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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
