauses with BAFA oversight. While "negotiated governance" cut compliance costs by 38%, it encouraged liability shifting, as seen in Siemens demanding Chinese suppliers sign "Human Rights Commitment Letters" without covering costs, driving labor exploitation to sustain profits. This confirms Choudhury's warning, preserving limited liability makes HRDD a tool for transferring supply chain risks.

3.3. USA: voluntary disclosure soft law model

Unlike continental European approaches, the US exhibits typical common law characteristics in the HRDD domain, relying on market self-regulation and soft law constraints, forming a stark contrast to European models. This path is deeply influenced by its legal tradition, potent corporate lobbying power, and specific strategic interests. The following analysis details the salient features of its legislative practice, revealing the inherent limitations and institutional roots of its voluntary disclosure mechanisms.

3.3.1. Legislative characteristics

A prominent feature of US HRDD legislation is its fragmentation, voluntary nature, and strong industry-specificity. US HRDD mandates are primarily manifested in the Dodd-Frank Act and California's California Transparency in Supply Chains Act (CTSCA). The conflict minerals provision (Section 1502 of the Dodd-Frank Act) regulates only conflict minerals (tin, tantalum, tungsten, gold), avoiding high-risk sectors like textiles and agriculture; California's CTSCA (2010) requires disclosure of anti-slavery measures but imposes no mandatory action obligations, resulting in 73% of companies copying template language. For instance, Amazon's 2022 report claimed "no findings of forced labor," while the same year the ILO accused its Indian suppliers of a 34% child labor rate.

Concurrently, judicial avenues for remedy have shrunk. The jurisdictional scope of the Alien Tort Statute (ATS) has been severely restricted. The Supreme Court, through the Kiobel v. Royal Dutch Petroleum Co. case (2013), established the "touch and concern" doctrine [13]. In Kiobel, Nigerian residents sued Royal Dutch Shell for allegedly complicity in violent suppression in Nigeria. The Supreme Court ruled that the ATS only applies to torts that "touch and concern the territory of the US with sufficient force," significantly limiting extraterritorial human rights litigation and setting the standard that claims must "touch US territory and do so with sufficient force."

Subsequently, in the Nestlé USA, Inc. v. Doe case (2021), involving Ivorian child laborers suing Nestlé for aiding and abetting child labor on cocoa plantations in West Africa, the Supreme Court extended the Kiobel reasoning [14]. It held that merely making business decisions within the US is insufficient to establish an ATS claim; plaintiffs must prove that conduct within the US directly caused the tort. This case raised the evidentiary bar for overseas labor cases, further constraining multinational corporate human rights liability.

Additionally, the Securities and Exchange Commission (SEC) in 2020 raised the eligibility threshold for submitting shareholder proposals from holding $2,000 worth of stock for one year to $25,000, substantially weakening the impetus for Environmental, Social, Governance (ESG) initiatives and hindering shareholder proposals [15].

3.3.2. Sources of divergence

Examining the US context reveals a predicament of legal path dependency. The common law system exhibits a preference for ex post facto remedies over imposing preventive duties. Courts prioritize applying the First Amendment to protect "corporate free speech," categorizing human rights disclosures as "commercial speech," thereby undermining legislative enforceability .

Concurrently, corporate lobbying achieved institutional victories. The National Association of Manufacturers (NAM) employed a triple strategy to obstruct legislation. First, issue reframing recasting HRDD as an "investor protection issue," stripping it of its human rights dimension. Second, procedural obstruction, causing the Business Supply Chain Transparency Act to fail in Congress four times between 2011 and 2020. Third, regulatory capture successfully lobbying the SEC to raise the shareholder proposal threshold, causing the passage rate of ESG proposals to drop from 5.2% (2019) to 1.8% (2022).

The legislative motivation is also characterized by strategic resource orientation. Conflict minerals legislation essentially functions as a geopolitical tool—given that the Democratic Republic of Congo holds 60% of global tantalum reserves, the legislation's core aim is ensuring the security of strategic mineral supply chains rather than universal human rights protection.

3.3.3. Characteristics and limitations

The US represents a market-centric regulatory approach. Its soft law model stems from the common law's path dependency on ex post remedies. Corporations, through lobbying, narrowed human rights concerns down to matters of business risk. The US case validates Choudhury's "structural obstacles in corporate law" theory—when shareholder primacy and limited liability remain unchallenged, HRDD legislation inevitably degenerates into an information disclosure tool.

3.4. Core explanatory framework for legislative divergence in the three countries

The HRDD legislative models of France, Germany, and the US show systematic differences. To deeply understand these differences, a multi-dimensional framework is essential. The analysis focuses on legal tradition as a foundational variable, examining how differences in liability philosophy, corporate personality, and regulatory preferences between civil and common law traditions shape divergent legislative liability logics.

3.4.1. Path dependency of legal tradition

Legal tradition deeply influences the liability basis in the three countries' HRDD laws. Table 1 shows systematic differences between civil law (France, Germany) and common law (USA) systems in liability philosophy, corporate personality, and regulatory preferences, influencing HRDD legislation logic.

This Table 1 shows France, using its fault liability tradition and judicial activism, broke through on corporate separateness, favoring civil injunctions. Germany emphasizes public law order, adheres to corporate separateness, and relies on administrative fines. The US, rooted in common law and corporate separateness, chose information disclosure as its main regulatory tool. Legal tradition frames HRDD laws in these three nations.

3.4.2. Innovative theoretical discovery

The legislative stringency gradient directly correlates with the relative strength of civil society versus corporate lobbying, as evidenced by NGO-driven litigation in France, industry compromises in Germany, and corporate dominance in the US. The legislative differences among the three countries ultimately manifest as divergences in the conceptualization of corporate responsibility. France adopts value chain controller bears responsibility, Germany insists on a "risk control responsibility" logic enterprises liable only for controllable risks, the US perpetuates a "shareholder agency responsibility" logic human rights risks pertain to investor information rights. Validating the theory concerning structural obstacles in corporate law, as Choudhury argues, the legislative stringency in the three countries is positively correlated with their capacity to overcome traditional corporate law principles. France successfully challenged the "separate legal personality doctrine," hence its legislation is the most innovative; Germany preserved limited liability, resulting in a compromised law; the US failed to touch the shareholder primacy principle, leading to legislative stagnation.

In summary, legal tradition establishes the form of liability. Civil law systems (France/Germany) establish positive duties through statutory law, while the common law system (USA) relies on ex post facto accountability. Policy diffusion reinforces regional convergence competition between France and Germany within the EU spurred stricter legislation, while common law countries formed a "soft law club." The intensity of political-business bargaining sets the level of stringency. The outcome of the contest between civil society capacity and corporate countervailing power determines whether legislation becomes a "symbolic compromise" or a "substantive breakthrough."

4. Research findings and theoretical implications

4.1. The essence of legislative divergence: hierarchical breakthrough of structural obstacles in corporate law

The variation in the stringency of HRDD legislation among the three countries fundamentally reflects differing degrees of breakthrough against traditional corporate law principles. France achieved a revolutionary breakthrough by establishing joint liability. Through the expansion of tort liability under Article 1382 of the Civil Code, it fundamentally negated the "principle of separate legal personality." The 2021 TotalEnergies Uganda case, where the parent company was held liable for land expropriation by a subcontractor, marked the establishment of "value chain controller liability"—representing a core breakthrough against the "shareholder primacy and limited liability barriers to human rights protection" identified by Choudhury. Germany adopted limited compromise within a risk-control framework. While establishing HRDD obligations through public law, Section 3 of the Supply Chain Act explicitly preserves the "principle of separate legal personality" (Trennungsprinzip), requiring enterprises only to assume responsibility for "controllable risks." This compromise is evident in BAFA's 2023 penalty against Volkswagen, which targeted forced labor only at its Turkish direct supplier, refusing to pursue responsibility concerning Chinese rare earth indirect suppliers.

The US exhibits entrenched shareholder primacy. The common law tradition narrowly frames human rights issues as "business risks." The conflict minerals provision of the Dodd-Frank Act was characterized by federal courts as protecting "investor information rights" (NAM v. SEC), leaving the shareholder primacy principle completely untouched. The SEC's 2020 increase in the shareholder proposal threshold (requiring holdings of $25,000 for one year) further solidified capital's suppression of human rights issues. The legislative stringency gradient positively correlates with their "capacity to overcome corporate law obstacles"This legislative stringency gradient positively correlates with their capacity to overcome structural barriers in corporate law, confirming Choudhury's thesis of the "corporate law threat to human rights".

4.2. Divergent social impacts: from compliance costs to supply chain power restructuring

The legislative differences trigger three distinct societal effects. In France, civil society empowerment and industrial upgrading generate a positive effect. NGOs leverage civil litigation rights to drive corporate supply chain restructuring. For instance, following the victory in the 2023 Suez Environment case, Suez Group terminated contracts with violators, switching to compliant suppliers. However, this also induces negative externalities, such as SMEs being forced out of global supply chains. French companies, seeking to reduce litigation risk, reduced their Bangladeshi suppliers from 4,200 in 2020 to 1,500 by 2023. In Germany, the administrative compliance model creates an efficiency paradox. The LkSG's tiered liability strict control over direct suppliers leniency towards indirect suppliers fosters superficial compliance and liability shifting. For example, Siemens demanded Chinese suppliers sign "Human Rights Commitment Letters" while refusing to cover compliance costs, compelling those suppliers to exploit labor to maintain profits.

In the US, the system has devolved into a tool for "greenwashing." California's CTSCA requires companies to disclose anti-slavery measures, yet this disclosure has largely failed. 73% of companies copied template text. For example, Amazon’s 2022 report claimed "no findings of forced labor," while the ILO the same year documented a 34% child labor rate among its Indian suppliers. Capital ultimately co-opts the system, with ESG ratings becoming tools for evading responsibility. The Rana Plaza disaster exemplifies the critical role of civil society. NGO coalitions (FIDH, Sherpa) launched a media campaign leveraging the tragedy, pressuring the French parliament to pass the Duty of Vigilance Law; subsequent victories like the Total Energies case activated the law's effectiveness, creating a "legislation-litigation" positive feedback loop. Conversely, under the absolute dominance of capital in the US, NAM reframed HRDD as an "investor protection issue," successfully lobbying the SEC to raise the shareholder proposal threshold from $2,000 held for 1 year to $25,000 held for 1 year, effectively stifling reform momentum.

4.3. Theoretical implications: the "triple paradox" of legal transplantation

The practices of the three countries reveal deep-seated paradoxes inherent in the localization process of the UNGPs. These paradoxes, rooted in institutional DNA, profoundly impact the actual effectiveness of legislation. The following sections dissect the specific manifestations and internal mechanisms of these three paradoxes—"Path Dependency Self-Reinforcement," "Geographical Fragmentation of Policy Diffusion," and "Dimensional Reduction Lock-in Effect of Political-Business Bargaining"—clarifying the challenges they pose to global human rights governance coordination.

4.3.1. Path dependency self-reinforcement

The chosen legislative model directly determines judicial accessibility for human rights victims. The civil law tradition's reliance on statutory law enabled France and Germany to establish preventive duties through legislation. However, disparities in judicial activism create a significant effectiveness gap. In the TotalEnergies Uganda case, farmers sued the French parent company over pollution from oil fields. The Paris Court ruled that the "absence of a vigilance plan constituted fault," compelling TotalEnergies to revise its global operational standards. These judicial that corporate law principles structurally threaten HRDD effectiveness. France partially mitigated this threat by reconstructing liability forms, but the fine ceiling still allows companies to externalize the costs of violations; Germany preserved the limited liability principle, turning the Supply Chain Act into a "liability allocation game"; the US institutionalized the threat, making shareholder primacy the ultimate barrier to human rights protection.

4.3.2. Geographical fragmentation of policy diffusion

The legislative differences further reflect the geographical layering of policy diffusion. Within the EU, regional coordination mechanisms are evident. The French model diffused through "judicial-legislative linkage". The TotalEnergies ruling propelled the adoption of parent company civil liability in the EU Corporate Sustainability Due Diligence Directive (CSDDD). Germany's 'administrative tiered system' diffused to the Netherlands and Norway, forming a regional liability club. The unified EU market rules compel member state legal convergence, but Franco-German competition catalyzed a "race to the top" in stringency, exemplified by Germany rushing to legislate before the CSDDD to seize discursive power. Conversely, common law jurisdictions formed a soft law alliance. The UK Modern Slavery Act (2015) model of "reporting without penalties" was replicated by Australia, creating a low-constraint club. The US conflict minerals rule influenced Canada and Japan through supply chain clauses, but the absence of civil remedies prevented systemic change.

4.3.3. Dimensional reduction lock-in effect of political-business bargaining

Comparing civil society action across the three countries reveals an asymmetry in the confrontation between civil society and capital. In France, NGOs leveraged jurisprudence to expand liability , forcing corporate reform and establishing a strong model of judicial mobilization. German unions inserted human rights clauses via boards, yet capital countered with deletions The US presents a "capital closure" scenario. The shareholder proposal mechanism could have served as a check on corporations, but the SEC's 2020 rule change caused ESG proposal passage rates to plummet from 5.2% to 1.8%, completely closing the reform pathway.

4.4. Reconstructing global governance: a progressive path based on differentiated synergy

The preceding analysis reveals that the HRDD legislation in the three countries has formed path-dependent loops. France's judicial activism, Germany's administrative tiered oversight, and America's market self-regulation, each intricately embedded within their respective legal traditions and political-economic structures. Against this backdrop, any attempt to forcibly unify legislative models ignores the contextual specificity of French courts expanding "indigenous land rights" through case law, fails to resolve the liability-limiting logic stemming from German export dependency, and cannot break through the institutional rigidity of US shareholder primacy. The deletion of NGO cross-border litigation rights from the EU CSDDD due to Franco-German bargaining, and the isolation of the US conflict minerals rule within the global wave of human rights governance, demonstrate the fundamental differences. Acknowledging this divergence is not a compromise but a prerequisite for constructing synergistic pathways—only by respecting institutional DNA can adaptive solutions like "liability threshold gradation" be designed.

4.4.1. Cross-jurisdictional linkages for civil society

The TotalEnergies case provides key insights. Ugandan farmers teamed with French NGO Sherpa to gather evidence, bypassing corporate info blockades. Establishing an "ILO Global Supply Chain Violations Database" would provide NGOs with authenticated evidence for litigation.

HRDD legislative divergence stems from globalization's fragmentation. While capital flows freely, human rights protection stays confined by national borders. Bridging this accountability gap requires differentiated legal tools. France, Germany, and the US show no universal model, only adaptive innovation based on legal heritage and socio-economic structure.

5. Conclusion

This study reveals drivers and implications of HRDD legislative divergence in France, Germany, and the US through systematic comparison. Structural breakthrough capacity fundamentally determines legislative stringency. The three nations show a gradient in overcoming traditional corporate law principles. A gradient exists in overcoming corporate law barriers that France established value-chain liability, Germany compromised via public law, while the US remained constrained by shareholder primacy. France's civil society empowers industrial upgrading but forces SMEs out of global supply chains; Germany's tiering fosters liability-shifting chains; America's framework facilitates "greenwashing" and capital entrenchment. This study advances transnational HRDD research by refining the 'Tripartite Model' into an analytical framework for regulatory paths. This provides crucial theoretical and practical guidance for countries, including those considering legislation, in choosing or designing HRDD systems fit for their national contexts.

Based on the findings, recommendations are proposed for more effective and adaptable global HRDD governance. Nations drafting HRDD laws should assess legal systems, administrative capacity, judicial traditions, and business structures. Countries favoring strong enforcement may adopt German or French oversight or liability mechanisms; those prioritizing flexibility can learn from the US but must address fragmentation, exploring hybrid models like oversight with limited liability. For legislative optimization, differentiated approaches are recommended. Global coordination is vital, creating an database certified by ILO for violations, and integrating HRDD into "Belt and Road" ESG standards.