Tuesday, July 16, 2019

Kelvin Kwok and Ernest Lim on Optimal Deterrence, the Illegality Defence, and Corporate Attribution (EBOR)

Kelvin Kwok and Ernest Lim
European Business Organization Law Review
First Online: 7 May 2019
Abstract: Companies are often penalised for violating regulatory requirements of various kinds, including those under competition law. Some of the relevant statutes only impose liability on the company, but not its directors or employees, whose wrongdoing must nonetheless be attributed to the company to render it liable. Where a company infringes competition law or another regulatory statute and seeks to recover the penalty by suing its delinquent insiders for breach of duties, should courts allow or prevent the company’s recovery? This article examines this complex issue — which straddles competition/regulatory law, company law, agency law, and private law (in particular the illegality defence) — from a theoretical perspective, and makes two key contributions. First, it advances a refined concept of optimal deterrence, and argues that courts should not deprive the company of its well-established right to sue under company and agency law by interpreting the deterrence policy under competition law or another regulatory statute in light of this concept and recognising the limits of judicial law-making. Second, this article demonstrates for the first time how courts should analyse private law claims arising from corporate regulatory infringements under the ‘range of factors’ approach to the illegality defence, using competition law infringements as an illustration. Under our proposal, courts need not proceed to the stage of balancing competing and incommensurable factors to arrive at the conclusion that companies should not be precluded by the illegality defence from recovering against their delinquent insiders.

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