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This article argues that joint enterprise liability should be conceptualised under the doctrine of omissions as conceived in the recent case of Evans. As such, liability under joint enterprise is to be triggered when one is under a duty to rectify a dangerous situation and eventually fails to prevent a prohibited outcome from occurring. This analysis would overcome the two fundamental difficulties pervading the law on joint enterprise: (i) the overly harsh mens rea requirement as the law of joint enterprise currently stands, and (ii) the sheer arbitrariness of the fundamental difference rule. The authors suggest that in view of legislative inaction, the judiciary should take an active role to extend the reasoning in R v Evans so as to cover joint enterprise cases.

Ever mounting work-share requirement of our age, often requires benefiting from others' labour. The answer to the question of whether people, who hire individuals, can be held liable for the damages arising out of these individuals' acts, varies on the individuals' being 'dependent' or 'independent' contractor. This subject has been regulated in Turkish Code of Obligations in article 66 under the title of "the liability for vicarious agents" and in article 116 under the title of " the liability arising out of servants' acts". When a third person suffers damages, which arise out of the acts of an independent contractor, both articles can not apply. In many judicial systems, it is suggested to regulate of the subject under one single liability title through the removal of the widely criticized differentiation between independent contractor and dependent individual or to find different criteria for differentiating the two concepts., Günümüzde gittikçe gelişen işbölümü ihtiyacı, çoğu zaman başkalarının emeğinden yararlanmayı zorunlu kılmaktadır. İşlerinin görülmesinde başkalarını çalıştıranların, bu kişilerin fiilleri nedeniyle bir zarar doğduğunda sorumlu tutulup tutulmayacağı sorusunun cevabı ise, çalışanın "bağımlı" veya "bağımsız" olmasına göre değişmektedir. Türk Borçlar Kanununda konu, "adam çalıştıranın sorumluluğu" başlığı altında TBK m. 66'da ve "yardımcı kişilerin fiillerinden sorumluluk" başlığı altında TBK m. 116'da düzenlenmiştir. Bağımsız yüklenici tarafından gerçekleştirilen fiiller nedeniyle bir üçüncü kişi zarar gördüğünde ise, iki hüküm de uygulanamamaktadır. Pek çok hukuk sisteminde eleştirilen bağımsız yüklenici ve bağımlı çalışan arasındaki ayrımın ya tamamen ortadan kaldırılıp tek bir sorumluluk başlığı altında konunun düzenlenmesi ya da iki kavramın ayırt edilmesi için farklı kriterlerin bulunması önerilmektedir.

In February 2016, the UK Supreme Court fundamentally changed the criminal law principles of accessorial liability when it handed down its decision in R v Jogee. The Court abolished the head of liability known as 'joint criminal enterprise' (JCE) and replaced it with the ordinary principles of aiding and abetting, which it re-stated for this purpose. JCE features prominently in international criminal law (ICL) where it has an equally contentious status. The full implications of Jogee remain at present uncertain, underexplored and divisive. In this chapter, I evaluate the merits and demerits of joint enterprise by comparing JCE in English law and ICL. A cross-jurisdictional analysis of joint enterprise reveals more deeply the role the notion plays in the overall taxonomy of criminal responsibility. There are different concepts of joint enterprise with different theoretical groundings. By not recognising this, past debates of joint enterprise liability have failed to appreciate the concept’s merits alongside complicity liability.

This paper examines the law relative to innocence compensation and explores the liability of the State for the harms caused by its actors in the investigation and prosecution of crime. Particular regard is had to the tort liability of the State and its interplay with constitutional and human rights instruments that supplement that liability or stand as an alternative. Examination is also had to statutory and non-statutory schemes that allow for direct access to state resources by way of financial redress. The jurisdictions under study are the United Kingdom, Canada, USA, Australia and New Zealand. Having regard to all the avenues of recourse to compensation across the spectrum of common law jurisdictions it seems clear that the best way to provide relief to the wrongly convicted should be embodied within a statutory framework and pursued as a breach of a constitutional right. The theory of strict enterprise liability would permeate such a process. To protect the State with immunities and forestall recovery by way of various thresholds for those seeking innocence compensation egregiously re-victimizes the innocent victim of a criminal justice process gone wrong.

This paper explores the potential deterrence advantages of shifting to a comprehensive automaker enterprise liability regime. Under such a system, automakers would be responsible for the economic harms resulting from automobile accidents, irrespective of the type of vehicle (whether fully driverless vehicles, partially automated, or fully human-driven). The paper argues that such a regime would simplify the existing auto tort/compensation system by replacing all of automaker liability law (including auto product defect claims) and driver liability law (as well as existing auto no-fault regimes) with a single enterprise liability system under which all auto-accident victims could seek recovery. It could also have the following deterrence benefits: it would encourage automakers to design and manufacturer safer vehicles; it would incentivize automakers to provide better warnings and instructions with their vehicles; it would result in automobile prices that better reflect the actual costs of driving, leading to a more socially efficient level of auto production; it would induce automakers to coordinate with auto insurers to improve the efficiency of driver care and activity levels; and, finally, it would provide an implicit subsidy for the development and sale of driverless vehicles and automated driving technology generally, funded by an implicit enterprise liability "tax" on less safe vehicles.

Bibliografia: p. 48-51 As instituições financeiras de desenvolvimento, no mundo, estão mudando em direção à maior transparência, melhor governança e maior responsabilidade socioambiental. No centro dessas modificações está o relacionamento de cada uma dessas instituições com seu Estado no que se refere à autonomia operacional e financeira, tributação e distribuição de lucros e de dividendos. Apesar das especificidades de cada relacionamento, algumas combinações de autonomia operacional e financeira e de responsabilidade corporativa proporcionam melhores desempenhos e estabilidade institucional para conduzir seu mandato com uma visão de longo prazo. No Brasil, o BNDES acompanha esse movimento de renovação. Development finance institutions around the world are shifting towards greater transparency, better governance and greater social and environmental responsibility. At the center of these changes is the relationship of each of these institutions with their State (shareholder) in terms of operational and financial autonomy, taxation and distribution of profits and dividends. Despite the specificities of each relationship, some combinations of operational and financial autonomy and corporate responsibility provide these institutions with better performance and institutional stability to carry out its mandate with a long-term perspective. In Brazil, BNDES follows this renewal movement.

Gatekeeper liability – the framework under which actors such as law firms, investment banks and accountants face liability for the wrongs committed by their corporate clients – is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces well-recognized flaws: gatekeepers often depend financially on the clients whose conduct they monitor; to carry out their gatekeeping function, gatekeepers rely on individuals – often their employees – whose interests diverge from their own; and major transactions typically involve multiple gatekeepers, each with specific areas of expertise and information, which produces both gaps and overlaps in the gatekeeping net. In this paper, I assess a recently proposed strategy intended to address the core challenges that afflict gatekeeper liability. Proposed by Professor Stavros Gadinis and Mr. Colby Mangels in "Collaborative Gatekeepers," 73 Wash. & Lee L. Rev. 797 (2016), the strategy would require gatekeepers to report their suspicions of wrongdoing by their clients to regulators – a duty that is analogous to rules that have proven effective in anti-money laundering regulation. I assess the proposal’s likely effectiveness by, first, distinguishing it from conventional gatekeeping regimes. I argue in favor of the proposal but suggest that its success is likely to depend on the particular ways in which it interacts with conventional gatekeeper regimes – because the proposal would be overlaid on these existing regimes, rather than amending or replacing them. I also examine the basic difficulty in justifying any gatekeeper liability regime that stems from the need to establish its superiority over more direct forms of liability – namely, individual and enterprise liability – a task that hinges on the satisfaction of numerous complex conditions that cannot be established – easily, or at all (at least to the satisfaction of those inclined to oppose new liability regimes). Arguing that the Gadinis–Mangels proposal nevertheless holds strong promise, I suggest an extension designed to overcome defects associated with the fragmentation of the gatekeeping net that results from the presence of multiple gatekeepers in major business transactions.

À l’ère de la mondialisation, la responsabilité criminelle des entreprises transnationales est l’un des domaines du droit international les plus difficiles à appréhender. Un grand nombre de questions fondamentales relatives à l’efficacité du régime règlementaire et légal en place demeurent en litige, notamment en ce qui concerne la responsabilité des entreprises en matière de violations des droits de la personne constituant des crimes internationaux. Le présent article soutient que le processus de poursuite des entreprises transnationales pour des violations des droits de la personne à l’étranger doit être évalué de manière critique en tenant compte de questions juridictionnelles et juridiques actuelles. Dans un premier temps, l’article examine la difficulté d’attribuer la responsabilité criminelle aux entreprises transnationales en vertu des lois présentement en vigueur. Il considère également le défi que représente le contrôle des entreprises transnationales sous le régime règlementaire extraterritorial actuel. Par la suite, l’article évalue de façon critique l’efficacité du cadre juridique international actuel à régir les crimes corporatifs transnationaux causant des violations des droits de la personne. Enfin, dans la dernière section, l’article fait ressortir des moyens d’appréhender le problème, notamment en évaluant de manière critique la possibilité d’une harmonisation juridictionnelle en matière de crimes corporatifs transnationaux et de violations des droits de la personne. L’auteure mentionne également comment l’État de résidence peut régir les actions extraterritoriales de ses entreprises transnationales afin de combler la lacune de gouvernance laissée par l’incompétence juridictionnelle. En l’absence d’un régime juridique et d’un tribunal internationaux obligatoires pour régir les activités des entreprises transnationales, l’article fait valoir l’importance d’un cadre juridique intérieur qui permettrait de lever le voile juridictionnel et de poursuivre les multinationales pour des infractions et des crimes constituant des violations des droits de la personne.

This thesis considers the issue of when a tortious duty of care to prevent economic loss should be imposed on the company directors and employees who stand behind the complex structure of companies and contracts involved in the creation of a defective building. Set against the background of the leaky building crisis, and what are (it is argued) unfair litigation outcomes, the thesis traverses the emergence and development of the principles that underpin liability for negligence and negligent misstatement in respect of defective buildings. A review of the cases confirms that the concepts of control and general reliance are the basis of New Zealand law in this area. There follows a discussion of the difficult relationship between company law principles and negligence principles, and the role of assumption of responsibility in the law of negligence and negligent misstatement, including a discussion of developments in the leaky building litigation. The thesis advanced is that, in respect of the creation of defective buildings, the approach to the issue of whether to impose a duty of care on company directors and employees would benefit from placing significant weight on the factor of de facto control of the inputs that dictate the outcome of a building project, and on the lower level factor of a direct or indirect financial interest in the outcome of the project. It is argued that the approach to imposing a duty of care should be the same for directors and employees and in respect of statements and actions. In cases where the evidence establishes that the financial interest factor is not present, this should give rise to an inference that the company director or employee does not have control of the inputs that dictate the outcome of the project, so that no duty of care arises. This would enable a director or employee to exit litigation by way of an application for summary judgment ...

This article suggests that innovative provisions in Albanian company law provide a promising initial framework for the future construction of multinational corporations' accountability for environmental and human rights abuses. Such robust national provisions hold out hope for overcoming the limitations and inhibitions presented by extraterritoriality, while exceeding the promise of universal jurisdiction, to offer a relatively detailed ‘enterprise liability’ construct in national company law.

In the context of corporate groups, the legal principles of limited liability and corporate separation can lead to injustice in cases of harm to involuntary creditors by externalising risks that ought to be internalised by the enterprise as the better risk taker. The avoidance of responsibility can be achieved by interposing a separate legal entity between the victims and the ultimate controller of the group, be it a parent company or its controlling shareholders. The resulting lack of legal responsibility could be remedied in a number of ways ranging from adaptations of existing exceptions to the doctrine of limited liability to outright abolition of limited liability. Preference is given to a statutory principle of enterprise liability for the controlling entity. The implications of these doctrines are also discussed in relation to the choice of jurisdiction in which to bring a legal action. Copyright The Author 2010. Published by Oxford University Press on behalf of the Cambridge Political Economy Society. All rights reserved., Oxford University Press.