corporate criminal liability liability of legal persons dr ... · indonesia office aim • examine...

Indonesia Office

Indonesia Office

Corporate Criminal Liability – Liability of

Legal Persons

Dr John Coyne

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Aim

• Examine the liability of legal persons with a specific

focus on the requirements of the United Nations

Convention Against Corruption.

• Provide you with a better understanding of the liability

of legal persons and its implications for the private

sector.

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Liability of Legal Person

• UNCAC (Art. 26);

• OECD Anti-Bribery Convention; and

• Council of Europe Convention on Corruption.

• Beyond this, liability of legal persons is

fundamental for all anti-foreign bribery responses.

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Liability of Legal Person

• Over recent years many countries have reformed their

anti-corruption legislative regimes to include:

– corporate criminal;

– Civil; and/or

– administrative liability among its provisions.

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Administrative Liability

• It can indicate punitive liability for administrative

offences; and/or

• administrative sanctions which can be applied in

addition to criminal punishment (such as debarment

from public procurement).

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Punitive Liability

• ‘crimes’ are considered to be attacks against the

fundamental values of society; and

• ‘administrative offences’ are morally more neutral as

they are seen as acts that contravene laws and

governmental regulations.

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Corporate Criminal Liability

• vicarious liability in the United States; and

• identification theory in the United Kingdom.

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Corporate Punitive Liability

• Criminal liability;

• Quasi-criminal liability;

• Administrative punitive liability for criminal offences;

and

• Administrative punitive liability for administrative

offences.

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UK Liability of Legal Persons Provisions

• In the UK, a company is liable if a person ‘associated

with it’ commits an act of bribery whether domestic or

foreign bribery.

• This is a strict liability offence for failure of a

commercial organisation to prevent bribery.

• UK Bribery Act 2010 (UK Bribery Act) (s 7 offence)

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US Liability of Legal Persons Provisions

• In the U.S., a company may be held liable for the

illegal activities of its agents if the company knew that

a violation would occur or was substantially likely to

occur.

• This concept of ‘knowing’ is akin to ‘wilful blindness’ or

‘deliberate ignorance’.

• US FCPA

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Case study on Liability of Legal Person

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What must companies think about? The

factors that courts and investigators will

look at.

• the corporation’s history of similar conduct;

• the corporation’s timely and voluntary disclosure of

wrongdoing and cooperation in investigations; and

• the existence of compliance programs.

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Conclusion

Thank You