Limiting the criminal liability of corporate directors: does the obligation to implement compliance and control systems replace personal supervision?

Abstract

This article examines the limits of the criminal liability of corporate directors within complex corporate structures, taking as its starting point the Supreme Court of Justice of the Nation’s decision in “Oviedo, Javier Darío v. Telecom Argentina S.A.”. The doctrine established in this precedent holds that, in large-scale corporations, the director’s duty of care does not require personal supervision of every decision, but it is instead fulfilled by ensuring the existence of appropriate internal control mechanisms.

Following a valid delegation of functions, the liability of the board of directors is limited to breaches of its residual duty of oversight—namely, the failure to implement such control systems or to react to known irregularities.

The article argues that criminal liability cannot be objective but must be grounded in proof of the subjective element (intent or negligence). Finally, it addresses the concept of willful blindness as a mechanism for attributing intent, contending that when a director consciously chooses to disregard warning signs, such conduct is equivalent to intent.