An International Answer to Capturing Corporate Criminality

Abstract

In the era of increased corporate globalisation, the lingering principles of directing mind and will have plagued South Africa, the United Kingdom, New Zealand, Luxembourg and the United States, amongst other neighbouring territories from manufacturing a realist model of corporate fault. The incorporation of absolute corporate liability in international governance documents has repeatedly fallen short of the expectations in the aftermath of Bhopal, Saveso and P & O European Ferries and other ecological disasters alike. It is of fundamental importance to combat transnational corporate activity from a world order perspective by establishing a legal regime which supports the philosophy that corruption becomes entrenched within the corporate culture, a culture that is indicative of corporate guilt.
This paper will travel through several jurisdictions, identifying models of corporate fault, to determine their practicality, viability and legitimacy in the regime of corporate criminal liability. The paramount issues anchoring each jurisdiction from evolution in the respective doctrine is the requirement to locate a high mens rea offence from a directing mind and will and impute this onto the corporate defendant. Due to delegation of managerial responsibilities, the supposed mens rea offence takes places at base level, a technique that has insulated multinational companies from criminal liability. In other jurisdictions, the paper reveals strained attempts to make a derivative fault based model work, which is unsuccessful. Disregarding the employees rank and status to some extent, a corporate body is seen to be held criminally liable where it has partially benefited as a result of its employees actions whether intended or not and whether initially prevented, preventable or not preventable.
This paper will continue to examine and evaluate the only available realist model of corporate fault in workable form, as codified into the Australian Criminal Code Act 1995. The ‘corporate culture’ doctrine remedies the fallacies of a derivative approach and is successful against strategies employed by a larger institution, making it a workable model for capturing corporate fault. The rules pertaining to the model will be closely critiqued and viewed in light of a series of cases before concluding that this approach is the first step in the courses of action required against the evolution of structurally complex corporate arrangements.