Corporate Criminal Liability in Comparative Law

Article excerpt

ABSTRACT.

My paper contributes to the literature by providing evidence on the discrepancies in corporate criminal liability, the development of intergovernmental regimes to secure compliance and enforcement of corporations with international norms, the possibility of holding corporations responsible under investment agreements, and adequate mechanisms for treating corporations as subjects of international law. This study is grounded in the considerable body of scholarship examining the scope of corporate criminal liability, the development of international corporate responsibility, international regimes that are of particular interest to corporate responsibility, the role of corporate actors in the commission of international crimes, and the role of corporations in the commission of international crimes in conflict zones.

Keywords: corporate criminal liability, responsibility, comparative law

1. Introduction

My analysis complements the growing literature on the concept of corporate criminal liability, the need for international regulation of corporate behavior, the liability and accountability of corporations for international crimes, and the prosecution of corporations for complicity in genocide. In this paper I am particularly interested in exploring the correlation between the development of corporate criminal liability and the growing influence of corporations, the increasingly important role that corporations play internationally, the blurring of the roles between states and corporations, and the ever-increasing economic and social influence that corporations have internationally.

2. The Correlation between the Development of Corporate Criminal Liability and the Growing Influence of Corporations

Slawotsky claims that states have outsourced public functions and services1 to private entities such as corporations, assuming the role of private actor by becoming active participants in private markets. Large global corporations are at the epicenter of multifaceted governance systems. Large corporations share similar characteristics with state actors on the global stage, whereas traditionally state actors are operating in the arena of private corporate actors. A consequence of globalization is the rise of the state-like role of the large corporation.

The above discussion indicates that large global corporations can be treated as actors similar to sovereigns. Ownership of large transnational enterprises constitutes authority. Slawotsky explains that in today's global economy, states are private market actors in the private realm, whereas private corporations engage in public actor functions.

Global corporations engage in misconduct that can cause severe harm in the nations those private entities operate in. Immunization from legal liability may play a role in the decision to conduct business in a foreign state. [...] To treat the large global corporation as not being subject to international law will potentially allow multinationals to engage in liability arbitrage. Such corporations can transfer litigation risk by selecting jurisdictions to engage in misconduct known for weak sovereign power.2

Kyriakakis examines the proposal for a non-criminal corporate liability regime under the ICC Statute. Many states do not delineate between natural persons and legal persons for the purpose of criminal law. The ICC Statute may have avoided the question of corporate liability for international crimes by limiting the Court's jurisdiction to natural persons, does not demand that states adopt criminal laws for the purpose of prosecuting perpetrators of international crimes, and envisages that states will primarily apply their criminal law to conduct proscribed by the Treaty.

In sum, there is considerable theoretical support for the notion that both criminal and non-criminal corporate liability3 may be sufficient to achieve the outcomes sought by international criminal justice. Kyriakakis argues that civil liability regimes are more efficient and effective in terms of deterring unlawful conduct in the corporate context than criminal regimes. …