CHALLENGES TO THE DOCTRINE OF IDENTIFICATION IN COMPLEX CORPORATE STRUCTURES: THE WAY AHEAD?

Abstract In the era of globalization, corporations have become increasingly large and diffused. As responsibilities are delegated on several levels of management, courts have been forced to look beyond the top tier of management to identify who had control over the acts in question. Yet, the statutory framework offers little respite in attributing the illegal acts of officers at a lower level of management to the corporation. The doctrine of identification addresses this problem to some extent, by attributing the actions of certain officers to the company. These officers must have such extensive control over the corporation within the sphere in question, that the corporation could be identified as their alter ego. In this fashion, the doctrine lifts the legal fiction of a company, and attributes the actions of the controlling officer to the company. However, in its narrow and ambiguous definition of control, the doctrine has been unable to adapt to the complex corporate structures in place today. This paper offers a critique of the doctrine of identification. It traces the evolution of the doctrine as a tool of corporate criminal liability. Through this assessment, the paper explores the drawbacks of the doctrine in light of the changing corporate scenario and explores a novel approach to address these drawbacks.