In their work titled Deals de justice, and sub-titled, Le marché américain de l’obéissance mondialisée, a group of law experts, solicitors and magistrates discuss a baffling business-oriented justice. What are the pillars of this formidable, unique and fast justice, which is delivered without a legal judge, solicitors and trial?

1.      The US’s Judiciary is Open to the World

According to Antoine Garapon, the USA, as a huge country, has always considered that justice must be applied to all and even worldwide. From Nuremberg to the Alstom case, nothing prevents the US from colonising the world with its law. However, 1977 was a major milestone in the process of institutionalising the extraterritoriality of America’s judicial system because it was then that the Foreign Corrupt Practices Act (FCPA) was voted to sanction the corrupt practices of multinational companies beyond American soil. Since that time the Deferred Prosecution Act (DPA) and the Non-Prosecution Act (NPA), which allow American judiciary to investigate a company suspected of violating US laws anywhere in the world and to dispatch its agents to such a company to comb the company’s records to confirm whether it is guilty or not. “There is no smoke without fire”, writes Pierre Servan Schreiber. There is no shortage of reasons or pretexts. It suffices to pay in US dollars, to use an American server, to be listed on an American stock exchange, etc. to fall under this kind of  “negotiated justice” (Olivier Boulon).

2.      The American Judiciary is Efficient

Antoine Garapon compares French and American visions of justice and concludes that the French judiciary system is formal whereas the American judiciary is efficient. Thanks to the Dodd-Frank Act, whistle-blowers move the reparation of wrong from the court to public opinion. Similarly, through the DPA, the law authorises prosecutors, who are not judges, to investigate, companies suspected of corrupt practices and if suspicions are confirmed, such companies are compelled to negotiate rather than dragged to court.  To avoid the cost of court cases in terms of reputation, suspected companies find evidence of their guilt by themselves and pay huge fines. According to Astrid Mignon Colombet, this is a shift from legal battle to self defense. The American Treasury swells, and bad behaviour is corrected. It must however be noted that although this procedure expedites many more files yearly, it offers the opportunity to gather a wealth of data … Procedure-driven foreign companies are baffled by the American vision, which prefers efficiency to justice.  Daniel Solez-Larivière calls this mechanism soft law. Antoine Garapon goes further to mention “Legislative Darwinism” that threatens France.

 3.      Someone Must Provide Oversight for Economic Globalisation

The generalisation of trade provides the basis of an international justice to govern the fight against corruption or the fight against the financing of terrorism amongst the implementation of other ethical standards. Attempts by the UK or China to implement measures like the DPA met with little success. Hubert de Vauplane insists that  no other world power, possesses the means to implement oversight for international best practices : a famous stock market, a powerful currency, and an efficient  telecommunication infrastructure.  The dollar offers the US an instrument of repression in the fight against corruption (Alstim was doubly punished by the DoJ for offering bribes in Indonesia) and against terrorism (BNP Paribas was fined USD 9 billion for making payments in US dollars in countries under embargo), etc. During the past years, other multinationals were compelled to pay hundreds of US dollars -  Siemens, Total, Technip, ING, ABN Amro, Standard Chartered, Credit Suisse, etc. and thereby learning at their expense that they will henceforth have to contend with the extraterritorial jurisdiction of the US’s judiciary. For the fear of legal procedures, they must comply with best practices defined by the self-proclaimed custodian of virtue.

Maurice Simo Djom