A lecture from HSBC on the rule of law? That’s a tough sell

An occupational hazard of business journalism is encountering the common assumption, reflected in the glossy patinae of boardroom tables everywhere, that the interests of multinationals and their investors happily coincide with those of Joe (and ‘Jose’) Public.

As a former City editor, I’d hazard that this is an assumption that helped deliver Brexit and Donald Trump. 

The conviction rests on what even its fiercest advocates acknowledge is now a rather beleaguered truism: globalisation (principally understood to mean footloose capital) was and remains a ‘Good Thing’.

Globalisation has been extremely good for the companies whose senior executives attended the Bingham Centre’s launch of a high-rolling GC network. This will aim to promote the ‘rule of law’ and ease the path of multinational investment in countries which don’t enjoy the benevolent ministrations of liberal democratic politicians. At least one of those GCs had just jetted back from the World Economic Forum in Davos, the ultimate ‘winners’ club’. I’m sure she wasn’t the only one. 

Among the losers and also-rans in developed economies, however, the jury is not so much out on globalisation as demanding to be discharged on account of a splitting headache. One recalls the tart response of a sceptical Geordie to Anand Menon, a distinguished professor of European affairs, when he recently warned of the impact of Brexit on UK GDP: ‘That’s your bloody GDP, not ours.’

Ouch. The poor professor, a school contemporary of mine, can consider himself ill-used; he’s an academic after all, not a hedge-fund manager.

But I write not to discuss the pros and cons of globalisation, let alone Brexit. Forbes magazine compiled a useful list here and there’s an eloquent defence of globalisation here from Jim O’Neill, the man who invented the BRIC acronym.

A pertinent point for lawyers, though, is that this is the context in which FTSE general counsel must counter what they perceive to be an increasingly hostile environment for doing business in untapped and unstable markets – and sometimes developed markets too.

No one but a crook or anarchist would argue we don’t need to bolster safeguards against bribery and corruption - for example - or that enforcement action should be transparent and, above all, consistent.

But there was a degree of cognitive dissonance at Wednesday’s launch which could bode ill.

There was much vigorous nodding, for example, at complaints that in Europe and the US, financial institutions are being exploited by governments and their regulatory agents as ‘pots’ of hitherto untapped tax revenue through swingeing and unpredictable fines and penalties. American banks alone have been been fined around $100bn since the financial crisis erupted. 

My hankie did not leave my pocket, I must admit. No one mentioned that ordinary people in both Europe and US were themselves viewed as hitherto untapped ‘pots’ of tax revenue when they dug deep to rescue the financial services sector from its own greed and recklessness. The losers and also-rans continue to live with the day-to-day consequences in the guise of seemingly permanent austerity; the winners, cloistered in Davos this week, do not.

If the new network wants to win hearts and minds, it needs to be careful when deploying arguments like this. Otherwise it may create the impression it wants its members to be above the law - or to decide what the law should be - rather than to promote the rule of law. 

Sometimes the medium is the message, too. One of the seven founders of the new network is HSBC, which (to quote the Telegraph) ‘has been embroiled in scandal for having too lax controls when it comes to financial crime and sanctions, the repercussions of which still cast a long shadow’. And that shadow lengthens: HSBC was fined €33m for rate-rigging as recently as last month. 

Another founder member is BP – which agreed to pay the largest environmental fine in US history two years ago for the Gulf of Mexico oil spill, after a judge ruled it had been ‘grossly negligent’.

Personally, if I want a lecture on what best serves the rule of law, I’ll reread Tom Bingham’s book. What best serves big business is an altogether different matter.

And therein lies the network’s problem. When it comes to the rule of law, the ’megacorp’ outriders of the Anglo-Saxon economies can hardly claim to be preaching to unsophisticated markets and their state agents from the moral high ground.

If they ever could.

Paul Rogerson is Gazette editor-in-chief