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.
April 21, 2021
► Full Reference : Frison-Roche, M.-A., Les droits subjectifs, outils premiers et naturels du Droit de la Compliance , in Frison-Roche, M.-A. (ed.), Les Outils de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, p. 301-323
► English Summary of this article written in French: In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools".
But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law.
We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space.
See the general presentation of the book (the book is written in French)
April 21, 2021
📝 Approche juridique des Outils de la Compliance: Construire juridiquement l'unité des outils de la Compliance à partir de la définition du Droit de la Compliance par ses "buts monumentaux", in Frison-Roche, M.-A. (ed.), "Les Outils de la Compliance"
► Full reference : Frison-Roche, M.-A., Approche juridique des Outils de la Compliance : construire juridiquement l'unité des outils de la Compliance à partir de la définition du Droit de la Compliance par ses "buts monumentaux", in Frison-Roche, M.-A. (ed.), Les outils de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance and Dalloz, 2021, p. 27-38
► Summary of the article : The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined.
All these tools are configured by these goals and for mastering all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and like it, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law.
As legal solutions adopted show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goal, of which the achievement is only an obligation of means.
April 21, 2021
Thesaurus : Doctrine
Full reference : Benzoni, L. and Deffains, B., Approche économique des outils de la Compliance: finalité, effectivité et mesure de la Compliance subie et choisie, in M.-A. (ed.), Les outils de la Compliance, série "Régulations & Compliance", Journal of Regulation & Compliance and Dalloz, 2021, p. 39-50
Summary of the article (done by Marie-Anne Frison-Roche)
Authors refer to economic analysis of Law general works to say that firms can have an interest in showing by anticipation that they comply to Law in a long term strategy of reputation and reliability, this internalization imposed by Compliance and transformed by the Corporate Social Responsibility benefiting to the firm and its choice being related thus to rationality and not to emotion.
Thus the mechanisms of Compliance stop to be "imposed", the firm just minimizing the perspective of a future sanction, to be "chosen", the firm taking freely a responsibility, for example in the environnemental or human rights protection fields, going beyond legal requirements (what "monumental goals" corresponds to, which goes beyond the interest of partners and of the legal obligation). The investment calculus is more difficult for the second one, hardly measurable, than for the first one (probability calculus). The loi PACTE leaves room to a "chosen Compliance" but we badly measure its effectivity: we wait case law in its use of obligation Law. Moreover, if the status of "entreprise à mission" is adopted, the goal becomes statutorily binding and the governance of the firm must be modified for the internal control of means implemented. But, supposing that companies only search competitive avantages, it is only about, through this general interest service, conquering new benefits, the lucrative purpose of chosen Compliance showing the liberal character of Compliance.
The authors underline that this "chosen Compliance" implies evaluation and analysis tools different from those used for "imposed Compliance". In "imposed Compliance", it is about, taking back Gary Becker's works, considering risk aversion, the firm calculating its likelihood to be punished or not with regards to the gain obtained with the infringement (dependent on those who conceive Law to design it according to the model of incentives) and to the cost generated by the intern Compliance tools. The authors underline that the uncertainty of legal solutions, and there the importance of soft law, makes these calculus harder and that rationality of agents is not total, the perspective of being punished being rejected in itself while the respect of the rule is rather natural, the firms being so "honest" (theory of cognitive bias) and not wanting to be singled out (name and shame). Behavioral economics thus privileges "imposed Compliance", beyond cost-advantage calculus.
In the case of "chosen Compliance", it is competition economics which draws solutions, because the firm imposes to itself a constraint to get a competitive advantage of it, in that these self-imposed constraints meet societal demands, external (for example, environnement) or internal (for example, cohesion into the firm). The external gains are the positive image of the firm with regards to the reputation of its competitors. These investments lose their efficacy because all the firms adopt the same, what by the way transform these practices in common legal norms. Internal gains are measured in organizational sociology by the adhesion to the firm's project, reducing the internal inefficiency in a superior to investment profit.
April 21, 2021
Full reference : Frison-Roche, M.-A., Dresser des cartographies des risques comme obligation et le paradoxe des "risques de conformité" , in Frison-Roche, M.-A. (ed.), Les outils de la Compliance, serie "Régulations & Compliance", Journal of Regulation & Compliance and Dalloz, 2021, p. 53-62
Summary of the article
There are few synthetic or theoretical studies on Risk Mapping even though it is in fact the Compliance central tool, perhaps because it is more a management tool than a legal one. Risk Mapping is often described but does not receive any other legal qualifications than being a "modality", suffering in this respect from an evil which affects the whole of Compliance, still little understood by Law, attention often so focused on the Ex Post (sanctions) while Compliance is by nature in the Ex Ante. Going from disarray to incomprehension, everyone can note the existence of "compliance risks" among the mapped risks, because if as so many affirm that it would be necessary to speak only of simple conformity as obedience, demonstrated in Ex Ante, to Law, how a sub-set of a tool would therefore have the same object as the set of Law that this tool serves ... This aporia can only be resolved if Compliance Law is defined substantially by its "monumental goals" which exceed obedience to regulations.
Consequently, Law taking up Risk Mapping, this mechanism may first appear as an ancillary obligation to the main obligation consisting in achieving "monumental goals". The ancillary obligation to draw up the maps is an obligation of result, while the main obligation to achieve the monumental goals is an obligation of means. These cartographies being very diverse and being only occasionally targeted by specific laws, it can also constitute only a legal fact or, through the play of various charters, a unilateral legal commitment. But it isnbecoming the basis of an autonomous legal obligation incumbent on enterprises in position to know certain risks, obligation referring to the existence of a subjective right tof knowing and measuring them ("right to be worried") which the third parties who are going to run them would hold, thus allowing them to choose to run them, or not.
April 21, 2021
General reference : Frison-Roche, M.-A. (ed.), Les outils de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) & Dalloz, 2021.
In parallel, the book is published in an English version Compliance Tools, co-edited by the Journal of Regulation & Compliance (JoRC) and Bruylant.
General presentation of the book : The political dimension of Compliance Law resides in the monumental goals that it aims for and which define it. These goals are internalized in "crucial operators", who willingly or by force must structure themselves and act to achieve "monumental goals", as set by public authorities and which may coincide with the interests of the enterprise. This one designs and controls the Ex Ante reorganization that this implies, under the public authorities supervision. Enterprises, even if their activities are not regulated, thus become transparent and must show the Compliance Tools effectively deployed to effectively achieve these goals. It is a major transformation of economic life in all countries because the Compliance Tools are adopted everywhere and have a global effect.
These appear to be very diverse but their unity is profound and bringing it out has the practical benefit of producing a legal regime that is as unified as possible, while allowing their adaptation country by country, sector by sector, enterprise by enterprise.
This book aims to understand these Compliance Tools to better anticipate the assessment that will be made by Regulators, Supervisors and Courts, as well as the new conceptions of the authors of legal texts which impose new ones every day, while companies must also imagine the most appropriate Compliance Tools.
This collective work specifically apprehends those on which we have few studies when we handle them on a daily basis, such as risk mapping or training or rights, letting more familiar tools shine through more transversal contributions, such as compliance programs, sanctions, whistleblowing or many sorts of settlements, agreements of public interest.
A first chapter takes a legal and economic approach. A second chapter emphasizes the role of risk mapping. A third chapter draws the game of incentives. A fourth chapter identifies the expertise required. A fifth chapter insists on geographic significance. A sixth chapter details the measurement of effectiveness. A seventh chapter explores training. The eighth chapter examines technological tools. The concluding article leads to rights.
Read the presentations of the articles of the book :
April 21, 2021
► Full Reference: Frison-Roche, M.-A., La formation : contenu et contenant du Droit de la Compliance, in Frison-Roche, M.-A. (ed.), Les Outils de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp.. 227-244.
► Summary of the article: Firstly, as Training is a specific Compliance tool, it is supervised by Regulators. It becomes mandatory when it is contained in Compliance programs or sanction decisions. Since effectiveness and efficiency are legal requirements, what is the margin of companies to design them and how to measure the result?
Secondly, as long as each Compliance tool includes, more and more, an educational dimension, we can take each of them to identify this perspective. So even condemnations and prescriptions are so many lessons, lessons given, lessons to be followed. The question is then to know who, in this so pedagogical Compliance Law, are the "teachers"?
🚧 This article is based on a bilingual Working Paper, including additional technical developments, pop-up notes and hypertext links.