June 2, 2021
Full reference: Frison-Roche, M.-A., Describing, conceiving and correlating compliance tools, in order to use them adequately, in Frison-Roche, M.-A. (ed.), Compliance Tools, series Regulation & Compliance, Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 9-32.
Summary of the article: The article is the general introduction to the book on Compliance tools. In its first part it develops the overall problematic. In its second part, it presents each of the contributions, placed in the overall construction of the work.
June 2, 2021
Full reference: Frison-Roche, M.-A., Resolving the contradiction between "sanction" and "incentive" under the fire of Compliance Law, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Regulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 101-112
Summary of the article: Compliance and Incentives appear at first glance to be totally opposite. For two major reasons. Firstly, because sanctions have a central place in Compliance Law and that the incentives suppose an absence of constraint on the operators. Secondly, because the incentives are linked to self-regulation and that Compliance Law assumes a strong presence of public authorities. Thus, one should choose: either Compliance or Incentives! Either the effectiveness of one or the effectiveness of the others; either the techniques of one, or the techniques of others; either the philosophy of one or the philosophy of the other. Resign oneself to the waste that such a necessary choice would imply. But to put the terms in this way amounts to thinking poorly about the situations and reducing the fields of the solutions they call for. If we take a rich definition of Compliance Law, we can on the contrary articulate Compliance and Incentives. From this perspective, sanctions can no longer become what blocks the use of incentives but, on the contrary, what constitutes them. Even more, the coupling between the Incentives and the requirements of Compliance Law must be strongly encouraged, as soon as the public authorities supervise in Ex Ante all the initiatives taken by the "crucial operators".
This working document deals with the first issue. Indeed, the so-called incentive theory targets mechanisms which do not directly resort to constraint. They would therefore have little place in Compliance Law. But it seems saturated with sanction procedures. We can even say that it seems to put them at the center, the public authorities presenting the number of sanctions as a sign of success, while the companies seem obsessed with their prospects, the two concerns ending in such a strange convergence that are the Convention Judiciaire d'Intérêt Public (non-prosecution agreement).
The honest observer cannot help but be immediately uneasy. Indeed, it can only raise the definition of the sanction as a "constraint" triggered Ex Post, at the very heart of a Compliance Law which is presented as a set of Ex Ante mechanisms. Based on this contradiction in terms, should we give up the association and think that it would be wrong against the spirit to think of the sanction as an incentive?
It is undoubtedly in this connection that one perceives most clearly the clash of two cultures, which do not communicate, while technically they apply to the same situations. Indeed, because Compliance was designed by Finance, everything is a tool for it. Therefore, the tendency to think of the sanction only as an incentive is very strong in Compliance Law, manifests itself continuously and will not stop (I). But whatever the reasons for conceiving it this way, the principles of the rule of law cannot disappear and if we do not want them to be erased, then they must be articulated (II). This is an essential game (II).
This is why we can literally say that Compliance has set Criminal Law on fire by its conception, logical but closed in on itself, of sanctions as simple incentives. In order for Law to remain, however, we must hold a very firm definition of Compliance Law centered on its Monumental Goal, which is the protection of the person.
June 2, 2021
Full reference : Frison-Roche, M.-A., Incentives and Compliance, a promising couple to increase the Compliance Law utility, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 141-148
Summary of the article: The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times.
First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means.
In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.
However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing... Secondly, and as if that were a kind of consolation ..., Compliance would not be really Law either ... We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place... Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is.
To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive.
This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition.
June 2, 2021
Editorial responsibilities : Direction of the serie Regulation & Compliance, JoRC and Bruylant
► Full Reference: Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) & Bruylant, 2021.
This book in English is the first title of this collection integrally dedicated to Compliance Law, in that it is the extension of Regulation Law.
This collection in English is articulated with a collection co-published between the Journal of Regulation & Compliance and Dalloz.
📕Thus, in parallel, a book in French, Les Outils de la Compliance is published.
📅 This book is published after a cycle of colloquiums organised by the Journal of Regulation & Compliance (JoRC) and Partners Universities.
► General Presentation of the collective book: The political dimension of Compliance Law lies in the goals it aims to achieve. To achieve them, the concern for these goals is internalized in "crucial operators", which may be obliged to concretize "monumental goals" set by public authorities. These public bodies control the Ex Ante reorganization that this implies for these companies and sanction Ex Post the possible inadequacy of the companies, which have become transparent to this end. The effectiveness and efficiency of this internalization, without which the statement of these goals is worth nothing, is based on the Compliance tools that are deployed.
These appear to be very diverse but their substantial unity (topic which will be the subject of a forthcoming book) makes it possible to study the tools put in place from a unique perspective, by not isolating them in a particular branch of Law, Criminal law or International Law for example, but by measuring what is common to them, notably Anticipation, Trust, Commitment, Responsibility, Incentive, and so on. If the Compliance tools vary, it is rather not only according to the sectors, finance and banking appearing then as the advanced point of the general Compliance Law, for example in environmental matters, but also according to the countries and the cultures. It is in fact about them that legal cultures seem to oppose.
The book aims to understand these "tools" by going beyond the description of each instrument, for which we already have many monographs, for analyzing them through the issues of Risks, required Expertises, Training. Sovereignty claims, Incentives, mechanical aptitude of Technologies. It is through these themes that are analyzed by the authors, experts in the field, what we always want to understand better: Compliance Programs, Whistle blowing, Mapping, Sanctions, Extraterritoriality, etc.
Read the summary of the book.
Read the foreword, summarizing all the contributions.
Présentation of the book contributions:
📝Burlingame, Coppens R., Power, N, Lee, D.H., Anti-Corruption Compliance: Global Dimension of Enforcement and Risk Management
📝Frison-Roche, M.-A., Describing, designing and correlating Compliance Tools to have a better use of it
📝Frison-Roche, M.-A., Drawing up Risk Maps as an obligation and the paradox of the "Compliance risks"
📝 Frison-Roche, M.-A., Incentives and Compliance, a couple to propel
📝 Frison-Roche, M.-A., Rights, primary and natural Compliance tools
📝 Frison-Roche, M.-A., Training: content and container of Compliance Law
📝 Granier, C., The Normative Originality of Compliance by Design
📝Guttierez-Crespin, A., Audit of Compliance Systems
📝 Koenigsberg, S. and Barrière, F., The Development of Attorney's Compliance Expertise
📝 Merabet, S., Morality by Design
📝 Salah, M., Conception and Application of Compliance in Africa
📝 Tardieu, H., Data Sovereignty and Compliance
May 17, 2021
Organization of scientific events
Co-organization of the colloquium "Public norms and Compliance in time of crisis : monumental goals put to a test" ("Normes publiques et Compliance en temps de crise : les buts monumentaux à l’épreuve")
This scientific manifestation is placed under the scientific direction of Marie-Anne Frison-Roche, Pascale Idoux, Antoine Oumedjkane and Adrien Tehrani. It is organized by the Journal of Regulation & Compliance (JoRC) and by the Faculté de Droit et de Science Politique de l'Université de Montpellier (Centre de Recherches et d'Etudes Administratives de Montpellier and Centre du Droit de l'Entreprise).
This manifestation is part of the cycle of colloquia organized in 2021 around the general topic of Compliance Monumental Goals.
The interventions will give rise to the production of articles which will be part of the books Les bus monumentaux de la Compliance and Compliance Monumental Goals which will be published in the Series Regulations & Compliance, coedited by the JoRC and Dalloz for the French version and by the JoRC and Bruylant for the English version.
This manifestation will take place on Zoom on 17th of May 2021.
Assistance to this event may be validated as part of the continuing education of lawyers.
In addition, scientific videos will be extracted and disseminated later.
Presentation of the topic: In the overall problematic of "Monumental goals", this conference retains a particular case: that of the crisis and the emergency situation that it generates.
First of all, in general, does the importance of public norms in the emergency context engendered by a crisis situation imply a marginalization of Compliance? Don't private actors also have their place in these circumstances, at the service of the "monumental goals" that the public authorities want to maintain, or even which appear specifically?
Secondly, more concretely, we have been living for many months in a health crisis. By taking it as a framework and, within it from particular cases, how public and private actors react, act, adjust? and how do the courts assess these movements?
Going from the most general to the most specific, this conference aims to identify criteria, limits, of what could be specific rules when the emergency of a crisis meets Compliance, and will examine specific situations.
Working method: The conference is therefore built on a general issue, which was the subject of a "working paper", written by Antoine Oumedjkane, Adrien Tehrani and Pascale Idoux, on which the speakers will have thought in advance and from which they are intended to study the question from their particular perspective.
The conference, which is essentially interactive, therefore begins with an outline of the main lines of this general work. It is followed by the examination of concrete practical cases.
They are as follows:
1️⃣ hydroalcoholic gel, its manufacture, price, availability,
2️⃣ information and regulation on all media in Covid period
3️⃣ the use of the bicycle during the state of health emergency
A first conclusion, thematically limited, will relate to Revealed by the crisis situation, the place of private initiative in Compliance Law.
A second, more general, undoubtedly open-ended conclusion is drawn from this confrontation between general reflection and concrete cases which must be resolved in a particular crisis.
⤵️Read a more detailed presentation of the manifestation below:
May 17, 2021
Référence complète: Frison-Roche, M.-A., La place des entreprises dans la création et l'effectivité du Droit de la Compliance en cas de crise in (dir.) Les normes publiques et la Compliance en temps de crise : les buts monumentaux à l'épreuve, colloque coorganisé par le Journal of Regulation & Compliance (JoRC) et la Faculté de droit de Montpellier, 17 mai 2021.
Regarder la vidéo de cette conférence.
Ce colloque s'insère dans le cycle de colloques 2021 organisé par le Journal of Regulation & Compliance (JoRC) et ses partenaires autour des Buts monumentaux de la Compliance.
Les interventions serviront de première base à la réalisation d'un ouvrage dirigé par Marie-Anne Frison-Roche, dont la version française, Les Buts monumentaux de la Compliance, est co-éditée par le JoRC et Dalloz et dont la version anglaise, Compliance Monumental Goals, est co-éditée par le JoRC et Bruylant.
Résumé de la conférence : Il s'agit d'observer la façon dont les entreprises agissent lorsque la crise advient et l'impact produit sur les "Buts Monumentaux de la Compliance". Il apparaît que les entreprises ont aidé, soit sur l'ordre des Autorités publiques, soit de leur propre initiative. Toute "épreuve" étant une "preuve", la leçon à tirer de la preuve sanitaire est à retirer face à la crise environnementale dont nous sommes déjà informés.
La crise montre la place et le rôle des entreprises pour que tout d'abord survive l'effectivité du Droit de la Compliance par le souci maintenu de ses buts, grâce à l'aide requise ou spontanée des entreprises.
Mais plus encore l'on a pu observer des entreprises actives en raison de leur "position" pour des buts qui n'étaient pas les leurs, comme l'environnement. L'on retrouve alors la définition générale du Droit de la Compliance comme l'alliance en Ex Ante entre Autorités publiques et opérateurs privés cruciaux, pour maîtriser le futur. Ce sont les juges qui les assignent à cette alliance, ici et maintenant. La crise sanitaire en accélère la construction.
May 15, 2021
Full Reference: Frison-Roche, M.-A. Place and Role of Companies in the Creation and Effectiveness of Compliance Law in Crisis, Working Paper, May 2021.
This Working Paper has been elaborated as basis for a conference in the colloquium of Mai 17, 2021 (done in French: Normes publiques et Compliance en temps de crise : les buts monumentaux à l'épreuve.
This video is made with English substitutes.
It is also the basis for an article in the book Compliance Monumental Goals, the English version of which is co-published by the Journal of Regulation & Compliance (JoRC) and Bruylant.
Summary: This article has a very topic: the place of private Companies, with regard to the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test", that is to say, it brings evidence. Let us take it as such.
Indeed, during the health crisis, it appears that Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength
Lire ci-dessous les développements.
April 27, 2021
Law by Illustrations
Academics did a study on how people who work in investment banks kill themselves on the job.
The death of a 21-year-old intern, having worked three days without sleeping, in the Goldman Sachs bank, the testimonies of young people explaining that they work non-stop, undoubtedly contributed to testimonies, relayed in the press, specialized or generalist, but also university studies.
Indeed, two academics published a research no longer on the rules applicable within investment banks, which took measures to force their employees and their interns (since the victim was an intern) to rest on Sundays but on journeys based on data accessible by taxi companies.
As a result, the reaction of the people was not to rest: it was to increase the daily working time, to leave even later after dark.
Research shows that this phenomenon increases during the summer, that is to say precisely when the people who work are more trainees, that is to say those who want to "prove themselves": As the authors say: "Cette analyse, menée avec mon ex-collègue de doctorat de la Aalto University School of Business (Finlande), montre que, lorsque les banques ont mis en place des politiques de travail sans samedi, cela a incité les employés à travailler tard le soir en semaine pour compenser. Ces résultats sont plus marqués pendant les semaines de stages d’été, lorsque les banques d’investissement emploient un grand nombre d’étudiants désireux de faire leurs preuves en travaillant dur." (“This analysis, conducted with my ex-doctoral colleague from Aalto University School of Business (Finland), shows that when banks implemented work policies without Saturday, it prompted employees to work late nights on weekdays to compensate. These results are most marked during the summer internship weeks, when investment banks employ large numbers of students eager to prove themselves by working hard. ")
Let's go back to the Industry series.
An expert has shown all the points on which it does not correspond to "reality", on such and such a point.
The cinema is reality — not even in the reconstitution of such or such a point, it reproduces it by throwing on the screen what is the idea which moves in the facts.
This series begins with the death of a trader, who died of work.
It tells exactly the life, how to qualify it ..., let's say "the crazy life" of those who work there.
It is hardly bearable to watch.
In any case, it is exactly the image of what these two academics are saying.