Corporate Attribution and the Directing Mind and Will
Law Quarterly Review, Vol. 127, pp. 239-259, 2011
23 Pages Posted: 20 Mar 2012
Date Written: 2011
A company is a legal person but it must act through natural persons, hence the need for rules governing the attribution to companies of the acts and states of mind of individuals. Meridian Global Funds Management Asia Ltd v. Securities Commission (1995), a Privy Council decision in which judgment was delivered by Lord Hoffmann, is generally understood to have established that contextualisation, rather than anthropomorphic inquiry into corporate personality, is the key to answering these questions. A connection has been made Lord Hoffmann’s reasoning in Meridian and Hart’s criticism of the metaphysical shadows that can obscure and complicate our understanding of corporate rights, obligations and liabilities. An echo of this view can be heard in remarks by Justice Sotomayor in Citizens United v. Federal Election Commission (2010) in which she noted the argument that the courts could have fallen into error by “[imbuing] a creature of state law with human characteristics.” In Meridian Lord Hoffmann did much to cast light into these shadows and to correct errors that can result from over-reliance on metaphysical concepts. However, sixteen years on, it is apparent that Meridian has not put an end to the habit of using metaphors that can appear to make corporate liabilities and rights turn on whether natural persons, who can be described as the “embodiment” of a company, are involved. Stone & Rolls Ltd v. Moore Stephens (2009), a recent House of Lords ruling on auditors’ civil liability, illustrates the point. In that case, considerable emphasis was placed on the status of the key individual as the “embodiment of … [the company] for all purposes.” That old, anthropomorphically tinged, ways of analysing corporate rights and liabilities persist suggests that the impact of Meridian may be more muted than some commentary has suggested. With the rights and liabilities that flow from corporate “personhood” now highly topical, this is a good time to take a fresh look at the decision in Meridian and its legacy thus far.
Keywords: corporate personhood, attribution, corporate crime, civil liability, illegality
JEL Classification: K22, K14, K42
Suggested Citation: Suggested Citation