Compliance and Regulation Law bilingual Dictionnary

Compliance

by Marie-Anne Frison-Roche

ComplianceTech©

Compliance is a concept born mainly in the United States and it is difficult to translate it, for instance into French, as the term "conformité" is not entirely adequate. Compliance is not only the obligation of certain professionals, such as investment service providers (ISPs) to comply with their professional obligations, nor does it extend to the general obligation to comply to all laws and regulations, this obligation to submit to the Law targeting all persons and characterizing the very power of Law.

Compliance is rather the internalization in some companies of specific obligations, resulting from regulatory systems. Thus compliance consists in internalizing the regulatory systems themselves in operators. In order to ensure the effectiveness of this internalization, the companies in question become transparent, the Regulator, or even the criminal judge, who can permanently and in Ex Ante check the proper functioning of the company for the implementation of the rules. The supervision of the company thus allows the effectiveness of the internalization of regulation in the company.

The company is then forced, including by criminal law, to use its power to achieve goals that are a priori external to it, such as the fight against money laundering, the fight against international terrorism and even the protection of human rights. The State thus enacts the aims and the enterprise implements them, the State having the legitimacy to do so but being too weak, in particular because it is enclosed within its borders, the enterprise having the power to do so.

This implies that compliance refers only to a very specific and legally new category of companies: companies with an international activity and having the power to structure themselves to achieve their goals. Law constructs a companie duty to structure itself in this sense: compliance is inseparable from governance.

But these companies thus newly constrained by the consideration by the Law of the globalization do not remain passive. They are actively involved in the normative creation of compliance and, in particular, through ethical charters and codes of conduct, demand the issuance of standards of behavior for all persons who depend on them, both internally and externally, A new culture of compliance, in which respect for meaning is essential and goes beyond the technical differences between legal systems. The emergence of a Global Law can take this path.

 

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