Although due diligence is not a term used in the International Law Commission's Articles on State Responsibility, it is considered a legal standard of conduct whose content and extent varies according to the applicable primary rule of international law.6
There is not a uniform standard of conduct of due diligence,7 but it is determined "on a case-by-case basis"8 and is at the centre of many areas of international law,9 such as the obligation of a State not to "allow knowingly its territory to be used for acts contrary to the rights of other States",10 international environmental law,11 law of the sea,12 international humanitarian law,13 human rights law,14 and business and human rights.15
Investment treaty jurisprudence has recognised that investors have an obligation of due diligence. In particular, in the context of legitimate expectations of investors, "it is generally considered that investors should themselves act with due diligence."18
Investors' due diligence in making an investment (or lack thereof) is therefore relevant to a tribunal's findings on the merits of a claimant-investors' claims.21 However, there have been dissenting opinions noting that due diligence is not a condition to the protection of an investment.22 See also Investor conduct.
B. States' due diligence
Arbitral tribunals have considered whether a respondent-State exercised due diligence with regard to substantive standards of protections,23 particularly the standard of full protection and security.24
Bonnitcha, J. and McCorquodale, R., The Concept of ‘‘Due Diligence’’ in the UN Guiding Principles on Business and Human Rights, 2017, The European Journal of International Law Vol. 28, No. 3, pp. 899-919.
Davitti, D., On the Meanings of International Investment Law and International Human Rights Law: The Alternative Narrative of Due Diligence, Human Rights Law Review, Volume 12, Issue 3, September 2012, p. 445.
Hessbruegge, J., The Historical Development of the Doctrines of Attribution and Due Diligence in International Law, New York University Journal of International Law and Politics, Vol. 36, No. 4, 2004, p. 268.
Levashova, Y., The Role of Investor’s Due Diligence in International Investment Law: Legitimate Expectations of Investors, Kluwer Arbitration Blog, 22 April 2020.
Mcdonald, N., The Role of Due Diligence In International Law, Cambridge University Press for the British Institute of International and Comparative Law, 2019, pp. 1041-1054.
Rajput, A., Due Diligence in International Investment Law – from the law of aliens to responsible investment, in Krieger, H. and Peters, A. (eds.), Due Diligence in the International Legal Order, Oxford University Press, 2020.
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