The recent news

Oct. 2, 2023

Conferences

♾️follow Marie-Anne Frison-Roche on LinkedIn

♾️subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full ReferenceM.-A. Frison-Roche, Participation à la Table ronde "Normes de Responsabilité Sociale des Entreprises (RSE & Devoir de Vigilance)" (Participation in the Round Table "Corporate Social Responsibility Standards (CSR & Duty of Vigilance)"), in Fribourg University, Journée du Droit, Fribourg University, Pérolles site, room C230, October 2, 2023.

____

🧮see the full programme of this event

🎥​watch the video of this event (in French)

____

🌐read the report written in French with photos, tags and links on LinkedIn and also with links to each the speech

____

► General presentation of the event : This conference, build around 4 presentations and a debate between the speakers and then with the audience, aimed at explaining and understanding this fundamental movement and the new texts that express it in Switzerland, even if it is French law, such as the so-called 'Vigilance' law of 2017 and the draft European CS3D directive, because on the one hand it is a movement that begins with legal technique and on the other hand the texts in question are extraterritorial in scope, if only because of the notion of 'value chain'. In the first part of this round table, and to set the scene, I will outline the origin and content of the French 'Vigilance' law, the way in which the draft directive draws heavily on it, its relationship with Compliance Law, of which it constitutes the 'advanced point', and the decisive role it gives to the courts, in the general movement of the jurisdictionalisation of compliance. The purpose of this is to allow the discussion to get underway.

🕴️Idris Abdelkhalek, PhD candidate and lawyer, introduced the speakers and led the debate between them and the audience. He took questions from the audience on the intensity of the obligation weighing on companies, in particular between civil liability and criminal liability, between the obligation of means and the obligation of result, and on the way in which the duty of vigilance is applied to specific sectors such as defence.

____

► Presentation of my speech : the subject of which was Presentation of French Vigilance law, European perspective and European Compliance System. My presentation was divided into four points. Firstly, I outlined the state of Law in France, in the novelty represented by the 2017 law known as the "Vigilance" law, whose principles are simple and strong, principles that are situated in the aims pursued, and the way in which this law inspires what is currently being negotiated: the CS3D Directive.

Secondly, I stressed the need for companies to master these often technically complicated corpus, especially if we take into account the link between Vigilance and the CSRD directive on sustainability reporting and extra-financial information. 

Thirdly, I have shown that an overall understanding can nevertheless be achieved, and that the technical nature of the 'tools' is better mastered if we place the duty of vigilance within Compliance Law, of which it constitutes the 'advanced point'. All of this anchors its legal normativity in the 'Monumental Goals' it serves, which in Europe are humanistic, since the aim is to protect, now but above all in the future because it is a branch of ex ante Law, the human beings involved in the systems (banking, finance, energy, digital, climate, etc.).

Fourthly, I emphasised that this understanding enables everyone to play their part: political and public authorities, businesses and stakeholders. Even more, and at the heart of the matter, the judge plays an essential role, even in countries with so-called 'continental' Law. I have used current cases as examples. This is just the beginning, and judges need to train, specialise and work in dialogue to achieve this.

____

► Presentation of the other speakers contributions :

🕴️Marion Paradas, Ambassador of France to Switzerland and Liechtenstein, opened the conference and gave a general presentation of the theme. Ambassador Marion Paradas presented the international challenge represented by Law, illustrated here by the duty of vigilance. She emphasised that this is a major issue, both now and in the future, for Swiss companies and French companies based in Switzerland, particularly as this duty extends throughout the "value chain" and in view of the CS3D directive, which will also have consequences for both.

🕴️Isabelle Chabloz Waidacher, Professor at the Faculty of Law in Fribourg and holder of the Chair of Economic Law at the University of Fribourg, gave a Presentation of Swiss Law. In particular, she emphasised the state of Swiss Law, which could have gone further than the 2017 French law known as the "Vigilance" law if the popular initiative reference had led to the adoption of a law, and which currently focuses more on information and transparency obligations, with CSR taking over from there. But she stresses that the reality of value chains will force Swiss companies to take into account the requirements of the European directive currently being adopted.

🕴️Renaud Roussel, Managing Director of Colas Switzerland, presented an entrepreneurial view of the subject. He began by outlining the concrete steps taken by his industrial group in Switzerland and around the world to implement its commitments to protect the environment, for example by ensuring the proper use of materials used in road construction. He also stressed the importance of human rights, particularly in labour relations, in the context of CSR and vigilance. He went on to point out that it was not always easy for a large company to meet its own requirements, or the requirements imposed on it by the law, because in the construction and public works sector in particular it is often small companies that are competing, competitors who do not bear the costs of such obligations.

________

Sept. 29, 2023

Conferences

♾️follow Marie-Anne Frison-Roche on LinkedIn

♾️subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

 Full ReferenceM.-A. Frison-Roche, "Témoignage" ("Testimony"), in Institut d'Études Judiciaires (IEJ) d'AngersHommage à Pierre Crocq, Angers University, September 29, 2023.

____

🧮see the full programme of this event (in French)

________

Sept. 28, 2023

Conferences

♾️follow Marie-Anne Frison-Roche on LinkedIn

♾️subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

 Full ReferenceM.-A. Frison-Roche, "Conclusion", in Club des avocats environnementalistes, L’eau : entre protection de la ressource et conflits d’usage, Maison des Avocats, Auditorium, September 28, 2023.

____

🧮see the full programme of this event

________

Sept. 15, 2023

Publications

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

 Full ReferenceM.-A. Frison-Roche, "Compliance : demandez le programme !" ("Compliance: ask for the programme!), J.D.E., 2023/7, No. 301, p. 349.

____

📝read the article (in French)

____

🌐see the LinkedIn post presenting this article

____

► Summary of the article: Compliance programmes are neither constraints imposed by a 'mad regulator' forcing companies to show in advance that they comply with all the regulations applicable to them, nor are they a delegation by the State of tasks it is incapable of accomplishing, such as eradicating corruption or stopping global warming.

On the contrary, they are a tool in the service of the alliance between public authorities and companies in the pursuit of the Monumental Goals of Compliance Law. Through them, the company implements actions to prevent the systemic risks associated with its activity. It thus assists the authorities in regulating new areas (digital, space) while adopting a sustainable strategy. As a result, it does not suffer from regulations, but participates in shaping the future. In this future, the judge plays a central role in shaping the compliance programmes that will be raised or challenged in 'systemic cases'.

________

Sept. 7, 2023

Publications

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

 Full ReferenceM.-A. Frison-Roche & Arnoldo Wald, "Le cas Petrobras, une juste adéquation de la responsabilité pour protéger les personnes impliquées dans des systèmes globaux" ("The Petrobras case: the right balance of responsibility to protect those involved in global systems"), RIDC, July-September 2023, No. 3, pp. 563-582.

____

► Summary of the article: This article briefly outlines the main aspects of corporate liability in the capital market under Brazilian law, arising from the company’s duty to inform shareholders and investors, followed by a commentary on the recent partial award in an arbitration brought by minority shareholders against Petrobras, which underlines the legitimacy of the minority shareholders to engage the company’s liability.

________

 

Sept. 7, 2023

Publications

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

____

► Full ReferenceM.-A. Frison-Roche, "Droit de la compliance et climat. Pour prévenir le risque et construire l'équilibre climatiques" ("Compliance Law and climate. Prevent the climate risk and build the climate balance"), in M. Torre Schaub, A. Stevignon and B. Lormeteau (ed.), Les risques climatiques à l'épreuve du droit, Mare & Martin, coll. "Collection de l'Institut des sciences juridique et philosophique de la Sorbonne", 2023, pp.73-83

____

📝read the article (in French)

____

🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

____

► Summary of the article: Compliance Law is beginning to emerge in climate topic, through the expression  "Climate Compliance Law", but the climate issue itself is the most perfect example of why General Compliance Law is made for.  It is indeed a new branch of Law, a global Law claiming to provide Ex Ante solutions here and now for global issues, so that in the future systemic catastrophies will not occur, will not happen: it is these "Monumental Goals" that give meaning, coherence, and simplicity to Compliance Law.

Compliance Law, linked to the Rule of Law principle, makes it possible to go beyond the choice often presented between the effectiveness of the protection of the planet and the renunciation of freedoms, in particular the freedom to do business and the freedom of individuals, especially the protection of their data.

Climate is thus exemplary of the object of Monumental Goals of Compliance Law (I). The systemic risk that it now constitutes is analogous to Banking or Digital Systemic Risks and therefore calls for the application of identical legal Compliance Tools, formerly put in place for Banking Regulatory and Compliance Law, recently invented for Digital. Compliance Law, extending Regulation Law, itself from the precondition of the Sector and the Territory, is therefore the branch which makes it possible to put in place new legal solutions, either by force (judicial agreements, compliance programs, etc.), or by will (commitments, global charters, etc.).

Therefore, an alliance can exist between political and public authorities, and crucial economic operators (II), that the rise in power of the "raison d'être" is the sight and whose technical challenge is the collection of information that must be put in correlation. Scientists pooling Information, this public good, provided by public and private entities. The courts are at the center of this articulation between Compliance Law and Climate, which object is the Future.

________

Sept. 5, 2023

Publications

🌐follow Marie-Anne Frison-Roche on LinkedIn

🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 

____

 Full Reference: M.-A. Frison-RocheMoving through Time to align Compliance with the rights of the defenceWorking Paper, September 2023.

____

📕This working paper has been drawn up as the second part of the book Compliance et droits de la défense (Compliance and the rights of the defence), a first section summarising this book.

____

📝This Working Paper was drawn up to serve as a basis for this second section, which sets out the general way in which the rights of the defence and the compliance system can be articulated, thank to this movement of moving back in time.

____

 Summary of this Working Paper: The subject of Compliance & rights of the defence is difficult to pin down because it often gives rise to totally opposing presentations, which express the initial confrontation between Compliance and rights of the defence, which seems irreducible. This initial confrontation must be acknowledged, and this is even more necessary to prevent it from becoming definitive(I)

But in a society governed by the Rule of Law, the rights of the defence are central, and the hierarchy of norms dictates that they remain the privilege of all those who risk being punished in the future. Admittedly, if we look at the course of events in a linear way, the Compliance mechanisms come in Ex Ante, whereas the rights of the defence would only be activated when the repressive procedures would later come to bear on the moral or natural person. The question would therefore not even arise, or not in a central way. But this reasoning creates a false compatibility between Compliance and the rights of the defence (II.

Indeed, it is the perspective of punishment in the future that forms the basis for the attribution of rights of the defence in the present. This consideration of the future not only allows but obliges the Law to "move in time", to always think in advance about what might happen tomorrow: this is how we must think about the Compliance methods of Internal Investigation, the DPA (or in the French legal system the Convention judiciaire d'intérêt public and the French Guilty plea procedure (CRPC) (III). As soon as these Compliance Tools are being used in practice, at the time they are being used, we must already think about how their results will be used, results which they have often been used for, because the Internal Investigation is a formidable piece of Evidence for obtaining a conviction and/or a DPA, etc. : therefore, the rights of the defence must shift over time, from the future to the present of the Information collect.

Two ambiguities that affect Compliance Law itself, ambiguities which the rights of the defence help to clarify, now appear more clearly.  The first concerns the place occupied by the consent of the person who could have been protected by the rights of defence but //who exercises his/her will to renounce them (IV). Consent, in relation to the will of which it is the expression, is also linked with the future and allows Compliance once again to take precedence over the prerogatives of the individual who chooses not to benefit from it. The omnipresence of 'consent' in Compliance is enlightening here... The second ambiguity concerns the place of secrecy (V). Secrecy seems to be the prerogative of the rights of the defence. But it can also be an effective Compliance Tool when Confidentiality enables the company to detect and prevent breaches. It may even constitute the very Monumental Goal of Compliance Law. This happens when the Goal of Compliance Law, in which legal normativity is placed, becomes the protection of the individual, as is the case for personal information. That guides the European Judge, in line with the humanism that underpins European Compliance Law, in finding the right balance, this protection and effectiveness, depending on whether the information must be given or must be not.

____

🔓read the Working Paper developments below ⤵️

Aug. 31, 2023

Conferences

♾️suivre Marie-Anne Frison-Roche sur LinkedIn

♾️s'abonner à la Newsletter MAFR Regulation, Compliance, Law

____

 Référence complète : M.-A. Frison-Roche, "Le prolongement du Droit de la Régulation par le Droit de la Compliance : fixer les buts et superviser les moyens", in XXIV Jornadas Internacionales de Derecho Administrativo (XXIVièmes Journées internationales de Droit administratif), Université Externado de Colombie, Bogota, 31 août 2023.

____

🧮consulter le programme complet cette manifestation

Présentation de la conférence :  Dans le temps imparti, il n'est pas discuté de la façon dont les États se transforment pour devenir des "États Régulateurs" : cela est exposé dans d'autres contributions. Il est donc ici pris pour acquis que les Etats sont "Régulateurs" à la fois dans leur conception même (c'est-à-dire qu'ils accompagnent l'économie de marché pour l'infléchir en s'appuyant sur elle) et dans des techniques nouvelles, notamment la mise en place des Autorités de Régulation. C'est ainsi que naît une branche spéciale du Droit : le Droit de la Régulation. Celui-ci demeure encore ancré dans le Droit administratif à beaucoup d'égard (cela non plus n'est pas discuté ici).

En quelque sorte, la présente contribution porte sur l'étape suivante, qui consiste au développement de cette sorte d'étape qu'est l'Etat Régulateur, qu'exprime le Droit de la Régulation, dans le Droit de la Compliance. Il convient de conserver ce terme américain de "compliance", malgré toutes ses ambiguïtés, parce que l'instant on n'en a pas trouvé d'autres ...

La conférence est bâtie en dix points, succinctement développés dans le document de travail sous-jacent.

____

 

🚧Lire le document de travail sous-jacent à la conférence.

________