March 30, 2017

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Compliance and Trust

by Marie-Anne Frison-Roche

This Working Paper must be cited with the link : http://mafr.fr/en/article/compliance

Compliance. Trust. Two words that come more and more often before our eyes as readers or listeners. And yet they do not seem to match well. They even seem to repel each other.

Indeed, Compliance is the way in which Public Authorities trust certain private operators, not in themselves, but with their structural capacities to mechanically capture the information that these authorities need (I).

This presupposes a vision of the world in which Companies are powerful and powerful alone but are not virtuous, while Public Authorities, such as the Public Prosecutor's Office or Regulators, are weak but virtuous alone. Such a conception of Compliance transforms companies into automata. Such a vision of the world has no future: only human beings can be trusted, whose fallibility must be accepted, as Compliance is then the expression of a relationship built on trust that is to be seen between non-mechanical operators, namely public Institutions and private Operators, who can both have in common concern for an interest which goes beyond them and which was formerly called the general interest (II).

From this reality, no doubt new to private companies, but which explains the strange intimacy between the violent Compliance Law and the new spontaneous order of Corporate Social Responsibility, it is up to them to demonstrate this concern Cf others that it shares with the Public Authorities, except to fall in Compliance reduced to costly procedures, empty endless staked out of sanctions without control.

It is thus for Companies to make this branch of the Compliance Law emerging become what can be the best, when it is possible that it becomes what would be the worst.

Compliance. Trust. Two words that come more and more often before our eyes as readers or listeners. But on the one hand there are so many definitions of "compliance", !footnote-762, whose difficulties of translation amplify the uncertainty, and on the other side there are under this banner so many meticulous prescriptions to follow that sometimes we feel like we're in Alice's country, threatened to have our throats cut for a mistake of rosy color when no one told us which seed to plant. We do not even understand the rules of this new game, often so surprising, yet so expensive. In this foreign country!footnote-855 and as lost in the labyrinth of compliance. Hence, how can we combine Compliance with Trust, which belongs to the movement, even to the momentum, and to intuition?

This is all the more so since, at the moment when the Law of Compliance is being constituted!footnote-754, we observe that Law does not place much place on the notion of Trust, which is still not a notion fully present in the legal system, only pretending to give breath to the Law !footnote-764, or a goal to a legal text, for example wanting to guide us in the digital economy!footnote-859, without one can say that Trust is itself becoming a legal notion, contrary to Loyalty!footnote-856.

Trust is now emerging in the legal systems. It does so not autonomously, except that the title of a law adopts it as an incantatory objective!footnote-857, but as a consubstantial quality of a person in a fonctional way : the "trustee" in a very specific mechanism, the "trust", this technic that the Civil Law systems do not want to know. In another way, Trust is the mark of a fiduciary relationship. The relationship becomes fiduciary when one relies on the other, taking as a principle that the latter will take care of that one. From the outset, trust is a relationship with others that is only worth, according to Montaigne or the "elective affinities", because it was You, because it was Me. The relationship of trust is !footnote-655.

This is why Trust could not be expended in these warm circles!footnote-858: it cools, freezes and evaporates out of this special relationship, imprinted with these kidneys and this heart that Law has the wisdom not to sound. It would therefore be necessary to choose between the warmth of Trust and the freedom of the Market, freedom bringing with it its share of loneliness and risks. Trust can not follow the movements of merchandises that circulate in the empty and cold space of the market in which only the price is relevant, only the numbers count!footnote-765, even govern! Pleonasm of the "Competition Order"!footnote-861. Where affection and trust in others disappear, Law takes over. Expressing Mistrust!footnote-863, Law then prescribes the obligation of prior information and monitors each other. Law does not make sentiment.

And yet ... Yet the entire system, not only economic, but only monetary and exchange-rate systems, are built on the systemic idea of Trust. Trust that everyone should be able to do with pieces of paper. Nothing of magic!footnote-832: the system ensures!footnote-864 who holds a title in which is incorporated the commitment to pay that will be honored by the institution to which he will present it!footnote-766. The entire monetary system is based on the idea of Trust. Trust that everyone can do with pieces of paper in that the State is represented in it, and that everyone will pay by the Trustee, debtor of last resort, Trust to a community of people, bankers or those who form the " Place ", Trust in the State, whether one loves it or not.

We seem to have become weary of this modernity of these titles, claiming that the "codes" were "broken"!footnote-660. You may want to blow on the dust covering the banknotes, turn away from the folklore of the "paumés", hear the noise of technologies and the clicking of the bitcoins: it is in the machines from now on that it is necessary to "trust", more so if Robots take human form!footnote-833. We come back to the first question: what promise to trust?

But this credit made to the "mechanical confidence", translating this fundamental movement of societies that no longer have confidence in themselves, is carried by the mechanism of "Compliance", which is becoming major in Law!footnote-663, or even ossifies itself in a branch of the legal system!footnote-751. It is for Public Authorities to internalize in some powerful enterprises mechanisms for capturing information so that it is made them available to those who make good use of this information to achieve global common good.

Compliance is thus the means by which public authorities rely on certain private operators, not on their own, but on their structural capacities to mechanically capture the information that these authorities need (I). This presupposes a vision of the world in which companies are powerful and powerful alone but are not virtuous, while public authorities, such as the Public Prosecutor's Office or regulators, are weak but virtuous alone. Such a conception of compliance transforms companies into automata. Such a vision of the world has no future: only human beings can be trusted, whose fallibility must be accepted, as compliance is then the expression of a relationship built on trust that Between non-mechanical operators, namely public institutions and private operators (II). From this reality, it is up to the companies to prove, except to fall in compliance reduced to endless procedures punctuated by uncontrolled sanctions.

 

I. COMPLIANCE, AS REDUCTION BY LAW TO OBJECTIVE TRUST IN TECHNICAL CAPABILITY OF CERTAIN PRIVATE OPERATORS TO MECHANICALLY DETECT AND TRANSMIT THE RELEVANT INFORMATION

Compliance refers first of all to a legal requirement for companies with an international impact, either because of their economic activities (international trade) or because of their financial activities (listed securities, banking and financial institutions). Thus Compliance can not be reduced to "conformity" by defining the "conformity"  as the obligation to respect Law and Regulations, which is the obligation of everyone person, every of Law, since Compliance applies not only to but more so than in this particular category of international and big private  companies.

Moreover, when compliance rules for listed companies (and only those) are observed, they are compulsory rules imposed by public authorities, which require information first and foremost. In this respect, the Compliance Law of compliance must be put into perspective of the place that Law makes to Information, more particularly through two branches of the legal system that are Financial Law and Criminal Law: this bases the constitutive rule according to which the subjects of Compliance Law are these firms that centralize the information and they alone, the confidence arising only from this mechanical ability to capture and convey information (A). But such a conception of Trust leads to the transformation of firms into automata (B).

 

A. COMPLIANCE, AS MECHANICAL CONFIDENCE IN THE POWER OF CERTAIN OPERATORS

In this perspective, the Compliance Law appears as a mechanical set of rules which draws the consequences of the weakness of the States, victims of their information asymmetry and the narrowness of their borders. Since some companies are identified as information centers, Compliance Law will be based on them (1). It is a matter of Trust in this sort of information safe which they constitute by nature and which the Law will open on order. This mechanical Trust results from legal structural obligations (2).


1. The choice of "Crucial Companies" as subjects of the Compliance Law

The State no longer has confidence in itself. Not in its capacity to lay down the rules, in so far as it is a "regulating State"!footnote-866, or as it sets goals to be reached, but in that it would be able to concretize these purposes. For "stewardship no longer follows"!footnote-867. This aptitude may remain for a rule whose implementation is within the reach of the national State, for example in Family Law. The State itself presents it as doubtful when the effect sought by the norm is imbued with an international dimension. The State seems to collapse when the goal is to fight against both international and hidden mechanisms, such as corruption. The State recognizes itself as being crushed.

This is why Money Laundering of seriously illicit and underground activities, growing for example in the dark net, is what will lead to compliance mechanisms, rather than to more traditional processes of prosecution and sanctions. But the Compliance Law  will accuse the traits, and of prosecutions and of sanctions footnote-868, even will transform them. Indeed, if we observe the behaviors about which compliance requirements have developed, their melting pot is not the common law, but the Repressive Law, that is to say, of the regalian law. Criminal law is the one by which the State wants the effectiveness of its prohibition standards: no market abuse, no pedocrimination, no money laundering, no tax evasion, no pollution, no corruption, no trade with dictatorial regimes.

Thus, everything is a matter of execution, everything is matter of speed. The Anglo-American systems have understood this by establishing in the branch of Law enforcement, while this conception and organization remain the poor parent of our Continental law. The first shortcut is to delete the time between the capture of Information and the sanction, by locating where the information is. That is why banks and financial institutions are more than any other targeted by this new Compliance Law, to the extent that money is deposited with them, is handled by them, is transferred by them.

The second shortcut will be even more radical. By encouraging these same companies to adopt their own standards of behavior, first and foremost, Corporate Social Responsibility goes beyond merely "conforming" to the external legal rules!footnote-753 and then by adopting "Code Conduct "by which the company engages itself and whose market observes the effectiveness, the State entrusts to the power of control of the financial markets whose power is immediate the care to realize the commitments of the operator.

This is why Compliance does not apply to all subjects of law, even if one ventures to define it merely as the obligation to respect Lawfootnote-755, bu only powerfull and international firms, observed by active investors and profesional advisors.

Everything is therefore Information in Compliance. Companies are subject to it insofar as they are on the path of sensitive information, that they must locate it, and then dispose of it as appropriate including against their own interests!footnote-756.They are effectively controlled by this information machine which is the financial market itself or the Corporate Law as the agency theoryy has renewed it !footnote-757, Today the legal functioning of companies is built on the issuance and circulation of relevant information.
 

Because Compliance is a consequence of information theories, of information relevant for the functioning of systems and for the effectiveness of the rights of persons !footnote-759 even if it is not intended to extend to everyone - because it does not define itself as the simple and general obligation to respect Law!footnote-760, its hold will exceed the global enterprises on which the financial markets have a sort of right of look.

Indeed, any economic agent who handles sensitive information on a person who relies on him will be subject to Compliance. This corresponds to the definition of the liberal profession!footnote-761..

 

2. A simple objective credit made by Law to the mechanical ability of certain undertakings to fulfill a function

In such a view, the Compliance Law does not express a relationship of trust with the operators, not at all. One can even say that it expresses the opposite.

In the first place, it is only by an "objective credit" made to those operators in that they are in the best position to obtain Information and transmit it - because they are ordered by Law -. Compliance Law has transformed these global economic operators into subjects of Compliance Law!footnote-869.

Law credits their position in international financial flows and credits their technical and financial capacity to organize themselves globally in order to be able to obtain and transmit such relevant Information (for example on the violation of embargoes, on corruption, etc.). This is why Law grants them specific powers, such as obtaining information from their clients, but also obliges them with specific obligations, such as the obligation of transmitting these data, in concrete terms to denounce themselves or others. These are "powers" in the strict legal sense, that is to say, powers which are legally conferred only to satisfy a duty for which the holder is responsible for the satisfaction of someone other than himself!!footnote-870.

But this is not how one defines a relationship of trust. As was stressed!footnote-871, a relationship of trust is largely spontaneous and tailor-made. When we study the new French Law of December 2016 known as "Sapin 2", the terms of which correspond to American Law, which can be qualified as a 'Law of Compliance", it is not a matter of confidence placed by the Legislator in these economic operators.

On the contrary.

On the contrary, the Legislator assumes that Companies will rather dispense with collaborating in the "struggle for Law"!footnote-872. And, moreover, why would they do so? Not to be an agent for the effectiveness of Law or to say it in a more imaginative way to be an agent of the FBI They do not want to do so, much less for the effectiveness of a legal order of which they are not subject to law, the issue of compliance often referring to European companies with a global dimension to the question of the extraterritoriality of American Law!footnote-874.

It is because the Legislator does not trust that he adopts the repressive tone and for the first time envisages "compliance fines", "compliance programs" and "vigilance plans" !footnote-876, requiring the company to be structured so that, in the future, the systems of internal control, watchdog or whistleblower will allow it to govern Information effectively for the benefit of the judge and the regulator. In this way, through this structural penal sanction, the Ex Post penalty consists to force the company to organize Ex Ante, the expert's technique inserted for several years allowing a permanent flow of information to the outside. Already fragile, the distinction between the Ex-Ante and the Ex-Post ends up being pulverized.

It is therefore a double relationship of mistrust that opposes both Law vis-à-vis global operators and global operators vis-à-vis this new Compliance Law. These negative effects are considerable. The main thing is the fact that companies are transformed into automata.

 

B. COMPLIANC LAW, AS RISK OF A SYSTEM TRANSFORMING CRUCIAL UNDERTAKINGS IN AUTOMATICS

Even as the world needs the expression  of collective values, under such pressure companies become, through the demands of Law, the kinds of machines of which only the wheels count ; satisfaction of compliance requirements results in the establishment of procedures, and even processes, followed blindly and at great cost. Compliance Law becomes an obligation of result, which is presented as a force whereas such a nature reveals its great weakness (1). Another demonstration is provided by the sanction by  Financial Regulators for default as soon as there is discrepancy, even though algorithms are the cause of the irregularity (2). Thus, in an automated system based on Law, operators can only be impoverished and dehumanized. The rule would then become Comply and never explain (3). In this perspective, Compliance Law contributes to the establishment of a world without anybody.

 

1. The supremacy of Obligations of result

In a liberal system, obligations are "obligations of means": the legal subject in charge of an obligation is constrained to behave in order to achieve the result covered by the undertaking; accordingly, his liability is incurred and is incurred only by the evidence of his fault or negligence in his conduct towards that result, the mere fact that the intended purpose did not happend is not sufficient to incur Liability.

This is even more true when Liability is criminal, if credit is still given to the distinction between civil liability and criminal liability.

It is true that the behavior of companies subject to Compliance Law remains analyzed through the notion of obligations of means. But Compliance Law, including Repressive Compliance Rules, is above all a structural mechanism and not a behavior prescription. That is why the notion of "breach" is systematically preferred!footnote-877.

Thus the first obligation of companies is to build systems of intern and extern control, educational programs, data collection and data protection, detection and traceability of relevant Information for the benefit of Judge, Regulator and State. These obligations of a structural nature are obligations of result!!footnote-835.

These heavy obligations, technically difficult to imagine, must lead to an effective organization. If a company tries to justify itself because of technical difficulties or by showing that it has been diligent in doing so, the regulator or the criminal judge will dismiss the justification, the objectively insufficient organization of this company in relation to the objectives justifying sanction.

Moreover, the sanctions imposed will take the form of injunctions themselves of a structural type. The "compliance penalties", whose compliance programs implemented in the United States and obliging companies such as BNPP or Société Générale to modify their structure were the paragon.

Ce n’est pas la dureté ou l’ampleur de ces programmes qui sont critiquables. C’est plutôt leur caractère mécanique. Des investissements informatiques. Des process. Des machines. Est-ce ainsi que seront le plus efficacement combattus le terrorisme international, la corruption ou la traite des êtres humains ?

It is not the harshness or the breadth of these programs that is open to criticism. It is rather their mechanical character. These involve IT investments, processes, robots. Is this the most effective way of combating international terrorism, corruption or trafficking in human beings?

Is it not at the same time a bit mad and dehumanizing to affirm that there is a failure by the sole fact that there is a discrepancy between the mechanical organization of the operator and the results that it produces on the one hand and the aims sought by the author of Compliance legal rules, namely detection and transmission to the right user of the relevant information to fight against a global evil or contribute to the building of a global good?

Alleviating by this way the whole burden of proof of the prosecution authorities, since it is in Ex Ante that the operators subject to the Compliance Law must constitute the proof of their diligence, in particular by the exhausting mapping of risks, everything seems to be based on the machines. The new French law  of 27 March 2017 on the "duty of vigilance" of international companies  is exemplary of this structural burden which now weighs on these undertakings and which alleviates the burden of proof of the prosecuting authorities.

However, this dehumanization does not protect the company from the perspective of liability because the Law, notably by the conception which is developing of what is called "artificial intelligence"!footnote-836 , and its legal consequence : the sanction of "mad machines" for compliance lack.

 

2. Compliance Penalties imposed on "crazy" or "criminal" machines

The French Financial Regulatory Body (Autorité des marchés financiers - AMF) had to deal with a case in which the mechanical application of algorithms had produced discrepancies in high-frequency trading. The question was whether the company should be penalized for market abuse. This presupposes, avant asking the question if the company should be punished, resolved the question if the company could be punished for a mechanical "action" made by A.E. This question of "ability to be punish, abitily to be liable, abitily to be responsible"  is also a major issue of the Law of Regulation.

It could have been considered that no "will" had occurred and no "conduct" could be seized ; this is why the undertaking of a liability was not admissible and the sanction could not be envisaged. As a matter of principle. But the prevalence of concern for efficiency, systemic stakes and the so-called "pragmatism" theory have founded the opposite solution. Indeed, by its Decision of 8 July 2016, Getco, the AMF's Sanctions Committee held the quasi-criminal liability of the company.

The reason for this is that in order to be effective the Regulator could not do not !footnote-854 .... In the same way that in an surprising way it was affirmed that the algorithms had to be loyal!footnote-878, numbers and machines presented as possibly affectionate - the works of Günther Anders on the "desiring machines" not seeming to have left traces!footnote-879 -, that it seems acquired that they are learners!footnote-880 , they are criminal now.

Without digression on the madness of such a conception of the world where the series of figures become persons while people become, through their bodies sprayed by data, things!footnote-881, the situation of enterprises becomes more and more difficult. This is because the difference between the observed result and the aim sought is sufficient for the public Authority (Regulator, Administration, Judge) to satisfy its burden of proof. Moreover the human diligences and the reference to the human beings itself cease to the right way for the company to prove the satisfaction of its compliance obligations.

In such a momentum, will Compliance not collapse on itself?


3. Exhaustion of a definition of compliance as a simple "procedure" and a poor reduction : "Comply and, as a machine, never explain"

Compliance Law translates and translates itself into more and more computing. The companies themselves have tended to use this new growth of algorithms to no longer practice their core business through the robots advisors. In the United Kingdom in June 2016 an investor organization asked the Financial Conduct Authority (FCA) to remind that on the one hand robots do not advise, even if the documents sent by the computer are cartoons with young man with serious glasses and young girl in executive woman suit, and that on the other hand the solution to preserve the interest of the investors is in the education of these. They insist on the fact that robots do not educate themselves while it is the human beings who must be educated.

Compliance law translates and translates into more and more computing. The companies themselves have tended to use this new growth of algorithms to no longer practice their craft through the robots advisors. In the United Kingdom in June 2016 an investor organization asked the Financial Conduct Authority (FCA) to remind that on the one hand robots do not advise, even if the documents sent by the computer are cartoons with young Man with spectacle and girl in executive woman, and that on the other hand the solution to preserve the interest of the investors is in the education of these. For robots do not educate themselves while it is the human beings who must be educated.

Financial education is now a full-fledged task for public regulators!footnote-838. But compliance programs that are more or less enforced in companies are often done by mechanical processes, with multiple check boxes.

By the enforcement way, Compliance Law will exhaust companies if Compliance requirement is itself a crazy mechanism that pours out blind and endless demands, expressing a derisory confidence in the routine procedures that companies turn like others do mills to prayers.


This is because Compliance Law does not trust the human beings who are in the companies in question. And yet it is a relationship of Trust that the new texts have established between the public authorities and this new and controversial character: the whistleblower, colorful character. Why not trust him?

The whistleblower is undoubtedly a sign that Compliance Law, if well understood, can be the expression of a new relationship established between the crucial operators and the public authorities

 

 

II. THE CONSTRUCTION OF COMPLIANCE LAW, AS AN EXPRESSION OF A NEW TRUST BETWEEN CRUCIAL OPERATORS AND PUBLIC AUTHORITIES

The whistleblower!footnote-853 is the emblematic figure of the new Compliance Law, which is still in the making. It is also often presented by companies in a rather negative way because it would be "human, too human". But would it not, on the contrary, be its highest quality? (A). Not only the public authorities but also companies themselves must have confidence in such a person, legally admitted only if he is of good faith. Through him, a relationship of trust can be built between companies and public authorities, because both can share a common concern which is above them : the concern of the other (B) , which is the true foundation of Compliance Law.

 

A. THE WHISTLEBLOWER LAW TO BECOME

A character who appeared spontaneously at the start of the Enron affair!footnote-839, the whistleblower is new and it is not yet known whether he will appear under his happy face or under his diabolical face(1). But it must be credited, as the texts which have given him a protection, on the concern to improve the situation of others and to fight for Law and Justice mistreated by the enterprise on which it depends(2). This simple presumption of a "struggle for Law", an expression of Jheringfootnote-840 , expression that was believed to be outdated, must be translated into the technical legal field.


1. The whistleblower, Janus of the new Compliance Law

The French Law "Sapin 2" of Decembre 2016 conferred a status on those who depend on the company and who, on the occasion of their activities within it, because they are employed by the firm for example, discover useful information for the public authorities and transmit it to the latter because this information reveals a breach of the major rules of the global Law in construction, which is all the more ineffective because it is ample, like legal rules which runs after international corruption.

The individual does not substitute himself for public authority, does not ask for anything. He "gives the alarm". He is the trigger himself, the one without which nothing would happen, because as an insider he is in contact with information.

It must be considered as a Janus because this abstract, even irenic, presentation covers various situations, even opposed. More often, those who know the wrongdoing and whose prosecution is so important do not reveal it because they are the perpetrators themselves, as in the case of corruption. What is more, cases show that people who disclose wrongdoing do so because they want to harm the enterprise with which a conflict has opened up or want to harm another individual within the firm in a personal conflict. By the protection and incentive which Law brings to these characters, it is the famous couple of the crime who leans on the arm of vice that one would see advancing in the corridor of the Compliance...

But under another face and in many other cases, the person breaks the law of silence for the sake of others, making public a fact carefully concealed by some, more so if the fact is harmful to people for whom he has consideration, personally or not . This may be the case when the company has operations in foreign countries whose national law is ineffective in protecting weak people, such as children. More generally, this may be a more general concern for the effectiveness of Law expressed by an individual against the society to which he belongs, the firm but also the social group or the economic ou political system, if they function against the Law.

 

2. The simple presumption of concern for others and the struggle for Law

Law is above all a matter of proof. The future of Compliance Law case is based on a precise organization of system of burdens of allegations, system of burdens of proofs, system of presumptions and system of admissible evidence, as well as scopes granted to them.

Thus, in the first place, it must be posited that the happy face of the warning-launcher must be, literally preferred prima facie, to his dark side. In fact, because the rules effectiveness seems to be today the master word of the Regulation Law!footnote-841, it would be paradoxical for the operator as a legal person to be in charge!footnote-842  of the concretization of Law and not the people who depend on it, ordinary people and who are actually closer to the information than the people who sit on the different bodies of society.

Secondly, it is stressed that companies must be conceived as democracies. In such a political view, proxies must speak before being revoked and holders of debt securities associated with capital decisions in a process of debate. Why not. But then the challenge by one person of the functioning of the whole, when this functioning is criminal, is akin to a political duty.

Thirdly, if we present large enterprises as the new public space, in particular through their Corporate Social Responsability, the one who acts within them or pretends to act to restore Law and protect the rights of weak persons expresses this conception.

But it can only be a simple presumption. This nature explains the status, which is at the same time protective for the whistleblower and protective of the company organized by the French Sapin 2 Law. Indeed, this alert launcher mechanism must not be subject to the same abuses as those of the class action, For the sole purpose of obtaining an settlement before the prosecutor himself contemplates a "judicial contract in the public interest" (in French "contrat judiciaire d'intérêt public").

This is also a major innovation. Like the previous one, this new sort of settlement will become what companies do. Similarly, they may use it in a spirit of distrust or choose to do so in a spirit of trust. Law is only of human beings make of it.

For that, one must have the audacity to go beyond the sophisticated mais simple and narrow calculation of interests.

 

B. COMPLIANCE LAW, RELATIONSHIP OF TRUST BETWEEN PARTNERS FOR SUPPORTING A CONCERN ABOVE THEM

Compliance Law should be the meeting point between two wills. It is in this that it borrows from the contractual mechanism. The adoption of legal processes such as the settlement or the judicial contract of public interest (contrat judiciaire d'intérêt public) is its hallmark. It should be the will of the public authorities to impose the achievement of global goals and the will of large companies to realize the ethical goals to which they are committed. This is why Corporate Social Responsibility is, and still is, a part of Compliance Law.

But one does not seem to credit this encounter, which is the key to what would make the intimacy between Compliance and Trust. However, Trust can not be simply mechanical. If we do not credit them, it is because this Compliance relationship between global operators and public authorities is presented as a well-understood interest relationship. This is seriously and definitely inadequate (1). There is, should and will be a relationship of Trust between global operators and public authorities, that is, a successful Global Law only if the two converge towards an interest that surpasses them, common concern which must be called by its name: the general interest (2)

 

1.The inadequacy of the "well-understood interest relationship"

It is often argued that Corporate Social Responsibility is a financial theory. Simply, it sees further, it is a more malicious design than others by which companies acquire the confidence of investors and consumers in the long term!footnote-843.

If that is all, first of all, the term "marketing" comes to mind, in a critical way or not!footnote-844. Moreover, if we do not distinguish between the will to the interest!footnote-845, and the interest of the company, it is sufficient that the interest of the company ceases to be thee respect for ethics or compliance with the commitment given to the Regulator, so that everything unravels. In the same way, it will suffice for the public authority in charge of public order to be confronted with the obligation to defend this imperium there so that its commitment ceases!footnote-846.

Moreover, those who look not only at the stakeholders, but also who - following the vocabulary of the European Court of Human Rights -, look at the functioning of the institutions, and giving their Trust to them base democracy!footnote-847, want much more than an exchange of good practices, even the best.

Population expect that what remains of legitimate powers in the world converge towards the general interest.

 

2. Convergence in progress and to increase of public authorities and operators crucial to the general interest

The notion of the general interest not only has not died but has increased its empire in two ways: it now penetrates the enterprises, those which are crucial; Its object is the world.

However, it has weakened in that it is now refused to impute de jure this expression of "General Interest" to organizations, for example the State or public enterprises. They must demonstrate that they have the ambition to serve that interest, that they are structured to do so, and that they behave towards that goal. This demonstration legitimizes specific rights, powers and obligations!footnote-848.

The general interest consists in serving an abstract other. This could be the social group, the nature, the future!footnote-849l . In this respect, the general interest corresponds to the third generation of human rights, in which, for example, there is the right of interference or the right to peace enjoyed by a person living in a country which is not at war or is not yet, but cares about those who are there.

The general interest can not be confused with the simple collective interest, even abstractly referred to as the addition of all individual interests or all functions of utility, even moral ones!footnote-850.

Conversely, the State and the Regulators do not have exclusive ownership of General Interest; they have the mission per se to realize and protect it. But it is conceivable that another organization cares about others, which is the definition of the virtue of justice!footnote-851. It is even the happy face of the whistlebrower to be animated by this concern.

The difference lies in the fact that public authorities enjoy a simple presumption of this concern, whereas undertakings suffer from the opposite presumption, since they are presumed to seek their private interest (social interest for a company), that is to say their particular interest, or at best the collective interest of their shareholders and stakeholders.

If private bodies want and affirm to pursue the general interest, to pursue the monumental aims of Compliance Law, no longer under duress but because they themselves have the same concern to realize these global goals, to fight against corruption or to protect for example children or  environment, they need to show the effectiveness of this will. The culture of Compliance must be visible to public authorities and to everybody. It is the Trust given by all which seals the pact.

If firms do so, because they would like it and not or not only because they would be forced to do so, then because there would be convergence of concerns between them and the public authorities, there will be in an effective and new Global Law this intimacy here studied or even predicted between Compliance and Trust.

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1

Frison-Roche, M.-A., Le droit de la compliance, 2016.

2

En cela, le Droit de la compliance est un "Droit étrange" au sens littéral du terme. Pour un développement dans ce sens, v. Frison-Roche, Le Droit de la compliance, 2016.

3

Frison-Roche, M.-A., Le Droit de la Compliance, 2016.

4

V. par ex. Benamou, V.-A. et Chagny, M., La confiance dans le droit des contrats, 2008.

5

Voir La "Loi dans la confiance dans l'économie numérique". Son analyse est faite à ce titre par Valérie-laure Bénabou, La confiance dans l'économie numérique, 2008.

Voir aussi la "Loi dans la confiance dans l'économie".

6

V. par ex. Petit, F., Droit et loyauté (dir.), 2015.

7

Benabou, V.L., La confiance dans l'économie numérique, 2008.

8

Algan, Y., La société de défiance, ....

9

C'est pourquoi François Terré, étudiant "La confiance dans les mots de la loi" (2008), pose à juste titre que "de prime abord, l'expression surprend, car la confiance correspond à une relation entre deux ou plusieurs personnes. A la limite, elle peut se passer de mots ou tout au moins préexister à l'échange de ceux-ci" (p.7).

10

Sur l'analyse politique de l'amitié, dans son lien avec la fraternité, v. Derrida, Politique de l'amitié ; v. aussi Supiot, A., Figures de la solidarité.

11

Frison-Roche, M.-A., Valeurs marchandes et ordre concurrentiel, 2003.

13

Encore que le droit cambiaire a autant à voir avec la magie qu'avec la rationalité du commerce. V. d'une façon générale Gurvitch, G., La magie et le droit,

14

This is also what the banking system and the insurance system have to do with each other. Both set the future.

15

Sur l'idée même de "titre représentatif",

16

.... Droit et Patrimoine, 2016

17

Sur l'anthropomorphisme trompeur, v.  Vers de nouvelles humanités, 2017.

18

Frison-Roche, M.-A., Le droit de la compliance, 2016.

19

Même si l'on trouve encore en 2016 des affirmations comme : " ...." (Martineau-Bourgninaud, V., in Gouvernance et dirigeance, Petites Affiches, 16 janvier 2016).

Vous venez de souligner le fait qu'en matière de RSE, la principale responsabilité est d'abord et avant tout de respecter la loi, ce qui pourrait sembler être une évidence mais visiblement cela n'est pas le ressenti de tout le monde. C'est la raison pour laquelle gouvernance et RSE donnent priorité au respect de la loi. Dans cette mouvance, un nouveau concept émerge, celui de la compliance. La compliance consiste justement dans le fait de s'attacher au respect de la loi, des règlements par les sociétés, le but étant notamment d'éviter la mise en œuvre de la responsabilité civile ou pénale des dirigeants sociaux

20

Sur la notion d'État stratège, apte à fixer souverainement des buts mais développant d'une façon plus souple et pragmatique les buts de les atteindre, v. ...

21

Expression que l'on se plaît à prêter au Général de Gaulle. Expression qu'il n'a jamais dite. Expression dont il affirma en 1965 qu'elle ne reflète en rien sa pensée.

22

A tel point que par une décision du 23 mars 2017, le Conseil constitutionnel a censuré une disposition de la loi établissant un devoir de vigilance à la charge des sociétés mères prévoyant une sanction à la fois trop lourde et trop automatique.

23

Ponssard, J.-P.

24

Ce qui est étonnant fréquent (v. par ex. Martineau-Bourgninaud, V., in Gouvernance et dirigeance, Petites Affiches, 16 janvier 2016), mais se heurte au fait que toutes les branches du droit seraient alors concernées et tous les sujets de droit y seraient astreints, alors que seules les grandes entreprises exposées aux marchés internationaux le sont.

25

V. infra.

26

V. l'article fondamental Didier, P., Droit des sociétés et théorie économique, ....

27

Dans ce sens, Falque-Pierrotin, I, L'individu au coeur de la compliance, in Frison-Roche, M.-A. (dir.), Régulation, Supervision, Compliance, 2017, à paraître.

28

Comme pourrait l'être une résurgence de la conception de Jhering, selon lequel chacun a le devoir de rendre effective la règle de droit. Jhering, La lutte pour le droit.

29

V. par ex. Association Capitant Les professions libérales. V. aussi pour les avocats Forget, J.-L., Frison-Roche, M.-A., ...

30

C'est l'esprit et la lettre de la loi Sapin 2.

31

C'est ainsi que les mandataires sociaux ont des "pouvoirs", c'est-à-dire des puissances dont ils ne sont dotés que pour satisfaire des intérêts qui ne sont pas les leurs, soit ceux des associés ("intérêt commun"), soit celui de la société ("intérêt social"). S'ils confondent "pouvoir" et "droit", ils se trouvent alors en conflits d'intérêts et peuvent commettre un abus de biens sociaux ou des abus de marché. Sur la notion même de "pouvoir", notamment par rapport à celle de "droit" ou d' "obligation", voir. Gaillard, E., Le pouvoir en droit privé,

32

V. supra.

33

Conception de Rudolph von Jhering, selon lequel chaque sujet de droit a le devoir de lutter pour l'effectivité du Droit. V. son ouvrage fondamental, La lutte pour le droit,

34

Rapport du Sénat, L'extraterritorialité du droit américain

35

Loi du 27 mars 2017 sur le devoir de vigilance des sociétés mères et des sociétés donneuses d'ordre. La volonté répressive a été freinée par le Conseil constitutionnel dans sa décision du 23 mars 2017.

36

La notion juridique de "manquement" indique le caractère objectivement reprochable du comportement, comme le montre par exemple la distinction et l'articulation entre le délit d'initié et le manquement d'initié. Ainsi, la faute n'est le plus souvent plus requise pour sanctionner un manquement alors qu'en principe elle continue de l'être pour les faits entraînant une sanction pénale.

C'est pourquoi la disposition légale par laquelle la Loi du 27 mars 2017 précisant à la fois que les faits reprochables aux opérateurs au regard de leurs obligations de "plan de vigilance" sont des "manquements" et que les conditions entraînant leur responsabilité civile seront celles de la responsabilité civile intentionnelle pour faute ou négligence (articles 1240 et 1241 du Code civil), est difficilement compréhensible.

37

Pour une articulation entre des obligations de moyens et des obligations de résultat, v. Securities Exchange Commission ....

38

Vers de nouvelles humanités, Archives de Philosophie du Droit, 2017.

39

A expliciter (note valide)

40

Rapport du Conseil d'Etat, Les droits fondamentaux dans le numérique.

41

Lire notamment L'obscolescences de l'homme, ou Et si je suis désespéré, que voulez-vous que j'y fasse ? . Pour une illustration par le cinéma, celui-ci étant toujours plus net que les longs discours, si profonds fussent-ils, voir par exemple Her.  Sur la part que pourrait prendre le Droit contre cette réification des êtres humains, frappant particulièrement les femmes et les enfants, v. Frison-Roche, M.-A., Les trois natures de l'ordre public économique, 2015 ; Philosophie du Droit des data, 2017.

42

Sur la question de savoir si , d'une part, les algorithmes apprennent, c'est-à-dire accroissent leur "savoir", et non pas augmentent le stock de données disponible, et si, d'autre part, ils enseignent, c'est-à-dire transmettent à un être humain la maîtrise d'un savoir, v.

43

Archives de Philosophie du Droit, Vers de nouvelles humanités, 2017.

44

Colloque de l'Autorité des marchés financiers sur l'éducation financière ....

45

A expliciter

46

Frison-Roche, M.-A., L'affaire Enron;

47

Jhering, La lutte pour le droit, ....

48

V. supra.

49

Frison-Roche, M.-A., L'effectivité des décisions des juges et des régulateurs....

50

Tirole, J., ....

51

Montalivet, P. de, Le droit et le marketing, 2015.

52

Sur cette question, Frison-Roche, M.-A., La volonté et l'intérêt, in L'obligation,

53

Techniquement, cela pose la question de la portée contraignante d'une convention judiciaire d'intérêt public sur l'extinction ou non de poursuites ultérieures, dans un même ordre juridique et surtout dans un ordre juridique tiers.

54

CEDH, 2010, ....

55

Distinction entre droit, pouvoir, charge et obligation ::

56

Godé, P., Le droit de l'avenir, 1996.

57

Contra Laffont, J.-J., l'intérêt général,

58

Baranès, W. et Frison-Roche, M.-A., De l'injuste au juste.

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