Accountability in the Global Business Environment
Chapter 5: Corporate Criminal Liability for Extra-territorial Harms
A. INTRODUCTION: THE EXERCISE OF CRIMINAL JURISDICTION As long ago as 1927, the Permanent Court of International Justice (PCIJ)1 considered the question of whether the exercise of criminal jurisdiction by a state should be governed by different principles to those governing the exercise of civil jurisdiction. The court began by noting that the application of different rules to the exercise of criminal jurisdiction ‘might be the outcome of the close connection which for a long time existed between the conception of supreme criminal jurisdictions and that of a State and also by the especial importance of criminal jurisdiction from the point of view of the individual’. The court concluded that: Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all of these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State.2 Since the Second World War, globalization has seen an expansion of the willingness of states to enact and implement extra-territorial criminal legislation with extra-territorial effect, and to make such legislation applicable to legal persons as well as natural persons. Thus, in 2006 a comprehensive survey of national legislation in 16 countries from a variety of legal traditions (the Fafo Institute Survey) found not only that most countries permit legal persons to be prosecuted for criminal offences, but...
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