Corporate Criminal Liability for Corruption Offences and the Due Diligence Defence: A Comparison of the Dutch and English Legal Frameworks
DOI:
https://doi.org/10.18352/ulr.283Keywords:
corruption, due diligence, compliance, bribery, corporate criminal liabilityAbstract
This article addresses the question of to what extent companies can be held criminally liable for – active – bribery offences perpetrated by their employees. It focuses on the questions of to what extent companies have a duty of care to prevent bribery by employees and to what extent can a breach of such a duty of care cause criminal liability to ensue.
In this contribution, the authors set out to answer these questions by comparing the Dutch and the British legal systems. After assessing the international and national legal frameworks, they conclude that the Dutch anti-corruption provisions are, compared to the British, broadly formulated, including ambiguous terms and that – as a result of this – their scope is somewhat vague. Due diligence measures have a varying effect on determining the criminal liability of companies. In contrast, the due diligence question has a fixed, unequivocal place in the UK system of determining criminal liability, making the UK system seem more straightforward. But still, neither anti-corruption legislation nor case law provides clarity as to the scope of due diligence measures. To increase legal certainty, this article calls upon the Dutch Government to produce guidelines, similar to the British MoJ Guidance, that provide specific examples of the details of a compliance scheme.
Downloads
Published
Issue
Section
License
Copyright (c) 2014 The Author(s)
![Creative Commons License](http://i.creativecommons.org/l/by/4.0/88x31.png)
This work is licensed under a Creative Commons Attribution 4.0 International License.
Authors who publish with this journal agree to the following terms:- Authors retain copyright and grant Utrecht Law Review right of first publication with the work simultaneously licensed under a Creative Commons Attribution 4.0 License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in the Utrecht Law Review.
- Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in Utrecht Law Review.
- Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See The Effect of Open Access).
Once accepted for publication, the final version of the paper must be provided. A completed and signed copyright form, which will be sent by the Managing Editor, must accompany each paper. By signing the form the author states to accept the copyright notice of Utrecht Law Review. The copyright notice for authors is also included in the copyright acceptance form.