Corporate illegal conduct and directors’ liability: an approach to personal accountability for violations of corporate legal compliance

Nietsch, Michael

doi:10.1080/14735970.2017.1365460

Cited by 7 publications

(6 citation statements)

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“…By extension, it discusses how far the actions of individuals can be attributed to corporations. As Gobert and Punch (2003: 26) assert, individuals should not be made scapegoats for corporate failures, but neither should corporations become scapegoats for an individual's derelictions -albeit this point of culpability is more complex when such individuals are decision-makers such as directors (Nietsch 2017).…”

Section: Framing Corporate Crime and Harmmentioning

confidence: 99%

Labour exploitation as corporate crime and harm: outsourcing responsibility in food production and cleaning services supply chains

Davies

Ollus

2019

Crime Law Soc Change

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The exploitation of workers can be understood on a spectrum of 'less severe' to 'severe' acts or omissions, where less severe exploitation can create conditions for severe exploitation to develop. Exploitation is not an isolated phenomenon perpetrated solely by 'criminals', but is closely related to developments in the economy, labour markets and society at large. Exploitation is enabled through otherwise legitimate business practices that disadvantageously affect vulnerable workers in product and labour supply chains. In this article, labour exploitation-and ultimately human trafficking-is framed as a form of corporate crime due to the significant role that businesses and supply chains have in facilitating exploitation. This corporate crime lens therefore argues that labour exploitation is driven by common market factors and business processes, which are closely associated with inadequate regulatory oversight of exploitation in local supply chains. The article draws on qualitative, semi-structured interviews conducted with workers and supply chain stakeholders in the UK agri-food industry, as well as the Finnish cleaning industry. Through thematic analysis, the dynamics of industry, labour subcontracting, and a lack of regulatory oversight are discussed, which are framed as key factors that enable exploitation to occur. Ultimately the corporate crime lens emphasises the economic, political and societal context in which exploitation takes place, and by doing so, uncovers the structural nature of such crimes.

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Section: Framing Corporate Crime and Harmmentioning

confidence: 99%

Labour exploitation as corporate crime and harm: outsourcing responsibility in food production and cleaning services supply chains

Davies

Ollus

2019

Crime Law Soc Change

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“…In recent years, there has been increased interest in the influence of technology on compliance (Barboza et al, 2014). There has also been the investigation of compliance within economic contexts, with a particular focus on corporations and their violations of applicable law (Nietsch, 2018;Salguero-Caparrós, Pardo-Ferreira, Martínez-Rojas, & Rubio-Romero, 2020;Zinner, 2014); it has been argued that companies tend to have difficulty avoiding noncompliance and violation as legal obligations are deemed detrimental to companies' survivability (Salguero-Caparrós et al, 2020). In Indonesia, studies of compliance have often dealt with traffic, as well as the widespread violation of traffic laws (Agus, et al, 2016;Safitri & Rahman, 2013).…”

Section: Compliance With Lawmentioning

confidence: 99%

Violations of Islamic Law in Male–Female Relations: The Shifting of Nyubuk Tradition of the Customary Peoples of Lampung

Nurjanah

Qudsy

et al. 2022

Acad. J. Interdiscip. Stud.

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Advances in media and communication technology have wrought significant shifts in the nyubuk tradition of the customary peoples of Lampung Pepadun. Male–female relations, once clearly regulated by customary doctrine through nyubuk, are now mediated by social media technology that facilitates the violation of customary and Islamic laws. This article examines how nyubuk, a cultural medium for communication that has traditionally been used in spouse selection, has shifted as social media has become widely available. More specifically, it seeks to understand how the nyubuk tradition has come to disappear without any significant resistance. In doing so, it applies a qualitative descriptive approach, with data having been collected through interviews. This study finds that despite generations of practice, shifting social and cultural practices have threatened nyubuk with extinction, and the practice has increasingly been replaced by social media. As a result, behaviors that violate social and religious norms have become increasingly common in society. Male–female relations, traditionally regulated under Islamic norms through nyubuk, have become increasingly open as cultural spaces have been replaced by social media. This has facilitated transgressions and other violations of Islamic law by young men and women. Obeisance of religious law depends significantly on local cultural authorities, and where these authorities are ignored, once dominant laws and practices may become extinct. Received: 28 September 2021 / Accepted: 16 November 2021 / Published: 3 January 2022

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“…Another important development in the expansion of duties of director’s occurred in In re Caremark International Inc. Derivative Litigation (1996) which imposed an additional element “duty to oversight” in “duty to care.” The Caremark doctrine was retained in the Marchand v. Barnhill (2019) and held that, directors owe the fiduciary duty of loyalty and breached duty by not making “a good faith effort to oversee the company’s operations.” Moreover, the Caremark set, for a board’s oversight obligation, only a “sustained or systematic failure of the board to exercise oversight—such as an utter failure to attempt to assure a reasonable information and reporting system exists—will establish the lack of good faith that is a necessary condition to [personal] liability [of directors].” Hence, the duty of oversight is attached to “attempt in good faith to assure that a corporate information and reporting system which board concludes is adequate and exists.” Accordingly, failure to do so would render a director liable for damages done due to noncompliance (Nietsch, 2018).…”

Section: Liability Analysis For Anti-money Laundering Violationsmentioning

confidence: 99%

“…Hence, the duty of oversight is attached to "attempt in good faith to assure that a corporate information and reporting system which board concludes is adequate and exists." Accordingly, failure to do so would render a director liable for damages done due to noncompliance (Nietsch, 2018).…”

Section: Liability Drift From Corporate To Individualsmentioning

confidence: 99%

“…The rationale for punishing corporate officers has recently developed in the USA and elsewhere (Cohen, 2019). This is in the background of a growing discourse on the increased possibility of “director liability” for faulty corporate cultures (Hill, 2018), and among such other studies the work of (Moore, 2017; Nietsch, 2018; Restrepo, 2019) on “oversight liability doctrine” in general corporate setting are important. This article instead argues whether the system of holding corporations such as FIs responsible for AML statutory and regulatory noncompliance should be altered by imposition of individual liability, as the former brings injury to shareholders in payment of penalties out of the dividend whereas, are affected by the decision of directors therefore, whether the same liability imputed to the directors and officers of a company when they fail to oversight or prevent the offence.…”

Section: Introductionmentioning

confidence: 99%

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Financial institutions and anti-money laundering violations: who is to bear the burden of liability?

Korejo

Rajamanickam

Said

2021

JMLC

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Purpose Money laundering (ML) is one of the greatest challenges, the global community faces today. Corporate entities such as financial institutions (FIs) are most susceptible to facilitate and launder money. The paper raises the following question: Who is to bear the burden of liability? Either a corporation or an individual, thus this paper examines liability issues in a corporate setting particularly financial institutions, which arise from regulatory noncompliance or failure to oversight in the context of ML. Design/methodology/approach The study is legal doctrinal mainly based on case laws, legislation and research articles. Findings Firstly, this study provides how the concept of liability in a corporate setting in UK and USA has drifted from its traditional “duty to care” standard to a new “duty to oversight” and “Responsible Corporate Officer” concepts resulting a shift in corporate to individual liability. Secondly, in the context of anti-ML violations in FIs, imposition of corporate or personal liability solely may not effectively deter ML and may create conflicts between management and shareholders. Practical implications The paper can be a source to explore the issue of ML liability for regulatory noncompliance based on UK, USA and Pakistan law. Originality/value This paper demonstrates that the imposition of either corporate or personal liability may create dilemma either for shareholders or management; however, a “combine or collective liability” approach carries potential to retard ML activities in FIs and balancing the harm-penalties incurred upon a corporation while addressing shareholders concerns.

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Corporate illegal conduct and directors’ liability: an approach to personal accountability for violations of corporate legal compliance

Cited by 7 publications

References 0 publications

Labour exploitation as corporate crime and harm: outsourcing responsibility in food production and cleaning services supply chains

Labour exploitation as corporate crime and harm: outsourcing responsibility in food production and cleaning services supply chains

Violations of Islamic Law in Male–Female Relations: The Shifting of Nyubuk Tradition of the Customary Peoples of Lampung

Financial institutions and anti-money laundering violations: who is to bear the burden of liability?

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