West Virginia University College of Law professor Jena Martin recently published new work in the Indiana International & Comparative Law Review . The essay, titled "It's Complicated: The Challenge of Prosecuting TNCs for Criminal Activity Under International Law" appears in the symposium issue of volume 29 of the journal. In March 2019 Professor Martin spoke at the event: "The Fight Against Trans-Boundary International Crime - Approaches, Methods and Solutions" .
From the abstract:
This essay aims to tackle an increasingly thorny and relevant issue: what do you do if a Transnational Corporation (TNC) commits a crime? The question raises a number of challenges, both philosophically and practically. First, what does it mean to prosecute an organization? Although there are some limited examples (the United States’ prosecution of accounting firm Arthur Andersen being among the most note-worthy), we have relatively little precedence regarding what this would entail; how exactly do you put a corporation on trial? Second, practically speaking, where do you hold the trial? This challenge is magnified by the fact that, by definition, TNCs have separate legal personalities that are domiciled in numerous jurisdictions, raising challenges based on jurisdictional principles of extraterritoriality. In addition, as non-state actors under international law, TNCs have a very different legal role in issues that arise within the human rights and humanitarian law field (but often gives rise to the most brutal crimes). As such, this essay hopes to engage in a “thought exercise” that attempts to provide a comprehensive list of the challenges that could come from prosecuting a TNC. In addition, this essay will examine some solutions suggested by others (specifically, using the International Criminal Court as a venue to prosecute TNCs) and discuss the attendant pitfalls of doing so. Finally, the essay concludes that the successful prosecution of a TNC may amount to a Pyrrhic victory in that many stakeholders – including managers, shareholders and the larger community – could ultimately pay the price for its prosecution.