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U.K. Law Commission Rejects U.S. Respondeat Superior Standard For Corporate Criminal Liability


If corporate criminal liability is an area of interest, you may want to check out this paper titled “Corporate Criminal Liability: An Options Paper” recently released by the United Kingdom Law Commission. The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed.

In the paper, the Law Commission considers different options to the U.K. current corporate criminal liability standard (the so-called identification doctrine) including the Australian model, the Canadian model, and the U.S. model of respondeat superior.

Of note, the Law Commission rejects the U.S. respondeat superior standard for corporate criminal liability.

In terms of the origins of the Law Commission’s review, the paper states:

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The Significant Differences Among OECD Convention Countries On Legal Person Criminal Liability

Apples to Oranges

Fact # 8 in “Ten Seldom Discussed FCPA Facts That You Need to Know” concerns how it is an apples to oranges comparison to compare Foreign Corrupt Practices Act enforcement to enforcement of similar foreign laws in the 41 other countries that are party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD Convention).

There are a couple reasons for this.

First, the U.S. is rare among OECD Convention countries in resolving alleged FCPA violations via non-prosecution agreements, deferred prosecution agreements, or administrative actions. The common thread in all three resolution vehicles is the absence or practical absence of any judicial scrutiny of FCPA enforcement theories. In contrast, in nearly every other OECD Convention country, law enforcement agencies must do something that may be considered old-fashioned by current U.S. standards and that is prove actual legal violations to someone other than itself. In doing so, these foreign law enforcement agencies have two choices (charge or do not charge) vs. the three choices in the U.S. (charge, do not charge, or use an alternative resolution vehicle).

Another reason, and the topic of this post, is the wide differences among OECD Convention countries when it comes to legal person liability for alleged bribery offenses. As demonstrated in this post, the U.S. appears to be unique among all other 41 OECD Convention countries when it comes to legal person criminal liability for alleged bribery offenses.

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Companies That Have Resolved FCPA Enforcement Actions Or Are Currently Under FCPA Scrutiny Are Helping To Change The World

change the world

In the minds of some, companies that have resolved Foreign Corrupt Practices Act enforcement actions or are currently under FCPA scrutiny are bad or unethical companies.

It is a tempting position to take. After all, the FCPA is about bribery and corruption.

However, it is a wrong position to take in many (but certainly not all) instances.

Certain members of the FCPA and anti-corruption space need to realize that many (but certainly not all) FCPA enforcement actions and/or instances of FCPA scrutiny are based on the conduct of just a few individuals in a business organization that employs thousands or tens of thousands of individuals and a business organization otherwise making good faith efforts to comply with the FCPA.

Previous posts here, here and here highlighted how companies that have resolved FCPA enforcement actions or were currently under FCPA scrutiny have always been well-represented on Ethisphere’s “World’s Most Ethical Companies” list. This post highlights how such companies have been well-represented on Fortune’s “Most Admired Companies” list.

This post highlights how such companies are well-represented on Fortune’s recent companies that are “Changing the World” list.

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