activities. In perhaps its most notorious escapade, Enron's role at the head of a US consortium DPCiii, established to build the huge Maheshwar dam complex in.
Corporations Beyond Globalised Era
the
Law?
Regulation,
Risk
and
Corporate
Crime
in
a
Steve Tombs and Dave Whyte Introduction It has long been accepted amongst those researching the area of corporate crime that control efforts via criminal law tend to be relatively weak. In general, non-enforcement of law designed to control illegal business activity is the norm, enforcement activity tends to focus upon the smallest and weakest individuals and organisations, and any sanctions imposed are largely insignificant (Snider, 1993). If anything, these longstanding realities have become even more marked in recent years. For if there is one discernible general trend in corporate crime control across almost all industrialised nations of the past quarter of a century, it is that control efforts have diminished (Passas, 2000). Thus, across the capitalist world, this past quarter of a century has witnessed a key series of economic, social and political trends emergent on an international scale – trends usually summed up in the catch-all shorthand that is ‘globalisation’ – which have potentially important consequences for the ability, or otherwise, of nation-states to manage and mitigate the risks produced ubiquitously by corporate activity. At the heart of those trends, as Snider documents in this issue, is a bid to promote a neo-liberal market hegemony with such religious zeal that it over-rides managerial reason and discounts risks to human life. However, much globalisation talk is unconvincing, fraught with hyperbole, shifting uneasily between the normative and the empirical, often based more on wishful thinking than reality. Even if globalisation discourses point to real trends in international political economy, then we need to emphasise both that these are trends only, and that the effects of those trends are systematically exaggerated by politicians, business leaders and academics. This is not to deny that the internationalisation of economic activity has created some new, or accentuated existing, problems of regulation for the nation-state. In some industries, for example, notably the production of certain goods and delivery of particular services, ‘regime shopping’ is now both more possible and likely. Further, in the context of financial services and international banking, the problems of effective regulation are augmented by the scale, reach and speed of financial transactions, creating supra-national organisations which occupy the space between law (Michalowski and Kramer, 1987). It is almost as if the corporate form has evolved into its present transnational form for the purpose of operating beyond the law and therefore beyond the reach of the state. The Hegemony of Globalisation Discourses At the same time, however, as the papers presented in this journal demonstrate, it is clear that, almost irrespective of whether, and in what forms, globalisation actually 'exists', the discourses of globalisation now play a key role in shaping the policies and strategies of the governments of advanced capitalist economies. Indeed, a key feature of the neo-liberal paradigm is that globalisation has now assumed the mantle of a hegemonic project. It is the “perceived dictates” (Goldblatt, 1997: 140) of this “new orthodoxy” (Harman 1996) that governments invoke as they seek to attract or retain private capital through various forms of de- and re-regulation, impose massive cutbacks in the social wage, and more generally reproduce the “political construction of helplessness” (Weiss, 1997: 15); and it is this orthodoxy to which transnational
capital points as it seeks to increase its leverage over national-states, both intra- and inter-national sources of resistance (Tombs and Whyte, 1998).
and
For us, the key implication of the hegemony of discourses of globalisation is the assumption that Governments now exert less political control over economies - economic management is relegated to the task of over-seeing the operation of 'free' markets - and over the key actors in these economies, namely corporations and, most significantly, multior trans-national corporations. In short, according to this thesis, what we are witnessing is a negative-sum degradation of politics as an inevitable by-product of the rise to domination of the market. One rises as the other falls. Alongside this ‘pragmatic’ recognition comes an almost moral argument – one which elevates private economic activity to the status of an intrinsically worthy end in itself (Frank, 2001). And this elevation in turn coheres with a sustained attack on state, public and in particular regulatory activity, an attack cast in terms of the freeing of enterprise and the valorisation of risk. As Snider demonstrates here, the phraseology of ‘burdens on business’ and ‘red tape’ to refer to laws designed to regulate economic activity has become common currency, the unquestioned implication being that such burdens and tape should be reduced as far as possible – often with disastrous consequences. The effects of the undermining of social regulation are ubiquitous, even if they tend to receive lesser political and popular attention than economic offending. For example, although Enron has come to symbolise a particular brand of financial fraud, it has been forgotten rather quickly that this was a firm that faced sustained criticism for the social and environmental impact of some of its activities. In perhaps its most notorious escapade, Enron’s role at the head of a US consortium DPCiii, established to build the huge Maheshwar dam complex in the Indian state of Madhya Pradesh, attracted widespread international criticism. Building the dam – designed overwhelmingly to provide electricity for large business operations rather than for private households - involved the wholesale destruction of 61 villages. Few of them, if any, received any compensation for the submerging of their homes and their land (Roy, 2002). Local (peaceful) opposition to the project was repelled with brutal and extreme violence. Private guards and public police implicated in the violence were either paid for or employed by Enron’s subsidiary in charge of the project. Echoing an earlier condemnatory report by Amnesty International (1997), Human Rights Watch (2002) recently noted the immense influence that Enron exercised over the central and Maharashtra governments….the company's interaction with villagers whose legitimate concerns for their livelihood and environment were ignored or dismissed leading them to oppose the project…met with serious, sometimes brutal human rights violations carried out on behalf of the state's and the company's interests. The fact that a legal response to these well documented human rights violation was not apparent in the US or India, where state agents colluded with the Enronled consortium, indicates one of the most successful of the ideological assaults of the neo-liberal project - the attempt to establish that what is good for business is good for society (Michalowski and Kramer, this issue). It is a claim that resonates along the corridors of power in most so-called advanced states and remains a primary motive for regulatory disengagement or lack of activity on the part of those states. Corporate Crime and the Centrality of the State
That corporations can produce widespread harms whilst acting within the law is related intimately to state inactivity. This relation is perhaps most apparent in the descaling or repeal of regulations, a process that involves the erosion or removal of regulatory law (Snider, 2000). It is also apparent in terms of the state’s failures to act upon illegalities, or through state initiatives that either ensure the under- or non-enforcement of existing law (see, for example, Unison/CCA, 2002). But we must avoid any form of determinism through the extension of over-abstracted categories here. Yes, the market is certainly changing the form of political decision-making (not least in relation to the ascendancy of a new trade regime dominated by the WTO and the new export credit sector), but this does not necessarily support a simple ‘degradation of politics’ thesis. For one thing, there is little empirical evidence to suggest that the international regulatory impetus can be described adequately in simple, mutually opposing terms as proor antiregulation or for that matter as a regulation/deregulation dichotomy. For example, the changing fortunes of environmental regulation and deregulation (Yeager, 1991), the cleanup of toxic waste in the US, and the regulation of occupational safety and health all provide examples of situations too complex to sum up in a simplistic anti- or proregulatory formula (Barnett 1995; Tombs 1995). Similarly, as Fooks highlights here, following others (for example, Snider, 1991), we need to be sensitive to different forms of regulation, with a potentially useful distinction being drawn between economic and social regulation. Thus, largescale economic illegalities by corporate actors can threaten the legitimacy of capitalism and have forced states to re-regulate (Calavita and Pontell, 1995, Levi, 1995) - although such regulatory impetus may not necessarily be sustained (Alvesalo and Tombs, 2002; Fooks, 2003). The degree to which regulatory controls are imposed upon capital is therefore more readily comprehensible in terms of the harms that certain crimes cause to the legitimacy of the markets and associated institutions rather than in terms of the harms that some crimes imply for people, for our water and air quality, for biodiversity, and so on. Second, empirical evidence which undermines the myth that the state is now impotent in the face of dominant market forces abounds. Of course, the Enronled frauds have reinvigorated the regulatory agenda, even if political responses have to date been rather feeble (Michalowski and Kramer, this volume). Yet governments can and do intervene to protect their economies, despite what we have been told by globalisation intellectuals for two decades. Witness for example the immediate aftermath of the September 2001 attacks on the US. The banking sector quickly promised as much liquidity as the markets required to stay buoyant, and effectively imposed a global cut in interest rates. A joint statement by the European Union finance ministers, the European Central Bank, other EU banks and the European Commission had promised all necessary measures to ensure the proper functioning of markets and the stability of the financial system. Subsidy packages for the air transport industry were hastily cobbled together. Insurance premiums were lowered, and anti-monopoly laws suspended (Whyte, 2002). Even the German pharmaceutical corporation Bayer was forced to drop its prices for the anti-anthrax drug Cipro after US and Canadian government threats to suspend their patent. George Bush’s more recent decision to underwrite 90% of the costs of business losses resulting from terrorist attacks up to a total of $100 billion (Walker, forthcoming) provides another measure of the ongoing market protectionism closely allied to the ‘war on terrorism’. Moreover, beyond such moments of acute crisis, which tend to prompt a flurry of defensive economic activity, states perform an ongoing role in the provision of an economic and legal infrastructure for the risk-taking activities of entrepreneurs (Lowi 1993: 20-2). States help to constitute capital, commodity, commercial and residential property markets, help to produce different kinds of
‘human capital’, constitute labor markets, and regulate the employment contract; the state plays a role in constituting economic enterprises through specifying rules of liability, often specifying the rules of incorporation. In other words, regulation is a necessary function of a state even in the quintessential market economy, even while advocates of global neo-liberalism consistently deny such a role for the state and regulation. While “the ideological notion of latent or implicit markets which only need freeing figures strongly in neo-liberal rhetoric” (Sayer, 1995: 104), this contrasts with the overwhelming empirical and theoretical evidence attesting to markets as social constructions. Third, and following this point, it is possible to have simultaneously strong states and economies. It other words, it is possible for states and markets to mutually reinforce each other (Weiss, 1997). If there is a negative-sum power game going on here, it is not between the state and the transnational corporation, but between western state-corporate power and the rest of the world. In the past quarter of a century, aided by state welfare packages, some western (and mostly US-based) corporations have become extraordinarily large and powerful transnational actors; at the same time, states across the world have systematically undermined the social wage, so that levels of inequality between (and also within) nations have increased exponentionally (Pearce and Tombs, 2001). The top three billionaires in the world now own the same combined wealth of the poorest 48 countries. In 2002, UNCTAD and the World Bank calculated that 307 million people live below the absolute poverty line of $1 a day. Given the starkness of such trends, it is unsurprising that these have been represented as unstoppable or uncontrollable. For if those trends were controllable, how could those with the power to reverse them have chosen not to do so? Yet there remains little or no theoretical nor empirical evidence that globalisation or the ‘globalisation of risk’ per se autonomously places constraints upon states and thus governments. A much more plausible explanation is that those governments and nation-states that have most enthusiastically pursued neo-liberal policies – rationalised, whether consciously or not, via the discourses of globalisation – have been pivotal actors in producing risk, illegality and harm (Pearce and Tombs, 2001). This state-corporate nexus is again exemplified through Enron’s role in the Maheshwar dam project, an involvement in a process that some have described as the largest fraud in India’s history, enabling the firm to acquire a deal with projected gross profits of between $12b and $14b and a return on equity of 30% (Roy, 2002). Those figures are remarkable enough for foreign direct investment projects, but more remarkable when we consider that the World Bank repeatedly refused to finance the project because it was not economically viable. The project was eventually funded by an alliance between Indian and US capital, and the Indian and US governments. The latter granted between $290 million and $300 million in loan guarantees to the Enron-led consortium (Human Rights Watch, 2002). Moreover, questions have centred around the legality of the foundations of this alliance. Some have alleged that the deal was tied up on the back of elaborate system of bribery involving key players in Enron and the Indian state authorities (Roy, 2002). It is a case that is by no means unique to the way in which Enron and the US government conduct business. Thus it is somewhat ironic that recent accusations of the use of US military intelligence by Enron to gain advantage over international competitors have been justified by US government sources on the basis that the company had been disadvantaged in the past by the persistent use of bribes by foreign companies! (BBC Radio 4, 2002). This is typical of the wise monkey arrogance of US state authorities, especially arrogant in light of the indisputable evidence of the collusion with Enron of a whole host of well-known, respectable firms. Of course, crises such as Enron always allow us to see corporate conduct at its very worst, but such moments of
exposure also allow normally hidden practices to reveal themselves, if only briefly. Take the case of BCCI. Here, for all to see, BCCI’s role in funding state-sponsored terror often involving connections to western state institutions - was revealed in the trail of frauds and corrupt deals. It was a role that earned the bank the nom de plume, ‘the bank of the CIA’ (Punch, 1996). BCCI, the 7th largest bank in the world at the time of its collapse, is said to have held accounts with direct links to a parade of rogues: Marcos, Duvalier, Samosa and Saddam Hussein; and also for the Medellin and Cali cartels, Manuel Noriega. The bank also siphoned funds as part of secret arms deals with Iraq and the Iran-Contra scandal. Beyond the US, the regulatory tolerance of BCCI exposed the regulator, the Bank of England, to sustained criticism. When asked why he didn’t act on evidence he had on BCCI earlier, the Chair of the Bank of England pointed out, “If we closed down a bank every time we had a fraud, we would have rather fewer banks than we have” (Kochan and Whittington, cited in ibid.: 13). As Passas documents here, there is no such leniency for the financial operators who remain outside the western financial system. New regulatory controls on the banking industry in the US are unlikely to bring the US financial sector into compliance (Coffee, 2002). In any case, the principle of secrecy upon which the regulation of the sector is based makes it virtually impossible for us to find out the bankers “dirty little secrets” (Mokhiber and Weissman, 2001). The ‘soft touch’ approach of the FATFiv (Sheptycki, 2000) contrasts sharply with the swift and clinical disposal by the US state of foreign finance businesses deemed to be involved in terrorism (for example Whyte, 2002). Political Reinvigoration and the Social Control of Corporations Given the weight of evidence then, it appears difficult to dispute that, contra the mantra of globalisation, politics still matters a great deal (see also Shipman, 2002). The world of politics, of course, includes the nature of Government and the formal political system – not least in terms of the institutionalisation of the parameters of acceptable political debate and the centrality of corporate lobbyists to the policy-making process (Fooks, this issue). But the politics which still matters also includes the balance of class forces, the nature and history of institutions, the character of particular national-state formations and so on. These provide the substance for political decision making in the construction of regulatory regimes. Yet such is the dominance of ‘globalisation’ discourses that even the main institutional voices currently lobbying for control of corporations have, of late, tended to argue for Codes of Conduct rather than the use of law and sanction, pleading with corporations to be responsible rather than demanding from their governments the right to have harmful corporate activities controlled by the state. Thus, in UN institutions, especially the International Labour Organisation, the enthusiasm for corporations to enter voluntary agreements has consolidated a system of corporate control (International Labour Organisation, n.d.) that roughly corresponds to organised capital’s regulatory system of choice. This self-regulatory perspective also dominates the prescription of leading NGOs involved in the scrutiny of corporate human rights violations, such as Human Rights Watch and Amnesty International. This indicates a certain defeatism in the struggle to control corporations, and gives weight to the claim that capital has, with the active consent of states, elevated itself to new commanding heights above the law (Yergin and Stanislaw, 1998). But, as the current clampdown on movements of “other” capital in, for example, the Hawala system shows (Passas, this issue) capital is by no means beyond the reach of the law. Indeed, as we have argued here, capital depends upon the law and public institutions – in western states often displaying as
great a flair for market interventionism as they did at the apex of the period of Keynesian social contract - to create the conditions upon which it thrives. Of course, wherever those conditions present the opportunity, capital does have a tendency to operate as if it were above the law. In this sense, no matter how paradoxical it may sound, the development of the particular form of the law remains central to the ability of corporations to break the law. Within capitalism, an economic order based upon private property with markets in capital and in labour, the limited liability corporation remains the main legal mechanism through which capital is brought together and interacts in various market places. Thus corporations are artificial entities, entities whose very existence is provided for, and maintained, through the state via legal institutions and instruments, which in turn are based upon both material and ideological supports. The corporate form and the state are thus inextricably linked. Moreover, as we have noted, the state plays a key role the construction of different forms of capitalism (Jessop 1982). The form of regulation adopted by the state is not simply a product of economic necessity; politics also matters in determining the structure and forms within which corporations are both externally and internally structured. In other words, if capitalism can be constructed differently, then so can – within limits – its key organisational actor, the corporation. The deepening crisis of corporate power may well represent a historically significant moment for the debate on the future of the corporate form; Michalowski and Kramer’s concrete proposals set out here aim to provide some impetus to this debate. If we are serious about minimising the growing risks produced by the economic and social harms committed by corporations, especially those resulting from crimes and illegalities, then the task is certainly going to be an uphill struggle. But in the current world order it makes little sense to envisage this challenge as one which does not involve the state as a centre of power. Indeed, it is a task which must have as its central driving force the replenishment of our right – in the west and in the ‘developing’ world - to control corporations by the rule of law. Given the magnitude of the crimes and harms unleashed by neo-liberalism, this task is an urgent one. As its tens of thousands of victims count the costs of their thieved pensions and life savings, Enron continues to generate new schemes outside the US. It is not widely publicised, but the terms of Enron’s bankruptcy do not prevent the firm from continuing in business overseas; the company continues to operate power plants across the world, from Poland to the Philippines (Wall Street Journal, 5 August 2002). Enron’s ability to operate abroad is made possible only with the financial support of US state institutions. In Bolivia Enron’s considerable interests in the oil pipeline network, via its ‘Transredes’ consortium (ostensibly a partnership between Enron, Shell and Bolivian capital) have been guaranteed by loans worth 100s of millions of dollars from the InterAmerican Development Bank and the Overseas Private Investment Corporation (both state-controlled and funded investment banks; the latter also loaned Enron $200 million to enable it to embark upon the Maheshwar dam project). Kenneth Lay once said that Enron could never have ventured into business outside the US without public financing. Transredes generates profit and local opposition in equal measure. The consortium is in the frame for degrading the last most intact dry tropical forest in the world and is facing legal action for one incident that involved the spillage of 29,000 barrels of oil and caused an estimated $6million worth of economic costs to the local economy and extensive environmental damage (Hindery and Lloyd, 2002). Enron specifically is currently under investigation by the Bolivian government over the legality of the deals which smoothed the firm’s
entry into Bolivia in the first place. Amongst the material allegations are that Enron’s initial pipeline contract was created under New York state law, not Bolivian law, and that it enabled Enron to operate illegally under cover of an offshore shell company thus avoiding Bolivian taxation (Langman, 2002). Moveover, there is now some material evidence that the deal was only made possible by bribing state officials (Hindery and Lloyd, 2002). It is a story that is due to run and run, since the US Justice Department has also initiated an investigation into Enron’s role in Bolivia (requested by Overseas Private Investment Corporation after it cancelled a $200 million loan for the Cuiaba pipeline) into Enron’s possible violations of the Foreign Corrupt Practices Act. This is a telling spectacle indeed: one of the most notorious criminal outfits of our age let loose to prey on the most vulnerable of the worlds populations; its activities made possible by the corporate welfare funds provided by one branch of its domicile government. In the meantime, another branch of the same government investigates the legality of the use of the same funds by the same corporation. It is a spectacle which makes Enron’s domestic frauds seem rather tame by comparison. If this teaches us nothing else, it teaches us that the challenge of our age is a challenge to reinvigorate politics; a politics which, rather than empowering corporations to do what they want to do, recognises and deals with the criminogenic tendencies that are now woven into our economic fabric. References Alvesalo, A. and Tombs, S. (2001) Can Economic Crime Control Innovation: the European Journal of the Social Sciences, Vol. 14, No. 1.
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