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This working document, "The Dreamed Compliance Law", is the basis for an article, written in French, "Compliance", inserted in the collective work to be published under the direction of Jean-Baptiste Racine, Le Droit économique du XXIème siècle, in the Serie Droit & Economie, LGDJ-Lextenso, 2020.
No one can know what the Law of the 21st century will be. Pretending to know it is just not to realize its ignorance. Why then writing about it, since the future is always surprising?
One can only write about the unknown part of the Law of tomorrow. If the future is then modeled on what was written, so much the better for the prophet, a tribute that can, for example, be paid to Pierre Godé
Lévi-Strauss argued that teaching is defined as dreaming out loud. Teaching and describing the Law of a century that we will never know gives even more freedom to dream about it. This freedom increases when the object is a branch of Law in the process of being born, state of the stammering "Compliance Law" of which some still maintain, as it was made for Regulation Law, that there is not existing. The hand can then, as it pleases, trace its beautiful or hideous features: what face will Compliance Law have, as soon as we assume that it will exist?
It may as well be a nightmare (I) as a happy dream (II).
It is up to us to choose in which category this branch of Law will flourish. Because what we can be sure of is this fulfillment. It is certainly already taking sides to presuppose the very existence of Compliance Law. Not only to consider it possibility with hostility because to be an enemy of something or someone is already to recognize their existence. Before that, two objections radically block the very existence of Compliance Law and their shadow remains in the future of it
Firstly, it is said that Compliance does not come under Law, but for example only ethics since it would consist in keeping well in companies which care about the interest of others or the planet, for example by spontaneous care of the environment; Compliance being a crystallization of social responsibility, the one for which we have our conscience, we express our "raison d'être" and we are not accountable
Second, there would be many Compliance mechanisms but insufficient to constitute a branch of Law. Indeed we would find Compliance in Company Law, Labor Law, Financial Law, Banking Law, Criminal Law, Administrative Law, European Law, International Law, etc.
These classic branches, which have been formed for so long, depending on the point of view adopted, would gain in modernity or be threatened with decay by this kind of extension which will be Compliance. There would thus be as many "little legal sectoral rules" as there are branches of law. These new internal developments would be like a new bud, on which care should be taken - if the tree regains its strength - or a weed to be eradicated - if the French garden loses its perspective.
Thus the matter being scattered as many as specialist lawyers, often criminalists or specialists in banking and Financial Law, then tomorrow all specialists in all branches of Law, this could constitute the most radical obstacle to Compliance Law. Indeed, we would come back to confuse Compliance and the "modernization" of Law itself as a whole, since it would only be a question of perfecting each of the classic branches of the legal system.
If we keep in this half-sleep that is any projection in the future the hope of a branch of the constituted Law, we must discard these two perspectives of annihilation, in the total absence of Law as in recovery by all Law. To dismiss the sorrowful spirits who see no future in Compliance and keep only its enemies in the space of this article, let us assume that Compliance Law will exist in the 21st century. In what form and by what means, in the palm of which institutions, in the shadow of which legal system? Since it is a question of projecting ourselves onto the black screen of our nights of dreamy lawyers, let us take the current state only as a trailer. Like the one developed by the genius who by the contempt not only brought down into the flames of hell the cinema which has become a consumer industry with which producers force-feed us but offered us the vision of its future. What is what we see today the trailer? We let our imagination run wild since the trailer films are autonomous works compared to the film which follows them.
We have no idea what will happen and what we are watching from the brief and violent current images of Compliance Law, the cinema of which rather makes a hero of the whistleblower
Everything will depend on the concept that we will retain of Compliance Law. Because the script is not written, because Compliance Law is a Law with a political dimension, that it is defined by the ambitions that we can claim to have by setting monumental goals that we are going to achieve, a claim that will make it one major branch of the Law of tomorrow, or we can abandon any claim, lower our heads and arms, and reject any claim. It is then that the power of Compliance Law, which will be no less great, will turn against us, human beings, as in a nightmare.
Mélanges Pierre Godé, off-trade book, 2019.
Godé, P., Le Droit de l'avenir (Un Droit en devenir), 1999.
It is in particular the idea of the movement of analysis of Law & Literature which poses that by telling the past in one way or another, by thus inventing it, Law, and in particular the Judge, invents the future and being written, creates it. On this movement which was powerful in the United States, v. Cabrillac, R. et Frison-Roche, M.-A., Droit et Littérature, à paraître.
See infra I. Compliance Law as nightmarish octopus.
On the fact that "social responsibility" makes it possible not to be legally responsible, cf. Supiot, A., Du nouveau au self-service normatif: la responsabilité sociale des entreprises, 2004; this is not the subject of this article and this question will not be developed here.
See, for instance, ..., Replace Regulation by norm by Regulation by Data, 2020.
See, for instance, Frison-Roche, M.-A., Compliance Law (monography), 2016 ; Compliance Law, 2020.
On what the cinema does with the whistleblower, with the availability of trailers and extracts from the films, see Frison-Roche, M.-A., introduction of the article The impossible unicity of the legal category of whistleblowers, 2019.
Frison-Roche, M.-A., ... (retrouver sur LinkedIn).
I. THE FUTURE DEPLOYMENT OF COMPLIANCE LAW AS A NIGHTMARISH OCTOPUS
"What a nightmare ..." sigh the interested parties when they are sure that the judges and the regulators do not hear them ... Yes, and that has only just started! Indeed, Compliance Law is an accumulation of costly, fragmented, incomprehensible and impossible to satisfy mechanisms supported by companies (A). To survive this avalanche of "norms", the prospect of survival would be in the future either a defense against Compliance Law of others, or a machine-made of all this rubbish (B).
A. THE CHARYBDE OF IMPOSED COMPLIANCE REQUIREMENTS: CUTTERS AND EMPTY, FRAGMENTED AND UNNECESSARY
Reading the gray or scholarly literature available currently, one sees like a long and unanimous complaint.
Because "Compliance" would be defined as the obligation for companies to show a priori that all the people who depend on them respect all the rules, companies should have the means to know all the rules that it not only the legal rules, but also the technical rules, but also the ethical rules.
The managers must not only know all these rules, which are thousands, but also all the changes that affect them and all the interpretations that influence them.
The more time is spent, the more the volume of these accumulated rules increases. The crowding is done without "order", since the American Regulators claim to apply their national Compliance Law to the whole world, by a claim to extraterritoriality under which each one groans, and which has no reason to retract tomorrow.
Thus, what is observed today would be both an accumulation of "regulations" of all kinds, because if "Compliance" was only the obligation to respect the mandatory rules it would refer to all substantive rules, what which produces an enormous mass, in infinite expansion, tomorrow being always worse than today. The obligation of any business to show its effective Compliance with any rule applicable to itself can only cost it dearly (risk mapping, training, effective culture of Compliance, etc.).
However, as this obligation applies to any imperative rule and that its violation is itself imperative, even penalized, the French law known as "Sapin 2" being only the resumption in French Law of the American FCPA, paragon of this internalization in the company of the objective of the effectiveness of legislation, Compliance Law is a set of legal rules which would be substantially "empty": it would have no specific purpose, since it would therefore have only a procedural definition, 'being that the internalization in the subject of law (company) of any legislation which applies to it.
However, as the nightmare image continues to take shape, these imperative regulations are not unified. Indeed the company must undergo as many regulations as it has locations, or even undergo the extraterritorial effect of the dominant legal systems, that is to say of the United States. Thus, the company through Compliance must manage the incorporation of contradictory national legal rules or submit to American Law, which has the effect of destroying the Private International Law mechanisms. The absence of "Global Law" therefore makes Compliance Law all the more unbearable.
And why all this? For nothing ... Indeed, Compliance Law would be perfectly useless, since companies would be content to mechanically apply distant regulations which it is useless for them to understand the meaning of. This lack of substance, even of common sense, is reinforced by the very solutions that are proposed and that will undoubtedly develop in the future.
B. THE SCYLLA OF PROPOSED SOLUTIONS: THE SINGLE HOLD OF MACHINES AND THE CONCENTRATION OF FORCES IN THE BATTLE OF TERRITORIES
If we adopt this perverse conception of what Compliance is, it could be the breeding ground for a sort of a machines triumph (1) or else continue to fuel the war between the United States and the rest of the world (2).
1. Based on this definition of Compliance Law, the perspective of the influence of machines: algorithms, masters of Compliance
It always starts with a complaint: how to get out of this terrible tide of "standards" that no one understands? And the solution is proposed: the machine will provide it.
Let us take recent examples, in several countries with, however, strong legal tradition. On June 17, 2020, in the United States, the Institute of Management Accountants published a report, The Digital Transformation of Compliance and Business Reporting in the Fourth Industrial Revolution: From Fragmentation to Connected Reporting. This document starts from the observation that it would now be impossible to effectively carry out audit and control missions for companies. This would be due to what is named not as Law but as the "regulatory environment", because the "regulations" (ie legal systems) are diverse, even contradictory, which prevents the investor to be informed about the company (information that is the purpose of the accounting). The solution would consist in a "data revolution", concretised in putting them all on the same platform so that a "machine" could "read" them and could "correlate" them.
This "machine readability" would become the primary quality of "regulation". Stendhal, who said that every must have the possibility to read legal texts as we read a novel, couldn't believe that... The "connection" by algorithm having replaced literature, human understanding and reason, Law would withdraw from a mechanical world where machines speak to machines.
In the United Kingdom, the Financial Conduct Authority (FCA) and the Bank of England had, in January 2020, proposed in a joint report to improve Banking Law and Financial Regulatory Law through "Data Regulation". It is the same way of accumulating information and using algorithms to impose behavior on businesses. As if the factual reality report could directly lead the behavior to be followed in the future.
In France, the same idea is at work, for example when a think tank affirms in 2020 that it is necessary to stop "regulating by norm" for "regulating by data", which takes up affirmations in this sense by the telecommunications' regulator or the regulator of rail and road activities.
It would therefore be necessary to take all this jumble of rules of all kinds, coming from all sources and all levels combined, putting this in these enormous machines to "connect", the quantum computer giving great hopes in this perspective, so that it takes shape finally for everyone good behavior, prescription that would be obtained by the mere fact of this single massing and articulation.
Tomorrow the Masters of Compliance would therefore be the machines.
Because the notion of "decision" and "choice" would have dissolved in the notion of "information" and "correlation".
From this fact alone, then Law, in that it expresses a political choice, a goal pursued, an expressed will, in short in that Law is a human activity, will have disappeared.
To observe so many proposals to the glory of what is often called "artificial intelligence", one can have some fear of it.
Do we want to move towards this future?
We seem to be more tempted by this abyss than these mechanical performances would protect us which is so often presented as the ammunition of a great war between the United States and Europe, whose Compliance and Law which expresses it would be the "Trojan horse" ....
2. Concentration of forces in the battle for territory
When we currently deplore the "fragmentation of regulations"
The idea is then that the United States found in the vocabulary of "Compliance", whose preservation of the American expression would be the proof of their "imperialism", and in its techniques, the means to reign over the world , by freeing themselves from respecting the borders which would should keep them in respect.
Because Compliance Law, both financial, banking, embargo, fight against corruption, applies without the need to identify a traditional connecting factor in the situation to apply it the American rule, this effect is perceived as being the object of the legal Compliance mechanism: to rule the world.
Consequently, all the other legal systems, for example European Law, should have to join forces, notably legal, to repel the assailant, and restore their "sovereignty".
From this perspective, the future of Compliance Law could only be the triumph of American imperialism or the disappearance of Compliance Law
However, this presentation of what Compliance Law will be is no written.
In fact, Compliance Law currently presents the lineaments of a branch of Law that can respond to what human beings are looking for in democratic political systems: an effective means of being protected from future disasters.
II. COMPLIANCE LAW COMPLETED, AS A BRANCH REVEALED OF SOLUTIONS PRESERVING PEOPLE FROM SYSTEMIC DISASTERS
Compliance is an extension of Regulation Law
Thus, Compliance Law finds a definition of a substantial nature, in contrast to the procedural, mechanical and empty conception often developed, through the notion of "monumental goals" which it aims for (A). In the almost exhausted world in which we are moving, only Compliance Law seems capable of still relaying this "political pretension" of monumental goals such as the prevention of financial, ecological, health or humanitarian crises, companies remain second. Indeed, these must continue to be only subject to the obligation to make effective the prevention of systemic crisis and concretize the fundamental rights involved, whether they adhere or not to the underlying values, extra-territoriality being consubstantial with this imperative (B) .
A. A SUBSTANTIAL MONUMENTAL GOAL EXPRESSING A COMMON POLITICAL PRETENSION
Like Regulation Law
1. The definition by normativity of "monumental goals", pursued in Ex Ante
The Politic can be defined by its "pretensions", that is to say a will which seizes the future and which, beyond all calculation, poses that it can influence the way in which it will agence it
When this goal set by a will targets a complete system, the "pretension" that the will shall influence the future of the system becomes monumental: for example that endemic corruption does not cause the economy to collapse, that the asymmetry of information does not distort the integrity of the financial market, that the immediate economic interest does not destroy the planet in the medium term, etc.
These "monumental goals" were expressed by legitimate States to happen, by coincidence between those who gave power to the rulers and those to whom the acts of government apply, the nation in the territory concerned
The evolution of the world now makes it difficult to stop there since global crises born elsewhere can destroy us. The temptation is then to develop claims in two opposite directions: either to build walls, or to claim more, by developing monumental goals for third territories, third concerns, third persons.
This is what public authorities are doing, which, however local, are now aiming for "monumental goals" of prevention of global systemic crises because their triggering elsewhere will cause catastrophic effects in an area or on subjects which they have the load which, upstream, gives them the power to intervene.
This reasoning, which is acquired in banking and financial matters, is spreading today in terms of the environment: it is astonishing to see how natural everyone seems to accept the use that central banks make of their powers to prevent climate change, while it did not seem taken for granted that this was part of their mandate.
A legal and political analysis can effectively affirm that central banks are in charge of struggles against any form of instability and that, in the same way as risk mapping aims at the risk of political instability, monetary instability being only a first example of a more general function, thanks to Compliance Law, the central banks will fight against monetary, banking, and financial instability, but also climatic and even sanitary instability
2. The prerogative of the political authorities to support the claim of monumental goals and the maintenance of businesses as subjects of Law and not sources of Law
In this deployment that can be anticipated from Compliance Law by which the Politics will express the monumental goals it pursues, the separation must remain clear between it and the crucial operators who implement the mechanisms.
Gunther Teubner was rightly alarmed that big companies were becoming the "new global constituents"
We observe in fact that companies, especially in the digital space, issue charters that resemble global laws, while they base refusals to sell the products they have designed to the fact that such or such behavior of people or of organizations asking to acquire them does not seem to them ethically suitable, which is a strictly political position
If we do not want Compliance Law, sometimes presented as what destroys companies
The crest line is narrow but it is essential to stay there. Case Law seems to ensure this.
Indeed, firstly, companies must not be able to deprive the political authorities of the prerogative of the latter to formulate monumental goals. It is not up to companies, however powerful they can be, however benevolent they may be, to fix what the future of the people must be. Or if we admit that, it should be up to the people to elect the managers.
The setting of "monumental goals" must be the responsibility of States and public authorities. If by coincidence companies express the same concern, for example through their specific purpose (Benefit Corporation in the US ; Community Interest Company in the U.K. entreprise à mission and "raison d'être" in France), we can be delighted; this convergence increasing the chances of effectiveness in achieving these goals. That, but not more.
Secondly, because Compliance Law is, like Regulation Law which it extends, the mark of a liberal economy and not of a directed economy, if the Politics has the prerogative of fixing " monumental goals ", the company is free to choose for itself the means by which it will achieve these goals. For example, the bank must put in place the mechanisms by which it must identify money laundering activities, but it is the master of its choices. The French Agence française anticorruption (AFA - French Anti-Corruption Agency) recalled in its decision of July 2019 the principle of freedom of the company as regards the means of Compliance
The only power that Public Authorities must deploy over the means freely designed and implemented by companies to meet their obligations arising from Compliance Law is therefore not a power of "Regulation" but a power of "Supervision". Indeed, public authorities must be able to constantly watch and control the way in which companies structure and behave in order to make their "best efforts" to satisfy the monumental goals that the Politics have imposed on them.
The triptych that is articulated to build this "Law of the Future" is therefore: "Regulation - Supervision - Compliance"
Thus, thanks to the power of Compliance Law, because it can be defined by substantial monumental goals, Compliance Law can and can achieve a kind of Regulation of activities not subject to Regulatory Law, such as those of international trade (for which one sought "regulation", in particular via the WTO) and that of digital
In the future the more Compliance Law will be firm on these two principles, namely on the one hand the prerogative of the Politics to fix the goals and on the other hand the freedom for the companies to fix the means, and the more Compliance Law will be able to respond to the need of the XXIth century to respond to the monumental problems which we must pretend to face.
For that, because a branch of Law only prospers if it has simple bases, like those which have just been expressed, it is necessary that all these mechanisms so "complex" of Compliance, all these monumental goals so diverse, all these a-legal and legal mechanisms, plunging in such varied techniques, can be reduced to a single principle.
However, they can, and that is why Compliance Law will be a primary Law in the future: because its "monumental goal" is the concern of human beings.
B. AN EFFECTIVE OBLIGATION TO TEND TOWARDS THE CONCRETISATION OF THE PURPOSE OF PROTECTING HUMAN BEINGS
Indeed, when we study all the "little legal sectorial rules" of Compliance
But if we start from the origin, that is to say the concern to prevent the banking and financial crises which gave birth to Compliance Law in the United States in the 1930s
This is why American Law and European Law have the same goal, namely the protection of human beings, which is in line with the Western definition of Law, for which human beings remain the measure of everything. Conversely, the computerization of all "predictive" information, obedience as the only absolute empty standard, corresponds to non-Western traditions of social regulation in relation to which Europe and the United States must form an alliance, tomorrow even more than yesterday, because technology risks accrediting nightmarish perspectives. Against this, Politics needs the alliance of Law, in the conception that the West developed and must maintain.
In this crossroads where we are, we may not despair, neither of Politics, nor of Law.
Indeed and for example, if the banks are currently required by the European institutions to prevent the climatic catastrophe, it is because they are most able to act, being in a position to influence the so-called "responsible" investments. , on so-called "responsible" finance, etc.
Compliance Law, in that it is located in Ex Ante, makes it possible to take 21st century Economic Law out of the omnipotence of the concept of "market" to adopt the concept of "sector" which is developing in the time, including upstream financing.
In doing so, the banks - and above them, Central Banks - acquire an essential position to ensure that in the operations which develop over time, in particular industrial operations abroad, the monumental goals pursued by States are reached.
However, public authorities will now have the monumental goals of preventing banking and financial crises, but also climate crises, which expresses concern for future generations, and henceforth health crises.
The link between Compliance Law and concern for human beings is now directly made, in particular through the example of the French Law so-called " Loi Vigilance" (2017). But it should not be considered that it is a "monumental goal" like any other, or even as a consolation that we give as compensation for being entitled to pursue in good conscience the systemic goals of pursuit stability of economic and financial systems.
Indeed, if the States and in particular the Central Banks have the mandate to preserve the integrity and the stability of the economic and financial systems it is ultimately to protect the human beings who live there. On the same political bases, Compliance Law, relaying this great Political Pretension, can support a Monumental Goal which contains all the others: that of putting the human being at the heart of the liberal economy. This is why Compliance Law is internalized in companies, because companies are not goods but are groups of human beings.
In this, Compliance Law can constitute the framework of a European Law, model for the XXIth century.
See supra I.A.
For a more technical and developed presentation of this conception, see Frison-Roche, M.-A., Compliance & Extraterritoriality: a natural and effective couple for the future of Europe, 2020.
Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017.
Frison-Roche, M.-A., Regulation Law, 2001.
On the link between the increase in these "pretensions" and the phenomenon of Globalization, see Frison-Roche, M.-A., Globalization from the point of view of Law, 2017; see Collective book in honor of Alain Supiot, Concerter les civilisations, 2020.
This definition is not synonymous with "power", it firstly has the recognition for the sovereign being of the admittion of its limits. As Alain Supiot has shown, notably in his introduction to the book deboted to the work of the philosopher Simone Weill (Supiot, A., (ed.), Mondialisation ou globalisation ? Les leçons de Simone Weil, to be sovereign consists in recognizing oneself as not very powerful and in nevertheless not deducing from it him reduction to inaction. This moral definition of sovereignty, which is also found in Gunther Anders (Obsolescence of the Human,1956) leads us not to negotiate on claims, to measure their inability to reach them and to seek solutions so that the aims sought are nevertheless concretely considered. In this, moral action and political action are of a common nature.
On the idea that the Law can concretize this moral duty thus expressed by its link with sovereignty in that it expresses its limit by not authorizing the power of the technique of legal personality to undermine the concrete reality of humans, c. Van Beers, B., Personhood in the Age of Biolegality, 2019, and more particularly the chapter this author devotes on this subject from the Gunther Anders book: “The Obsolescence of Human Beings” and the Non-obsolescence of Law's Natural Persons: Transformations of Legal Personhood Through the Lens of “Promethean Shame”, p. 187-204.
Taking up here the three classic criteria of the State: a people, a territory, its own institutions.
V. in this perspective, Frison-Roche, M.-A., Compliance Law, Health Crisis and Future, 2020.
Teubner, G., Fragments constitutionnels. Le constitionnalisme sociétal à lère de la globalisation, 2012 ; L'auto-constitutionnalisation des entreprises transnationales ? Sur les rapports entre les codes de conduit "privé" et "publics" des entreprises, in Supiot, A. (dir.), L'entreprise dans un monde sans frontières. Perspectives économiques et juridiques, 2015. In the very abundant doctrine on codes of conduct, which have a very important part among Compliance Tools, see. from a positive perspective Mossé, M., La responsabilité sociale des entreprises in Archives of Philosophy of Law, International companies, and from a more critical perspective the reference article, Farjat, M., Réflexions sur les codes de conduite privés, 1982. See also Frison-Roche, M.-A. (dir.), Compliance tools, 2020.
On the fact that, in addition, this position adopted by Amazon, IBM or Apple, refusing to provide facial recognition algorithms to the police forces, could also be explained by the fact that they have little market share in this service, see The New York Times article of June 24, 2020: https://www.nytimes.com/2020/06/24/technology/facial-recognition-arrest.html
See supra the first part of this article.
Frison-Roche, M.-A., Probatory Lesson of the Decision of 4 July 2019 of the Sanctions Commission of the French Anti-Corruption Agency: the President of the Agency, a Prosecuting Body only bears the burden of Allegation and the Company must prove the execution of its Compliance Obligation, presumed if it complies with the Recommendations of the Agency
In this perspective, s. Frison-Roche, M.-A. (ed.), Régulation, Supervision, Compliance, 2017.
For a demonstration in this sens, Frison-Roche, M.A.,The Contribution of Compliance Law in the Governance of Internet, 2019.
About this notion, see the introduction of this article.
Frison-Roche, M.-A., Compliance : before, now and after, 2018.