James G. Stewart (University of British Columbia (UBC), Faculty of Law) has posted The Competitive Advantage of Corporate Criminal Responsibility for International Crimes: Atrocity, Commerce, and Accountability after Kiobel on SSRN. Here is the abstract:
In 1909, the U.S. Supreme Court approved of the conceptually bizarre practice of prosecuting companies. Unlike the Court’s position in Kiobel over a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned about impunity. For the U.S. Supreme Court, doing without this curious phenomenon would create a significant and morally repugnant regulatory gap. After that, the quintessentially American fiction that corporations are people for the purposes of criminal law caught on, such that the concept is now relatively ubiquitous globally — even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability, again out of a concern to avoid impunity. In this paper, I argue that human rights advocates should redirect their energies away from the ATS towards this earlier doctrinal development, especially its potential coupling with international crimes in national systems. As I show, this approach promises to move this field beyond the highly polarized debates about the scope of complicity within ATS litigation that never accurately captured the true meaning of accomplice liability, and bypasses the cumbersome debate about corporate responsibility for international crimes as a matter of international law, which will not arise in criminal trials. Finally, trading the private right to sue within the ATS for prosecutorial discretion in a criminal context is certainly a loss, but it also comes with a series of upsides we should celebrate. As things turn out, corporate criminal liability always had certain competitive advantages over the ATS, which we are now forced to explore with greater vigor if we are to call guilty corporations to account.