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.
Actu-Juridique: The health crisis confronts us with new difficulties. In what way could Compliance Law prove its usefulness?
Marie-Anne Frison-Roche: Compliance Law is usefulness because we face an aporia. This crisis requires the intervention of public authorities. No one doubts it. But States have a consubstantial relationship with borders. There is no World State. This crisis is global. Certainly, certain companies and certain markets, notably financial ones, are on a global scale. But it is not their mission to prevent, manage or organize a crise way out. This is why we face an aporia, since the legitimate actor (State) does not have the size and the actors of adequate scale (company and market) have not this mission and must not obtain the power to do it. How to do ? Because there is an absolute urgency to find a mechanism to prevent the next health crisis, This is where Compliance Law appears particularly suited to the treatment of this contemporary and urgent issue.
Actu-Juridique : Perhaps, at this stage, we could define the Compliance Law, so often confusing….
MAFR : Indeed ! Maybe because of a confusion between a procedural conception of Compliance (poor conception) and a substantial conception of Compliance. In a simple procedural vision, Compliance is about following the rules. It is a proof mechanism, requiring some to constantly demonstrate that they comply with all applicable rules. This obligation of "procedural Compliance" is already a major development: it constitutes a reversal of the classic principle according to which it is up to the public authority considering that the person violates a rule to prove it. “Procedural Compliance” reverses this principle: the subject of law must show in Ex Ante and permanent it ""Compliance" with all rules. The banks were the first to be subjected to this procedural rule. The resulting legal regime is very restrictive: transparency, obligation of internal self-monitoring procedure, Ex Ante constitution of proof of action to comply with all rules, etc. The objective of this newly laid imperative of procedural Compliance is to make the system more effective, more efficient, the Law thus being better respected than in a classic system where the subject of law has no obligation to demonstrate that he acts in accordance with the rules, possibly waiting for prosecution authorities to demonstrate non-"conformity" with legal obligations. But this conception is only a procedural system, not containing substantial standards, a system which one could say an "empty" one. Conversely and by a radical distinction, in a substantial way, Compliance Law is built on a goal, and even a "monumental goal"
Actu-Juridique: How does this translate into practice?
MAFR : A State or a Public Authority poses what I call a "monumental goal", for example fighting against child labor, or corruption ("negative" goals) or restoring ecological balance ("positive" goal!)
Actu-Juridique : Compliance has been practiced in financial matters for almost a century. We can see the diagram, financial institutions are subject to strict rules and must answer to a regulator, but what about an epidemic?
MAFR : Take the news. In January 2020, the Bank for International Settlements published The Green Swan. Central banking and financial stability in the age of climate change, asserting that central banks, as responsible for stability, must now take charge of climate change because it is a new factor of instability. In April 2020, the Banque de France published an article suggesting on the basis of this book that the health crisis must be thought of in the same way as climate change. It seems very relevant to me. Indeed, the central concept is Stability. It is a new legal concept, a pillar with regard to which the prospect of a monetary disaster, a banking disaster, an ecological disaster, a health disaster are of the same nature: they generate a " catastrophic global instability ”. These are therefore prospects to be excluded. How to do it ? By Compliance Law. Indeed, it internalizes long-term preventive actions with the monumental goal that this devastating instability of the crisis does not happen, that stability remains.
Actu-Juridique : We would therefore entrust the central banks with the task of managing health crises! And why not just at WHO?
MAFR : WHO? If we manage to transform this international organization into an effective regulator capable of fixing prevention rules, ensuring that they are respected and managing this type of crisis, so much the better, but I don't see how. We see here, and every day, the limits of International Law in that it works on the will of States. And with so little enforcement…. Those states that do not want to obey or give useful information can do so. Without being sanctioned. How to effectively prevent the next crisis with such weak tools
Actu-Juridique : It could simply be a matter of social responsibility or ethics, moreover it is maybe on this basis that LVMH acts when the group produces hydroalcoholic gel?
MAFR : It is true. But the security of the future and the resolution of crises cannot depend on these generous impulses. Compliance Law is beyond this because it is not a question of waiting for a company to agree to participate in the effort by believing that its ethics require it. So much the better if there is convergence between the general interest defined by Public Authorities (the company is not the Legislator) and the commitments of corporate social responsibility, but Compliance Law is deployed in the of constraint. Coercion but not sacrifice or charity. For example, as it has been practiced for decades in Regulatory Law, if it is imposed to a company to produce masks because this firm is in a position to do so (notion of "crucial operator"), it's necessary to set a price for it fairly. Pricing techniques for accessing essential facilities are good examples for calculation methods. If companies want to do it because their ethics dictates it, so much the better, but this dimension cannot be a condition.
Actu-Juridique : Finance may have 70 years of experience in crisis prevention, but that has not protect the world from experiencing major financial crises, especially in 1987, 2001, 2008…
MAFR : True, but the existence of a branch of Law does not depend in its existence on its 100% efficiency. For example, Criminal Law is not contradicted by the persistence of crimes. In addition, Compliance Law is a particularly ambitious Law
Actu-Juridique : What to do to implement what you recommend?
MAFR : Firstly, be fully aware that this type of crisis will recur and that we must equip ourselves with the tools capable of preventing, managing, and getting out of it. Secondly, and to speak only about Law, it is necessary to better understand the relationships between Law and Crisis, which have been relatively little studied, perhaps because these relations are too political. Europe is well placed for this
For more technical developments on the Compliance Law definition, s. Frison-Roche, Compliance Law, 2016.
On History and projections on the future, notably about environmental issues, s. Frison-Roche, M.-A., Compliance Law: Before, Now, After, 2017.
On this notion, Frison-Roche, M.-A., Proposition for a notion : the "crucial operator", 2006.
On this notion, Frison-Roche, M.-A., Proposition for a notion : the "crucial operator", 2006.
Frison-Roche, M.-A., Facebook, Coronavirus and Compliance, 2020.
On the development of this observation, with regard to the Amazon case and its connection to Compliance Law, c. Frison-Roche, Compliance and Extraterritoriaity: a natural and effective couple for the future of Europe, 2020.
Frison-Roche, M.-A. (ed.), Regulation, Supervision, Compliance, 2017.
About the ambition and the "pretention" as signal of Politic, core of Regulatory and Compliance Law, notably when the aim is to put the human in the center of the Globalization, s. Frison-Roche, M.-A., The Globalization in the point of view of Law, 2017.
S. more generally Frison-Roche, M.-A., For the Europe of Compliance, 2019.