Abstract

The U.S. model of corporate criminal enforcement relies on the threat of very broad corporate criminal liability, with severe sanctions, tempered by negotiated settlements in which corporations are rewarded with lower penalties and avoidance of formal conviction, in exchange for corporate efforts to prevent crime (compliance) and assist prosecutors in detecting and prosecuting offenses (self-reporting and cooperation).  In modified forms, this model has been attracting followers and producing lively discussions about reforming corporate criminal enforcement in European, Asian, and other jurisdictions.  These conversations have as yet missed an essential component of the U.S.-style enforcement system:  the manner in which legal regimes governing testimony, documents, data, and attorney conduct (what we call the “background law” of corporate criminal liability) determine the relative abilities of firms and governments to collect evidence of corporate wrongdoing, and thus relative positions at the bargaining table in settlement.  These background legal regimes differ dramatically across jurisdictions and will greatly affect the extent to which adopting U.S.-style rules on corporate criminal liability and settlement will produce increased enforcement and sanctions for corporate crime.  We explain the problem and suggest how other jurisdictions might shape enforcement rules and practices to account for the effects of differences in their background laws of corporate criminal liability.

Invited by Tina Søreide