🚧Taking into account the legal landscape in Africa to fulfil the Vigilance Obligation

1. Vigilance, the Cutting Edge of Compliance Obligations: from the  French "Sapin 2 Act" to the French "Vigilance Act", both subjects of controversy and passion,  anda shared ambition   🪜 Following in the footsteps of the Fench 2016 law known as “Sapin 2”, from which it borrowed the technical compliance tools📎!footnote-4747,  expressing the same political will to combat systemic ills, the French 2017 law known as “Vigilance”, soon followed in 2021 by the German legislation📎 !footnote-4804, suddenly brought to light the obligation of Vigilance, causing a stir and stirring up passion in Western legal legal systems. The wave has since been described by Yvette Rachel Kalieu Elongo as a "contextualised law"📎 !footnote-4825, enshrined in the European directive Corporate Sustainability Due Diligence Directive,  known as  CS3D, due to come into force in 2024📎!footnote-4748. But whereas the French so-called “Sapin 2” Law aimed “merely” at eradicating corruption from economic and social systems—"vaste programme"—to ensure their present and future stability (which is the definition of “sustainability”), the so-called French “ Vigilance Law", through the same legal tools of Compliance Law, placed upon these same large companies the responsibility to detect and prevent serious breaches of environmental and human rights within value chains, in order to ensure the sustainability of those value chains, the climate system, and the economic and social societies that the value chains support, with the very sustainability of the companies themselves being at stake.

The ambition is immense. "Monumental goals"📎!footnote-4745, the expression is apt, strongly championed by Eustache da Allada, From the moment compliance tools appeared, they have been present📎!footnote-4809,  the Vigilance Duty makes them even more apparent because it is the " Cutting Edge" of the Compliance Obligation📎!footnote-4744.  through which large companies help to preserve systems (for example, the climate system, but also the banking system – which is examined by 'Yvette Rachel Kalieu Elongo📎 !footnote-4825 -, financial, energy, digital, etc.).

However, this contribution towards achieving an ambition of this scale cannot mean that large companies would be legally presumed guilty of negligence or breach of Vigilance Duty and that they would bear the burden of proving their innocence. Being "under a burden", and therefore "held accountable", does not mean being guilty. We must maintain a sense of proportion📎!footnote-4784. Large companies are asked, because they are in a position to do so, to help ensure that these Monumental Goals aimed at preserving systems (the climate system being one such system) are achieved. 

It is therefore the future that is the very focus, primarily through risk prevention, with the term "perspectives" used here for Africa applying  to every "legal jurisdiction" under consideration. That of Africa, but also that of Europe and other regions of the world. For in Compliance Law, a practical branch of Law guided by goals and outcomes, legal mechanisms must be firmly established, not designed and/or applied in the same way everywhere. This is one of the main reasons why the contract is a suitable instrument📎 !footnote-4785 and that, in the event of a dispute, it is relevant to consult those familiar with local laws, organisations and legal cultures, even if the dispute takes place in Europe📎 !footnote-4786 because a law does not float in the air but is rooted in a "legal geography" that remains specific to the country.

This is all the more relevant to the Vigilance Duty, which, with the goal of safeguarding the future, is rooted in the protection of present and future populations involved in these systems. The “French Vigilance Act” focuses on the climate system, the environment and human rights, but the framework is the same for the Vigilance Duty, which rests with systemic operators, such as those in the banking sector or the digital sector. Projections are therefore at the heart of Compliance Law, which is what the trajectory technique refers to.

It is precisely because the normative basis of these various laws, regulations and legal instruments—whether hard or soft law—lies within these "perspectives" of rebalancing climate change and the systemic restoration of human rights that passions, already stirred up by the systemic fight against corruption (the French 2016 Act), seem to have been unleashed (French 2017 Act). As Salvatore Mancuso writes, “After the era of CSR, large companies talk only of vigilance, compliance, conformity...” 📎!footnote-4781. The 2024 European Directive has amplified the uproar. Countless articles were published almost hourly, arguing that we must either completely dismantle this system or preserve and even expand it...

Of all this passion, what will remain? At what point were the “distant others” – those who live along the value chain, far removed from the sphere of the company that controls it,  - since it is the “ sociétté-mrère et entreprise donneuse d'ordre” – consulted? It is understandable that those "distant others" in time—the “future generations”—could not have been consulted..., the French judge having pointed out that, in order to speak on their behalf, organisations must have an appropriate corporate purpose, thereby wisely restricting such advocacy to the legal limits of standing to bring legal proceedings📎 !footnote-4750, so that their voice remains within the legal framework of the Procedural Law📎!footnote-4762.

But when have those “distant others” – particularly the people and leaders of Africa – been able to articulate and express their views, or to articulate their specific interests, whether during the adoption of legislation, in the drafting of soft law, or in the context of legal disputes? This question is all the more pressing given that, as Laurent Gamet demonstrates in the social sphere, the gap is enormous—including in the perception of “decent work”—between Europe and Africa📎 !footnote-4834.  This question remains open but fortunately finds answers in the book conceived and edited by Eustache da Allada, Devoir de vigilance. What prospects for Africa?. The question mark in the title already suggests wisdom, and it is in a measured way that  Mary-Ann Phasha-Dkan writes that the Vigilance Duty “seems to have a bright future”📎!footnote-4787. Is that all?

It appears that, for there to be any real prospects, what Emmanuel Nnadozie📎 !footnote-4810 describes as a “strategic hybridisation”, particularly required given the technical complexity of value chains and the informal nature of many of the rules governing African societies. The same applies to banking supervision, which Yvette Rachel Kalieu Elongo refers to as "Contextualised Law"📎 !footnote-4825, another way of describing the imperative of this hybridisation.& amp; which, in her view, is still insufficient, potentially leading to risks of ineffectiveness in the fight against money laundering in Africa, particularly because the entities handling capital are not always banks and financial institutions and are often smaller in scale than those covered by international standards. A goals- and risks-based approach would be more appropriate than a requirement for strict compliance with standards. 

Everyone emphasises how difficult the path ahead is, regardless of the good intentions of European and African Legislators. But the future remains open and, as Eustacle Da Allada, we can always expect “unexpected spin-offs” from these new texts📎!footnote-4801.  It is an excellent expression, the promise of which we must embrace.

For this to be the case, we must, first and foremost, exercise restraint in our wording and, secondly, draw upon the "legal landscape" of Africa, which is itself diverse📎!footnote-4788,  not to overlook its institutions, notably OHADA, and to listen to those who know it. These two points are linked, as in the current clamour, they are rarely heard. This is all the more regrettable given that in practice, like many compliance tools, Vigilance is only relevant if it is based on reliable Information. However, as demonstrated by  Ange Coretta and Eustache Da Allada📎 !footnote-4815. how can we make activity chains traceable when they are rooted in an informal economy where information does not readily surface? To illustrate this, Laurent Gamet  points out that information on child labour, a key aspect of the Vigilance Duty, is unreliable📎!footnote-4835.   It is in this respect, as Emmanuel Nnadozie demonstrates📎!footnote-4811,  that a link must be forged between Vigilance and Economic Intelligence, which implies this "blending" with what is happening in African countries and the rules that govern them. This is also why we must listen.

2. "Passion" and Law make a poor combination   🪜   From the thunderous start of 2017, traces have lingered in the battle surrounding the CS3D, to the point of partially undoing it. This should give way to greater moderation, as many saw it as a sign of immaturity  📎!footnote-4746, in these movements claiming that everything should be destroyed or sanctified, in these movements drawing  a line between the camps of Good and Evil (each claiming that ‘evil’ is embodied by the other)., The violence of the rhetoric and the proposals bears little fruit but can only leave its mark📎!footnote-4741.  This is never a good thing in Law, for anyone who speaks of “passion”, including a passionate belief in the power of the Law to command (and this would come to pass) and to punish (and this would be restored), must have too great faith in the Law to imagine such a thing. Carbonnier, who drafted so many laws in France, did not believe this. Compliance, particularly through the Vigilance Duty, also suffers from this association (almost this intimacy) with sanctions, including in civil proceedings, thereby inviting excess📎 !footnote-4736, excess in the tone of numerous publications by various parties, in the claims brought before the judge by various parties, excess in these  narratives constructed for the judge, and through the courtroom for the media and public opinion, excesses in what one seeks to achieve—that is to say, sometimes miracles through which everything could be built, sometimes annihilations through which everything could vanish. It depends on who is in the dock. In these narratives, Africa features prominently. What benefit does it derive from this?

Yet the Law does not lend itself to Passion; the greater the ambition, the more it must remain calm and ensure that it focuses on its central concern, namely the relationship between the human beings it addresses and the ambitions it formulates for them. Otherwise, discouragement sets in and we end up with what Laurent Gamet  as a “bleak assessment” of the ability to take concrete action on the ground📎!footnote-4836.,  where state laws has failed to provide a solution, whether in the field of Public International Law or International Trade Law, private initiatives can have an impact. 

Indeed, by their very nature, the ambitions underpinning Compliance Law—which are embedded within large corporations through a combination of hard and soft law—are immense, as its normative framework is rooted in its considerable systemic ambitions:& of a teleological nature, it requires large corporations to help to preserve and improve systems so that the people involved are not crushed by them, but rather benefit from them. It is the normative goal of the Vigilance Duty, as well as all other technical Compliance Obligations, to contribute to this Monumental Goal📎!footnote-4751. 

But we need to strike the right balance. If we fail to do so, corporate legal directors will continue to claim – even in public at international conferences on the future of Corporate Vigilance Obligation in Africa – that it is impossible to comply with this legal obligation because, whatever the company does, it will always be deemed guilty and punished📎 !footnote-4813, whilst, despite the efforts of legislators, many companies, and the desire to see the Vigilance Duty take root in Africa, this could amount to little more than a faint glimmer of hope 📎!footnote-4814.

To strike the right balance and keep the future open, we must pay closer attention to Africa, to those who live there, to the laws that apply there, and to its ‘legal geography’, so that all the power of legal instruments leads to solutions that are appropriate for the people living there, for the territories,& the laws that persist there, and the legal practitioners who work there. The Duty of vVgilance must not, however, as Eustache Da  Allada points out, the African continent must ‘take ownership’ of it, even as he notes the ‘upheaval’ it has caused in Europe📎!footnote-4794.  There have been so many complaints about the extraterritoriality imposed on Europe by US Law, particularly through compliance techniques📎 !footnote-4795, let us not hold up a mirror to ourselves📎 !footnote-4752. by seeking to Europeanise Africa without even looking at it.

This is also why the book Devoir de vigilance. Quelles perspectives africaines ? is so valuable, as it allows us to consider exporting our sound legislative ideas provided they are compatible with the local legal culture. We then encounter the mechanism of ‘grafting’, that is, the insertion of a law conceived elsewhere (in France, in Germany, in Europe) into an existing legal landscape that must not be disrupted so that there is “perspective” and so that the question mark in the book’s title may fade away to make way for concrete implementation. As highlighted by Mary-Ann Phasha-Dkan📎 !footnote-4789, because de facto value chains often lead to Africa, and because European, French and German laws are imbued with new standards, this may bring about a new form of acculturation in African states. To use his words, they are therefore “welcome”. For this to happen, it must result in what Louis d'Avout rightly describes as progress in La cohérence du droit📎!footnote-4837.

For that to happen, Passions would need to flow back. Yet, for the time being, these perspectives seem to be, and remain, rather hostile towards one another, and tend to reject the necessary alliance. At worst, one approach will crush the other; at best, they will cancel each other out. The first scenario is being observed in the United States, the second in Europe📎!footnote-4763. Some want to extract a great deal from others without making concessions, with litigation appearing to be the preferred method, each taking care not to listen to anything the other says, perhaps for fear of being suddenly ‘captured’ by their opponent, who, by the very fact of opposing them, must therefore remain the enemy.

Shifting the focus of the Vigilance Duty review towards Africa seems to exacerbate this shortcoming. Yet it seems self-evident that the primary concern should be the subject matter itself—in this case, Africa. It also means following the wisdom of the Law, which places the adversarial principle at the heart of its methodology—both judicial and legislative—to arrive at a solution based on established facts, thereby warning us all against confusing debate (which aims to uncover the truth and find solutions) with mere opposition (which aims for neither).

African wisdom in the art of discussion might lead us back there📎!footnote-4766.  The formal legal mechanisms have successfully incorporated traditional deliberations in many African countries📎!footnote-4765, particularly in that they promote mediation📎 !footnote-4764, including Joseph  Djogbenou point out the long history and the ease with which this practice has been adopted within OHADA📎 !footnote-4830, opening the way to remedies that the rigidity of regulations demanding obedience offers only with difficulty. Thus, Emmanuel Nnadozie📎!footnote-4812  highlights “the influence of traditional African chiefdoms”, which is pervasive and unavoidable in certain sectors, particularly in African mining states, where chiefdoms are often regarded as “partners” of the company, even if this does not correspond to the literal definition of a “stakeholder”. With this in mind, Ange Coretta and Eustache Da Allada propose adapting the Vigilance Duty by establishing "local vigilance committees"📎 !footnote-4818.

That is a good idea; they could be involved both in routine matters relating to ex ante Compliance Law and in the event of litigation, potentially acting as amicus curiae as they are not parties to the dispute but may be parties to the proceedings📎!footnote-4819.

This is necessary because, conversely, Mary-Ann Phasha-Dka details a field survey conducted in several African countries amongst people working in the extractive sector showing that whilst French law and the Vigilance plan mechanism are relatively well known, the associated conflict resolution techniques are virtually unknown. She attributes this to the “foreign” nature of this French approach to resolving disputes and believes that, as a result, the effectiveness of the mechanism is problematic📎!footnote-4793. One might agree with her and hopes that mediation, alliances, agreements and contracts take on a greater role, so that the Vigilance mechanism itself becomes more efficient in light of the systemic ambitions that underpin it.

3.  The Viglance Duty applied across value chains: Africa is often used merely as an example to illustrate a general point rather than as a specific case topic 🪜   To learn and contribute, we must therefore treat Africa as  a specific focus of attention when examining the Vigilance Duty, as a starting point from which it would be fruitful to proceed, but not merely as an example of what European companies should generally be required to do. Treating Africa as a unique case is all the more relevant given that, as highlighted by Walid Ben Hamida in his examination of the role of the Vigilance Duty in investment agreements and treaties! 📎footnote-4778,   . This obligation exists in various forms in treaties to which African states or inter-state organisations have acceded in their own perspectives.

However, when regulations relating to the Vigilance Obligation are analysed, Africa is often treated merely as an example, no more. First and foremost, the Vigilance Duty rests with parent companies and contracting firms to ensure that they detect and prevent serious environmental and human rights abuses committed or likely to be committed within value chains📎 !footnote-4739. However, the value chains established by large European companies as an integrated structural organisation of their industrial and commercial activities📎 !footnote-4742, involve African countries to a large extent and in a fundamental way, because mining, forestry and port activities naturally lead to this  continent and entail a succession of extractive activities, specific agricultural activities and transport via various routes, activities which are often natural causes of pollution and disasters for human beings📎!footnote-4790.  It is often the unique nature of raw materials that explains the strategic choice to build value chains, combining Law and Management📎 !footnote-4806, and justifies the strategic choice of Legislators who have opted for extraterritoriality, whether the legislator is in the European Union or Canada📎 !footnote-4805.

Furthermore, the way in which workers are treated and their safety is ensured—a concern that is often less pressing in the legislation applied in Africa (or Asia) than in Europe—is frequently mentioned, but generally in broad terms; the analysis carried out by Laurent Gamet is all the more valuable as it draws on specific situations📎!footnote-4743,  in the same way that Mary-Ann Phasha-Dkan  describes the correlation between industrial activities carried out in Africa in the relevant segments of the value chain and the risks faced by local workers📎!footnote-4791. The fear that all these requirements are merely illusory stems not only from their remoteness but also from the role of the informal economy📎!footnote-4816. We would then arrive at the sad conclusion, often drawn regarding certain other grandiose texts, that these highly ambitious texts would prove the most ineffective, particularly due to a lack of information. We must therefore  join forces to ensure that this does not happen.

4.  Africa, often viewed as a place of retribution, remorse or paternalism through the Vigilance Duty, as a debt for past crimes, in contrast with Compliance Law, a branch of law whose the objet is the future  🪜  Secondly, when discussing the Vigilance Duty as it should be conceived and practised, many explicitly refer to the colonial past of Western governments and companies, for example British, French or Portuguese, and assert that it is a kind of historical wrong that both must now make amends for through a ‘duty’ of vigilance, in which some, however, see the reverse side of a persistent, overbearing European presence, Vigilance being, then, the masked face of a protective neo-colonialism📎!footnote-4800.  This is expressly claimed.

Without delving into this notion of retribution and paternalism, it is rather the non-Western concept of the debt we owe to our environment that we can relate to. Through this, non-Western cultures express the gratitude we owe to the Earth and our Ancestors, entities who nourish and educate us. This profound and fruitful idea places an obligation on us towards that which provides for us (the Earth and Culture, what might be called ‘Civilisation’) without, however, giving rise to a ‘debt’  in an occidental conception because this is not an interpersonal relationship of debt.

Thus, when numerous writings refer to companies as “owing a duty of vigilance”, even though they are trruly debitors, because “responsible”, for safeguarding values such as the preservation of the past and the future, this shows a failure to understand what is at stake. Many organisations will certainly see this as a way to present themselves as “creditors” – since there is a “debtor” – and demand enforcement. But this is to transform into an interpersonal relationship something that is not, a narrowing of the worldview. It is true that the current President of the United States reasons in the same way when he justifies tariffs on the basis of a retroactive assessment of History, arguing that free trade has been unduly paid for by this country and that it should now be reimbursed. As for value chains, this would amount to repaying what was effectively the free labour of slavery or indecent working conditions, the abhorrence of which, incidentally, no one disputes. But is the conclusion that Companies would therefore always be in debt, since they are already guilty?

Compliance Law, of which the Vigilance Duty is an essential instrument, is concerned with the future, including when it takes the form of litigation📎!footnote-4749. , must not be burdened by such a past, however reprehensible it may be. Not that compliance law is written on a blank page. But to grasp the future and open up “perspectives”, one must anchor oneself, both in space—the space of African countries—and in the new legal spaces that this continent has managed to build, notably OHADA, and in time, for the history of law is a “living law”, but we must guard against using the power of this new branch of law to turn back the clock and close off the ‘perspectives’ that this work seeks to explore.

The Vigilance Duty, insofar as it embodies this “concern for others” which African legal culture embodies more naturally than European culture, must serve as a bridge between these two cultures, rather than a European culture that imposes itself and overshadows the other, or as a form of retribution for what Europeans have done in Africa. To achieve this, we must remove the poison of passion. Not least because, despite all the efforts and hopes placed in CSR to date, Laetitia  Kouardko  shows that these have not borne much fruit📎!footnote-4829.  , being  confined to poverty reduction, and even within that framework proving ineffective. Perhaps its very Western nature is a hindrance, as concern for others finds other avenues in Africa. But for Vanessa Veloso-Lavor, it is a question of going even further by transforming, on the basis of the "vigilance directive", the Vigilance Dut into a ,  “global CSR”, to which the responsibility of large companies for all “CSR risks” should be attached📎!footnote-4831.

5. The poison of passion—whether enthusiasm or aversion—towards Vigilance, a possible cause for the disappearance of this specific Obligation  🪜 Some, triumphant, thus sought an “obligation of vigilance” by which companies would be liable and responsible for everything, whilst erasing the evidentiary requirements inherent in liability commitments, whilst others, terrified and reacting in kind, sought the erasure of all the texts that gave rise to the very idea of Vigilance 📎!footnote-4740. Thus, the passion for Vigilance has been met with equal excess by the passion for deregulation, as if, to be right, the other must be absolutely wrong; as if, to win, the other must lose completely. Everyone seems to be waiting for their “big night”, that is to say, the defeat of the other side. Vigilance has become a battlefield and the law is often its ring. Terms such as “big night” or “arena” are used. How regrettable this is, when we are already so weak and isolated in the face of the systemic risks that confront us all. Let us instead turn our attention to Africa and what it can teach us📎!footnote-4753.

6.  The superiority of African culture: concern for others, to which the Vigilance Duty offers new perspectives   🪜  If we place the Vigilance Duty back at its core, in that it is the “vanguard of the obligation to comply”, it expresses concern for others.  Yet Europe and, even more so, the United States have been built in particular on the welcome their legal systems have extended to the “subject of law”📎 !footnote-4754  who, by nature, is concerned with what is sufficient for themselves, concerned with their sphere of freedom, guaranteed by their “small property”, and has little concern for others📎 !footnote-4767, since these others are concerned with themselves and one person’s freedom ends where another’s begins. In an individualistic legal system, there is no need to consider others, as the relationship with others is like a mirror, since he himself is an “I” and freedom and contract govern the legal relationships between these subjects. Conversely, in a society where the principle is not that of the individual exercising his or her own freedom, consenting and entering into contracts, then concern for others becomes a subject in its own right for the law.

This has been discussed and examined at great length, particularly in relation to the principle of solidarity or fraternity, which Western law struggles to accommodate as such. Conversely, in African culture, concern for others comes first, giving rise to solidarity. This is also why what is described as a ‘corrupt relationship’ may not actually be so📎 !footnote-4755, in the same way that children’s education can be combined with work within families.  More generally, it is the informal economy that gives rise to this solidarity, and businesses, in fulfilling their duty of vigilance—first and foremost to establish traceability and information gathering, but more broadly—must adapt to it;&   Ange Coretta and Eustache Da Allada  demonstrate the necessity of this, particularly because the reflex to put things in writing is less strong📎footnote-4817.

The new legislation on compliance and its instrument, vigilance, thus takes into account those who are distant in time (past and future generations, one might say), whilst those who are distant in space are undoubtedly fewer in number in Africa, corresponding more closely to the legal concept of the English and American concept of duty of care  , which draws a narrower circle than that of vigilance; the  duty of care corresponding to a stakeholder close to the decision-maker and not all parties concerned📎!footnote-4756. We can learn a lesson from this, as there is certainly more of a “duty of vigilance fulfilled” in African societies than in our own, where laws are required for this general and abstract third party that regulates us to impose its imperatives upon us.

7.  Including before Western courts, to accommodate the expression of African legal cultures of vigilance: parties to the dispute, parties to the proceedings and  amicus curiae    🪜 These African legal cultures are therefore relevant, and when French or European texts are referred to in contracts and/or litigation, they must be accommodated. It is particularly interesting to note, thanks to the work carried out by a consortium of Euro-African companies, that people working in several African countries (some of which are governed more by civil law, others more by Common Law) in the extractive sector are quite familiar with the existence of French law (more so than German law and far more so than the directive, which seems to have gone unnoticed) 📎 !footnote-4792.   It would be a shame if our laws were thus swept away by the power of corporate structures and contracts📎 !footnote-4757 building value chains, without taking advantage of the African legal landscape upon which they are superimposed and which could accommodate them more effectively.

It is true that, in most cases, African law will not apply when fulfilling the Vigilance  duty, either because the contract has stipulated as much, or because private international law takes a back seat to compliance law📎 !footnote-4768 less sensitive to borders than traditional law📎 !footnote-4769 even though it takes the concept and practice of sovereignty higher and further than traditional law📎 !footnote-4770,

But even when French judges, relying on the “mandatory” nature of French legislative provisions on the Vigilance Duty, rule out the application of the legal system even though the triggering event and the damage occur within its jurisdiction📎 !footnote-4771 , at the very least, a judge unfamiliar with this African legal landscape should be made aware of it. For if  Jura novit curia, what does it know of the legal customs of this distant region, which may lie at the very end of the value chains? To judge properly, and if the foreign legal system is no longer, so to speak, a ‘party to the dispute’, then it should at the very least, mutatis mutandis, become a party to the proceedings.

In such a case, amicus curiae  would be welcome to explain local legal cultures. Liaison judges could play this role, as the task is not to explain the law – since it has been set aside in favour of French and/or European law and the Court is familiar with the law – but to explain the legal customs of the country in which the industrial or commercial activity has been integrated into a segment of the value chain by a structural decision of the parent company. The aim would be to explain the ‘legal geography’ within which the activity in question operates in that segment of the value chain.

8.  To utilise the legal frameworks established by African countries to foster the age-old concerns for the land and for others, setting these against the abstraction of "value chains" targeted by European laws: the corporate, contractual and arbitration routes  🪜  Moreover, since value chains are designed and structured by the dominant companies📎!footnote-4772,  by choosing to build a rigid and durable chain rather than resorting to the competitive market, whose flexibility is also a natural source of uncertainty and therefore of risk (particularly in procurement), ranging from the high rigidity offered by vertical integration under company and group law to the mixed rigidity offered by contract law📎 !footnote-4773, the company is free to integrate African legal systems to a greater or lesser extent, both within corporate structures and in the ‘regulatory contracts’ that underpin the supply chain. 

Similarly, because the proper conception of an activity within a value chain involves viewing it both in its own right—that is, situated within its ‘legal geography’—and as a segment of a value chain with upstream and downstream components (which gave rise to heated disputes regarding the  CS3D), it is prudent to adopt a more comprehensive approach by including dispute resolution clauses, which may extend to international arbitration. The dynamism of this sector in relation to the extractive industry, the development of the Vigilance Duty  concerning it, and the natural place Africa occupies within it, all point in this direction. But even more so, these arbitrations must incorporate this “concern for others” which underpins Compliance Law and thus the Vigilance Obligation, including when it takes contractual form. This must be incorporated into the role of international arbitrators, whether in investment arbitration or commercial arbitration📎!footnote-4779.  Indeed, the imperative nature of the Monumental Goals, in the achievement of which the Vigilance Duty is rooted, fits perfectly with the technique of International Arbitration📎!footnote-4774.

9.  Using contract law, as governed by OHADA law, to ensure that Africa’s “legal geography” endures beyond regulations : the most solid prospect    🪜 Here we see the natural link between the duty of compliance and the contract, highlighted in relation to vigilance by  Pierre Berlioz, who points out that through the contract, the legally bound company can obtain information on risks by establishing transparency mechanisms and requiring its partners to actively participate in its own comprehensive sustainability policy📎 !footnote-4758. Through the contract, which may include multiple compliance clauses, particularly regarding due diligence📎!footnote-4775 the legal framework of each country can be accommodated. It must even be argued that it must be accommodated. This requires the company to ensure that it does not draft its contracts using identical wording, but rather adapts them to the legal system within which it operates its business segment. This can be complicated for the company due to the multitude of states and the informal nature of the rules. This is also why inter-state rules and structures, such as OHADA, are intended to be prioritised.

Putting this into practice is tricky, and Joseph Djogbenou,  which aims at a “contractual Vigilance Duty”📎!footnote -4827, and describes the ability of due diligence clauses to set up alerts, reminders of obligations to comply with standards, alerts to be issued to company directors, audit organisations, and contractual or judicial remedial bodies, in order to provide a warning, as a poorly drafted clause can have just as many adverse effects as inadequate regulation📎 !footnote-4826. When properly managed, vigilance techniques also make it possible, as he points out, to safeguard the contracts themselves. Thus, if the contract were to be affected by a form of excessive vigilance, particularly due to the imbalance it creates between the parties, the author explains that it is also necessary to provide for or organise a renegotiation, or to restore the balance through mediation—to which OHADA attaches great importance—or through judicial settlement.

Contracts must therefore be handled with Vigilance, as they represent the future of compliance systems – particularly in the area of due diligence – given that they can both ensure consistency across the value chain (which is why this structure was chosen over individual procurement procedures) and take into account the country’s legal framework.

Contracts must therefore incorporate compliance objectives, in particular through the inclusion of compliance clauses, which reflect both European ambitions and the local legal framework, whilst ensuring that the economic purpose of the contract is not ultimately compromised by the accompanying compliance provisions. The contractual framework will be all the more robust if this balance is successfully achieved. And the contract adjudicator will in turn be able to ensure this, as they do for any contract, by incorporating the compliance objectives that the contract must include.

In this regard, OHADA, of which Pierre-Samuel Guedj wishes to see an openness to CSR📎!footnote-4832 and whose  Eustache Da Allada emphasises that the development of contracts refers to an African legal order that would be both appropriate and reinforced by Vigilance📎 !footnote-4796, may prove to be a valuable support. This legal framework is all the more legitimate given that, as Laetitia Kouadjo demonstrates, the African countries that adhere to it are those in which mining is most active and justifies the effectiveness of a Vigilance Duty📎!footnote-4828. However, the novelty of compliance law could help overcome the difficulties encountered in drafting texts in contract law and labour law. The Common Court of Justice and Arbitration, renowned for its creative power and tasked with unification, could assist. As could the numerous African regional courts, whose establishment reflects the cross-border nature of the Vigilance Duty, as discussed by  Samuel Priso-Essawe📎!footnote-4820.

This judicial availability is invaluable. Indeed, the judge is at the heart of compliance law📎!footnote-4776, a fact clearly demonstrated by the forefront of vigilance📎 !footnote-4807. One may consider, as does Samuel Priso-Essawe that by virtue of ‘incidental jurisdiction’, particularly where the statutory text has been incorporated into a contract and various undertakings📎 !footnote-4821 , the local judge may then apply foreign legal texts indirectly (which the author describes as a “perilous balancing act” 📎!footnote-4822 but it is appropriate). African courts may also do so by virtue of “direct jurisdiction” in relation to a Vigilance Duty in Africa, for example through contract law or competition law.

Whether the judge is acting on the basis of direct or indirect jurisdiction, it is necessary—but sufficient—not to limit the definition of the duty of compliance to the mere “obligation to comply”, for it is precisely the case that European legislation may have extraterritorial effect, bringing African factual or legal situations to the attention of European judges in a manner “compliant” with French, German or European texts; yet this definition, reduced to “compliance”, does not equip local courts. Defined in this way, compliance and vigilance certainly lead to bringing Africa to Paris, Munich, Strasbourg and Luxembourg, but no further. One can therefore understand the suspicion of “neo-colonialism” that was raised📎!footnote-4823.

To move beyond this, one might hope for the emergence of a "uniform act on CSR" drafted by OHADA, which Pierre-Samuel Guedl  calls for, whilst acknowledging that the prospect is hardly realistic📎!footnote-4833.  But following the line of reasoning adopted by  Eustache Da Allada if we take a definition of compliance that is not reduced to mere “conformity”, if we link the Vigilance Obligation  to the Compliance Obligation —that is, to the systemic Monumental Goals on which it is based—the reasoning changes, for it is the common principles of protecting systems and the human beings, both present and future, involved that are at stake.

These principles are enshrined in African legislation, both at the national and inter-state levels, and, on the basis of direct jurisdiction, regional courts may derive from them an implicit Vigilance Duty. To bring this about, it is therefore necessary to refer to the Monumental Goals.

It is precisely on this basis, and if we want Africa to take its rightful place—not merely as an example of the application of a European concept, but in its own right—that OHADA must be able to develop its expertise there. It can do so, and indeed it must. Eustache Da Allada demonstrates that it can, even though the Vigilance Obligation is only briefly addressed in the texts, through the following reasoning he sets out : the Duty of Vigilancebeing the “forefront of the compliance obligation”📎 !footnote-4798, and because compliance mechanisms are themselves well established within OHADA, then by transitivity the Vigilance Duty can be effectively implemented within this institutional framework📎 !footnote-4799.

Going a step further, and because he rightly links the duty of vigilance to Compliance Law—a branch of law that aims, ex ante, to manage systemic risks and to make systemically important firms partly responsible for this (which is what their “accountability” refers to) — Eustache da Allada raises the possibility of adopting an OHADA standard that would formulate a standard of vigilance as a means of managing risks. This definition corresponds to that formulated by Emmanuel Nnadozie who, taking an “operational perspective”, describes the duty of vigilance as “a process of identifying, anticipating and mitigating risks within the international value chains or activities of transnational operators” 📎!footnote-4808. It is emphasised that it is through this operational definition of systemic risk management that the Vigilance Ddty is developing, particularly in the banking, insurance and financial sectors, etc📎!footnote-4802. Yvette Rachel Kalieu Elongo  shows that the maturity of this Vigilance Obligation in the banking sector, which is effectively built upon risk management to combat money laundering—as formulated in both Europe and Africa—has led to an application that takes into account Africa’s social and economic organisation through ‘contextualised law’📎 !footnote-4824. 

By thus decoupling the Vigilance Duty under the 2017 French Law, the 2021 German Law and the 2024 Directive—which could become obsolete since laws are no longer inscribed on stone—and linking it to the European Vigilance Obligation, which is an essential element of the branch of law known as Compliance, unified by its monumental systemic goals📎!footnote-4803, OHADA could give it a boost and a longevity that Europe struggles to provide. This would be all the more justified given that the industrial activities underpinning it are far more prevalent in Africa than in Europe.

10. Only Monumental Goals—ambitions born of the present and future needs of grounded human beings—can make the duty of vigilance sustainable and bearable: the practical prospects for Vigilance in Africa are the test of this  🪜 Since “compliance” is merely the mechanical obligation to adhere to regulations, whereas Compliance Law aims to enable companies to contribute to Monumental Goals that preserve and enhance the robustness of systems📎 !footnote-4797, particularly the economic and social systems involved in every segment of the value chain, the Vigiance Obligation  opens up prospects for collaboration between businesses, authorities and the public to achieve such robustness. In a liberal system, the principle of competition, which is based on market individualism📎 !footnote-4777, is linked to the principle of compliance, which is based on alliances that develop over time and are rooted in local communities.  This, alongside regulations, gives rise to the ‘legal geographies’ of activities and human beings and constitutes the most fruitful perspectives. The fact that these perspectives are open today, in a world that seems so deadlocked, justifies speaking of an Odyssey as does  Mary-Ann Phasha-Djian📎!footnote-4782, .

It is this aim of balance that contracts can help achieve, so that regulations—which are currently under strain—can take root not only in Europe but also in Africa, and can truly deserve to be described as "good news" 📎 !footnote-4783.

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