Complete reference : Archives de Philosophie du Droit (APD), Droit et économie, tome 37, ed. Sirey, 1992, 426 p. 

Read the table of contents.

Read the summaries of the articles in english. 

See the presentation of others volumes of Archives de Philosophie du Droit.

Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse.

With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori.

The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective.

To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital ...) that would finally have understood that it is an organization like any other ...

Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be  more "neutral" of the world is often presented.

Successive crises, whether sanitary or financial, have produced a pendulum effect.

Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged.

Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.

► Référence complète : M. M. Mohamed Salah, "Conclusions", in J. Andriantsimbazovina (dir.), Puissances privées et droits de l'Homme. Essai d'analyse juridique, Mare Martin, coll. "Horizons européens", 2024, pp. 297-314

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► Résumé de l'article :

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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Control is a concept so central in Regulation that, in the difficult exercise of translation, the English term of "Regulation" or the expression "Regulatory system" are often translated, for example in French,, by the French word "control" (contrôle). Indeed, the Regulator controls the sector for which he  is responsible. This control is carried out ex ante by the adoption of standards of behavior, whether the Regulator prohibits behavior or obliges the operators to do so. In addition, the Regulators exercises his control powers through the power to approve companies entering the sector or the power to certify certain types of products sold on the markets for which he is responsible. In addition, he continuously monitors the sectors for which he is responsible since his function is either to construct them to bring them to maturity or to remain in balance between the principle of competition and another concern, for example to ensure that they do not fall into a systemic crisis.

These ex ante controls radically distinguish the regulatory authority from the competition authority, which intervenes only ex post. Finally, the regulatory authority controls the sector in ex post: in this he works on a temporal continuum, sanctioning the failings he finds on the part of the operators to the prescriptions he has adopted himself. he often has the power to settle disputes if two operators compete in a dispute between them and bring it before him.

This control function specific of the regulatory authority, which it often shares with the traditional administration and which opposes it to the activity of the competition authority and the courts, is made difficult by its possible lack of independence. Indeed, because the Regulator is a State boddy, if the regulator has to control a public operator, it may risk being captured by the government, since the whole organization of the regulatory system must therefore ensure its independence not only statutory but also budgetary in relation to it. This risk of capture is permanent not only because of the government but also because of the sector. Secondly, control can be inefficient if the regulator lacks adequate, reliable and timely information, risk generated by information asymmetry.

To fight against this, according to the childish image of the stick and the carrot, we must at the same time give the regulator powers to extirpate information that the operators do not want to provide, the texts never ceasing to give regulators new powers, such as perquisitions power ou sanction ou settlemeent. Symmetrically, operators are encouraged to provide information to the market and the regulator, for example through leniency programs or the multiplication of information to be inserted in company documents. Finally, there is a difficult balance between the need to combat the capture of the regulator and the need to reduce the asymmetry of information since the best way for the latter to obtain information from the sector is by frequent attendance by operators: , This exchange that they accept very willingly is the open voice to the capture. It is therefore an art for the regulator to keep operators at a distance while obtaining from them information that only untended relationships allow him to obtain.

Moreover, the Compliance Law which is in the process of being put in place is intended to resolve this major difficulty, since the operator becomes the primary agent for the implementation of the Regulation Law, whose aims are internalized in the " crucial " and global operators perator, operator crucial and global, the Regulator ensuring the effective structural change of the operator to realize these goals of this Global Regulation Law.

Le plan des 6 cours d'amphi est en principe  actualisé chaque semaine au fur et à mesure que les cours se déroulent en amphi.

S'il s'avère que la crise sanitaire conduit à ramasser la mise à disposition de l'ensemble du cours en début de semestre, cette actualisation ne sera pas possible. 

Cela sera alors compensé par l'envoi en courriel tout au long du semestre d'actualités commentées liées à la matière. 

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Voir le plan ci-dessous⤵

Référence : Grenoble, 5 nov. 2020, I.D. c/ Société Corin France

Lire l'arrêt. 

► Référence complète : B. Lecourt, "Des obligations d'information en matière de droit de l'homme et d'environnement au devoir de vigilance", in B. Lecourt (dir.) Lebvre - Dalloz, coll. "Thèmes et commentaires", 2025, pp

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📗lire une présentation générale de l'ouvrage, Le devoir européen de vigilance, dans lequel cet article est publié

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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► Référence complète : M.-A. Frison-Roche, Mission confiée par le garde des Sceaux, Droit de la compliance souveraineté juridique et attractivité économique, 2025-2026.

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📜lire la lettre de mission du garde des Sceaux du 5 septembre 2025 saisissant Marie-Anne Frison-Roche

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► Présentation méthodologique de la menée de cette mission : À

Formally, the legal system had constructed the regulatory authorities in the form of Independent Administrative Authorities (AAI).

The stake being to build their independence in an institutional and consubstantial way, the Legislator conferred a new status: that of Independent Public Authority (API). Thus, the Autorité des Marchés Financiers (AMF), the Commission Nationale Informatique et Libertés (CNIL), the Haute Autorité de Santé (HAS) or HADOPI are classified among APIs and not only among IAAs.

We must therefore see two distinct legal categories, AAI on the one hand and APIs on the other.

Thus the two laws of January 20, 2017 relate, to better supervise them, both on AAIs and on APIs, but reading the preparatory work shows that the two categories show that they are treated in a fairly common way. Even more if one consults the sites of certain regulatory authorities themselves, such as HADOPI, for example, it presents itself as an "Independent Public Authority" but defines this legal category as being that which targets the Authorities. Independent Administrative .....

It thus appears that the category of Independent Public Authorities is above all marked by the symbol of a greater dignity than that of the category of "simply" Administrative Independent Authorities. From a technical point of view, the two categories are essentially distinguished from a budgetary point of view, financial autonomy being the nerve of independence. This is how the AMF's budget is based on the size of market operations, through tax mechanisms that are not included in the LOLF. Independence does not extend to autonomy, the API does not negotiate its budget with Parliament, since an Independent Public Authority is not a Constitutional Authority.

► Full Reference: B. Deffains, "Debt as the basis of the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): The contribution builds on the definition of Compliance in that it requires large companies to contribute to the achievement of Monumental Goals, including the preservation of human rights and systems, e.g. climate system.  

This requirement is confronted with the notion of Debt as it results today from classic and new works available in economic science. In fact, in the primitive economy, debt refers not only to exchanges, but also to an ethical and social obligation leading back to the collective. The Economic Analysis of Law has highlighted this situation, where some of the entities involved in a situation benefit from positive externalities, or endure negative externalities on their own, thus creating a situation of debt: this generates an obligation to correct market failure through an obligation to manage risks, as expressed by Compliance Obligation. This implies that economic calculation can be used to quantify this debt, leading to new proposals for biodiversity accounting.

The author then highlights the recognition of Debt as the source of an Compliance Obligation. This can be expressed through the classical notion of natural obligation, which can be traced back to the French Civil Code, or through more solidarist or political conceptions of Law, linked to moral responsibility, with the overall moral equilibrium referring to civic duty, superimposed on the accounting equilibrium. The political dimension is very much present, as shown by Grotius and Kant, then Bourgeois (solidarism), Rawls and Sen (social justice), who link the deep commitment of each individual with the group. This sheds light on the essential role played by the State and public institutions in formalising and enforcing the Compliance Obligation, not only to ensure its effectiveness, but also to make everyone aware of its fairness dimension.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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► Référence complète : A. Oumedjkane, "Le devoir de vigilance est-il soluble dans le droit des contrats publics ?", in M.-A. Frison-Roche (dir.), Compliance et contrat, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. "Régulations & Compliance", à paraître

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► Résumé de l'article (fair par le Journal of Regulation & Compliance - JoRC) : Il analyse le devoir de vigilance, lequel constitue la pointe avancée du Droit de la Compliance dans la commande publique.

Cela est contrintuitif, puisque le devoir de vigilance est légal et que la loi donne compétence au juge judiciaire. Mais l'auteur souligne que les lois récentes, notamment les lois "résilience et climat" et "finance verte" visent expressément le devoir de vigilance pour constituer des causes d'exclusion de l'entreprise qui manque à son obligation de vigilance des commandes publiques.

L'auteur regrette que les textes à ce propos aient fait l'objet d'une rédaction approximative et variant de texte en texte, alors qu'il s'agit de régir la même situation : celle de l'exclusion d'une entreprise du champ de la commande publique parce qu'elle n'a pas rempli son obligation de vigilance; ce qui suppose des obligations pleinement réalisées, ou de n'avoir pas établi un plan de vigilance, ce qui n'est pas la même chose et manifeste moins d'exigence.

Il souligne également la question du contrôle qualitatif du plan de vigilance, contrôle approfondi ou au contraire obligation purement formelle. Là encore, il pense, comme la majorité de la doctrine, qu'il est raisonnable de se rapporter à une interprétation minimale, même si la loi sur le devoir de vigilance marque plus d'ambition.

Il estime que si le juge administratif était en effet confronté à un contrôle substantiel, en raison de la compétence, qu'il estime exclusive, du Tribunal judiciaire de Paris, il faudrait former des questions préjudicielles...

Dans ces conditions d'interprétation minimale, seule une absence de plan ou un plan formellement défaillant serait sanctionné dans le cadre de la commande publique... Mais cette interprétation est la moins adaptée à l’objectif de la législation elle-même, et que l'on pourrait en arriver que ce qu'une entreprise qui aurait été condamnée par le Tribunal judiciaire pourrait n'être pourtant pas exclue d'un marché public...

L'auteur estime enfin que cette nouvelle démarche incitative montre en réalité l'impuissance du Droit des contrats publics à produire par lui-même les effets recherchés sur les entreprises.

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► Référence complète : A.-M. Ilcheva, "Condamnation de Shell aux Pays-Bas : la responsabilité climatique des entreprises pétrolières se dessine", D. 2021, pp. 1968-1970

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► Résumé de l'article : Après une brève description de l'affaire en cause au principal, l'auteure explicite dans un premier les fondements du jugement dit "Shell". Elle explique que l'action engagée était fondée sur le droit de la responsabilité civile délictuelle néerlandais, plus précisément le "duty of care" de l'article 6:162 du code civil néerlandais, lequel amène le juge, afin d'établir le fait générateur, à apprécier le comportement de l'entreprise défenderesse au regard du standard de comportement de la personne prudente et raisonnable. Sont également mobilisés par le juge des travaux scientifiques (rapport du GIEC), des normes de droit international (CEDH) et des normes de droit souple (Principes directeurs de l'ONU), afin de caractériser tant le fait générateur que le dommage (notamment futur). Dans un second temps, l'auteure envisage la portée de ce jugement, frappé d'appel au moment de la rédaction de son article. Elle souligne que le juge s'est appuyé sur la notion d'entreprise, permettant ainsi de contourner l'obstacle traditionnel lié à la personnalité morale, et qu'il a retenu ici une responsabilité préventive, tournée vers le futur. Elle termine en mettant en avant les conditions nécessaires pour que ce jugement soit effectif et constate que l'effort demandé à l'entreprise est plus important que celui préconisé par les rapports d'experts.

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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Competition is the law of the market. It allows the emergence of the exact price, which is often referred to as "fair price". It means and requires that agents on the market are both mobile, that is to say free to exercise their will, and atomized, that is to say, not grouped together. This is true for those who offer a good or service, the offerers, as well as for those seeking to acquire them, the applicants: the bidders seek to attract the applicants so that they buy them the goods and services that they propose.  Bidders are in competition with each other.

In the competitive market, buyers are indulging in their natural infidelity: even if they have previously bought a product from an A supplier, they will be able to turn away from him in favor of a B supplier if the latter offers them a product more attractive in terms of quality or price. Price is the main signal and information provided by the suppliers on the market to excite this competitive mobility of the offerers. Thus, free competition accelerates market liquidity, the circulation of goods and services, raises the quality of products and services and lowers prices. It is therefore a moral and virtuous system, as Adam Smith wanted, a system which is the fruits of individual vices. That is why everything that will inject "viscosity" into the system will be countered by Competition Law as "non-virtuous": not only frontal coordination on prices but for example, exclusivity clauses, agreements by which companies delay their entry on the market or intellectual property rights which confer on the patentee a monopoly.

Admittedly, Competition Law can not be reduced to a presentation of such simplicity, since it admits economic organizations which deviate from this basic model, for example distribution networks or patent mechanisms on which, inter alia, is built the pharmaceutical sector. But the impact is probative: in the sphere of Competition Law, if one is in a pattern that is not part of the fundamental figure of the free confrontation of supply and demand, he has to demonstrate the legitimacy and efficiency of its organization, which is a heavy burden on the firm or the State concerned.

Thus, in the field of Regulation, if regulatory mechanis were to be regarded as an exception to competition, an exception admitted by the competition authorities, but which should be constantly demonstrated before them by its legitimacy and effectiveness in the light of the "competitive order", then public organizations and operators in regulated sectors would always face a heavy burden of proof. This is what the competition authorities consider.

But if we consider that regulated sectors have a completely different logic from competitive logic, both from an economic and a legal point of view, the Law of Regulation refers in particular to the notion of public service and having its own institutions, which are the regulatory authorities, then certain behaviors, in particular monopolies, are not illegitimate in themselves and do not have to justify themselves in relation to the competitive model, for they are not the exception ( Such as the public education or health service).

► Full Reference: M. Torre-Schaub, "Environmental and Climate Compliance", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance - JoRC): 

The author starts from the fact that Compliance Law, in that it is not limited to conformity process, and Environmental Law are complementary, both based above all on the prevention of risks and harmful behaviour, environmental crises and the right to a healthy environment involving the strengthening of Environmental Vigilance. It is all the more important to do this because definitions remain imprecise, not least those of Environment and Climate, which are diffuse concepts.

Firstly, the contribution sets out the purpose of Environmental Compliance, which is to ensure that companies are vigilant with regard to all kinds of risks: they put in place and follow a series of processes to obtain "progress" in accordance with a standard of "reasonable vigilance". This requires them to go beyond mere conformity and encourages them to develop their own soft law tools within a framework of information and transparency, so that the climate system itself benefits in accordance with its own objectives.

Then the author stresses the preventive nature of Environmental Vigilance mechanisms, which go beyond providing Information to managing risks upstream, in particular through the vigilance plan, which may be unified or drawn up risk by risk, and which must be adapted to the company, particularly in the risk mapping drawn up, with assessment being carried out on a case-by-case basis.

Lastly, in the light of recent French case law, the author describes the implementation of the system, which may bring the parties before the Tribunal judiciaire de Paris (Paris Court of First Instance) and then the specialised chamber of the Paris Court of Appeal. The author believes that judges must clarify the obligation of Environmental Vigilance so that companies can adjust to it, and these 2 courts are in the process of doing so.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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► Full Reference: M.-A. Frison-Roche (ed.), Compliance et Contrat ("Compliance and Contract"), coll."Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Editions Lefebvre-Dalloz, to be published.

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📘 At the same time, a book in English, Compliance and Contracts, is published in the collection copublished by the Journal of Regulation & Compliance (JoRC) and the Editions Lefebre-Bruylant.

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🧮the book follows the cycle of colloquia organised by the Journal of Regulation & Compliance (JoRC) and its Universities partners in 2026

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📚this volume is one of a series of books devoted to Compliance in this collection.

► read the presentations of the other books:

• further books:

🕴️M.-A. Frison-Roche (ed.), 📕Le système probatoire de la Compliance, 2027

• previous books:

🕴️M.-A. Frison-Roche (ed.), 📕L'obligation de compliance 2025

🕴️M.-A. Frison-Roche & M. Boissavy (eds.), 📕Compliance et droits de la défense. Enquête interne - CJIP - CRPC, 2024

🕴️M.-A. Frison-Roche (ed.), 📕La juridictionnalisation de Compliance, 2023

🕴️M.-A. Frison-Roche (ed.), 📕Les Buts Monumentaux de la Compliance, 2022

🕴️M.-A. Frison-Roche (ed.), 📕Les outils de la Compliance, 2021

🕴️M.-A. Frison-Roche (ed.), 📕Pour une Europe de la Compliance, 2019

🕴️N. Borga, 🕴️J.-Cl. Marin and 🕴️J.-Ch. Roda (eds.), 📕Compliance : l'Entreprise, le Régulateur et le Juge, 2018

🕴️M.-A. Frison-Roche (ed.), 📕Régulation, Supervision, Compliance, 2017

🕴️M.-A. Frison-Roche (ed.), 📕Internet, espace d'interrégulation, 2016

📚see the global presentation of all the books of the collection.

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► General presentation of this book: The book, published in 2025 int the same series "Regulations & Compliance" series, demonstrates that the Obligation of Compliance—which falls upon crucial operators and those concerned with the future of systems and the present and future individuals involved in them—derives from laws and regulations, and is upheld by these operators themselves, regulators and judges. The role played by contracts is discussed therein. This book specifically examines the role that contracts play and will play in the conception, development and implementation of Compliance Law.  

This aspect is underestimated because Compliance Law is often analysed through the prism of laws and regulations designed to achieve Monumental Goals set by states and public authorities, to the realisation of which systemic economic operations contribute through compliance tools, rather than through the actors themselves. When they do act, this is referred to outside the realm of Law, generally to Ethics. However, the Contract, the binding legal instrument par excellence, will play an increasingly significant role within global and interconnected compliance systems.

In the European construction of Compliance Law, which places human beings at the heart of efforts to ensure the sustainability of systems, the Contract serves not only as the means by which the entity fulfils its legal obligations, forges relationships with stakeholders and implements the necessary innovations, but also as the means by which it exercises its autonomy to contribute to the realisation of the systemic ambitions in question. 

To describe and anticipate the practice and rules that link Compliance Law and Contracts, the book first examines how this new branch of Law, insofar as it draws on the political ideas of the Social Contract, renews Contract Law by embedding it within the strategy of economic operators, a task made all the easier for them as they have built value chains through contracts. These are ‘regulatory contracts’. This demonstrates that Public Law Contracts exemplify the incorporation by General Contract Law of the overarching perspective of compliance, normatively anchored in the Monumental Goals (Title I).

That explained, the book examines how General Contract Law interfaces with the techniques and objectives of Compliance Law. Whether through mandatory requirements, incentives or support, Compliance Law plays a role in contracts, helping to shape them in part, whether they relate to regulated or unregulated activities, with the points of contact with the principle of liberalism – and the limits to it – being determined by the courts. Conversely, however, General Contract Law contributes to Compliance Law and will do so increasingly. This applies equally to the stages of formation, execution, and sanctions, which may take the form of consolidations (Title II). 

In practical terms, the Contract itself serves as a Compliance Tol. As such, the company may choose to outsource the compliance function, which it is free to do provided it remains accountable for its performance to the legislator and the persons concerned: this is the concept of the ‘Compliance Contract’, which appears as a specific contract.  Furthermore, compliance can be incorporated into multiple contracts—contractual arrangements through which the contracting parties establish one or more obligations that will facilitate or enhance their legal obligations. In doing so, legal entities exercise their freedom, as permitted by general law, and this is also recognised by the Regulator, Supervisor and/or Judge in light of the normative Monumental Goals of Compliance Law (Title III). 

Precisely, a new field of ‘contractual compliance litigation’ is emerging. The primary topic here is to examine contractual judicial disputes in which an element of Compliance Law features in the proceedings. Indeed, a dispute concerning a claim for mandatory execution, termination or contractual liability may involve, in the claim itself or in an procedural exception or defence raised, an element of compliance law, ranging from an allegation of lack of jurisdiction to a request for the court to take into account a systemic teological norm that the contract judge should consider. Secondly, in certain emerging systemic compliance litigation, because the role of the judge is transformed and the procedure must be adapted, the contract appears as a particularly suitable tool, either as a ‘procedural framework’ through the contractualisation of the whole, or as a technique used in the strict sense, its ex ante nature allowing, in disputes concerning the future, the development of new adequate techniques (Title IV). 

► First presentation of the Table of Content  : 

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TABLE OF CONTENT 

REPORTING ON CONTRACTUAL PRACTICES WITHIN THE COMPLIANCE SYSTEM AND ENHANCING ITS EFFECTIVENESS AND HUMANITY COMPTE DES PRATIQUES CONTRACTUELLES DANS LE SYSTEME DE COMPLIANCE ET ACCROITRE L'EFFICACITE ET L'HUMANISME DE CELUI-CI  

(REPORTING ON CONTRACTUAL PRACTICES WITHIN THE COMPLIANCE SYSTEM AND ENHANCING ITS EFFECTIVENESS AND HUMANITY) 

 ♦️ sss, par 🕴️Marie-Anne Frison-Roche

TITRE I.

CONTRAT SOCIAL, DROIT DE LA COMPLIANCE ET STRATEGIE DES OPERATEURS ECONOMIQUES 

CHAPITRE I : CONTRAT SOCIAL ET DROIT DE LA COMPLIANCE 

Section 1 ♦️ Les Buts Monumentaux de la Compliance, guide d'action pour des opérateurs économiques au service d'une politique globale, par 🕴️Marie-Anne Frison-Roche

Section 2 ♦️ sss, par 🕴️René Sève

CHAPITRE II : AMBITIONS POITIQUES ET STRATEGIES D'ENTREPRISE DANS L'ORGANISATION CONTRACTUELLE DES CHAINES DE VALEUR

Section 1 ♦️ sss

Section 2 ♦️ sss, par 

CHAPITRE III : LES CONTRATS PUBLICS, PARANGONS DE L'ACCUEILS DES AMBITIONS POLITIQUES DANS LES STRATEGIES ET L'ALLIANCE DES INSTITUTIONS

Section 1 ♦️ sss

Section 2 ♦️ sss, par 

TITRE II.

LE DROIT COMMUN DES CONTRATS CONFRONTE AU DROIT DE LA COMPLIANCE

CHAPITRE I : DISTINGUER LE CONTRACTUEL DE CE QUI S'EN RAPPROCHE DANS LE SYSTEM DE COMPLIANCE 

Section 1 ♦️ La ronde des engagements et des contrats dans le droit de la compliance e, par 🕴️Marie-Anne Frison-Roche

Section 2 ♦️ sss,

CHAPITRE II : L'EMPRISE DU DROIT DE LA COMPLIANCE SUR LE DROIT COMMUN DE DES CONTRATS 

Section 1 ♦️ sss

Section 2 ♦️ sss,

CHAPITRE III : L'APPORT DU DROIT COMMUN DES CONTRATS AU DROIT DE LA COMPLIANCE

Section 1 ♦️ sss

Section 2 ♦️ sss, par 

TITRE III.

CONTRAT DE COMPLIANCE, CLAUSES DE COMPLIANCE

CHAPITRE I : LE "CONTRAT DE COMPLIANCE"

Section 1 ♦️ sss

Section 2 ♦️ sss,

CHAPITRE II : LES CLAUSES DE COMPLIANCE

Section 1 ♦️ sss

Section 2 ♦️ sss, par 

TITRE IV.

LE CONTENTIEUX CONTRACTUEL IMPLIQUANT LE DROIT DE LA COMPLIANCE 

CHAPITRE I : CE 

Section 1 ♦️ sss

Section 2 ♦️ sss,

CHAPITRE II : CE 

Section 1 ♦️ sss

Section 2 ♦️ sss, par 

​

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► Full reference: M.A. Frison-Roche, “Considérer la géographie juridique africaine pour y réussi l'obligation de vigilance" (Taking into account the legal landscape in Africa to fulfil the Vigilance Obligation), in E. Da Allada (ed.), Devoir de vigilance, quelles perspectives africaines ? (The Vigilance Duty: what African perspectives?), Lefebvre-Dalloz, “Thèmes et Commentaires” series, 2026, pp. 235–235.

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📝Read the article (in French)

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🚧read the bilingual working document on which this article is based

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🎤read the presentation of the conference  which summarised this topic

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► Summary of the article: The French ‘Vigilance’ Act of 2017 incorporated the technical provisions and the spirit of the ‘Sapin 2’ Act of 2016. They share a common ambition. They have been, and remain, a source of both controversy and fervour. At their heart lies the establishment of a “compliance obligation”, for which vigilance techniques form the “vanguard” in serving a grand ambition: to protect systems from present and future risks in order to safeguard the people involved in them.

The passion that continues to surround the Vigilance Act – which gave rise to the CS3D Directive – is not a good thing, because the law and passion are never allies. Some are passionately committed to the triumph of vigilance by forcing companies to perform miracles, whilst others are passionately committed to the destruction of all the legislation that has established the very concept of this compliance law, built upon these monumental humanist goals.

But let us recognise that in these debates on the Duty of Care, which is being legally implemented across value chains,  Africa is often cited as an example in a general discussion. It is not often considered as a distinct case in its own right. No account is taken of its strengths or its own legal mechanisms, even though value chains – particularly industrial ones – so often lead to it, both now and in the future. Through analyses of the duty of care, Africa is perceived as a place of retribution or of a new form of paternalism, and when its future is considered, prospects seem to be lacking, even though the very purpose of compliance – and therefore of due diligence – is the future. 

If we take a less confrontational view and focus more on the ‘legal geography’ of African countries and their social and inter-state structures  social and inter-state structures, we can see that concern for others – both present and future – which ultimately constitutes the Monumental Aim of Compliance Law and thus of the Duty of Vigilance – is more prevalent in Africa than it is in Europe, which is now built upon legal individualism. This concern for others is reflected in legal mechanisms akin to mediation and various legal structures that our own institutions would do well to take on board – our legislators before adopting legislation, and our judges, who could listen to them as amici curiae before always reaching a decision.

If we turn our attention to the African continent, where a segment of the value chains operates, and to the way work is organised, it becomes clear that here too, legislation and sanctions are not the whole story. Compliance techniques that make use of soft law and the contractual arrangements underpinning the chains themselves can remove the element of abstraction that is, by its very nature, inherent in general legislation. Making progress through contracts, under the scrutiny and with the support of the courts, is an approach that could prove more fruitful than well-intentioned legislation – which served as a catalyst – given the prominent role of Contract Law within OHADA.

This serves to enhance the judge’s importance. The judicialisation of compliance is also linked to the growing connection between compliance and contracts. However, it appears that not only can European judges specialising in due diligence thus rule on matters concerning Africa – a continent they can only know from a distance (though it is the lot of every judge to be an outsider) – but African and inter-state courts, notably through OHADA, can address the duty of care because value chains are constituted by contracts. By developing it not as a foreign concept to be assimilated, but as something that expresses the very heart of the law in Africa: concern for others, solidarity, and the search for compromises and solutions to ensure that the social and environmental – that is to say, human – system continues to thrive tomorrow.

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► Full Reference: M.A. Frison-Roche, "La part du gracieux dans le traitement juridictionnel de la compliance (The role of Discretionary Jurisdictio in the judicial treatment of Compliance cases)", in Mélanges Dominique d'Ambra, Liber Amicorum, Lefebvre-Dalloz, 2026, pp.175-196.

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📝read this article (in French) 

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🚧read the bilingual Working Paper, base of this article

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► English summary of this article: Based on the definition of Judicial Office, the procedural principles that derive from it and the consequent powers that judges exercise, the objet of this study is to measure the degree of discretion that exists in the judicial treatment of compliance, without direct consideration for the dispute between litigants. This part is very ignored, when it should be given top priority. Indeed, because Systems are involved in compliance cases brought before civil or commercial judges, we are seeing a development of this discretionary element in judicial fonction. Discretionary matters differ from unilateral discretionary procedures, and this discretionary element relates to what the judge examines, possibly in the context of a dispute.

The first part of this contribution therefore aims to describe the natural development of the discretionary power of the judge to deal with compliance cases brought before them. This role stems from the fact that, even when triggered by a dispute, what is submitted to the judge is a situation composed of a system, which cannot defend its interests before the civil or commercial judge in this Systemic Litigation arising from the very nature of Compliance Law and the Compliance Obligations it engenders on systemic entites. Moreover, it is the Future whose interests must be considered and protected, which the judge must do directly.

This leads to the second part of the contribution, calling for a rethinking of the procedure and the role of the Compliance Judge, so that ex gratia matters can be dealt with. The judge must therefore verify that there are no conflicts of interest between the litigants, including hidden ones, and must learn about the systems involved. The inquisitorial principle must therefore be strengthened. But at the same time, since the primary aim is not to settle a dispute but to resolve a systemic problematic situation, the judge must facilitate the movements of the parties, and the adversarial principle must also be strengthened. Must be encouraged this activation of a powerful and discretionary approach, not as an exception but as a principle fully articulated with a contentious principle, with the dispute being only a means used by the necessary parties to enable systemic compliance situations to be resolved.

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► Full reference: M.-A. Frison-Roche, "La définition juridique du Contrat de compliance (The legal definition of the compliance contract)", in Journal of Regulation & Compliance (JoRC) published by the Centre for Research on Justice and Conflict Resolution (CRJ) and the Centre for Research in Economics and Law (CRED) at Panthéon-Assas University (Paris II), Le "Contrat de compliance" (The "Compliance Contract"),  Paris II Lecture Theatre -  82 Rue Notre Dame des Champs, Paris, 12 June  2026.

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🧮view the full programme for the event

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📶view the slides (in French)

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🌐read the presentation made on LinkedIn

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🚧Read the bilingual working paper on which this conference is based

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📝This lecture will form the basis of a contribution to the book, 📕Compliance et Contrat (Compliance and Contracts), 

To be published in the 📚Regulations & Compliance series, a book co-published by the Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz.

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► Overview of this lecture : The lecture is divided into three parts.

In the first part, the aim is to describe the reality of the “Compliance Contract”, which can be defined as the decision taken by an entity subject to a “Compliance Obligation” (most often a company, but it may also be a administrative organisation) to entrust the fulfilment of that obligation to a third party. This does not diminish the entity’s obligation to be accountable for the compliance structure, nor for its ability to produce the expected outcomes, in particular the behaviours that will contribute to achieving the Monumental Systemic Goals for which the compliance frameworks were adopted. This outsourcing is lawful; its contractual form falls under Contract Law and the principle of contractual freedom.

Even if one considers that, since the subject matter of the contract is Compliance itself, it would constitute a ‘Systemic Contract’—just as Compliance Litigation is ‘Systemic Litigation’—its fundamental nature is indeed a bilateral relationship between a client and a professional (who is often subject to professional rules and codes of conduct).

Indeed, there are legal consequences to this practice of “Compliance Contracts”, because it is the Compliance System that is thereby served: on the one hand, “regulatory clauses” will be inserted, whilst others will be removed (“deemed unwritten”). Contractual freedom remains the guiding principle, however.

In Contract Law, it would be appropriate for the contracting parties to refer to this contribution to the Monumental Goals, which constitute the  fundamental legal norm of the Compliance System, if only to guide the contract Judge who may be called upon in the event of a dispute, as the interpretation of the parties’ intentions must be carried out in a teleological manner.

In the second part, the relationship between this "Compliance Contract" and the various "Compliance Clauses" is analysed. The two should certainly not be confused, since, quite apart from these highly specific contracts through which the various compliance techniques are entrusted, in their drafting and management, to third parties, who thus become the experts, there are also clauses inserted into numerous contracts (sales, distribution, manufacturing, service, etc.), clauses which aim, amongst many other clauses serving different purposes, to incorporate compliance considerations into the contract.

But first and foremost, the Compliance Contract contains numerous clauses specific to it, which often derive from compliance system, since Compliance concretisation is the very purpose of this specific contract, et nothing else: it is therefore logical that, by way of a ‘transparency effect’, the legal Compliance Systemic requirements should be incorporated into the isolated contract.

Secondly, and more significantly, many various contracts contain clauses that provide for the triggering of a “Compliance Ccontract”. For example, when an audit clause is linked to a specific event and the provision stipulates that a contract will then be entered into with a particular expertal body or person, this will generate a Compliance Contract in a second time. The link between the two may give one of the contracting parties control over the other, notably if the expert is close to them. If the links between Compliance Contracts and Compliance Clauses are developping, this could lead to a return to vertical integration. Competition Law may be justified in looking into this. 

It appears that, once we have distinguished between Compliance Contracts and Compliance Clauses, and then linked them together, we can arrive at a Contractual Compliance Strategy that is both legitimate and effective, provided that it contributes to the achievement of the Compliance Monumental Goals set by the political and public authorities. 

Indeed, as soon as we distinguish between “conformity” – which is intended solely to compel the operator to obey all applicable regulations blindly and mechanically – and “Compliance Law”, which is legally guided by Monumental Systemic Goals, this contractual strategy becomes essential.

Part Three sets out to clarify the scope of this Compliance Contract.

The first implication concerns the Compliance System itself, of which it forms a part; the Compliance Contract having the welcome effect of increasing the operator’s contribution to the achievement of the Monumental Systemic Goals (ensuring that systems – banking, financial, transport, energy, climate, digital, etc.—do not collapse and do not crush human beings, but rather benefit the human beings who are involved in them, whether willingly or not).

To this end, the contract must enable the operator – where necessary by means of express provisions – to demonstrate its credibility in contributing to the achievement of these Monumental Goals. Reliable pathways and credible structures must be established. In the cas of technical implementation is outsourced by a Compliance Contract, this obligation to provide evidence may be undermined. To compensate for this, the Compliance Contract may itself include provisions relating to portable technical information, support available through the client's accountability mechanism, or even in the event of legal proceedings.

The second aspect concerns the contractors themselves, who adapt their intentions and are bound, above all, by this “little law” which is any contract for the parties. This perspective is surprisingly underdeveloped in practice, no doubt because in Law, when considering Compliance, reference is made to unilateral “regulations” and the vertical relationship of obedience that it engenders in the operator.  This changes with the transformation of "conformity" (which is that) in "Compliance Law" (which is based on Monumental Systemic Goals and justifies contracts).

The third aspect concerns third parties, namely the stakedholders (and competitors...). These third parties benefit from Compliance Contracts because they are integrated into the Compliance System and because of the transparency between this system and the Compliance Contracts. In fact, and more technically speaking, this specific Cgreement provides them not only with a accountable(the company, the public body, the State), but also with a contractual debtor. Stakeholders may assert rights against the latter.

However, because the contracts themselves are also enforceable against third parties, they can anticipate these relationships with third parties – not only the competitors of the entity subject to the Compliance Obligation, but also its own relationship with stakeholders, and even its relationship with public authorities. Indeed, the object (and effect) of the Compliance Contract is to produce and build up Information that is of interest to everyone. The result is a ‘treasure trove of evidence’. A key question is how, and whether, this treasure trove can remain within the circle of the contracting parties or not.

Indeed, the fourth area concerns Public Authorities. As the bodies that “uphold” the compliance system, they consider the Compliance Contract to be legitimate and one of the most effective means of ensuring that regulations are effective, efficient and properly enforced; however, they also wish to benefit from the outcome of the contract’s implementation: to access the systemic information it generates. The contracting parties do not always share this view, but the Compliance Contract is not a means of “obeying” regulations. It is the Judge who will certainly address this question of principle, which relates to the very definition of Compliance Law.

This brings us to the fifth area of application, which concerns the Courts. Indeed, a number of courts are responsible for hearing such cases: the contract courts, the competition courts, the courts overseeing the various systems whose sustainability is thus safeguarded, and the courts specialising in vigilance legal duty  (which is the cutting edge of Compliance Law). 

The issue of the “natural judge” was examined at the symposium held on 29 May 2026 on: Contractual litigation involving compliance: procedural and jurisdictional aspects. The judge hearing the contract case (civil or commercial judge) will tend to refer first and foremost to the contract. This is also why the Compliance Contract conceptor would be well advised to include provisions in its terms regarding its relationship with the Compliance System, so that it is not the authorities of that system who do so in a too much discretionary manner.

In understanding the "Compliance Contract", as Iit was emphasised in 2022, in the judge’s interpretation of the contract, the judge is required to reconcile the parties’ intentions with a teleological approach, that is to say, to establish that the parties intended to serve the purpose of the expertise thus requested and developed (for the operator and ultimately for the stakeholders and for the system itself). 

By establishing this convergence, the judge gives full effect to the Cmpliance Contract. Rather than framing the issue, as is so often done when reasoning in terms of ‘conformity’, as a conflict between contractual freedom and public policy (conformity serving a public policy that would be contrary to the contract, inferior norm in the vertical normative hiercharchy). 

It must be accepted as a fundamental principle that contractual freedom, freedom of contract and a competitive market for compliance expertise are the most effective means of developing a Compliance System that will safeguard interconnected  different systems and protect the people involved in them.

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⛏️Find out more  :

🕴🏻M.-A. Frison-Roche, 📝Compliance contract, compliance clauses, 2022

🕴🏻M.-A. Frison-Roche, ⚙️Compliance and Contracts,

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► Référence complète : E da Allada. (dir.), Devoir de vigilance. Quelles perspectives africaines ?, Lefebvre-Dalloz, coll. "Thèmes & Commentaires, 2026, sous presse.

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►Voir notamment la présentation des contributions :

► Référence complète  : Conseil constitutionnel, déc.  n°25-1184 QPC, 6 mars 2026, Conseil national des barreaux et autres

[Expérimentation d’une contribution pour la justice économique due pour chaque instance devant le tribunal des activités économiques]

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►lire la décision

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