Risk-based due diligence reporting in global mineral supply chains and the rule through transparency

ABSTRACT

This article examines the operation of transparency as a technique of power and rule in the governance of global mineral supply chains. It focuses on reporting and auditing practices associated with the Organisation for Economic Co-operation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. The due diligence regime sets norms to help corporations avoid the risk that their operations or mineral sourcing practices contribute to conflict and human rights violations. It manifests the widely held view that transparency is key to enabling the public to hold corporations to account for negative impacts of their practices. This article recasts risk-based due diligence reporting and auditing as techniques of rule ‘through’ law that are intrinsically unable to fulfil such normative objectives. In the minerals due diligence regime, ‘transparency’ is produced through the disclosure of risk management procedures, which involves a technical and abstract language that speaks to a corporate audience, but is unable to convey substantive information to stakeholders. Furthermore, the regulatory focus on risk management means that transparency techniques have an internal and procedural orientation towards the transformation of corporate systems of ‘internal control’. Risk-based due diligence reporting and auditing serve to disclose the corporation to itself and produce a perception of ‘responsible’ corporate subjects that improve risk management systems, while ‘the public’ is positioned as a passive audience of corporate performances of transparency and assurance. Thus, this article problematises the capacity of transparency-based regulation to facilitate the envisioned reflexive internal-external interaction between corporations and the public.

KEYWORDS:

• Transparency
• accountability
• legal language
• human rights due diligence
• risk management
• corporate reporting
• auditing
• global mineral supply chains
• rule ‘through’ law

1. Introduction

Recent years have witnessed the expansion of regulation aimed to increase transparency of global mineral supply chains and stimulate the minerals industry to conduct due diligence.¹ A key initiative is the Organisation for Economic Co-operation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (hereinafter: Minerals Guidance).² The OECD describes the Minerals Guidance as ‘the de facto international standard’ for responsible mineral supply chains.³ It is widely implemented by corporations in the minerals industry, specifically through private certification schemes.⁴ While it is not a binding source of law, various binding international, regional, and national legal instruments reference and reinforce it.⁵ Notably, the United States (US) recommends companies to follow the OECD guidelines in filing the required conflict minerals report in accordance with section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Similarly, the European Union (EU) Conflict Minerals Regulation 2017/821 requires companies to ensure that they only source ‘conflict-free’ minerals by conducting due diligence in accordance with the Minerals Guidance.

Although transparency initiatives are generally on the rise, the minerals regime is of particular interest, because it is one of the most advanced and complex fields of regulation on corporate respect for human rights.⁶ The OECD Guidance specifies the application of the norm of ‘human rights due diligence’, as laid down in the United Nations Guiding Principles on Business and Human Rights (UNGPs), to the context of highly complex, disperse, and obscure global mineral supply chains.⁷ ‘Conflict mineral’ campaigns led by non-governmental organisations (NGOs) have resulted in growing public awareness that corporations at various positions in supply chains may be implicated in violence and abuse related to mineral extraction in conflict-affected areas.⁸ The minerals due diligence regime aims to break the link between conflict and the extraction of minerals through norms and regulatory techniques associated with ‘transparency’, which ask companies to monitor supply chains and report publicly on their due diligence systems, policies, and practices. Thus, this regime advances the broader expansion of transparency as a ‘global norm’ – a norm that is increasingly mobilised to solve a wide variety of policy problems.⁹

Among international institutions, NGOs, and academics the idea has become prevalent that transparency is a crucial regulatory tool, which enables the public to hold multinational corporations to account for their implementation of human rights norms.¹⁰ With the rise of various rule-by-disclosure initiatives, it may indeed appear that we have entered a global state of affairs in which transparency has become a reality, as corporations are subjected to the corrective gaze of a global public tribunal.¹¹ However, it is not self-evident that ‘transparency is an essential and unproblematic handmaiden’¹² to governance and regulation. Studies have found that the process-oriented character of transparency regimes may involve ‘cosmetic’ compliance that does not lead to effective improvement of corporate respect for human rights, and does not result in meaningful transparency towards the public.¹³ Laws focused on disclosure have been understood as lesser alternatives for more coercive laws that oblige corporations to ensure that their operations do not contribute to human rights violations, and that impose liability for adverse impacts.¹⁴

This article contributes to critical accounts of transparency regulation by scrutinising how global mineral supply chains are governed through practices of due diligence reporting and auditing, and by analysing the place of ‘the public’ in these practices. While transparency is usually presented as a norm and regulatory technique that enables public scrutiny of corporate behaviour and thus helps to fulfil normative objectives associated with corporate accountability and rule ‘of’ law, this article recasts transparency as a technique of rule ‘through’ law that is intrinsically unable to meet such expectations.¹⁵ The due diligence regime emphasises internal corporate transformation and ‘self-governance’, as it uses regulatory techniques that promote the integration of respect for human rights into existing corporate risk management procedures and systems.¹⁶ In this regime, ‘transparent’ mineral supply chains are produced through the abstract vocabulary of risk management, internal control systems, and audits – which speaks primarily to a corporate audience, while it is unable to convey substantive information to external stakeholders. The emphasis on risk means that due diligence transparency has an internal orientation towards the improvement of corporate risk management procedures, and that the interaction between corporations and the public is mediated by corporations’ ‘internal control systems’. As a result, ‘the public’ is shaped as a passive audience, which should trust that corporations exercise procedural control over complex supply chains – even though their substantive human rights performance may be poor.¹⁷

The argument is developed as follows. Section 2 conceptualises transparency as a norm and technique of governance that aims to operate externally (focused on the effects on the public) and internally (focused on effects within the corporation).¹⁸ Section 3 describes the main aspects of the multi-layered disclosure regime of the Minerals Guidance, showing how transparency is mediated by corporate internal control systems and discourses of risk management. Section 4 describes the limited external transparency provided by practices of corporate reporting and auditing, underlining the superficial and abstract quality of disclosure of internal control systems and corporate processes of risk management. Finally, section 5 argues that the orientation of risk-based due diligence transparency towards transforming internal corporate procedures and systems undermines the reflexive relationship between corporations and the public that is envisioned by the due diligence regime.

2. Transparency: normative objective and regulatory technique

Transparency is an ambiguous concept to which varying meanings and values are attached, depending on the context.¹⁹ In a most basic sense, transparency is associated with the availability of relevant information.²⁰ More specifically to the context of corporate human rights due diligence, transparency is generally understood as a tool that provides the public with information on corporate human rights performance, resulting in increased accountability.²¹ From this perspective, transparency can be described as ‘the language through which the … impacts of corporate activity can be revealed, assessed and engaged in by stakeholders’.²² Transparency plays a substantial role in ‘soft’ legal frameworks that lack formal legal accountability mechanisms, such as the Minerals Guidance and the UNGPs.²³ Ideals regarding the value of transparency as a tool of accountability are reflected in these regimes, which expect corporations to report publicly on their due diligence performance.²⁴

The minerals due diligence regime positions transparency not only as a key normative objective, but also as the main technique through which this objective is secured.²⁵ To create transparent supply chains, the due diligence regime organises the application of transparency as a regulatory technique that governs the conduct of corporations through the disclosure, collection, and evaluation of information.²⁶ This regime provides a legal framework for the operation of techniques and practices of reporting that aim to render corporations and mineral supply chains visible, and therefore subject to evaluation and control.²⁷ Transparency-based regulation is grounded on the assumption that instituting processes for the collection and disclosure of information, rather than directing substantive outcomes, is key to achieving policy goals.²⁸ Illustratively, the US Dodd-Frank Act and the EU Conflict Minerals Regulation impose mandatory disclosure, thus relying on public scrutiny to induce more responsible sourcing decisions, rather than prohibiting and sanctioning sourcing decisions that involve negative impacts.²⁹ Instead of relying on legal obligations, prohibitions, and sanctions, the due diligence transparency regime presupposes that the visibility of corporate practices leads to more responsible behaviour and improved outcomes. To effectuate monitoring, it relies on private authority, specifically authority exercised through auditing.³⁰

Transparency, perceived both as a norm and as a regulatory technique, has external aspects (focused on the effects of transparency on external stakeholders such as consumers), as well as internal aspects (focused on the effects of transparency within the corporation).³¹ In its external dimension, the norm of due diligence transparency expresses the objective of enhanced corporate accountability.³² The transparency norm may help fulfil normative objectives and ideals associated with the ‘rule of law’, as it improves public understanding of corporate behaviour, and thus may compel corporations to behave in accordance with legal norms.³³ As a technique, the external dimension of due diligence transparency implies a responsibility for users of disclosed information to apply pressure on corporations and thus stimulate them to change their behaviour.³⁴ This means that due diligence transparency can be understood as a regulatory technique designed to operate through ‘civil society’, which should monitor corporate conduct with reference to reporting practices.³⁵

In its internal dimension, the norm of transparency expresses the objective of improved processes of corporate decision-making and more ethical supply chains.³⁶ As a technique, the internal dimension of transparency operates to create responsible, ‘self-governing’, corporate subjects that gather information on their own behaviour and make the behavioural changes needed to comply with societal due diligence expectations.³⁷ In this sense, transparency involves various techniques of power that do not prohibit or restrain conduct, but shape corporations’ capacities, self-understanding, and interests.³⁸ Techniques of transparency, such as reporting and auditing, are constructed to support the internalisation of human rights due diligence into corporate conscience, and shape corporations as subjects that see themselves, know themselves, and govern themselves.³⁹ The following sections describe how the minerals due diligence regime underlines the internal operation of transparency, while it decentres the external operation of transparency as a norm and technique associated with accountability. Namely, due diligence transparency is situated in discourses of risk management and performed through corporate systems of ‘internal control’.⁴⁰

3. Risk-based due diligence in global mineral supply chains

The aim of the Minerals Guidance is to create transparent, ‘responsible’, mineral supply chains by stimulating corporations to conduct ‘due diligence’ and carry out monitoring activities. Due diligence is understood as ‘an on-going, proactive and reactive process through which companies can ensure that they respect human rights and do not contribute to conflict’.⁴¹ The OECD specifies the process of due diligence with reference to a ‘risk-based approach’.⁴² Under this approach, due diligence revolves around ‘the steps companies should take to identify and address actual or potential risks in order to prevent or mitigate adverse impacts associated with their activities or sourcing decisions’.⁴³ With this emphasis on risk, the Minerals Guidance promotes the integration of human rights due diligence into existing corporate risk management systems.⁴⁴ While these systems are designed to manage risks of internal adverse impacts, including reputation damage and legal liability, the Minerals Guidance aims to expand the scope of corporate risk management systems by asking corporations to manage the risk that their operations and sourcing decisions contribute to external adverse impacts, including human rights violations and armed conflict.⁴⁵ Thus, this regime works through corporate interests: if companies disclose how they manage risks of contributing to external adverse impacts (harm to others) by conducting due diligence, they may as an effect reduce the risk of internal adverse impacts (harm to the company).⁴⁶

Risk-based due diligence has a strongly internal orientation, as it focuses on the construction and transformation of corporate ‘internal control systems’.⁴⁷ This means that the due diligence regime seeks to transform mineral supply chains indirectly, by transforming the systems, mechanisms, procedures, and policies by means of which corporations govern themselves.⁴⁸ Thus, it blurs the distinction between (internal) corporate management processes and (external) processes of regulation.⁴⁹ Namely, corporations are regulated through their internal control systems. This means that the risk management system functions as the key interface between society and the corporation.⁵⁰ On the one hand, the Minerals Guidance re-constructs corporate risk management systems to shape corporations as subjects that conduct due diligence and act responsibly in society.⁵¹ On the other hand, stakeholder engagement based on disclosures may provide corporations with feedback to the risk management process, helping them to avoid risks to their corporate objectives.⁵²

In the Minerals Guidance, transparency is performed through the ‘Five-Step Framework for Risk-Based Due Diligence’, which recommends companies to integrate various practices of observation and reporting into their internal control systems.⁵³ Step 1 asks corporations to install ‘strong company management systems’.⁵⁴ This means that companies should develop ‘an internal system of transparency, information collection, and records of supply chain due diligence processes, findings and resulting decisions’.⁵⁵ Step 2 asks companies to map their supply chains and identify whether any ‘red flags’ arise, which are triggered specifically when companies operate in or source from ‘conflict-affected or high-risk areas’.⁵⁶ This means that corporations are expected to investigate the political circumstances of their operations and those of business partners upstream in the supply chain. Step 3 asks companies to ensure that risk assessment is reported internally, so that senior management may adopt a ‘strategy for measurable risk mitigation’ in response to identified risks.⁵⁷ To decide on the most appropriate strategy, companies should consider whether they are able to exercise ‘leverage’ by stimulating suppliers to conduct risk mitigation efforts.⁵⁸ Risk mitigation performance should be monitored, tracked, and reported back to senior management.⁵⁹ These internal reporting practices make visible the procedures, systems, and practices of internal control and oversight, so that they can be managed and improved.⁶⁰ At the same time, corporations are shaped as observers and regulators of their supply chains through their internal management systems and through their relations with suppliers.⁶¹

The system of internal control is monitored through an additional layer of control and observation in the form of ‘independent third-party audit of supply chain due diligence at identified points in the supply chain’, which is Step 4 of the Framework.⁶² In contemporary global governance and law-making, auditing has become a main technique and practice of accountability, verification, certification, and transparency.⁶³ Auditing operates as the ‘control of control’: it controls corporations’ internal control systems.⁶⁴ Auditors should collect evidence and provide ‘assurance’ that a corporation’s internal control system conforms to due diligence standards, with reference to an audit standard that is consistent with the Minerals Guidance.⁶⁵ Assurance involves a check of ‘all activities, processes and systems’ used to implement due diligence, such as communication with suppliers, controls over the supply chain, risk assessments, risk mitigation strategies, and the disclosure of information through the supply chain.⁶⁶ The Minerals Guidance recommends audits to be organised through private traceability and certification schemes, which have burgeoned following the rise of standards for ‘responsible’ supply chains.⁶⁷

The final step in the Five-Step Framework is that corporations ‘publicly report on their supply chain due diligence policies and practices’.⁶⁸ This indicates that the Minerals Guidance envisions ‘the public’ as the intended audience of due diligence reports. The Guidance does not further specify ‘the public’. However, the text of the Guidance as well as the overarching logic of due diligence reporting regimes suggest that the scope of ‘the public’ should be understood broadly. Namely, an underlying aim of regulatory frameworks focused on reporting is to leverage the role of a variety of stakeholders to hold corporations to account for their due diligence performance.⁶⁹ The concept of human rights due diligence generally presupposes an interaction between internal corporate processes and external processes of stakeholder engagement with reports.⁷⁰ In this regard, the OECD recommends adhering states to promote ‘the active use’ of the Guidance ‘by other stakeholders including professional associations, financial institutions, and civil society organisations’.⁷¹ In addition, regulators and NGOs have placed on consumers the (moral) responsibility to push for responsible business through ‘naming and shaming’ and to conduct their own due diligence on purchases by making use of corporate disclosures.⁷² Thus, processes of reporting should stimulate corporations to improve their performance, as they are subject to the disciplinary gaze of external stakeholders and ‘the courts of public opinion’.⁷³

4. The limited transparency of due diligence reporting and auditing

The previous section described how, in the context of the Minerals Guidance, various techniques of transparency are employed to shape corporations as ‘responsible’ subjects, and to produce an interaction between the external (public stakeholders) and the internal (the corporation), in which stakeholders are empowered to hold corporations to account. In order to assess whether corporate reporting practices are suitable to assist the achievement of these normative objectives, it is helpful to investigate the actual content of corporate reporting documents and the way in which such content is tested in the context of ‘Step 4’ auditing. My analysis of reporting practices under the World Gold Council’s (WGC) Conflict Free Gold Standard (CFGS), an industry certification and auditing scheme that is implemented by the leading firms in the gold industry to ‘operationalise’ the Minerals Guidance⁷⁴, points to a panorama of overall superficial corporate reporting.

CFGS reports, in fact, typically follow a limited number of steps.⁷⁵ They briefly explain the expectations of the CFGS on risk assessments, the establishment of internal control systems, and Management Statement(s) of Conformance’⁷⁶ (which should be provided to the next actor in the supply chain for each batch of gold). Subsequently, they provide their conclusion on each of the criteria, for instance by stating that a risk assessment was conducted by evaluating whether international sanctions have been imposed and consulting the ‘Heidelberg Conflict Barometer’.⁷⁷ Substantively, they specify which mining operations are located in ‘conflict-affected or high-risk areas’.⁷⁸ In relation to these operations, they state whether they find that the company has ‘the appropriate systems in place’ to avoid contributing to conflict or human rights violations.⁷⁹ They conclude with a statement that ‘the company has the appropriate systems and processes in place to ensure that all gold and gold-bearing material leaving the mine’s area of control is produced in conformance’ with the CFGS.⁸⁰ No further details about the way in which companies conform to the CFGS, for instance in terms of substantive risk mitigation, have to be disclosed.⁸¹ Public disclosure therefore means no more than disclosure of ‘a management conclusion on the company’s overall conformance’.⁸²

A look at the literature reveals that the observed absence of substantive information on actual instances of risk management is not unique to reports published under the CFGS. The OECD has found that reports produced under a selection of evaluated industry certification programmes in the scope of the Minerals Guidance ‘were often basic and generic, lacking descriptions of risks or measurable indicators of risk management performance’.⁸³ Similar findings have been published in further studies on the implementation of the OECD Minerals Guidance, Section 1502 of the US Dodd-Frank Act, and a range of other transparency laws.⁸⁴ Overall, the studies conclude that most corporations engage in superficial reporting that suggests minimal efforts and narrow readings of the law.⁸⁵ Companies have generally been found to engage in selective reporting, unbalanced reporting, incomprehensive reporting, reporting for the aim of reputation management, and reporting for the sole aim of reporting.⁸⁶ As a result, it has been observed that a general problem of conflict mineral reports is that they do not tell the public which companies should be praised and which companies should be criticised, which complicates the ‘naming and shaming’ approach that grounds due diligence regulation.⁸⁷

Audit statements, in turn, display a degree of generality and superficiality that matches corporate disclosures.⁸⁸ Details of assurance engagements and assessments are largely confidential. The CFGS assurance report should summarise the scope of the assurance, the assurance activities that were conducted to collect evidence, the nature of the procedures that were performed to conduct assurance, the level of assurance given (i.e. ‘limited’ or ‘reasonable’ assurance) based on these procedures, the assurance conclusion (whether the report has been prepared in accordance with the CFGS criteria), and a declaration stating that the assurance provider meets competency requirements.⁸⁹ However, the substantive evaluation of the auditor and the substantive outcomes of the audit, such as specific areas of improvement, do not have to be disclosed.⁹⁰ Therefore, audit reports are arguably unable to provide the broader public with a basis for informed decision-making, or informed ‘naming and shaming’.⁹¹

Notably, the CFGS Guidance for Assurance Providers explains that the purpose of assurance is not to ‘validate that specific shipments of gold dispatched from the mine site are “conflict-free”’, but ‘to provide confidence to users of the Conflict-Free Gold Report that the company has the appropriate systems and processes in place to satisfy the requirements of the Standard’.⁹² Therefore, even if corporations and auditors would disclose detailed descriptions of their risk-based due diligence performance and audit evaluations, it is questionable whether this would generate a degree of transparency that would help external stakeholders make sense of the ethical quality of mineral supply chains and hold corporations accountable. Due diligence transparency is organised around the demands of the audit, which means that companies should disclose information on their routines, systems, and procedures of internal corporate governance, rather than information on the substantive effects of their operations on human rights and conflict. While researchers have criticised the ‘tick box’ quality of company reports, such quality has been found to be inherent to audit-based compliance, which revolves around the measuring and checking of processes.⁹³ In this context, it has also been argued that the prevalence of auditing procedures contributes to shallow and self-legitimating due diligence, due to the focus on the symptoms rather than the root causes of adverse human rights impacts.⁹⁴

In the minerals regime, disclosure of risk mitigation is not about disclosure of substantive actions or even about substantive risk, but about management procedures that govern risk. While stakeholders arguably need to know to what extent mining operations have negative impacts, for instance whether they facilitate forced labour, they receive (limited) information on the procedures that control the risk that such impacts may occur. ‘Risk-based’ due diligence, thus, implicates a process of discursive abstraction, in which potential negative impacts of minerals extraction are framed in the vocabulary of the risk management process: ‘internal control systems’, ‘commodity risk assessments’, ‘qualitative and/or quantitative indicators to measure improvement’, ‘measurable risk mitigation’, ‘measurable improvement plans’, ‘chains of custody’, and ‘conformity against assurance standards’. Through this process of abstraction, the complex reality of mineral supply chains and (potential) acts of abuse and violence are made subject to measuring, auditing, and rational corporate decision-making.⁹⁵

Therefore, reports can be understood as superficial not simply because of inadequate corporate efforts to comply in a meaningful way, but because of the abstract quality of discourses of risk management and internal control, which arguably ‘reduce complexity to the point of rejecting reality’.⁹⁶ The question of whether due diligence is conducted is evaluated based on disclosures that show that companies have risk management systems in place, but it is disconnected from human rights impact and the effects of sourcing decisions in areas from which minerals are sourced.⁹⁷ Audited due diligence reports tell the public little about the ‘ethical’ and ‘conflict-free’ quality of supply chains beyond corporations’ ability to install internal control systems in accordance with due diligence expectations. This suggests that, in relation to external stakeholders, the transparency of mineral supply chains is an ‘optical impression’ rather than a reality.⁹⁸

5. Due diligence transparency as rule ‘through’ law and its implications

In order to better understand the limited capacity of risk-centred techniques of transparency to fulfil external normative objectives associated with public accountability and the rule ‘of’ law, this section recasts such techniques as rule ‘through’ law.⁹⁹ Rule ‘through’ law is used in juxtaposition to rule ‘of’ law. It involves an understanding of law not as a body of rules and institutions that pose limits on the behaviour of powerful actors, but as a variety of practices and legal techniques through which power is exercised to intervene into relations between actors.¹⁰⁰ This re-conceptualisation helps to understand and problematise transparency as a legal technique that structures the interaction between the internal and the external through corporations’ internal control systems. Importantly, rule ‘through’ law emphasises the functioning of techniques of transparency in accordance with a ‘productive’ rather than a ‘coercive’ logic.¹⁰¹ Accordingly, reporting and auditing can be understood as legal techniques that do not limit corporate power through external pressure, but work through the inner world of corporate governance to shape corporate subjects that engage in ‘good faith efforts’ towards improved risk management.

As described in previous sections, disclosure norms operate through internal control systems to stimulate corporate practices aimed at identifying, addressing, and mitigating risks in supply chains.¹⁰² Corporations are not just the objects of techniques of rule through transparency, but also the main actors through which the objective of more transparent mineral supply chains is to be realised.¹⁰³ The effectiveness of the risk-based due diligence transparency regime relies principally on the creation of ‘a culture of continuous improvement within the organization and across value chains’.¹⁰⁴ The transparency regime aims to facilitate corporate learning processes towards more ‘responsible’ corporate decision-making.¹⁰⁵ The construction of this learning process relies on corporate introspection, self-observation, inter-organisational transparency, as well as the monitoring of upstream suppliers.¹⁰⁶ In this context, reporting may be understood as a practice and technique that enables continuous corporate self-assessment and self-improvement with reference to standards and societal expectations of due diligence.¹⁰⁷

To facilitate corporate learning processes towards more responsible management of supply chains, the concept of human rights due diligence presupposes ‘a dynamic, reflexive relationship between the internal (management and corporate processes and culture) and the external (stakeholder engagement with disclosures)’.¹⁰⁸ Public transparency should facilitate reflexivity, which is generally associated with the ability of citizens to participate in governance.¹⁰⁹ However, in the due diligence regime this reflexive internal-external relationship is mediated by the internal control system, which is the interface between the external world and the corporation.¹¹⁰ In view of the regulatory focus on the technicalities of risk management and internal control, auditing firms are positioned as the main sources of external feedback in corporate processes of ‘structured self-observation’.¹¹¹ Experts in auditing are produced as authoritative actors, as they have the resources needed to understand the technical, abstract, vocabulary of risk management and internal control, which is difficult to absorb and digest for non-experts.¹¹²

Although auditing ideally provides a degree of external accountability, norms and practices of reporting indicate that auditors are not employed to enable the public to hold corporations accountable, but to assist corporations in their learning processes towards improved risk management.¹¹³ In this regard, the CFGS stipulates that companies who find that they are in non-conformance should develop a Remedial Action Plan together with auditors, in which they explain how they intend to improve their internal control system, manage risks, and bring their operations in conformance.¹¹⁴ Corporations should only report non-conformance to the broader public if they find that such a plan is insufficient or insufficiently implemented.¹¹⁵ Moreover, the WGC advises assurance providers to clarify that assurance reports are prepared solely for the purpose to assist management in evaluating whether the corporation conforms to due diligence standards, and that they do not bear responsibility for their evaluations in relation to anyone other than the corporation.¹¹⁶

This suggests that risk-based due diligence transparency primarily serves to build a normative environment that facilitates corporate self-governance supported by auditors, while it is unclear to what extent it enables a reflexive public-corporate relationship, as the public is effectively positioned to play a passive role.¹¹⁷ In this regard, it should be highlighted that the stated objective of reporting under the Minerals Guidance is ‘to generate public confidence in the measures companies are taking’.¹¹⁸ This objective has little to do with the idea that transparency enables the public to put pressure on corporations. Instead, it implies that the public is constructed as a passive recipient of corporate disclosures, whose confidence in corporations’ capacity to manage risk needs to be strengthened. This confidence is generated with reference to audits, which assure the credibility and validity of corporate statements that ‘the appropriate systems and processes’ are in place to satisfy due diligence expectations.¹¹⁹ Hence, ‘confidence’ is not designed to rest on disclosures that convey information on actual corporate conduct and decision-making, but on professional expertise and the rationality of rules, procedures, and management systems.

Thus, the minerals due diligence regime creates a separation between corporations and the public, rather than the promised interaction. Risk-based due diligence is focused on the inner world of corporate governance to such a degree that the question can be raised to what extent the public is little more than a ‘mythical reference point’¹²⁰ in expert discourses. In these discourses, transparency operates not as a progressive ‘rule of law’ value that limits corporate power through public accountability, but as a problematic technique of rule ‘through’ law¹²¹, which shapes corporate power through inner corporate systems of governance, and which shapes ‘accountability’ as ‘auditability’. This is problematic, because corporate risk management systems as well as practices of auditing are inherently directed towards commercial interests, which may not coincide with societal interests.¹²²

6. Conclusion

Notwithstanding the rise of a global transparency regime that expects corporations to report publicly on due diligence performance, it continues to be challenging for external stakeholders to know whether patterns of mineral production and consumption contribute to conflict and human rights violations. This article has tied this to, firstly, the abstract discourse of risk management, and, secondly, the internal orientation of risk-based techniques of due diligence transparency, which serve the transformation of internal corporate control systems with the support of auditors rather than the provision of substantive information to stakeholders. It has argued that the regulatory focus on the inner world of corporate governance complicates the underlying strategy of due diligence transparency laws, namely that stakeholders become active agents in the governance of corporate conduct by holding corporations accountable for their human rights performance. A mismatch exists between, on the one hand, the stated audience of due diligence reports, ‘the public’, and, on the other hand, the design of due diligence guidelines in terms of the technical and abstract vocabulary of risk management and audits, which is directed towards a corporate audience. The analysis therefore invites legislators and policy-makers to re-consider how an interaction between corporations and external stakeholders could be formed that serves the objective of ethical supply chains. Arguably, to meaningfully engage external stakeholders would demand a shift in discourse and practice away from the measurement of internal corporate control systems by auditors, towards techniques that facilitate public scrutiny of the more substantive aspects of corporate respect for human rights.

Acknowledgements

I would like to express my sincerest gratitude to the two anonymous reviewers and Candida Leone for their comments on this article. Earlier versions of this article were presented at the conference ‘Talking law in the EU: clear language, rule of law and legitimacy in the European legal space’ (University of Amsterdam, 21–22 January 2021) and the Annual Netherlands Institute for Law and Governance PhD Roundtable Forum on ‘Technocratic Law and Governance’ (VU University Amsterdam, 30 November 2017). I am grateful to the organisers and participants of both conferences. Finally, I am indebted and deeply grateful to the comments of Nikolas Rajkovic and Nicola Jägers on the chapters of my PhD thesis that have inspired the writing of this article. Responsibility for this article remains with the author.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This can be linked to the broader expansion of due diligence obligations and expectations for states and corporations in various spheres of international law and global governance, see e.g. Olga Martin-Ortega, ‘Human Rights Due Diligence for Corporations: From Voluntary Standards to Hard Law at Last’ (2014) 31 Netherlands Quarterly of Human Rights 44; Holly Cullen, ‘The Irresistible Rise of Human Rights Due Diligence: Conflict Minerals and Beyond’ (2015) 48 George Washington International Law Review 743; Heike Krieger, Anne Peters and Leonhard Kreuzer (eds), Due Diligence in the International Legal Order (Oxford University Press 2020).

2 OECD, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (3rd edn, OECD Publishing 2016) [hereinafter: OECD Minerals Guidance].

3 See the brochure OECD, ‘A Global Standard: Towards Responsible Mineral Supply Chains’ MNEGuidelines.org (no date provided); also see the OECD webpage ‘An International Standard: OECD Due Diligence Guidance for Responsible Mineral Supply Chains’ at <http://mneguidelines.oecd.org/an-international-standard-oecd-due-diligence-guidance-for-responsible-mineral-supply-chains.htm> accessed 19 November 2021.

4 For an overview, see OECD, ‘Draft Overview of Audit Initiatives for Responsible Mineral Sourcing’ (May 2014).

5 See notably United States Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law No. 111–203 (21 July 2010) 124 Stat. 1376–2223, Section 1502; EU Regulation 2017/821 of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas [2017] OJ L130/1; UNSC Res 1952 (29 November 2010) UN Doc S/RES/1952, paras 8–9.

6 Also see Martin-Ortega (n 1) 74.

7 Ruggie describes the OECD as an intermediary that was engaged ‘to achieve greater normative and regulatory coherence, larger-scale effects, and more robust outcomes’ of the UNGPs regime, see John Gerard Ruggie, ‘Global Governance and “New Governance Theory”: Lessons from Business and Human Rights’ (2014) 20 Global Governance 5, 12.

8 See e.g. the campaign ‘Raise hope for Congo’ led by the Enough Project, an NGO based in Washington DC <https://enoughproject.org/about/past-campaigns/rhfc>.

9 Anne Peters, ‘Towards Transparency as a Global Norm’ in Andrea Bianchi and Anne Peters (eds), Transparency in International Law (Cambridge University Press 2013); also see Emmanuel Alloa, ‘Transparency: A Magic Concept of Modernity’ in Emmanuel Alloa and Dieter Thomä (eds), Transparency, Society and Subjectivity: Critical Perspectives (Palgrave MacMillan 2018) 28.

10 See Radu Mares, ‘Corporate Transparency Laws: A Hollow Victory?’ (2018) 36 Netherlands Quarterly of Human Rights 189, 190–91.

11 Alloa critically interrogates whether we find ourselves in a ‘New TransparentoCene’, see Alloa (n 9) 21–25.

12 Aarti Gupta, ‘Transparency Under Scrutiny: Information Disclosure in Global Environmental Governance’ (2008) 8 Global Environmental Politics 1, 2.

13 Ingrid Landau, ‘Human Rights Due Diligence and the Risk of Cosmetic Compliance’ (2019) 20 Melbourne Journal of International Law 221, 234–35, 246–47; also see Martin-Ortega (n 1) 68; Mares (n 10) 195–96, 213; David Hess, ‘The Transparency Trap: Non-Financial Disclosure and the Responsibility of Business to Respect Human Rights’ (2019) 56 American Business Law Journal 5, 27, 38–40, 53; Jolyon Ford and Justine Nolan, ‘Regulating Transparency on Human Rights and Modern Slavery in Corporate Supply Chains: The Discrepancy between Human Rights Due Diligence and the Social Audit’ (2020) 26 Australian Journal of Human Rights 27, 29.

14 See Mares (n 10) 196.

15 See Nikolas M Rajkovic, ‘“Global Law” and Governmentality: Reconceptualizing the “Rule of Law” as Rule “Through” Law’ (2010) 18 European Journal of International Relations 29, 32.

16 See Ruggie (n 7) 14.

17 Also see Michael Power, The Audit Society: Rituals of Verification (Oxford University Press 1997) 60.

18 See Larry Cata Backer, ‘Transparency and Business in International Law: Governance between Norm and Technique’ in Andrea Bianchi and Anne Peters (eds), Transparency in International Law (Cambridge University Press 2013) 478; Mares (n 10) 190.

19 As stated by Alloa and Thomä, ‘nothing is less clear than what exactly is meant when the word “transparency” is used’, see Emmanuel Alloa and Dieter Thomä, ‘Transparency: Thinking Through an Opaque Concept’ in Emmanuel Alloa and Dieter Thomä (eds), Transparency, Society and Subjectivity: Critical Perspectives (Palgrave MacMillan 2018) 2.

20 Peters (n 9) 534.

21 Mares (n 10) 190, 193. While the two are related, transparency in relation to corporate human rights accountability should be distinguished from public transparency as an element of democratic accountability of (public and private) actors who exercise decision-making power in global politics. In the latter context, transparency can be understood to refer to norms and techniques that help citizens to evaluate the performance of those who exercise public decision-making power, see e.g. Terry Macdonald and Kate Macdonald, ‘Non-Electoral Accountability in Global Politics: Strengthening Democratic Control within the Global Garment Industry’ (2006) 17 European Journal of International Law 89, 104–105.

22 Backer (n 18) 479.

23 Ibid 484.

24 Also see the UNGPs Reporting Framework webpage ‘Why reporting matters’ at <https://www.ungpreporting.org/about-us/why-reporting-matters/> accessed 19 November 2021.

25 See Backer (n 18) 478.

26 See ibid. Transparency could be viewed as an aspect of ‘surveillance’, which refers to a complex regulatory mechanism that effectuates law and governance across crumpling boundaries of public/private authority, formal/informal law, hard/soft law, and the national/international sphere, see Larry Cata Backer, ‘Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes’ (2008) 15 Indiana Journal of Global Legal Studies 101, 103–105, 110.

27 See Backer (n 26); also see Alloa (n 9) 24.

28 Gupta (n 12) 3.

29 It should be noted that the US is lenient in terms of the enforcement of sanctions for inadequate disclosure, see Nicola Dalla Via, ‘Determinants of Conflict Minerals Disclosure Under the Dodd–Frank Act’ (2018) 27 Business Strategy and the Environment 773, 774. The EU Conflict Minerals Regulation only requires mandatory disclosure from upstream companies, while downstream (European) companies are recommended to engage in voluntary reporting and certification, see Lena Partzsch, ‘The New EU Conflict Minerals Regulation: Normative Power in International Relations?’ (2018) 9 Global Policy 479, 485.

30 See Backer (n 26) 103.

31 See Backer (n 18) 478; Mares (n 10) 190.

32 Backer (n 18) 478.

33 See the famous statement that ‘sunlight is said to be the best of disinfectants’, Louis D Brandeis, ‘What Publicity Can Do’ Harper’s Weekly (12 December 1913) 10.

34 Mares (n 10) 201–202.

35 ‘Governmentality’ literature theorises government as an activity that is not just conducted by public authorities, but that also operates through ‘civil society’. See e.g. Nikolas Rose and Peter Miller, ‘Political Power beyond the State: Problematics of Government’ (1992) 43 The British Journal of Sociology 173; Jens Bartelson, ‘Making Sense of Global Civil Society’ (2006) 12 European Journal of International Relations 371; Ole Jacob Sending and Iver B Neumann, ‘Governance to Governmentality: Analyzing NGOs, States, and Power’ (2006) 50 International Studies Quarterly 651.

36 Mares (n 10) 190, 197.

37 See Mikkel Flyverbom, Lars Thøger Christensen and Hans Krause Hansen, ‘The Transparency–Power Nexus: Observational and Regularizing Control’ (2015) 29 Management Communication Quarterly 385, 392.

38 For a conceptualisation of ‘productive power’, see Michael Barnett and Raymond Duvall, ‘Power in International Politics’ (2005) 59 International Organization 39, 55–57; also see Flyverbom, Christensen and Hansen (n 37) 387, 403.

39 This idea aligns with the social constructivist emphasis on norm socialisation and internalisation, see e.g. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887; John Gerard Ruggie, ‘What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge’ (1998) 52 International Organization 855; Jutta Brunnée and Stephen J Toope, Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press 2010).

40 Beth Kytle and John Gerard Ruggie, ‘Corporate Social Responsibility as Risk Management: A Model for Multinationals’ [2005] Corporate Social Responsibility Initiative Working Paper No. 10, 11; also see Ruggie (n 7) 14.

41 OECD Minerals Guidance (n 2) 13. This characterisation derives from the UNGPs, see Human Rights Council, ‘Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ 21 March 2011 (UN Doc A/HRC/17/31) para 17(c).

42 While the emphasis on risk and its management has its origins in corporate fields such as insurance and engineering, discourses of risk have rapidly expanded, transformed, and renewed – penetrating other (private and public) organisations, including international organisations such as the OECD, see notably Michael Power, Organized Uncertainty: Designing a World of Risk Management (Oxford University Press 2007) 3; also see Ulrich Beck, Risk Society: Towards a New Modernity (SAGE Publications 1992); Mitchell Dean, Governmentality: Power and Rule in Modern Society (2nd edn, SAGE 2010) ch 9.

43 OECD Minerals Guidance (n 2) 13. See Jonathan Bonnitcha and Riobert McCorquodale, ‘The Concept of “Due Diligence” in the UN Guiding Principles on Business and Human Rights’ (2017) 28 European Journal of International Law 899, who identify the shift from ex post liability for corporate human rights violations towards processes for the prevention of adverse human rights effects as a key feature of corporate responsibility with the development of the UNGPs.

44 OECD Minerals Guidance (n 2) 17.

45 Ibid 13–14. Also see Kytle and Ruggie (n 40).

46 See OECD Minerals Guidance (n 2) 6.

47 See ibid 13.

48 Dean has referred to this as ‘reflexive government’, see Dean (n 42) 217–27.

49 See Power, Organized Uncertainty: Designing a World of Risk Management (n 42) 41.

50 See ibid 41–42.

51 Ibid 42.

52 Power explains that ‘the model of risk management is that of a thermostat which adjusts to changes in environment subject to pre-given target temperature’, see Michael Power, ‘The Risk Management of Nothing’ (2009) 34 Accounting, Organizations and Society 849, 849.

53 Also see the OECD’s interactive website that guides companies through the steps of the Five-Step Framework <https://www.duediligenceguidance.org/> accessed 19 November 2021.

54 OECD Minerals Guidance (n 2) 17.

55 See <https://www.duediligenceguidance.org/> (n 53) under ‘How does the five-step framework apply to you?’.

56 See ibid under ‘Higher risks’.

57 See OECD Minerals Guidance (n 2) 18.

58 Senior management should decide to (1) continue trade during risk mitigation efforts; (2) temporarily suspend trade while pursuing risk mitigation; or (3) disengage from a supplier if risk mitigation fails or is not feasible, see ibid.

59 Ibid.

60 See <https://www.duediligenceguidance.org/> (n 53) under ‘The OECD’s five-step framework’.

61 Also see John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (W W Norton Company 2013) 125.

62 OECD Minerals Guidance (n 2) 19.

63 On the ‘audit explosion’, see Power, The Audit Society: Rituals of Verification (n 17); Michael Power, ‘Evaluating the Audit Explosion’ (2003) 25 Law & Policy 185.

64 Power, The Audit Society: Rituals of Verification (n 17) 82.

65 OECD Minerals Guidance (n 2) 106.

66 Ibid 47, 106–109.

67 Ibid 109. Prominent examples include the Responsible Minerals Initiative, the Responsible Jewellery Council’s Chain of Custody Certification, the Fairtrade Gold and Precious Metals Standards, the Dubai Multi-Commodities Center’s Responsible Sourcing of Precious Metals, the London Bullion Market Association’s Responsible Gold Program, the International Tin Association ITSCI Programme for Responsible Mineral Supply Chains, and the World Gold Council’s Conflict-Free Gold Standard. For an overview, see OECD, ‘Draft Overview of Audit Initiatives for Responsible Mineral Sourcing’ (May 2014). This can be linked to the emphasis on ‘polycentric governance’ in the UNGPs, see Ruggie (n 7) 9.

68 OECD Minerals Guidance (n 2) 19.

69 The Guidance mirrors the UNGPs, which were constructed based on a deliberate strategy to leverage multiple actors to fill governance gaps. See Ruggie (n 7).

70 Ford and Nolan (n 13) 30–31.

71 OECD Minerals Guidance (n 2) 9.

72 See OECD, ‘Report submitted to the OECD Council on the implementation of the Recommendation on Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas’ (28 April 2016) para 110. In Resolution 2219 (2015) on Cote d’Ivoire, the United Nations Security Council calls upon states to raise awareness of the OECD’s due diligence guidelines and ‘to urge importers, processing industries and consumers of Ivorian mineral products to exercise due diligence by applying the aforementioned guidelines’, see para 32.

73 See Sally Wheeler, ‘Global Production, CSR and Human Rights: The Courts of Public Opinion and the Social Licence to Operate’ (2015) 19 The International Journal of Human Rights 757.

74 See the World Gold Council webpage ‘The World Gold Council Conflict-Free Gold Standard®’ at <https://www.gold.org/about-gold/gold-supply/responsible-gold/conflict-free-gold-standard> accessed 19 November 2021.

75 This observation is based on an analysis of the following reports: Barrick Gold Corporation, ‘2015 Conflict-Free Gold Report’ (June 2016); Barrick Gold Corporation, ‘2016 Conflict-Free Gold Report’ (April 2017); Eldorado, ‘2013 Conflict-Free Gold Report’ (6 May 2014); Eldorado, ‘2014 Conflict-Free Gold Report’ (25 May 2015); Eldorado, ‘2015 Conflict-Free Gold Report’ (3 June 2016); Eldorado, ‘2016 Conflict-Free Gold Report’ (10 August 2017); Goldcorp, ‘Conflict-Free Gold Report 2013’ (15 May 2014); Goldcorp, ‘Conflict-Free Gold Report 2014’ (15 May 2015); Goldcorp, ‘Conflict-Free Gold Report 2015’ (4 May 2016); Goldcorp, ‘Conflict-Free Gold Report 2016’ (28 April 2017); Goldcorp, ‘Conflict-Free Gold Report 2018’ (6 March 2019)’; Kinross Gold Corporation, ‘Conflict-Free Gold Report’ (30 April 2014); Kinross Gold Corporation, ‘Conflict-Free Gold Report’ (31 March 2015); Kinross Gold Corporation, ‘Conflict-Free Gold Report’ (31 May 2017); Kinross Gold Corporation, ‘Conflict-Free Gold Report’ (9 June 2016); Newmont Mining Corporation, ‘2013 Conflict-Free Gold Report’ (29 April 2014); Newmont Mining Corporation,‘2014 Conflict-Free Gold Report’ (27 April 2015); Newmont Mining Corporation, ‘2015 Conflict-Free Gold Report’ (28 June 2016); Newmont Mining Corporation, ‘2016 Conflict-Free Gold Report’ (28 April 2017).

76 Conformance is a term used in accounting discourse to indicate that certain dimensions of corporate governance are in compliance with specific standards and that this is subject to assurance. See Alnoor Bhimani and Kazbi Soonawalla, ‘From Conformance to Performance: The Corporate Responsibilities Continuum’ (2005) 24 Journal of Accounting and Public Policy 165.

77 See e.g. Goldcorp, ‘Conflict-Free Gold Report 2018’ (6 March 2019) 3.

78 Ibid.

79 Ibid 4.

80 See ibid; WGC, Conflict-Free Gold Standard (WGC 2012) [hereinafter: CFGS] 4.

81 Ibid.

82 Ibid.

83 See OECD, Alignment Assessment of Industry Programmes with the OECD Minerals Guidance (OECD 2018) 11.

84 For an overview of studies, see Mares (n 10) 196–201.

85 Jeff Schwartz, ‘The Conflict Minerals Experiment’ (2016) 6 Harvard Business Law Review 129, 166. Also see Responsible Sourcing Network, ‘Mining the Disclosures 2019. An Investor Guide to Conflict Minerals and Cobalt Reporting in Year Six (2019) 3; Global Witness, ‘Digging for Disclosure: A review of publicly-available supply chain due diligence information by Chinese metals processing companies’ (March 2021) 5.

86 Schwartz (n 85) 164; Hess (n 13) 26–27, 53.

87 Schwartz (n 85) 132, 165.

88 This observation is based on an analysis of the audit statements provided in the reports mentioned under footnote 75.

89 See WGC, Conflict-Free Gold Standard Guidance for Assurance Providers (WGC 2012) 12.

90 Ibid; CFGS (n 80) 4.

91 Also see Power, The Audit Society: Rituals of Verification (n 17) 13, 127–28; Ford and Nolan (n 13) 11.

92 WGC, Conflict-Free Gold Standard Guidance for Assurance Providers (n 89) 4.

93 Power, ‘The Risk Management of Nothing’ (n 52) 852.

94 Ford and Nolan (n 13) 28–29, 34–35; Radu Mares, ‘Human Rights Due Diligence and the Root Causes of Harm in Business Operations: A Textual and Contextual Analysis of the Guiding Principles on Business and Human Rights’ (2018) 10 Northeastern University Law Review 1.

95 See Power, Organized Uncertainty: Designing a World of Risk Management (n 42) 13–14; also see Sally Engle Merry, ‘Measuring the World: Indicators, Human Rights and Global Governance’ (2011) 41 Current Anthropology 1.

96 Caspar Hirschi, ‘Regulation and Transparency as Rituals of Distrust: Reading Niklas Luhmann Against the Grain’ in Emmanuel Alloa and Dieter Thomä (eds), Transparency, Society and Subjectivity: Critical Perspectives (Palgrave MacMillan 2018) 240.

97 Also see Landau (n 13) 237.

98 Alloa argues that this is inherent to the principle of transparency, which ‘permanently wavers between a state and a future requirement, an optical impression and a metaphorical promise’, see Alloa (n 9) 25.

99 The concept of ‘rule through law’ was coined by Rajkovic (n 15).

100 See ibid 31–34.

101 This understanding of law as a ‘productive’ force draws on Foucauldian perspectives of law as ‘normative’, see e.g. François Ewald, ‘Norms, Discipline, and the Law’ (1990) 30 Representations 138; Hugh Baxter, ‘Bringing Foucault into Law and Law into Foucault’ (1996) 48 Stanford Law Review 449; Victor Tadros, ‘Between Governance and Discipline: The Law and Michel Foucault’ (1998) 18 Oxford Journal of Legal Studies 75; Rajkovic (n 15); Jacopo Martire, A Foucauldian Interpretation of Modern Law: From Sovereignty to Normalisation and Beyond (Edinburgh University Press 2019). As stated by Foucault: ‘We must cease once and for all to describe the effects of power in negative terms: it “excludes”, it “represses”, it “censors”, it “abstracts”, it “masks”, it “conceals”. In fact, power produces; it produces reality; it produces domains of objects and rituals of truth’, see Michel Foucault, Discipline and Punish: The Birth of the Prison (2nd edn, Vintage Books 1995).

102 Also see Ford and Nolan (n 13) 30.

103 Backer (n 26) 103, 111.

104 See Alexis Bateman and Leonardo Bonanni, ‘What Supply Chain Transparency Really Means’ Harvard Business Review (20 August 2019). The OECD describes due diligence as ‘an ongoing process of gradual improvements’, see <https://www.duediligenceguidance.org/> (n 53) under ‘Adopt a progressive approach’.

105 The stated purpose of the Minerals Guidance is ‘to help companies respect human rights and avoid contributing to conflict through their sourcing decisions, including the choice of their suppliers’, see OECD Minerals Guidance (n 2) 12. Also see ibid 47, describing contributions to ‘the improvement of smelter/refiner and upstream due diligence practices’ as the objective of third-party auditing.

106 See Power, The Audit Society: Rituals of Verification (n 17) 54; also see Backer (n 26) 112.

107 See Flyverbom, Christensen and Hansen (n 37) 401.

108 Ford and Nolan (n 13) 30–31.

109 Peters (n 9) 565.

110 See Power, Organized Uncertainty: Designing a World of Risk Management (n 42) 41–42.

111 Power, The Audit Society: Rituals of Verification (n 17) 83–84.

112 As also argued by Peters, ‘transparency does not empower all stakeholders to an equal extent’, see Peters (n 9) 555.

113 OECD Minerals Guidance (n 2) 49. Auditors are encouraged to go beyond mere ‘documentation checks’ by ‘robustly challenging companies’ management practices and due diligence decision-making’, see OECD, Alignment Assessment of Industry Programmes with the OECD Minerals Guidance (n 83) 11.

114 CFGS (n 80) 7.

115 Ibid.

116 See WGC, Conflict-Free Gold Standard Guidance for Assurance Providers (n 89) 24.

117 As envisioned by the broader human rights due diligence framework, see e.g. Wheeler (n 73).

118 OECD Minerals Guidance (n 2) 52.

119 CFGS (n 80) 5.

120 Power, The Audit Society: Rituals of Verification (n 17) 127.

121 See Rajkovic (n 15).

122 Landau (n 13) 238.