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CATCHING THE CORPORATE CONSCIENCE: A NEW MODEL OF "SYSTEMS INTENTIONALITY"

Lloyd's Maritime and Commercial Law Quarterly

CATCHING THE CORPORATE CONSCIENCE: A NEW MODEL OF "SYSTEMS INTENTIONALITY"

Elise Bant*

The law often includes state of mind elements as conditions for defendant liability for serious criminal and civil misconduct. As ongoing law reform inquiries in England and Wales, and Australia, demonstrate, this poses considerable challenges for the just and effective regulation of corporate actors. In that context, this article advocates for a new model of corporate responsibility, called "systems intentionality". This departs from the Identification Theory and other, individualistic attribution approaches by conceptualising the corporate state of mind as manifested in its systems, policies and practices. The article illustrates the model’s distinctive application to a range of topical scenarios.

I. INTRODUCTION

As Shakespeare’s Hamlet vividly illustrates, it is not possible to peer directly inside other people’s minds, to identify and prove what they knew and intended at some critical moment. Other tactics must be employed, often involving inference of mental states from conduct.1 While difficult, this inquiry is necessary and unavoidable in the law.2 Mental states underpin a wide range of core legal, equitable and statutory rules and doctrines, as well as remedial rules and defences. Of particular interest for the purposes of this article is the law’s enduring emphasis on finding a culpable state of mind on the part of defendants as a condition of attracting the stigma and severe consequences of liability for serious civil misconduct,3 such as deceit and unconscionable conduct, as well as
* Professor of Private Law and Commercial Regulation, the University of Western Australia, and Professorial Fellow at the University of Melbourne. This article presents proposals developed pursuant to the author’s Australian Research Council Future Fellowship project FT190100475, which aims to examine and model reforms of the laws that currently inhibit corporate responsibility for serious civil misconduct: see www.uwa.edu.au/schools/research/unravelling-corporate-fraud-re-purposing-ancient-doctrines-for-modern-times. It also builds on joint research with Professor Jeannie Marie Paterson (Melbourne Law School) into the regulation of misleading conduct pursuant to Australian Research Council Discovery Projects DP180100932 and DP140100767. The author thanks Professor Paterson sincerely for her helpful discussion of drafts of this article, Henry Cooney and Eloise Munro for their able editing assistance, and the anonymous reviewers for their very helpful feedback. The author has sole responsibility for remaining errors.
1. "The play’s the thing; Wherein I’ll catch the conscience of the king": W Shakespeare, Hamlet, Act II Sc.2. See also Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] SGCA 2; [2005] 1 SLR(R) 502, [35], [41–44] (Yong Pung How CJ, Chao Hick Tin JA and Kan Ting Chiu J).
2. A similar problem affects inquiries into "decision causation": E Bant and JM Paterson, "Statutory Causation in Cases of Misleading Conduct: Lessons from and for the Common Law" [2017] Torts LJ 1; P Birks, An Introduction to the Law of Restitution, rev edn (Oxford, 1989), 157 ("Will-power has no voltage").
3. P MacDonald Eggers, Deceit: The Lie of the Law (London, 2009), ch.1.

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