Reactive fault: The "new" frontier in corporate criminal liability

Organizational fault is generally considered the most prestigious model of corporate blameworthiness: corporations are guilty for not adopting adequate compliance programs to prevent offensesces committed within them. In turn, under the reactive fault model, corporations should be reproached for failing to react to offencses. Contrary to the common belief, in the comparative landscape, the latter shows its concrete relevance in pre-trial diversion practices (Deferred Prosecution Agreements), through which corporate culpability refers not to the prevention of offencses, but to the reaction to them. Interpreting these practices under the reactive fault theory, it becomes evident that this negotiated approach has a distorted effect: the shift of liability judgment from the ex ante to the ex post perspective could produce an indulgent neo-liberalistic policy. Nevertheless, the ex post approach could be useful in vanguard fields where risks coming from scientific-technological progress are to be faced. Enterprises deal with unknown risks with scientific certainty (ege.g. food safety and GMOs; health safety and pharmaceuticals; environmental protection and pathogenic agents). If harm occurs to consumers, workers or the environment as a result of these risks, corporations should not be condemned for the harm in case of lack of predictability and lack of chances to avoid it. However, considering that any harmful event increases the knowledge of risks, corporations could be charged if they do not react adequately to this event, and avoid its reiteration. Therefore, given the importance of scientific and technological advancements, reactive fault could constitute the new frontier of corporate criminal liability. More generally, reactive fault can serve as a criterion on whether to bring forward charges in all the cases where there is a lack of specific rules of conduct that can usefully guide, ex ante, the enterprise in fulfilling the duty of preventive organization.