16 septembre 2021
Base Documentaire : Doctrine
► Référence complète: Bismuth, R., Compliance and Sovereignty: ambiguous relationships, in Frison-Roche, M.-A. (ed.), Compliance Monumental Goals, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) et Bruylant, à paraître.
► Article Summary (done by the author): : At first glance, the notion of Sovereignty is difficult to combine with Compliance. Indeed, Sovereignty is part of Public International Law in a logic of essentially territorial distribution of competences, while Compliance has developed and disseminated in companies with tools and methods which largely ignore borders.
A closer look reveals more fundamentally three types of ambiguous interactions between the two. Compliance can first of all be understood as a tool allowing States, by relying on companies, to circumvent the obstacles and limits posed by a Sovereignty conceived in territorial terms and therefore to extend it. Such an approach can nevertheless lead to friction or even conflicts between Compliance and Sovereignty, the norms conveyed by the first not necessarily being in line with those imposed by the second.
This is particularly true when the Compliance "Monumental Goals" are not unilaterally defined or are not intended to be. Finally, by infusing companies with instruments and methods that are reminiscent of sovereign functions, compliance can also allow us to imagine an emerging movement tending to gradually establish Corporate Sovereignty beyond that of States.
► Référence complète : André, Ch., Compliance Monumental Goals, vectors of « common » social values. Perspectives from a Criminal Lawyer, in Frison-Roche, M.-A. (ed.), Compliance Monumental Goals, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.
► Résumé de l'article (fait par l'auteurs) :
The “Compliance Monumental Goals” serve as vectors for “common” social values: the proposal is simple, but it seems both familiar and strange to a criminal lawyer.
Familiar, because even if compliance transcends the borders of academic disciplines, it shares with criminal law a logic sanctioning attacks on social interests. Strange, because Monumental Goals convey social values by sweeping away all the learned discussions that have been going on since Beccaria about the foundations and axiological functions of punishment. Indeed, the social values promoted by Monumental Goals are “common” in every sense of the word.
First, they are shared and internalized by the largest enterprises in the Western world, without the need for an international treaty on protected values. The question of sovereignty is overshadowed.
Second, they are common in that they are commonplace, ordinary, approved of by most Western consumer-citizens: probity, equality, respect for the environment, who would not be in favour of respecting them? Hence it is in companies’ interest to communicate and diffuse, urbi and orbi, how they respect these Monumental Goals. The question of citizens’ consensus on values is sidestepped, as they are supposed to be derived from the obvious (even if the goals could be achieved by different means, or even contradict each other).
Third, these values are common because they now enlist a multitude of communicants (the “compliance officer”, among others) who, more or less gracefully - the meticulous liturgy of compliance can put off some officiants and incite buffoonery - seek to spread the cult of these values at all levels of business. Since these values are respected, they are necessarily respectable: businesses become moralized by the multitude who respect them. Existence precedes essence, and the values conveyed contribute to the businesses’ raison d’être, beyond the pursuit of profit. The question of effectiveness vanishes, since these values are already there, regularly monitored, both internally and by public authorities. Sovereignty, citizenship, effectiveness: the logic of Compliance supplants the academic debates of criminal lawyers with practical solutions. Perhaps this is how the goals are “monumental”: vast, global, overwhelming. Compliance may not be the best of all worlds, but it is most certainly another world.
24 avril 2020
Its subject is the confrontation between the current health crisis situation and the Compliance Law.
Summary. After defining Compliance Law, distinguishing the procedural and poor definition and the substantial and rich definition, the starting point is to admit the aporia: the type of health crisis caused by Covid-19 will be renewed and it is imperative to prevent it, even to manage it, then to organize the crisis exit. Public Authorities are legitimate to do so, but because this type of crisis being global and the State being consubstantially linked to borders, States are hardly powerful. Their traditional International Law shows their limits in this current crisis and one cannot hope that this configulration will improve radically.
In contrast, some companies and markets, notably the financial markets, are global. But the markets are not legitimate to carry out such missions and counting on the generosity of certain large companies is far too fragile in front of the "monumental goal" that is the prevention of the next health crisis, crisis which must never happen.
How to get out of this aporia?
By Compliance Law, basis of, in a literal and strong sense, the "Law of the Future".
We need to be inspired by the Banking and Financial Compliance Law. Designed in the United States after the 1929 crisis to tend towards the "monumental goal" of the absence of a new devastating crisis in the country and the world, this set of new legal mechanisms gave duty and power of supervision, regulation and compliance to market authorities and central bankers. These are independent of governments but in constant contact with them. Today, they claim to have as first priority the fight against climate change. Now and for the future, they must also be given the responsibility and the powers to prevent a global health disaster, similar to a global ecological disaster, similar to a global financial disaster. This does not require a modification of the texts because their mandate consists in fighting instability. Stability must become a primary legal principle, of which the fight against monetary instability was only a first example. By the new use that central banks must make of it by preventing and managing health crises, Compliance Law will ensure that the future will be not catastrophic.
Mise à jour : 31 juillet 2013 (Rédaction initiale : 4 octobre 2011 )
Enseignements : Les Grandes Questions du Droit, semestre d'automne 2011
17 novembre 1976
Base Documentaire : Doctrine