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Business and International Crimes

Business and International Crimes. Corporate Accountability. Celia Wells. Outline. Background issues Developing accountability for international crimes Catching corporations in the net Models of liability Organisational model Variants Summary and conclusion. Background. Corporations

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Business and International Crimes

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  1. Business and International Crimes Corporate Accountability Celia Wells

  2. Outline • Background issues • Developing accountability for international crimes • Catching corporations in the net • Models of liability • Organisational model • Variants • Summary and conclusion

  3. Background • Corporations • Large scale actors • Separate personality • Historical development • Medieval guilds • Towns, universities, merchants • Chartered companies • Modern business corporation

  4. Three key concepts • corporate personality • corporate responsibility • corporate culture.

  5. Developing accountability ICJ Corporate Complicity and Legal Accountability 2008 • ‘zone of legal risk’ • ‘developing web of jurisdictions’ • Complicity • Causation • Knowledge • Proximity

  6. Knowledge and Proximity • Knowledge • The company knows or should know that its conduct is likely to contribute to gross hr abuses • Proximity • Geographical, • economic and political • Intensity, duration and ‘texture’ of relationships

  7. ICJ continued • ‘…. a prudent company should be aware that the closer it is to the principal perpetrator…the more likely it is to have allegations of complicity, and the closer it will be to a zone of legal risk…’

  8. Catching corporations in the net Design Issues • Is liability generic or specific? • What is the relationship between the physical actor and the corporation? • On whose fault is corporate liability based? • What is the relationship between the prosecution of corporation and the/any individual?

  9. Models • Agency/vicarious [UK regulatory. US Fed. South Africa] • Identification/high managerial agent [UK non reg. US states. Canada. France?] • Corporate Culture [Australia C’th Criminal Code Act]

  10. Variants • (Senior) management failure [UK Corporate Manslaughter etc Act 2007] • Vicarious combined with due diligence [Austria; Canada for neglig offences] • Individual liability of corporate /supervisory personnel [France, Germany] • Failure to supervise combined with due diligence [E and W draft Bribery Bill 2009]

  11. Critique • Vicarious is too broad. • Identification is too narrow • Organisational • Undeveloped jurisprudence • Underemphasises individual liability

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