March 31, 2021

Conferences

Compliance and arbitration: a backing (Conclusion, in "Compliance and Arbitration))

by Marie-Anne Frison-Roche

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Full reference: Frison-Roche, M.-A., Compliance et arbitrage. Rapport de synthèse: un adossement (Compliance and Arbitration: a Backing. Conclusion), in Frison-Roche, M.-A. & Racine, J.-B., Compliance et Arbitrage (Compliance and Arbitration), Colloquium co-organised by the Journal of Regulation & Compliance (JoRC) and the Centre de recherches sur la Justice et le Règlement des Conflits (CRJ) of Panthéon-Assas University (Paris II), with the support avec the International Court of Arbitration, Paris, 31st of March 2021

 

Read the program of this colloquium 

See Marie-Anne Frison-Roche's conclusion in video (in French, with English subtitles)

These notes of the conclusion have been written as the colloquium took place. 

See the video of the entire colloquium (in French, with English subtitles)

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This colloquium is part of the Cycle of colloquium 2021 organized by the Journal of Regulation & Compliance (JoRC) and its partners around the topic Compliance Juridictionnalization.  

This manifestation is in French but the interventions will be the basis for a specific chapter of the English collective book directed by Marie-Anne Frison-Roche, Compliance Juridictionnalization, co-published by the JoRC and Bruylant.

An equivalent book in French, La Juridictionnalisation de la Compliance, directed by Marie-Anne Frison-Roche, will be co-published by the JoRC and Dalloz. 

 

Read the notes established for the conclusion below ⤵️

 

 

 

Synthesizing... That's precisely the difficulty... : going towards a synthesis, when we have the impression of two worlds which seem not to know each other. The chosen method, the "round table", was the more appropriate: thanks to Alexis Mourre who presented and presided it perfectly and who invited the Ogre Compliance in it!footnote-2058... Because if no one likes the Ogre Compliance, how would the world of arbitration be an exception? Arbitration will not "escape" from him, to take back the expression used by François-Xavier Train. Arbitration would already be resigned... 

During this so instructive and lively round table, we saw that everything is still "contrasted"... : contrasted between the different conceptions, but also between the different sectors; it should not take the same perspective if we talk about investments or trade exchanges, banking or building, etc.  

But everyone agreed to say that the arbitrator face to Compliance must be "prudent" ("cautious") (expression used by Alexis Mourre), but that he or she also must be "proactif" ("proactive") (expression used by Catherine Kessedjian) : cautious and proactive, this is an ambitious program. But it is probably the path of wisdom to have this willingness, because, if not, we could think that it could be the more aggressive which will "invade" the other. I admit that Compliance rules are often brutal, sometimes so poorly "legal", that we find in compliance programs strange things for lawyers, like company's "commitments to respect  its commitments" and that these ramblings can annoy. 

The first idea, which was often repeated is to remain in the Order  and Rule of Law. As Mathias Audiunderlined, we must not manhandle "concepts", we must ensure the respect of qualifications and definitions. 

By the way, everyone tried to define, especially Compliance Law, which is a large topic on which no one really agree. Here, the interest was not so much to agree on what could be a definition but rather to show the vitality of the debate, because when everyone speaks after taking a definition that convinces him or her and from which he or she build its reasoning and his or her opinion, it is the essential point. The fact that vocabulary itself is not the same, the one preferring "conformity", the other preferring "compliance" is a sign of this vitality. 

Moreover, as the colloquium unfolded, speakers referred to precedent  other interventions, to save their time if things had been said, to support their demonstration or rather to contest arguments that had been developed, which is the better sign of vitality!

Therefore, the more we do not have the same opinion, which is probably linked to the fact that we do not have the same specialty but also the same profession (a professor and an attorney would not have the same perspective, a judge would probably not present things in the same way on many points), the more it is necessary to define to better contradict then, it is especially necessary to not mix things up. 

Here, as listener, I could be, as everyone, a great beneficiary because each speaker was careful to not mix up, as Mathias Audit required. He underlined with great accuracy that the obligation to detect and prevent corruption, which belongs to Compliance Law, is distinct from the interdiction to corrupt or to be corrupted. But is is true that on the ground of the proof, facts collected on the occasion of the one could be pertinent on the other. 

This "prudence" ("cautiousness"), to which Alexis Mourre expressly called, in analysis method, permits to everyone to defend its pretty radical opinions for the future. Because, as Jean-Baptiste Racine said at the very beginning, the colloquium aimed to open questions to see how the future could be. But, it is to a "changement de paradigme" ("change of paradigm") that Eduardo Silva-Romero invited without any hesitation! 

Let's take this hypothesis: if this must arrive, and why not, then one might think that it would not necessarily come from the legal set of rules on corruption, because this specific Compliance Law, even under the prevention of corruption, is a probably too "old" and too traditional Law... It is perhaps through the consideration of environment, which take a radical form today, and this just starts, that a radical change could take place, and then invade everything else. But is is possible that changes are already there : we just start to see these outlines. 

But thanks to all I just listen, there are so many gems, so many materials that, projecting in the future, with optimism, we could find better elements than a meeting, of what has emerged today that may well be some kind of alliance.

 

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Because we could always say that the fact that two worlds never meet is not so problematic: but to say that, it is necessary that they could not deteriorate each other and that they could not help each other. 

However, from all I just heard, I always heard what can pave tomorrow, because we can already see the stones today: firstly, it is that Compliance and Arbitration can live "en bonne intelligence" ("coexist in harmony") (I). Secondly, that they have in reality many common points because they are under the same influences and that these influences are determinant for tomorrow (II). Thirdly, on a paved road like that, the reception of Compliance by Arbitration is already operating (III). But, fourthly, mea culpa, what perhaps remains to do, it is the reception of Arbitration into the techniques of Compliance Law (IV).  

Because the "confrontation", it is already the openness; and if it is acceptable to say that the arbitrator is the "natural judge" of international trade, it is difficult to say that he or she is the "exclusive judge" of it in a world where no one can pretend to have an exclusive power. States cannot do neither, and if it is acceptable to say that Compliance Law is imposing itself, as Elie Kleiman said it very well, the arbitrator is not the "servant" of the Compliance system, no one should be the vassal of the other, and indeed if the red flags system is so useful, and so used, we must not pass from a system of indices to irrefutable presumptions...

Therefore, the first challenge is to not ignore each other, to not oppose to each other, when forces are missing, but rather to "vivre en bonne intelligence" ("coexist in harmony"). 

 

I. COMPLIANCE AND ARBITRATION: "VIVRE EN BONNE INTELLIGENCE" ("COEXISTING IN HARMONY")

At the beginning, it seems that there is a large "distance"... It seems to be due to the nature of things. 

Indeed, it has been reminded that arbitration is inserted in "the world of the contract", a singular and bilateral world. While Compliance Law deploys in a "world of unilateralism": States' unilateralism but also unilateralism of firms' commitments and more broadly of crucial operators' commitments. Thus Compliance Law is an "alliance" between these two blocks of unilateralisms that are public authorities and economic crucial operators. 

This alliance is political. 

If we articulate Compliance Law and Arbitration, this leads to transform the conception of arbitration and the office of the arbitrator, according to the debate evoked by Eduardo Silva-Romero, who expressly evoked the necessity, for investment arbitration, to find arbitrators who have a systemic conception of arbitration. This meets the conception evoked during the introduction by Jean-Baptiste Racine who calls, in a general way, to take some distance from the "sacred cow" of the contract). 

We are not by the way constrained to choose between the one and the other, because Dominique Bourrinet showed that unilateral compliance obligations are anyway downloaded into contracts, banks doing it systematically, in infrastructures financing, which refers to arbitration on so familiar matters and on which the duty of vigilance will deploy.  

Because the listener can just, for the moment, note a paradoxal situation. 

We talked a lot about rules related to corruption, while this is outside the contract, and even, as Mathias Audit underlined, outside as such to Compliance Law, underlining, as François-Xavier Train, that Criminal Law and Arbitration procedures are "parallel", as if both topics does not have any relation; but if this is true, and we could assume that, it is without any doubt that we must search elsewhere something more "natural" to articulate Compliance and Arbitration: this would be probably on the side of the duty of vigilance.  

Because if we search in too traditional Law, it will be pretty hard... As Claire Debourg showed, by reversing International Public Order on all sides, it is difficult to include Compliance Law... 

If there are "contact points", this would be with the poorly attractive shape of an "imposed figure", where Compliance is a constraint for the firm... But Jean-Baptiste Racine underlined with accuracy taking into account for example the intervention of arbitration to solve potential litigations in the way firms concretize commitments they take during a merger control. 

Indeed, Compliance Law is at the same time a "Common Law" but there are also what we can called "small Compliance Law", way through which each branch of Law, which want to be more effective, more efficient, double its Ex Post equipment with an Ex Ante equipment. It is particularly what Competition Law does. However, as speakers reminded many times, arbitrability of Competition Law is now acquired. 

Therefore, we should be able to admit that litigations born from the application of a compliance program can be invited to an arbitration court. The good knowledge by arbitrators of AFA's (French agency against corruption) mechanisms will be even more welcome, to articulate with the monitoring that they practice when this is related to its competency. 

But this shows that contact points are not only imposed figures, they also are naturally "entering doors". Certainly, the door of arbitration should remain closed to Criminal Law, as Mathias Audit underlined, even if the principle of autonomy is rather beneficial to Criminal Law, relying then on its "authority", and that these "autonomies" by Criminal Law, and then Administrative repressive Law, Arbitration Law, for a same situation, are too complicated for firms...

The "bonne intelligence" ("harmonic coexistence") would rather lead to try to solve blocking, to limit procedures parallelisms, described by François-Xavier Train, agreeing on notions for which the handling will be done in a common "goal". 

This will be especially successful if the two worlds become closer through an external phenomenon, which was described very well; they are under a double common influence.

 

II. COMPLIANCE AND ARBITRATION, UNDER COMMON INFLUENCE

The first influence is the one of a transparency movement. 

It has been underlined by everyone, and especially by Jean-Baptiste Racine from the beginning, by Elie Kleiman in the presentation of arbitrators' office and of the role of institutions and by Catherine Kessedjian projecting into the future on this basis. Indeed, the rule according to which the holder of a power must show the exercice of it, which is the basis of transparency, intended to apply to the world of arbitration, as it is applied in the one of Compliance, where it is a major principle. In the same way, it is difficult to admit that a firm which must, transparently, structure everything in Ex Ante, could escape in Ex Post to the principle of transparency, defined like that. Moreover, Catherine Kessedjian underlined that transparency is a mechanism which brings efficiency in the central and difficult question of proofs. 

But in the same time, Dominique Bourrinet on the contrary underlined that, because of "reputational risks" that the firm takes since a Compliance Law procedures is engaged, one of the main merits of arbitration is confidentiality! 

How can we resolve this, insofar as both positions are equally legitimate? 

Probably through the role of institutions, especially here the International Arbitration Court. 

Indeed, in the same way that Regulation and Compliance authorities develop first an activity of "institutional doctrine", the Court has an essential role to put over principle reasonings, the way arbitrators behave, etc. ; confidentiality and transparency can therefore be reconciled. 

Moreover, Catherine Kessedjian underlined the importance of "pedagogy". This is central in Compliance Law, banking and financial authorities being first of all rules pedagogues, to convince of the interest of respecting them. In the same way, the French anti-corruption Agency (Agence Française Anticorruption - AFA) insists on its "collaborative" role and an increase could occur in this direction between both institutions. 

The second influence is the one of conciliation between those who argue

This key-notion in Arbitration lies in its contractual nature, it is found exactly in the techniques of Compliance Law, since it is the very principle of the French technique of "convention judiciaire d'intérêt public" (in US the non-prosecution agreement and deferred-prosecution agreement).

This efficacy of conciliations rather than sanctions, incentives rather than orders, correspond to a general movement, which apply to both, Compliance and Arbitration, and correspond to the nature of both. 

But if we are not in the order of imperative of a general and abstract rule anyone, but in the order of conciliation thanks to someone having an "authority", then the personality of the prosecutor who proposes to not pursue, the one of the manager who proposes a good behavior and the one of the arbitrator who proposes to not argue anymore, is crucial. 

If we consider more particularly the arbitrator, Elie Kleiman perfectly develops what the good professional behavior must be in the perspective of "compliance". Indeed, it is essential that Arbitration remains a  a "non- regulated profession", and it is to Arbitration Institutions to ensure its "self-regulation". Elie Kleiman insisted particularly on this appropriate word but he underlined that this privatization of justice must be legitimated. 

Both movements go hand in hand, the reinforcement of this self-regulation by Arbitration Institutions and the substantial increase of its office. Indeed, this institutions' role will be even more decisive through Compliance Law, especially the consideration of environment and human rights. The arbitrator aims to consider "monumental goals". 

 

III. ARBITRATION HOSTS COMPLIANCE, BECAUSE ARBITRATION, BY NATURE, INTEGRATES THE WORLD AS IT IS (PRAGMATISM), PERHAPS AS IT SHOULD BE (IDEALISM)

The host is still most often the one of the "negative" function of Compliance, that is actively participating to the fight "against", for example against corruption or money laundering: Arbitration should help to discard the share of corruption or money laundering hidden in contracts, depriving them of the help of contractual tool.  

Arbitration pragmatism, which sees the world as it is because it is the "natural" instrument of International relations. 

But the host of the "positive" function of Compliance, that is participating to the fight "in favor of", for example in favor of environment or human rights, also permits to arbitration to bring its powerfulness to the world as it should be. 

In this, arbitration meets the substantial definition of Compliance Law: environment, human rights, with the necessity to give effectivity to unilateral commitments, especially various compliance and vigilance plans, as presented in the book Compliance Tools!footnote-2059

The main technical challenge of this host is probably related in a credible probationary culture: everything is therefore good for that, with the major challenge, and apparently discussed..., of the extend of judge's control... Everything Claire Debourg has said with great precision and relevance about corruption, should certainly apply to the other goals pursued, because corruption is only one particular point of this general Law which is Compliance Law.

By the way, in the future, we can benefit not only from the host of Compliance by Arbitration but also from the host of Arbitration, and especially its flexibility, its know-how, by Compliance Law, which puts effectivity and efficacy at the same level than central legal principles. 

 

IV. COMPLIANCE HOSTS ARBITRATION, BECAUSE COMPLIANCE NEEDS IMPARTIAL JURISDICTIONAL INSTITUTIONS WITH STRONG CULTURE: TOWARDS A "RESPONSIBLE" ARBITRATION PLACE

Probationary questions have been continuously evoked during the colloquium. This shows the existence of a continuum between Ex Ante, which characterizes Compliance Law and Ex Post, which the effectivity and the efficacy of it. 

The complex relationship between Ex Ante and Ex Post has been directly underlined by Jean-Baptiste Racine: Compliance Law is built on Ex Ante obligations; and especially structural Ex Ante obligations; but notions of "effectivity" and "efficacy" are central: it is necessary to have institutions which guarantee it; and it is the spirit of arbitrations on Competition Law commitments, which must be a model in the future. 

Thus for example the future in Arbitration and Compliance remains in the duty, as legal as contractual, of vigilance, which concerns infrastructure and manufacturing contracts, from material extraction to marketization, and even to use. The notion of "filière" (industry) is a key-notion in Compliance Law.  

To legally master this, in this Ex Post which takes into account Ex Ante, a so far Ex Ante, so deep that we will take care of equity in the way products are manufactured and investments are realized, as Dominique Bourrinet said, arbitration can be a kind of "back to basics".  

Indeed, through the so familiar use of equity by arbitrator to evaluate the firm's behavior, they can be better placed. Especially in terms of evaluation of duty of vigilance execution, key-notion for the future, which will be split into results obligations (realization of vigilance plans) and behavior obligations (looking on site, preventing, educating, making sure that some things do not happen, that other things do), the legal culture of arbitration will, without any doubt, better answer to the required jurisdictional office in what is opening. 

Eduardo Silva-Romero permanently referred to this interference with ethics, assuming the ethical base of Compliance Law, asking that this ethical base continue to deploy in arbitration Law to "récupérer l'éthique perdue dans le monde international" ("recover the lost ethics of international world"). 

It is true, as Cécile Chainais underlined, that there probably is hubris in Compliance Law. There are probably many "pretensions", pretensions to want the good of others, it is true. But Eduardo Silva-Romero also underlined that it is the "basis" of investment arbitration and, as Catherine Kessedjian did, we need to consider the arbitrator office in terms of "duty". Catherine Kessedjian showed that to fulfill such a duty, corresponding to the virtue of courage according to her, it is necessary to transform soft law in hard law. 

This would permit to create a "responsible arbitration place". 

 

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Listening to you all, I can see to what extent today everything leads us there and to what extent the alliance between Compliance and Arbitration is fundamental.

Catherine Kessedjian, converging towards the ethical dimension of the arbitrator office developed by Eduardo Silva-Romero, underlined that the arbitrator aims to be "responsible" (within the mining of "Ex Ante responsibility"). Elie Kleiman insisted on the role of the "arbitration community", especially on self-regulation produced by the guidelines about conflicts of interests. Alexis Mourre showed that arbitration international court has a direct interaction with the banking and financial sector.  

But, Dominique Bourrinet insisted on the increasing of the prism of "vigilance", not only in the banking sector but also beyond, for all crucial operators which structure international trade. 

Let's look at what is happening in the financial sector together, what the "responsible finance" becomes. As duty of vigilance develops via Compliance Law, the integration in Banking and Financial Regulation Law of the care for others through the consideration of ethics of stakeholders and of good governance (ESG) develop too. 

Paris is transforming itself to show it is structured as a "ESG place", through the adoption of an "Euronext CAC 40 ESG Index". It is an essential element. 

While the notion of "place" develops (rather than the notion of "market"), if the financial place of Paris develops itself basing its attractivity on these principles, it is essential that mirroring this new index, Compliance and arbitration "self-regulation" (expression often used by Elie Kleiman) are the natural complement. Elie Kleiman took for example Green Arbitration. 

Jean-Baptiste Racine asked it very well from the introduction. Arbitration has not only a contractual nature: it is a "mixed justice" (public/private) but also and especially a "systemic justice", close to "global Law" on which it works, which thus reflects Compliance, which is anchored in crucial economic operators who deploy it across borders.  

In this place that is opening, as a close identity, to impact finance, the opening of Compliance to international arbitration, as mean to show with efficacy this, is a great chance. 

Thank you for paving the way for us.

 

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1

In its presentation of the topic, Alexis Mourre shows the Legal Design book about the Adventures of Ogre Compliance...

2

Frison-Roche, M.-A. (ed.), Compliance Tools, 2021. 

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