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Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses

Brooklyn Journal of International Law, Vol. 33, No. 3, p. 899, 2008

Monash University Faculty of Law Legal Studies Research Paper No. 2009-05

35 Pages Posted: 19 Oct 2009  

Jonathan Clough

Monash University - Faculty of Law

Date Written: October 20, 2009

Abstract

The nature of corporate involvement in human rights abuses, coupled with the difficulty of securing prosecutions in the host jurisdiction, has focused attention on the potential liability of the parent corporation under the domestic laws of the home jurisdiction. Focusing on the common law jurisdictions of Australia, Canada, the United Kingdom, and the United States, this Article analyzes the application of domestic principles of complicity to extraterritorial conduct by corporations. In the context of MNCs, liability for the failure resides with the parent itself, rather than in the complex web of its subsidiaries. For example, the International Criminal Court Act of 2001 (U.K.) imposes liability for genocide, crimes against humanity, and war crimes, and applies extraterritorially to acts committed outside the jurisdiction by U.K. nationals or residents. Anvil NL became a wholly owned subsidiary of Anvil Mining Ltd., and its shares of Anvil NL were delisted from the Australian and Berlin Stock Exchanges. Prior to 1998, it appears that FCPA prosecutions primarily involved U.S. corporations operating directly in foreign countries. Such liability is justified not only because of the difficulty of pursuing offenders in the host jurisdiction, but because of the culpability of the parent corporation itself.

Keywords: Human Rights Abuses, Corporate Criminal Liability, Prosecution of Corporations, Company Liability

JEL Classification: K00, K13, K19, K3, K33, K39, K4, K42, K49

Suggested Citation

Clough, Jonathan, Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses (October 20, 2009). Brooklyn Journal of International Law, Vol. 33, No. 3, p. 899, 2008; Monash University Faculty of Law Legal Studies Research Paper No. 2009-05. Available at SSRN: https://ssrn.com/abstract=1491306

Jonathan Clough (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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