Addressing conflict of laws and facilitating Digital Product Passports for critical raw materials value chains: From centralisation to mutual recognition

Abstract

The value chains for critical raw materials (CRM) used in electric vehicle (EV) batteries often involve mining in the Global South, Australia and Canada, production in Asia, and consumption in the Global North. Starting in 2027, EU law will require a ‘digital product passport’ (DPP) for market entry. These passports will provide EU consumers, investors, regulators and others with products and sustainability data throughout the entire value chain. The EU DPP aims to improve ESG (Environmental, Social and Governance) compliance by ensuring high transparency and verifiable data from miners, producers and recyclers. However, legal, geopolitical, commercial and technological factors suggest that major economies in the up-and mid-stream of the value chains, such as Australia, China and Japan, may maintain or develop their own traceability laws, which might only partially overlap with the EU's system. These laws could potentially be linked through mutual recognition agreements with the EU. Our paper explores how such a system could function, with varying degrees of decentralisation, inspired partly by private international law mechanisms that have evolved to handle cross-border traceability of documents. Examples include systems for recognising marriage and other personal or commercial certificates, arbitral awards and foreign judgments.