Compliance has ceased to be just another part of the business and has become one of the main drivers for companies. The “pressure” in this regard is increasing. What tools do legal advisors or compliance officers in companies have available?
Compliance, which started out as a simple instrument to prevent legal entities from criminal liability, soon became much more than that. First, it was extended to the prevention of other activity areas of the organisations that could generate sanction risks, not only criminal, such as environmental, labour, etc. From this point on, the so-called compliance culture emerged as a different way of doing business, based on Ethics and Compliance with the law. It is true that it has become a top business value. A good compliance system transmits an idea of confidence to business partners, suppliers and customers and, consequently, generates business. Compliance is no longer just a way to avoid sanctions –which is also the case, of course–. Many organisations are already using metrics and indicators to test the performance of their control systems. Rather than pressure, I would say that there is a real race to achieve quality Compliance.
A good compliance system transmits an idea of confidence to business partners, suppliers and customers and, consequently, generates business. Compliance is no longer just a way to avoid sanctions –which is also the case, of course–. Many organisations are already using metrics and indicators to test the performance of their control systems. Rather than pressure, I would say that there is a real race to achieve quality Compliance.Diego Cabezuela, international president of the World Compliance Association
Programmes have become more sophisticated, and tools now play a key role. From those that provide alerts and real-time information on potential business partners, exposed persons or suspicious transactions to the use of Artificial Intelligence to implement certain controls, etc. And naturally, tools to channel the actions of whistleblowers and guarantee the confidentiality or anonymisation of their alerts, as required by the European Directive that came into force on 17 December.
In terms of Compliance, what are the main challenges for 2022?
Compliance is evolving very rapidly, and it is difficult to make forecasts, but I would venture a few of them. First, the multiplication of the use of technology and Artificial Intelligence, not only, as I said earlier, to implement controls, but also to organise the enormous flow of legal rules that are coming our way. However, this multiplication must certainly be bold, but, at the same time, has to be careful. It should be borne in mind that its expansion, even if indispensable and legitimate, always entails a potential threat to such important legal goods as privacy or the personal data of employees and citizens. There is an inalienable frontier of individual rights, which we must protect at all costs.
In the judicial field, I believe that this year we will see important progress in the definition of some essential concepts of the legal entities criminal liability regime. Such as, for instance, the determination of whether those who are investigated or accused will have to compulsorily submit their compliance programmes to the Court. This is an aspect of great importance for their defence strategy. In the same judicial field, I believe that we are going to see a real explosion of Compliance expert evidence in criminal proceedings. The programmes of complex organisations are, inevitably, also complex, and it is very difficult for a judge to assess them on his own without the technical support of a Compliance expert. This is an issue that the World Compliance Association, Cumplen association and the Institute of Compliance Officers have been betting big for some time, and I am convinced that it will mark the future of these procedures.
I believe that this will also be the year in which some big financial institutions, which have recently been involved in judicial and administrative proceedings of great public importance, will make a major effort to improve their systems. This is the sector on which all economic activity is focused.
With regard to ESG criteria, we understand that they are already part of Compliance. In your opinion, what will be the evolution of these requirements in the framework of Compliance in the next two years?
As a matter of fact, ESG criteria are nothing more than a projection of the business ethics to which I referred earlier. Organisations, especially large ones, are expected to be aware of their responsibility and impact on the world and on what the next generations will receive from us. They are expected to protect the environment above their economic interests, to take care of their human capital and to properly organise their corporate governance, closing the way to corrupt practices or anti-competitive behaviour. Of course, ESG criteria are pure Compliance. In fact, they are developed in concrete legal standards, which we have to comply with as such. I think they will be at the forefront in the coming years.
About Diego Cabezuela
International president of the World Compliance Association and managing partner of the Madrid office of Circulo Legal. He is a Law graduate from the Complutense University of Madrid and Master in Legal Practice. His professional practice focuses on Corporate Criminal Law; crimes against safety in the workplace and commercial and Corporate Law. Lecturer at the Grant Thornton/Universidad Rey Juan Carlos Master’s Degree in Economic Criminal Law, Madrid.
He is chairman of the Observatorio de Siniestralidad Laboral and also a regular participant in conferences and round tables on Criminal Compliance and Corporate Criminal Law. Author of Legal articles in the general, economic and legal media, he was a member of the International Association of Young Lawyers (AIJA), the International Union of Lawyers (UIA), the International Bar Association (IBA) and the Commission of Legislative Projects of the Madrid Bar Association.