Human or corporate?

Business conspiracy in relation to anti-competitive practices such as price fixing and market sharing provides a significant contemporary context for the investigation of individual and organisational interactions and the way in which responsibility is allocated for such practices. The contemporary business cartel is a complex organisational structure within which both corporate and individual actors may be seen as planning and implementing illegal activities. Is such conduct human or corporate, or both? Taking the example of US and UK law (both important systems of regulation in this context), it may be seen that these systems of legal control allocate responsibility to both companies and the individuals working for these companies, although in rather different ways. Thus, in the prosecution of business cartels both individuals and companies may be the subject of legal process and the imposition of sanctions, but in relation to activity which is legally categorised as a single cartel, or conspiracy or unlawful agreement. Yet at the same time, on one view, these companies and their executives may be regarded as the alter ego of each other. It may then be asked whether the approach taken by either of these legal orders is logically or ethically defensible – for instance, is there not then a double counting in terms of identity, agency and responsibility? More generally, how should a process of legal regulation address such a complex interaction of individual and organisational activity, for purposes of allocating responsibility, separating the individual and organisational elements, and determining the way in which organisations may affect individual behaviour? A closer examination of legal policy and practice in this area suggests that varying approaches and outcomes are largely the product of ‘enforcement imperatives’ and end-of-process concerns about sufficiency of evidence or effectiveness of 125sanctions. The overall picture therefore resembles a legal patchwork, lacking any coherent theoretical basis in terms of agency and responsibility.