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This working paper is the basis for an article in the French Law Journal Le Clunet.
When we compare the terms "Compliance" and "Extraterritoriality", it is often with dissatisfaction, even anger and indignation. On the momentum, after having expressed a principle of disapproval of such a merger, attention is focused on how we can fight against it, to break the link between Compliance and Extraterritoriality. But do we have to go so fast? Is this negative initial assessment correct?
Indeed, thus gone, it is frequently explained that the binding mechanisms of Compliance are suffered, that they come from abroad
We are leaving this kind of complaint against X, which targets what would be this appalling "Compliance", this Law which would be both hostile and mechanical which would not have been able to stay within the limits of borders, Compliance being thus placed in contrast to sovereignty and protection, which presuppose staying within its limits
Compliance Law would thus become the very negation of Law, since it has the effect, even the purpose (barely concealed by strategic, powerful and shameless States), of counting borders for nothing, whereas Public International Law, in that it is built between the sovereign subjects of law that are the States presupposes the primary respect for borders to better exceed them while Private International Law takes the same postulate to better welcome foreign Law in situations presenting a foreign element
If you see it that way, what should you do then? The answer is obvious: react!
It is necessary to save the sovereignty, France, companies, the Law itself. If that is how the question is posed, how can we disagree? It is therefore necessary to destroy the Compliance Law and the extra-territoriality of American Law which had found this "Trojan horse", an expression so frequently used. This is the basis for the administrative reports available, for example the Berger-Lellouche
But without discussing the effectiveness of the remedies proposed downstream, it is necessary to return to this description so widely shared made upstream. Because many elements on the contrary lead to affirm that ComplianceLaw first of all and by nature can only be extraterritorial and that it must be. Whether or not the State in which it was created has malicious intentions. The description which is made to us most often describes particular cases from which we draw generalities, but we cannot reduce Compliance Law to the already cooled cases, as BNPP case, or to the always hot case of the American embargo on Iran. Furthermore, one cannot take the issue of embargoes and draw conclusions, legitimate for it, but which would apply to the whole of Compliance Law. The fact that theCompliance Law is a branch of Law at the stage still of emergence can lead to this confusion which consists in taking the part for the whole, but it is very regrettable because what is justified for the embargoes does not is in no way relevant for all Compliance Law, of which precisely the Law of embargoes is only a small part, even an abusive use. This overlapping is not often perceived, because the definition of Compliance Law and its criterion are not clearly enough defined, namely the existence of a "monumental goal"
Once we have distinguished the embargoes, as an atypical, sometimes even illegitimate part, of Compliance Law, we should continue this work of distinction by emphasizing that the United States has certainly invented Compliance Law
Indeed, this branch of the new Law which is Compliance Law is not reducible to Competition Law
Read the developments below.
What we almost always start with, Compliance Law being "strange" especially because it comes from the United States, v. Frison-Roche, M.-A., Compliance Law, 2016.
V. par ex. Monéger, cas BNPP, ...., in Frison-Roche, M.-A. (dir)., ...
V. for ex. Bismuth, R. For a nuanced understanding of the extraterritoriality of American law - some reflections around the procedures and sanctions targeting Alstom and BNP Paris, 2015.
On the definition of sovereignty as the ability to understand its limits and to remain within its limits, even to establish them yourself, sovereignty being intimate with the idea of the rule of law, v. Supiot, A., (dir.), Mondialisation ou globalisation ? Les leçons de Simone Weil, coll. "conférences", ed. Collège de France, 233 p.
To recall these basic elements and put them into perspective in relation to Compliance Law, v. Frison-Roche, M.-A. La partie et le tout : l'Amazonie relève de quoi ? Pour le Brésil et les Etats-Unis, de la "partie" ; pour la France du "Tout". Tout l'enjeu est là, 2019.
Berger Karine, Lellouche Pierre, Rapport d'information sur l'extrateritorialité de la législation américaine, hand out to the Presidency of l'Assemblée Nationale on 5th of October 2016
Gauvain, R., Rétablir la souveraineté de la France et de l'Europe et protéger nos entreprises des lois et mesures à portée extraterritoriale, Rapport à la demande du Premier Ministre Monsieur Edouard Philippe, Assemblée nationale, juin 2019, 102 p.
Criterium found in 2016 : Frison-Roche, M.-A., Le Droit de la Compliance.
Frison-Roche, M.-A., Compliance : before, now and after, 2017.
Frison-Roche, M.-A., Un Droit substantiel de la Compliance, appuyé sur la tradition européenne humaniste, 2019 ; as a basis for an article in Pour une Europe de la Compliance, 2019.
Frison-Roche, M.-A., Droit de la concurrence et Droit de la compliance, 2018
On the links between Compliance Law and blockchain technology, v. ....
I. MONUMENTAL GOALS: DEFINING THE LAW OF COMPLIANCE, INVOLVING ITS EXTRATERRITORIAL SCOPE
A. THE DEFINITION OF "MONUMENTAL PURPOSE" AND ITS CONSUBSTANTIALLY EXTRATERRITORIAL APPLICATION
1. The substantial definition of Compliance Law through its "monumental goals"
In a first conception
In a second conception, highly substantial and justifying alone that Compliance constitutes an autonomous branch of Law, "Compliance Law"
These goals are stated as first and essential, but they are not achieved, either by force of circumstances or by force of the State. In this, the substantial specificity of Compliance Law appears, both in relation to Competition Law (which it opposes) and in relation to Regulatory Law (which it extends).
Indeed, were not made in themselves. Thus the "principle of competition" is certainly first, since it suffices in Competition Law to make the market work, but it is not "monumental" since freedom of contract and the right of property are enough to make it work . The aims of the Compliance Law are "monumental" in that simple and general mechanisms such as the contract and property are not enough: a whole arsenal of specific laws, Supervisory Authority, secondary principles and of Ex Ante decisions to claim to reach them. In this respect the Law of Compliance is an extension of the Law of Regulation, which also supports the monumental "claim"
2. The consubstantially extraterritorial scope of the substantive Compliance Law
B. THE CONCRETE AND SIMPLE CRITERIA OF LEGITIMATE AND ILLEGITIMATE EXTRATERRITORIALITY OF THE LAW OF THE COMPLIANCE
II. THE DIVERSITY OF MONUMENTAL GOALS ACCORDING TO THE AREAS
A. SYSTEMIC US LAW OF COMPLIANCE
B. CHINESE LAW
III. THE CLAIM OF THE MONUMENTAL GOAL THROUGH EMERGENCY COMPLIANCE LAW BY THE STRENGTH OF A SOVEREIGN EUROPE
V. par ex. Garapon, A. et Servan-Schreiber, P., Deals de justice,
In mechanisms which are therefore also largely a matter of "conviction", the lawyer therefore has a major role, including outside all litigation relating to sanctions. V. Frison-Roche, M.-A., The attorney, vector of conviction in the new compliance system, 2020.
Frison-Roche, M.-A., Introduction au colloque La mesure de l'effectivité et de l'efficacité des outils de la Compliance, 5 mars 2020.
Marin, J.-Cl., ....
Frison-Roche, M.-A., Le Droit de la Compliance, 2016.
Frison-Roche, M.-A., Le Droit de la Compliance, 2016.
A principle is what is said to be respected in a primary way. This is why it is public, even political, authorities which have the vocation to express them. This distinction between the principles, whose enactment is the prerogative of the Political, and the technical modalities which imply the enactment of general technical rules which can be taken by non-political bodies, is a central issue in Regulatory Law , since it fixes the border between the Governments and the Regulatory Authorities.
It is very difficult to operate because the distinction between a political principle and a technical principle is often arbitrary (for example on which side does "net neutrality" lean?
We find the same relevance and the same difficulty in Compliance Law. It is effectively up to public and political authorities to set monumental goals, companies being able to remain neutral, to converge or to take them on their own account, but being unable neither to counter them nor (and therein lies the issue). 'others independently. But de facto large companies occupy this normative space, so much so that Gunther Tubner could qualify them as "global neo-constituents" ... The difficulty is further increased by the fact that the distinction is no longer here between "political principle" and "technical principle", but rather between "political principle" and "ethical principle". For example if a company decides to engage in the education of girls, is it a political principle or an ethical principle?
On the notion of "pretension" in Regulatory Law, and in Compliance Law, in particular in that they face the natural phenomenon of "globalization", v. Frison-Roche, M.-A., Le Droit face à la Mondialisation, 2017.