James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, has published an article entitled The turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute in the New York University Journal of International Law and Politics. The full article is available here.
Abstract: In November 2013, Swiss authorities announced a criminal investigation into one of the worlds largest gold refineries, on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the aegis of the Alien Tort Statute (ATS). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Courts position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. After that, the American fiction that corporations are people for the purposes of criminal law took hold, 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. Switzerland is one such case. Continue reading