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À la suite de la dernière crise économique globale, les législateurs français et européen ont été contraints de repenser un droit qui n’était plus adapté aux grandes entreprises de la finance. Dans ce contexte de lutte contre la délinquance financière, la législation européenne des agences de notation illustre le retour à la réglementation et la fin de l’autorégulation. Elle s’inspire de la législation américaine et vise à dépasser les nombreux obstacles propres aux grandes entreprises liés à la taille, la complexité organisationnelle ou encore la multiplication des services proposés. Aux États-Unis, le législateur tente de juguler ces obstacles en imposant aux grandes entreprises un système de compliance visant à adopter des règles de conformité, puis à collaborer avec la justice pénale en cas d’infraction. Ainsi, sous la pression des décisions américaines, les grandes entreprises françaises et européennes sont contraintes d’adopter des codes de bonne conduite. Se dessine progressivement un droit global inspiré des États-Unis exportant les règles de gouvernance d’entreprise et dont on peut interroger l’efficacité.

The latest global economic crisis has brought large financial companies placed to the front of the stage. Some actors have been severely criticized and their role in the economic crisis has been denounced. Among these corporations, credit rating agencies have contributed significantly to and deepened the financial crisis by underestimating the credit risk of structured credit products. Yet few large companies and even fewer individuals have been prosecuted. The financial crisis has highlighted the existence of systemic companies that are deemed “too big to fail”. The sense of injustice was emphasized by the absence of individual prosecution in these companies also considered as “too big to jail”. French and European legislators have been forced to revise legislation that was not suited to large companies. Their objective was to counter financial crime by regulating corporations that had become as powerful as states. In that context, the European legislation on credit rating agencies illustrates the re-regulation of financial markets and the end of self-regulation. The Regulation No. 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies is a textbook case of re-regulation and an example of the influence of corporate governance. It provides that “credit rating agencies should establish appropriate internal policies and procedures in relation to employees and other persons involved in the credit rating process in order to prevent, identify, eliminate or manage and disclose any conflicts of interest”. Thus, the European legislator intends to encourage internal control mechanisms and compliance function. Because of their size, their organizational complexity or the multiplication of services offered, large corporations cannot be regulated by a classical regulation. Indeed, the offense may have been committed abroad by a subsidiary. Then, it must be difficult to prove intent and to show who is responsible in a complex organization. Finally, the lack of transparency in large corporations can hide violations and conflicts of interest. These obstacles are challenges that the United States of America are trying to curb by requiring large companies to adopt compliance programs. For corporations, this compliance policy means putting in place a mechanism to ensure that practices comply with law. Not only do companies have to develop clean modes of governance to ensure the compliance of practices but they must also cooperate with prosecutors about violations. Compliance consists first in internalizing the rules of law and secondly in cooperating in case of malfunction. It involves that codes of conduct or good practices must be implemented first and then full cooperation in the investigation in order to escape prosecution. This system allows companies to avoid prosecution, to negotiate the penalty and thus to avoid a costly trial in terms of image. Under pressure from the American authorities, foreign companies, both European and French, have been forced to adopt codes of conduct. Because of the extraterritorial application of US Law, French companies are not immune to prosecution. Corporate criminal law is influenced by American law so that part of the doctrine defends the idea of an Americanization of the law. Gradually a global law inspired by US law takes place that is why it is necessary to examine the effectiveness of these governance rules. In such a system, there are few individual prosecutions and corporations avoid trial. However, do they escape the law altogether ? In reality, it is a new system that is set up, in which all international companies are forced to implement a compliance program to avoid possible sanctions and to cooperate in a prosecution. Here, we present several articles whose subject is to question the effectiveness of these new modes of regulation and the resolution of prosecutions.