🧱⚙️Coordination of the cycle of conference-debates 🧮Contentieux Systémique Émergent - CSE (Emerging Systemic Litigation - ESL)

Inaugural Conference – Friday 29 March 2024, from 11am to 12.30pm

IMPORTANCE ET SPÉCIFICITÉ DU CONTENTIEUX SYSTÉMIQUE ÉMERGENT

(IMPORTANCE AND SPECIFICITY OF THE EMERGING SYSTEMIC LITIGATION)

Paris Court of Appeal, Masse courtroom

 

11h-11h20. L’émergence du contentieux systémique (The Emergence of the Systemic Litigation), by Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director if the Journal of Regulation & Compliance (JoRC)

• I addressed two questions:

1. the definition of systemic litigation; and what practical consequences does this have?

2. why is it emerging now, and what practical consequences does it have? 

• The concept was proposed in 2021: 🕴️M.-A. Frison-Roche, 🚧The hypothesis of Systemic Cases brought before the Judge, 2021.
• Cette définition est ici concrètement développée au regard des systèmes impliqués dont les intérêts, essentiellement futurs, doivent être entendus. La distinction en Droit processuel utilisée est celle entre la partie au litige et la partie à l'instance, car il ne faut pas que des personnes puissent avoir des prétentions (ce qui est le propre d'une partie au litige) du seul fait qu'elles soient "concernées", ce qui doit, mais ne doit que, leur ouvrir l'instance.
• This definition is developed here in concrete terms with regard to the systems involved, whose interests, essentially future interests, must be heard. The distinction in General Procedural Law used is that between the party to the dispute/litigation and the party to the proceedings, because certain people must not be able to have claims (which is what a party to the dispute can have) simply because they are 'concerned', which must, but only must, open up proceedings to them.
• Emergence comes about either because new systems have appeared (digital, algorithms), or because new threats have appeared to old systems (climate), or because a political will or a social conscience has emerged in relation to an unchanged system (gender relations).
  The technical and political aspects are not at all the same, and this has a major impact on procedural techniques and the role of the judge.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

🔲consult the slides that support this speech (in French)

 

11h20-11h40. L’office du magistrat du parquet dans le contentieux systémique (The role of the Public Prosecutor in Systemic Litigation), by François Vaissette, Avocat général près la Cour d’appel de Paris (Advocate General at the Paris Court of Appeal)

• François Vaissette illustrated Emerging Systemic Litigation through the role and place of the Public Prosecutor.
• Referring back to what gives rise to Emerging Systemic Litigation, i.e. Compliance Law, he emphasised that the various regulations have marginalised the role of the Public Prosecutor. In fact, by entrusting administrative regulators on the one hand, and companies themselves on the other, with the task of achieving the Monumental Goals by which this new branch of Law is defined, the Public Prosecutor's Office, which remains active when behaviour is penalised, is marginalised in favour of other entities.
• But he considers that, on the one hand, the Public Prosecutor has been able to renew his role, particularly through the convention judiciaire d'intérêt public - CJIP (French Judicial Public Interest Agreement), with contractualisation enabling him to contribute in a new way to dealing effectively with what is initially a breeding ground for litigation. Moreover, taking the example of litigation concerning the criminal prohibition of minors' access to pornography offered by digital sites (the Youporn case), he emphasises that in these complex disputes, a criminal dimension frequently appears, which invites the Public Prosecutor to exercise his office.

🌐consult the report of this speech made by Marie-Anne Frison-Roche on LinkedIn, which links to a general presentation of the event, which in turn links to the reports of each speech (in French)

 

11h40-12h30. Debate

• These questions were hotly debated in the room, in the definition of what a "system" is and in the breakdown that was made, with everyone agreeing on the existence of this new litigation and the need to draw the practical consequences of its specific nature.
• During the discussion, it was also emphasised by several speakers that the Public Prosecutor's Office would undoubtedly increase, that there was a demand for this, due to the jurisdictional nature of Compliance📎!footnote-3523, the fact that the Public Prosecutor's Office is a joint party not indirectly involved, better placed than private entities that appropriate collective interests that they are not always legitimate to represent, and that it is a natural body to express an authorised opinion on the future of the systems involved.

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Second conference-debate – Friday 26 April 2024, from 11am to 12.30pm

LA VIGILANCE, NOUVEAU CHAMP DE CONTENTIEUX SYSTÉMIQUE

(VIGILANCE, NEW FIELD OF SYSTEMIC LITIGATION)

Paris Court of Appeal, Massé courtroom

 

General presentation of the topic and moderation by François Ancel, Judge at the Première Chambre civile de la Cour de cassation (First Civil Chamber of the French Court of cassation)

• François Ancel showed that Compliance Law is not just soft law but also hard law, as the "duty of vigilance / corporate sustainability due diligence" demonstrates. The French law of 27 March 2017, so-called "Vigilance law", which imposes this duty of vigilance constituting the cutting edge of Compliance, introduced an obligation for firms of a certain size to identify and prevent risks in terms of human rights, environment, and social rights.
• He recalled the means provided for by Law: mapping the risks of serious human rights and environmental abuses; regular assessment procedures for subsidiaries, subcontractors and suppliers; appropriate risk mitigation measures; alert and reporting mechanisms; system for monitoring measures.
• In order to ensure that the plan is monitored, enforced and, where appropriate, sanctioned, the Law provides for a judicial review system, with a 2-stage procedure: firstly, a preventive procedure, with a formal notice, followed by a judicial procedure, either on the merits or in summary proceedings.
• The speaker felt that the law had now reached "the age of reason" and that it had indeed given rise to litigation, which could even be said to have "emerged", since judgements handed down by the Tribunal judiciaire de Paris (Paris First Instance Civil Court) were currently being referred to the Cour d'appel de Paris. He emphasised that the number of such cases was still relatively small, but that this did not mean that they would not "flourish in the future", as "the stakes are enormous for firms and civil society".
• In order to avoid an expansion of this litigation, the speaker believes that the courts must rapidly define a "case law policy", which will make it possible to draw up fairly clear guidelines, "enabling firms to know what is expected by the Law and what may be asked of the judge". In the French legal system and in the absence of a decree, it will be up to the judge to write the policy.
• François Ancel argues that this whole cycle on 'Emerging Systemic Litigation' is there to help them, the judges, build this jurisprudential policy. As such, there is nothing better than hearing from those knowledgeable.
• The vigilance / corporate sustainability due diligence plan will give rise to systemic litigation that will affect all areas of Law. The specific subject of this conference-debate is to try to see the impact of the Vigilance legal rules on two branches of law. Firstly, Contract Law, which can be used by firms to implement the duty of vigilance. However, a traditional application of Contract Law can be disrupted when this law is part of a Compliance context, as Jean-Christophe Roda will show.
• The second branch of Law we are focusing on here is Employment Law, which is affected by the duty of vigilance, because it concerns respect for human rights and respect for workers. This will involve collaboration between firms, employers and decision-makers, in order to help firms introduce benchmark-type standards, as Cyril Cosme will show.

 

 

11am.-11.20am. Le contentieux émergent de la Vigilance dans les rapports contractuels (Emerging Vigilance Litigation in Contractual Relationships), by Jean-Christophe Roda, Full Professor at Jean-Moulin Lyon 3 University

• The speaker explained that the Vigilance duty /corporate sustainability due diligence Litigation in contractual relationships is still in its infancy, but he believes that this litigation, which is systemic in nature, will be flourish. He stresses that the issues it raises and will raise are at the crossroads of classical Law and Economic Law. Indeed, these Compliance Obligations mean that firms are obliged to be vigilant and are forced to look at what is happening on their offices, to monitor their employees, to collect geolocation data, etc. This raises issues of Labour Law, privacy Law and articulation with the RGPD (which is another part of Compliance Law...).
• These "crucial copagnies"📎!footnote-3670 covered by the duty of vigilance are by definition in a dominant position or may be. They will be driven by the national, European and international texts to be obsessed with increased control. By obligation, they will include vigilance (corporate sustainability due diligence) clauses in their distribution contracts.
  Thus, in the previous version of the European directive on Corporate Sustainability Due Diligence (CS3D), it was provided that competitors could come into contact with each other, which shows that Competition Law is not only what increases the efficacy of competition but also what can thwart it. Vigilance litigation will therefore exacerbate issues of cartel behaviour, but also abuse of a dominant position, since the firm, in order to obey the law, must increase its control over its partners.
• The laws themselves make references, sometimes direct, sometimes indirect, to the contract. The French "Vigilance law" of 2017 refers to the contract. The Duty of Vigilance Directive of 2024 is more transparent, since it stipulates, for example, that crucial enterprises must be vigilant regarding their subcontractors with whom they have a commercial relationship, paying particular attention. We are therefore referring to the notion of an established commercial relationship, which is not strictly speaking a contractual notion, but which transcends the contract. But in fact, we are very often talking about a chain of contracts.
  What is more, in order to carry out and fulfil their vigilance missions, the preferred link, the technique used, will be the contract and the insertion of clauses. For example, the American Sarbanes-Oxley Act, a decisive point in the spread of Compliance Law, has already required firms to delve into the affairs of their subcontractors and contractual partners, i.e. to be vigilant, using contractual techniques to do so.
  In the first cases, for example in the Tribunal judiciaire de Paris (Paris First Instance Civil Court) judgment of 5 December 2023, Sud v. La Poste📎!footnote-3671, contractual issues have arisen and will continue to do so.
• The key question is therefore the role of the judge.
  The speaker referred to Marie-Anne Frison-Roche's recent presentation of the topic: "as soon as there is a contract, there is a judge". The judge will therefore have to look at these specific clauses. He will be concerned first and foremost with the proper application of the plan, but also with all these contractual relationships. We will be looking at the implications of the transposition of the European directive (Corporate Sustainability Due Diligence - CS3D) now approved by the European Parliament in April 2024, which also provides for the appointment or creation of an independent administrative supervisory authority in every member State of the European Union.
  The roles of this authority and the courts should be divided and articulated. In France, if we look at the French Competition Authority, its role is to control and monitor the market, but the contractual aspects do not fall within its remit; it is the courts that retain competent for that: we can therefore assume that the judge's role will not necessarily be affected.
• The speaker then continued his analysis, highlighting 6 key issues that need to be addressed in greater detail in this huge subject.
  • He began by posing a preliminary question: won't this vigilance/corporate sustainability due diligence litigation escape the jurisdiction of the courts through the insertion of arbitration clauses? Indeed, when mass retailers insert arbitration clauses, the dispute escapes the jurisdiction of the state courts, and the major firms can follow them. Of course, this raises the question of arbitrability. The arbitrator cannot, of course, rule on the Vigilance plan itself, but vigilance is not just about the plan. This relates to the evolving relationship between compliance clauses and arbitration, between public policy and arbitration.
  • The first question raised by the speaker concerns the changing function of the contract itself. The contract will necessarily change, no longer being used as an instrument for doing business, but as a "regulatory contract". As can be seen in American litigation, it is being transformed into an instrument of control with regular audit clauses. Firms, faced with such high stakes, will not want to take any risks. In the United States, the red flag technique is used, meaning that there is not even a breach, and the American judge considers that this is sufficient reason to breach the contract. En European, in instance in France, will a judge rule in the same way, notably in consideration of the new fonction of surveillance?
  • The second issue raised by the speaker is that of evidence. As we saw in the judgment of the Tribunal judiciaire de Paris (Paris First Instance Civil Court) of 28 February 2023 in the so-called "Total Uganda" case📎!footnote-3672, the judge is constrained by the territoriality of his powers of investigation; in many situations the elements needed to interpret the good or deficient performance of the contract will be abroad. Of course, there are always letters rogatory and the provisions of the 1970 Hague Convention, but these remain difficult to implement, particularly in certain countries. It is therefore in the firm's interest to establish in advance the due diligence that it is carrying out under the obligation of vigilance, as this may help to fuel the debate before the courts in the enterprise's favour.
  • The third question is that of the balance of contracts, or rather their possible imbalance. When it comes to vigilance / corporate sustainability due diligence, contractual relations are usually and by their very nature unbalanced because the law requires them to be: it is the law which, by subjecting powerful groups, "crucial operators"📎!footnote-3670, to their contractual relations with subcontractors who are usually small but can also be equally powerful groups, or even more so, and who avail themselves of legal systems which protect them more. Contractual relations can therefore be unbalanced, and it is in order to obey the law that the group will insert clauses that increase this imbalance to fulfil its legal obligation: audit clause, termination clause, etc. Not to do so would be to be reproached. Failure to do so would be considered a breach of the law. How will the courts deal with this?
    This is the core of the matter. It is Compliance Law, in this case through Vigilance, which requires firms to behave in a contractually intrusive manner. On the other hand and to take the French example, provisions of the Code de commerce (French Commercial Code) state that a balance must be ensured within the contract. A dispute may therefore arise in this respect, in particular by invoking article L.442-1 of this Code de commerce (French Commercial Code). The burden of proof is heavy, since it will be necessary to prove submission or attempted submission, while the Cour de cassation (French Court of cassation) points out that article 1171 of the Code civil (French Civil Code) is suppletive, and we are undoubtedly not dealing here with contracts of adhesion. The instruments will not be easy to implement, but lawyers will evocate them before the courts.
    This growing litigation at the crossroads of Compliance Law and Contract Law may also lead to the dusting off provisions of the Code civil (French Civil Code). Such is the case with article 1170 of the Code civil, which states that "Toute clause qui prive de sa substance l'obligation essentielle du débiteur est réputée non écrite" (free translation: "Any clause which deprives the essential obligation of the debtor of its substance shall be deemed unwritten"). Judges will have to deal with contracts that contain clauses that dominate to provide better protection. It is also conceivable that the principle of estoppel could be invoked, the Cour de cassation now using this more British general principle. The question then is whether this General Procedural Law principle can have such a substantive aspect.
    The courts will also have to deal with the question of 'undertakings' and "commitments", the scope of which is unclear, with some people seeing the possibility of them being classified as unilateral legal acts, or even conjunctive legal acts. Commitments, whose legal nature is uncertain, will be at the heart of future Vigilance Systemic Litigation.
  • The fourth question concerns the office and power of the judge. These contractual techniques will become widespread in all areas relating to vigilance, but the speaker pointed out that the judge cannot force a firm to orient its contracts in a particular direction, or to orient its contractual organisation with its service providers through a particular clause, because Contract Law remains anchored in the principle of contractual freedom. Moreover, based on the practice of Competition Authorities, for example the Autorité de la Concurrence regarding commitments, there are discussions about the possibility of an administrative authority admitting changes to contracts, these commitments becoming binding through the Authority's unilateral decisions. In addition, the aforementioned La Poste decision states that it is not up to the judge to deal with the contract in the following terms: "ne saurait conduire le juge à se substituer à la société et aux parties prenantes pour exiger d’elles l’instauration de mesures précises et détaillées" (free translation: "cannot lead the judge to take the place of the company and the stakeholders in requiring them to introduce precise and detailed measures")📎!footnote-3671.
    ​This raises the more general question of the judge's role in the plan's effectiveness. The judge must ask himself whether it would not be better to obtain a change in contracts and/or behaviour, rather than to impose sanctions. Of course, the obligation of vigilance / corporate sustainability due diligence is an obligation of means. It is also an obligation of result when it is about following the process, for example the consultation procedures used to draw up the plan. The judge will assess the contours of this mix of obligations, sometimes involving means with Monumental Goals and sometimes involving obligations of result in relation to the process, which ensures the effectiveness of the whole to respect the spirit of the laws and which gives meaning to Vigilance / corporate sustainability due diligence. To do this, the judge must be able to assess what results from the action planned and carried out by the firm, i.e. what the firm has produced and reasonably projects
    This reference to the "results" produced by the action of the] firm can create a linguistic confusion, since it is by examining the "results" obtained or foreseeable that we measure whether the obligation of means has been satisfied, whereas certain more mechanical processes constitute an obligation of result. These questions, which are essentially evidentiary ones, are central to the Monumental Goals (in this case, the systemic preservation of the environment and human rights), i.e. the Vigilance objectives towards which the firm must strive and for which there must be tangible proof that it is actually doing so.
    The fifth issue is procedural in nature and specific to the French legal system, namely the exclusive jurisdiction of the Tribunal judiciaire de Paris (Paris First Instance Civil Court). However, some vigilance/corporate sustainability due diligence disputes will be brought before other courts, such as the Tribunal de commerce (French Commercial Court) in the event of a dispute based on article L.442-1 of the French Commercial Code. If the dispute raises issues relating to the duty of vigilance, the case will have to be stayed if the performance of the duty of vigilance is challenged or if the clauses activated must be interpreted in the light of the plan or this duty of vigilance. Judges will have to ensure that litigation is not unduly slowed down, and perhaps the French legislator should rework the issue so that this procedural difficulty, which had not been anticipated to any great extent, is resolved.
  • The sixth question relates to international topics. These are fundamental. If a French firm contracts with foreign partners, questions of Private International Law arise. If the ] firm is reasonably vigilant, the clauses will rarely bring it before the French courts. For example, if it concerns a Pakistani firm, it will be outside the scope of the European Union Regulation. There are, however, jurisdictional options. The question of the applicable Law will also arise, and it is not certain that French Law will always apply, unless the matter is dealt with by means of the "lois de police", but the speaker emphasised that we are far from having resolved these questions, which are agitating internationalists, especially as the concept of "value chains" is itself unclear.
• Even more reason, he concludes, to pay attention to these successive conferences on Emerging Systemic Litigation, in which vigilance / corporate sustainability due diligence techniques are always involved.

 

 

11.20am.-11.40am. Le contentieux émergent de la Vigilance dans les relations de travail (Emerging Vigilance Litigation in Employment Relationships), by Cyril Cosme, Director of the French Office of the International Labour Organization (ILO)

• The speaker explained how major French firms are now turning to the International Labour Organization and the various resources it can offer to help them meet their new obligations under hard law in terms of Vigilance, which they have been doing for many years, particularly on the basis of the soft law they themselves have helped to build through their human rights and CSR policies.
• He pointed out that these normative resources were not initially conceived with this in mind. He points out that the ILO, which is the oldest of the United Nations Organisation, draws up standards that promote social justice and are addressed to States. Here, the normative stakes involved in the duty of vigilance have been considered by the major international] firms that are now the users of these standards, something that was not initially envisaged but which works.
  The firm as such remained an unknown entity in this system, seen as an 'employer' and not as that which makes effective norms that are not labour relations norms.
• The situation changed when the ILO itself included CSR in its mandate, which enabled the ILO to help multinational enterprises to take on these new responsibilities, new demands not only on workers but also on shareholders, consumers and customers, which consist not only in compensating through Labour Law for an asymmetrical legal labour relationship but also in modifying the economic and social conception of their operations.
  This concept has made the firm a key player in the drive to control globalisation, at the same time as this perspective has itself become part of the ILO's mandate.
  As a result, the traditional model of International Public Law conventions drawn up by States is now showing its limitations, particularly because States do not control the value and production chains, with firms being the players in the reconfiguration, particularly where technical innovations are developing, such as freight and digital technology.
  The result is another new phenomenon: for the last fifteen years or so, firms have been using the resources of the ILO to draw up and implement their obligations, in particular their obligations of Vigilance. This was not originally envisaged in the classic scheme of Public International Law. This has taken the form of soft law.
  There is thus a strong link between the OECD's guiding principles and the IOT's declaration on the "voluntary declaration" of enterprises firms in their international activities.
  This interweaving of hard and soft law standards multiplies the channels of normative influence, one result of which is the Global Compact, and French firms are particularly active in defending human rights, for example in the clothing sector.
• Compliance Law obviously makes the whole thing more effective, notably through the French law of 1987 so-called "Vigilance law", in response to the Rana Plaza tragedy. But it is difficult to create international laws and conventions. Contracts are an effective relay, but care must be taken to ensure that certifiers are in place to play this role.

 

 

11.40am.-12.30am. Debate

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Third conference-debate – Monday 27 May 2024, from 9am to 10.30am

LES CONTROLES TECHNIQUES DES RISQUES PRESENTS SUR LES PLATEFORMES ET LES CONTENTIEUX ENGENDRES 

(TECHNICAL RISKS CONTROLS ON PLATFORMS AND DISPUTES ARISING FROM THEM)

 Paris Court of Appeal, Cassin courtroom

Presidency and moderation by Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

 

9am.-9.10am. Le contentieux Systémique Emergent du fait du système numériqué (Systemic Litigation Emerging from the Digital System), Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

• In my introduction, I recalled what an Emerging Systemic Litigation is: a case (in the procedural sense of the term) in which the interests of a system and its very future are involved (banking, financial, energy, transport, digital systems, etc.).
• This case, which is systemic because a system is involved in the proceedings, may be brought before Judge specialised in issues affecting that system, including and by its very nature a Regulator in his jurisdictional formation, but also an Ordinary Judge, not because he would like to take over a subject but because the parties in dispute ask questions to him and it is part of his judicial function to have to answer the questions asked to him📎!footnote-3663.
• The result, by its very nature, is a fragmentation of litigation, a system of pulleys with stays of proceedings, and issues of coherence that need to be addressed from the outset, because it is always the same system that is present before each of these judges. Even before the ordinary judge, it is in terms of ‘interregulation’ that the case must be considered, both procedurally and substantially📎!footnote-3664.
• The Digital System is an example of this📎!footnote-3665. The digital system is considered here insofar as it presents ‘systemic risks’. These systemic risks are managed ‘on the front line’ by the operators themselves, since their management is internalised in the crucial operators who have built, structure and operate the digital space. This is the very basis of Compliance Law📎!footnote-3666.
• These interregulation issues must be integrated into the office of the judge itself📎!footnote-3667.
• Platforms thus give rise de facto and de jure to Systemic Litigations, since they generate and manage systemic risks. These risks are listed, but they are also unique in terms of the type of litigation they give rise to. Thus, by method, the more dispersed the litigation appears to be, the more this uniqueness must be highlighted by the various judges who, through their dialogue and joint work, must take action, while the parties refer to so many different judges on issues that appear different but that all come under the same logic.
• In the digital system, these include risks of disinformation, risks of aggression through speech, risks of capturing information, risks of destroying infrastructure, ‘cyber risks’ (which is a very broad term), risks of access by minors to websites that are forbidden to them (which is a very precise term), but these are always risks that infiltrate the very structure of the digital space and about which a question will be put to the courts: the result will therefore be ‘Emerging Systemic Litigation’.

🔲see the slides used to support this speech (in French)

🌐see on LinkedIn the slides used to support this speech (in French)

 

 

9.10am.-9.30am. Les techniques de gestion du risque systémique pesant sur la cybersécurité  des plateformes (The Systemic Obligation of Security on Platforms and associated Litigation), Michel Séjean, Professor of Law at Sorbonne Paris Nord University

• After this brief general introduction, Michel Séjean set out how the systemic obligation of cybersecurity on platforms.
• The speaker underlines the uniqueness of the seemingly scattered rules governing the digital space if they are understood through the requirement for cybersecurity, which justifies the redaction of a publisher's code devoted to this: M. Séjean & a. (ed.), Code de la cybersécurité, Dalloz, 2nd ed., 2024
• This illustrates the fact that the digital space as a whole can justify a risk-based approach📎!footnote-3668.
• The speaker emphasised the analogy often drawn between digital space and physical space, since in either case any one of us can be the object of aggression. But this analogy quickly reaches its limits.
  First and foremost, individuals have a right to security in the physical world, but in the digital world this right is subject to the firm having organised its own security. The firm can only complain of an attack, such as data theft, if it has secured the data beforehand, for which it is responsible, and for which everyone is responsible, for example through the strength of the passwords chosen.
  This singular requirement stems from the fact that an attack against an individual does not endanger or cause harm to that individual alone, but endangers and causes harm to the system as a whole: its occurrence or prospect is by nature systemic.
• If we combine this with the fact that, by their very nature, platforms, and more particularly the first 4 (the first 3 of which are American), are themselves a systemic phenomenon, for example in that they host the vast majority of the world's data, we can see that the security obligation on platforms is a ‘systemic obligation’.
• The speaker also emphasised that a situation has a systemic dimension when the vital interests of the nation are at stake. For a situation to be characterised in this way, it is not necessary for a very large number of people to be involved; it is necessary, but sufficient, for a ‘vital operator’ to be concerned. In other words, the actual or potential incident does not have to be ‘massive’ for it to have a systemic dimension.
• If we take the more specific case of platforms, two types of criteria highlight this systemic dimension: the first criterion is the importance of the data, the second criterion is the importance of the entity concerned.
  • The importance of the data varies and does not necessarily depend on the distinctions made by the law, for example between personal data and non-personal data, but often involves the sector in question (health, banking, defence, etc.), with each category and sub-category having its own specific legal regime that intersects with other legal regimes.
    The general criterion is rather that of the criticality of the data, a unifying qualification giving rise to increasingly restrictive legal regimes which consist of "warning the system" in the event of a problem, notably through the various Regulation authorities concerned in one capacity or another, for example an health autority, a banking authority, a data protection authority, etc.
  • The second criterion concerns the criticality of the entities. These are operators of vital importance, essential entities, which include very large firms in 18 sectors of the economy. The difference in criticality implies different legal regimes.
• The speaker emphasised that it is not the platform that is the focus of analysis, but that the platform is a sign of the way in which Law is developing the systemic obligation of cybersecurity, in that this systemic obligation goes beyond the French Nation, which also justifies the regulatory and supervisory agencies. More specifically, the French Cybersecurity Agency (Agence nationale de la sécurité des systèmes d'information - ANSSI), which reports to the Prime Minister, will soon be given the power to impose sanctions under the forthcoming law transposing the European directive on raising the level of cybersecurity (Network and Information Security 2 directive - NIS 2).
• But this Ex Ante preservation of the system by its own technical devices and administrative Authorities, as well as the obligations built into the entities themselves, does not prevent disputes. The speaker gave an example. A cyber attack took place in 2017 to the detriment of more than 10,000 firms, some of them of critical size. Merck Laboratories wanted to activate their insurance policy, protecting them in the event of a "computer virus". At the same time, the President of the United States referred to this cyber attack in the media, blaming it on the Russians and describing it as an act of war. However, in the insurance contract, while one clause provides cover in the event of damage caused by a computer virus, another clause excludes cover when the damage results from an act of war. The firm went to court. While the case was pending before the Supreme Court of New Jersey, a settlement was reached between the parties, so it is not known what solution the judge would have provided to such a dispute. However, the Court of Appeal had previously ruled that ambiguity is to the advantage of the person who does not draw up the contract, and that the qualification of ‘act of war’ cannot be retained since no blood was shed in this cyber attack.
• In the ‘systemic grammar’ on which such systemic litigation is built, we find the principle that the entity, in particular the platform, must respect its obligation to minimise the damage that may be done to it, in particular by drawing up a risk map, an incident response plan and a general security policy, as part of a more general documentary requirement.
• If the risk is too great, it will be shared between the firm and the State, which also plays its part in the control procedures. The aim is not to eliminate cyber risk, which is impossible, but to limit and manage it through prevention, information, detection and security.

 

 

9.30am.-9.50am. Un cas systémique in vivo : le cas dit des sites pornographiques (An in vivo Systemic Case: the so-called case of pornographic websites), Marie-Anne Frison-Roche

• Following this overall demonstration, an in vivo Systemic Case was described step by step by Marie-Anne Frison-Roche
• Building on the previous demonstration, which showed that firms are on the front line, to illustrate how things are happening, not always so well, not always so quickly, that the notion of territory is effectively disappearing, allowing a multitude of judges, of different kinds, in different places, in different disputes between different parties, even though it is a single systemic issue that is being raised and contested, I have taken a case that has been open since 2021: the so-called case of pornographic content sites.
• The presentation is not repeated here, as more detailed information is available on the slides: 🧱consult the slides used as a basis for this intervention, reproducing step by step the letters, court rulings and legislation, with the arguments and claims of each side (in French)
• In this case, which is still ongoing and involves numerous laws, old and new, French and European, the Arcom, the judicial judge, the administrative judge, potentially the constitutional judge and the European judge, the result is that the various judges have always been able not only to answer the questions but also to listen to what the other judges had to say.
• The fact remains that 3 years on, the effectiveness of the ban on minors accessing pornography has not been achieved. The French law of 21 May 2024 visant à sécuriser et à réguler l'espace numérique (aiming at securing and regulating digital space) entrusts the Regulator with the task of achieving this. It is to be feared that this will not put an end to the litigation. Ofcom, the UK Regulator, is increasing the obligations and penalties imposed on digital operators. This may not put an end to it either.
• The dialogue between judges that can be observed in this case, where the Tribunal judiciaire de Paris (Paris First Instance Civil Court) expressly referred in its judgment of 7 July 2023 to the concept of "cause systémique" ("systemic case")📎!footnote-3669 to justify its stay of proceedings, thus turning to the Conseil d'État (French Council of State), must see its efficacy increased.
• Through this case, it is an observation and a wish that we can make in a more general way for the whole of Emerging Systemic Litigation.

 

🔲see the slides used to support this speech (in French)

🌐see on LinkedIn the slides used to support this speech (in French)

 

 

9.50am.-10.10am. Les obligations systémiques des opérateurs numériques à travers le Règlement sur les Services Numériques (RSN/DSA) et le rôle des régulateurs (Systemic Obligations of Operators (DSA) and the role of Regulators), Roch-Olivier Maistre, Chair of the Autorité de régulation de la communication audiovisuelle et numérique - Arcom (French Regulatory Authority for Audiovisual and Digital Communication)

• Roch-Olivier Maistre then drew on the previous two presentations to set out the systemic obligations incumbent on operators, in particular as they result from the Digital Services Act (DSA) and the role of the Regulator, echoing the role of the Judge.
• By way of introduction, and based on the case mentioned above, the speaker recalled that the role of the Regulator is ‘alongside’ the Judge. He does not replace the judge, whether judicial or administrative, and always acts under the latter's control.
• On this subject of the role of the Regulator, he also notes that national and European political powers (legislative and executive) oscillate between choosing the path of Regulation on the one hand and that of a more direct coercion on the other.
• He then explained Arcom's role in monitoring content published on digital platforms.
  He briefly retraces the foundations of Arcom's action in this area and how it has evolved. First, the French law of 22 December 2018 relative à la lutte contre la manipulation de l'information (on combating the manipulation of information), which imposed initial obligations on operators and in particular to collaborate with the Regulator (at the time the Conseil Supérieur de l'Audiovisuel - CSA (French Superior Audiovisual Council)), but without the latter then being endowed with sanctioning powers. Then came the law of 24 June 2020 visant à lutter contre les contenus haineux sur internet (aiming at combating hateful content on the internet) (known as the "Avia" law), which was almost entirely censured by the Conseil constitutionnel (French Constitutional Council). The French legislator then passed the law of 24 August 2021, confortant le respect des principes de la République (reinforcing respect for the principles of the Republic) and anticipating to some extent what has since become the reference text for the Regulator's action: the European Regulation of 19 October 2022 on a single market for digital services (known as the Digital Services Act - DSA), in force since August 2023 for very large platforms and February 2024 for smaller ones.
• Arcom also has specific jurisdiction over pornographic sites, to prevent minors from accessing content published on these sites. The first legal basis for this jurisdiction was the French law of 30 July 2020 visant à protéger les victimes de violences conjugales (aiming at protecting victims of domestic violence). This legal framework has recently evolved, with the law of 21 May 2024 visant à sécuriser et à réguler l'espace numérique (aiming at securing and regulating digital space) (known as the "SREN" law). This law has given rise to much debate, particularly at European level, regarding its relationship with the DSA. In application of the SREN law, Arcom has worked with the Commission nationale de l'informatique et des libertés - CNIL (French data protection authority) to draw up a reference framework, which has been notified to the European Commission.
• All these texts will not prevent litigation, firstly because they will themselves be challenged and secondly because Arcom's exercise of its powers, in particular its new direct power to block sites, will be challenged before national and European courts, both judicial and administrative, while the question of introducing technical checks on the age of Internet users has still not been resolved. The guidelines drawn up by the two French authorities propose an intermediate solution, based on the banking card used. This state of affairs clearly shows the difficulty of the subject, since these sites remain accessible.
• Arcom's second mission is also very specific, aimed at combating terrorist and child pornography content, in particular through the so-called TCO Regulation, which entrusts the Regulator with supervising the operation of the French Pharos platform, which blocks these sites. Every week, a check is made to prevent abuses in the exercise of this power.
• The speaker then focused on the DSA.
• He points out that the above-mentioned Regulation, DSA, is the first worldwide attempt by a continent to Regulate the major global digital players and to combat the excesses of content available on the major platforms.
• What is at stake here and more generally is the balance between the protection of fundamental public freedoms, in particular the freedom of communication exercised on platforms, which are indispensable in our daily lives, and the need to protect individuals and society.
• This Law was inspired by what prevails in the audiovisual field, with the exception that it is not possible to deploy the same techniques, because the audiovisual world is a finite world, which unfolds in relation to a physical situation in which all content can be reviewed to analyse it legally and, if necessary, sanction it, whereas on digital platforms hundreds of millions of items of content are broadcasted every second, on a planetary scale, which makes it impossible for the regulator to control each item of content. This is why the DSA is also based on Compliance Law, in that it requires operators themselves to combat illegal content. The European Union expresses this political will, this goal, and asks operators to fight against illegal content.
• This is reflected in a number of obligations placed on operators, namely the obligation to assess each year the systemic risks to which the platform exposes users and the obligation to combat these risks, the obligation to submit to external audits, the involvement of civil society, in particular through trusted whistleblowers whose information must be processed as a priority by the digital operator, and the obligation to collaborate with the academic world, in particular by giving researchers access to data.
• This internalisation of the rules in firms through Compliance mechanisms takes place under the control of a Regulator, but in an original governance system set up in the European Union by the DSA. The European Commission is at the heart of the system, which also relies on the Authorities of the Member States. The SREN law has entrusted this role to Arcom in France, as the authority responsible for coordination at national level.
• This original form of governance has already produced results, as the Commission has opened investigations on the basis of the DSA on very large platforms, European investigations in which Arcom is collaborating as national coordinator.
• In addition, the text provides for substantial financial penalties for operators, of up to 6% of worldwide sales.
• The speaker emphasised the practical difficulty created by the difference in timeframes between systemic Regulation, judicial timeframes, administrative and political decision-making timeframes, and the timeframes for technical controls on platforms, with regard to the risks and aims of Regulation.
• This interplay of timeframes is being put in place by the platforms themselves, in particular through the use of algorithmic tools, while the State has stepped up its efforts to combat foreign interference. The new European Regulation provides for emergency procedures. The fact remains that this first issue deserves all our attention, and that technologies are part of the solutions to ensure that the gap between these temporalities does not remain.
• On substance and for this new type of governance to being deployed, not only must the various regulations be coordinated, as is already happening, using methods that are still being invented, but a balance must also be struck between several fundamental public freedoms, as referred to in this complex and promising European Regulation, namely the balance between freedom of expression and the freedoms that citizens are calling for to be effectively protected through the control of content or even the blocking of websites. The courts are one of the key guardians of this balance.

 

 

10.10am.-10.30am. Debate

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Fourth conference-debate – Monday 24 June 2024, from 11am to 12.30pm

L’INTELLIGENCE ARTIFICIELLE, NOUVEAU CHAMP DE CONTENTIEUX SYSTÉMIQUE

(ARTIFICIAL INTELLIGENCE, NEW FIELD OF SYSTEMIC LITIGATION)

Paris Court of Appeal, Cassin courtroom

 

Presentation and moderation by Marie-Anne Frison-Roche, Professor of Regulatory & Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

11am.-11.10am. Les deux rencontres entre l'intelligence artificielle et le Contentieux Systémique (The two meetings between Artificial Intelligence and Systemic Litigation), by Marie-Anne Frison-Roche, Professor of Regulatory & Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

• In the general presentation on the theme itself, I underlined "The two meetings between Artificial Intelligence and Systemic Litigation".
• The focus of this conference is not the state of what is usually called Artificial Intelligence, but rather how to correlate AI and "Emerging Systemic Litigation" (ESL).
• This involves recalling what "Systemic Litigation" is (1), then looking at the contribution of Artificial Intelligence to dealing with this type of litigation (2), before considering that the algorithmic system itself can be a subject of Systemic Litigation (3).

1. What is the Systemic Litigation that we see Emerging?

• On the very notion of "Emerging Systemic Litigation" (ESL), proposed in 2021, read : M.-A. Frison-Roche, 🚧The Hypothesis of the category of Systemic Cases brought before the Judge, 2021
• Emerging Systemic Litigation concerns situations that are brought before the Judge and in which a System is involved. This may involve the banking system, the financial system, the energy system, the digital system, the climate system or the algorithmic system.
• In this type of litigation, the interests and future of the system itself are at stake, "in the case". The judge must therefore "take them into consideration"📎!footnote-3683.
• In this respect, "Emerging Systemic Litigation" must be distinguished from "Mass Litigation". "Mass litigation" refers to a large number of similar disputes. The fact that they are often of "low importance" is not necessarily decisive, as these disputes are important for the people involved and the use of A.I. must not overpower the specificity of each one. The fact remains, however, that the criterion for Systemic Litigation is the presence of a system. It may happen that a mass litigation calls into question the very interest of a system (for example, value date litigation), but more often than not the Systemic Litigation we see emerging is, unlike mass litigation, a very specific case in which one party, for example, formulates a very specific claim (e.g., asking for considerable work to be stopped) against a multinational company, and will thus "call into question" an entire value chain and the obligations incumbent on the powerful company to safeguard the climate system, which is therefore present in the proceedings (which does not, however, entitle it to make claims, but which must be taken into consideration).

2. The contribution of Algorithmic Power in the conduct of a Systemic Litigation

• In this respect, AI can be a useful, if not indispensable, tool for mastering such Systemic Litigation, the emergence of which corresponds to a novelty, and the knowledge of which is brought before the Ordinary Law Judge.
• Indeed, this type of litigation is particularly complex and time-consuming, with evidentiary issues at the heart of the case, and with expert appraisal following on from expert appraisal. Expert appraisals are difficult to carry out. AI can therefore be a means for the judge to control the expert dimension of Systemic Litigation, in order to curb the increased risk of experts capturing the judge's decision-making power.
• The choice of AI techniques presents the same difficulties as those that have always applied to experts. It is likely that certification mechanisms, analogous to registration on expert lists, will be put in place, if we move away from construction by the courts themselves (or by the government, which may pose a problem for the independence of the judiciary), or if we want control over tools provided by the parties themselves, with regard to the principle of equality of arms due to the cost of these tools.

3. When it is the Algorithmic System itself that is the subject of a Systemic Litigation: its place is then rather in defense

• Moreover, the algorithmic system itself gives rise to Systemic Litigation, in that individuals may bring a case before the courts claiming to have suffered damage as a result of the algorithmic system's operation, or seeking enforcement of a contract drawn up by the system. It is in the realm of the Ordinary Contract and Tort Law that the system may find itself involved in the jurisdictional proceedings.
• It is noteworthy that, compared with the hypotheses hitherto favored in previous conference-debates, notably those of April 26, 2024 on Emerging Systemic Litigation linked to the Duty of Vigilance📎!footnote-3685, the systems involved have been taken into consideration more behind the claims articulated by the plaintiffs, since they allege that a system has been attacked. It would then be "civil society" acting against the company. In the case of the algorithmic system, the initial litigation is made up of allegations that accuse the system of infringing rights (e.g. copyright, right to privacy, etc.).
• However, the instance changes if the system is no longer presented as the potential "victim" but rather as the potential "culprit". In particular, it is much less clear what type of intervener in the proceedings, who is not necessarily a party to the dispute, should speak to explain the system's interest, particularly with regard to the sustainability and future of the AI system.
• This is an area for further consideration by heads of courts.

 

11.10am-11.30am. Les premiers contentieux systémiques observables impliquant l’intelligence artificielle (The first observable Systemic Litigations involving artificial intelligence), by Sonia Cissé, Partner, Linklaters Paris

• Sonia Cissé outlined the first observable systemic disputes involving artificial intelligence.
• She outlines litigation already resolved or in progress, particularly in intellectual property (IP) when the information used for machine learning is protected by copyright or when the question arises of possible IP protection for "works" produced by machines.
• Firstly, she refers to a dispute that took place in China in 2019, in which a court held that an article, even one entirely generated by an AI tool, was protected by copyright for the benefit of the person who published it. She points out that, conversely, American and European courts have ruled that intellectual property cannot cover a work in which there is no human authorship, and which is therefore neither a work of the mind nor an invention. She mentions the decisions of the Columbia Court and the Prague Municipal Court in 2023. She notes that, beyond Literary and Artistic Property Law, Patent Law does not offer protection either, with the UK Supreme Court, for example, refusing to classify an AI-powered machine as an inventor.
• She then discusses the mass litigation that could arise from automated decisions, in the event of algorithmic error, and in particular the question of attribution of responsibility (developer, deployer, user?). She noted that the first legal cases, notably in the United States and Australia, placed responsibility for the error on the user.
• She went on to show that AI is a tool that courts are using, and will increasingly use, to deal with the mass litigations to which they must respond. This efficiency is leading lawyers, companies and judges to use AI to ultimately decide: this opens up the question of the responsibility of the decision, for example the court decision, or of the writings, if there is a breach observed, for example in the rules or precedents referred to. Precisely, the AI European Regulation qualifies as "high risk" the design and use of AI for jurisdictional decision-making, including in the organisation of amicable solutions. This opens up the prospect of litigation, which is and will be systemic in nature.

 

11.30am-11.50am. L’influence des nouveaux textes et des textes à venir sur les contentieux systémiques émergents impliquant l’intelligence artificielle (The influence of new and forthcoming legislation on Emerging Systemic Litigation involving artificial intelligence), by Emmanuel Netter, Professor of Law at Strasbourg University 

• Emmanuel Netter explained the impact of the regulatory texts adopted by the European Union, taking up the very nature of the AI system.
• He explained the impact of the regulatory texts adopted by the European Union, not only the IA Act but also the GDPR, such that not only the Administrative Regulatory Authorities but also the Ordinary Law Judge are called upon to implement it, notably through liability actions.
• The speaker made two preliminary remarks.
  • Firstly, he stressed that the authors see AI either as the solution to everything, or as the source of all future disasters.
  • Secondly, he emphasised that there are two kinds of algorithmic power: the one that can be thought of as no more than a tool for deduction based on rules and principles, and the other that can be thought of as the power to accumulate particular solutions without any deduction, so that solutions for the next particular case can be found, or even invented ("machine learning", "deep learning").
• As for the texts, the speaker begins by recalling that the 2016 GDPR, without dealing with artificial intelligence, laid down the principle, in Article 22, of the prohibition of "solely" automated processing. In this regard, he notes that although exceptions to this prohibition are provided for, the Court of Justice adopts a broad interpretation of this article and of the notion of "solely automated processing", a position that is resolutely protective of the human person (see in particular ECJ, December 7, 2023, case C-634/21, Schuffa).
• He then discusses the regulation establishing harmonised rules for artificial intelligence, known as the "Artificial Intelligence Act", and focuses on so-called "high-risk" AI and the obligations arising from this qualification: analysis of reasonably foreseeable risks and prior testing (art. 9); "data governance" obligations (art. 10) and related evidential obligations; transparency (art. 13); proportionate human oversight (art. 14); accuracy and robustness (art. 15), etc.
• All this information enables the speaker to spell out the systemic disputes that will arise from these clashes of overall understanding and the regulatory logic of technological systems. In particular, this will take the form of civil liability litigation. He underlines the evidentiary stakes involved.

 

11.50am-12.30pm. Debate

 

Conclusion ​

• At the end of this conference, the listener can appreciate that mass litigation can eventually, and with great caution, find support in AI, because the successive cases are analogous.
• On the other hand, Emerging Systemic Litigation is characterised precisely by the fact that it mobilises a System, in that the situation it presents (e.g. a case of platform supervision, a case of vigilance in a value chain) is new and involves the interests and future of a system by "calling into question" principles : Because it is "emergent", it is essentially the fruit of the inventiveness of companies, stakeholders, lawyers and judges, because they are singular human beings.

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Fith conference-debate – Monday 9 September 2024, from 11am to 12.30pm

LE RAPPORT DE DURABILITÉ : OBLIGATION ET CONTENTIEUX SYSTÉMIQUES ÉMERGENTS

(THE SUSTAINABILITY REPORT: EMERGING SYSTEMIC OBLIGATION AND LITIGATION)

Paris Court of Appeal, Cassin courtroom

11h-11h10. Pourquoi les textes et la pratiques sur le rapport de durabilité vont engendrer un Contentieux Systémique (Why the texts and practices on sustainability reporting will give rise to Systemic Litigation), by 🕴️Marie-Anne Frison-Roche, Professor of Regulatory Law and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

➡️read the presentation of this speech

11h10-11h30. Comment construire un rapport de durabilité ? (How to build a sustainability report?), by 🕴️Alexis Gazzo, Partner, Climate Change & Sustainability leader, EY France

11h30-11h50. Le contrôle (The control), by 🕴️Florence Peybernès, President of the Haute Autorité de l'Audit - H2A (French High Audit Authority)

11h50-12h30. Debate

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Sixth conference-debate

LES TECHNIQUES PROBATOIRES ADÉQUATES

DANS LE CONTENTIEUX SYSTÉMIQUE ÉMERGENT 

(APPROPRIATE EVIDENTIARY TECHNIQUES

IN EMERGING SYSTEMIC LITIGATION)

Cour d’appel de Paris, salle Cassin

Presentation and moderation by Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

11am.-11.10am. La crédibilité (Credibility), by Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)

11.10am-11.30am. Les différentes techniques probatoires quand un système est impliqué dans un litige (The various evidential techniques when a system is involved in a dispute), by Thibault Goujon-Bethan, Professor of Law at Jean-Moulin Lyon 3 University, director of the Centre patrimoine et contrats, director of the IEJ de Lyon

11.30am.-11.50am. Ce que des entreprises font et les preuves disponibles qui en résultent (What firms are doing and evidence available as a result), by Nathalie Fabbe-Costes, Professor of management at Aix-Marseille University 

11.50am.-12h30pm. Debate

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Seventh conference-debate

LE DROIT PROCESSUEL DE LA VIGILANCE

(VIGILANCE GENERAL PROCEDURAL LAW)

Paris Court of Appeal, Cassin courtroom

Presentation and moderation par Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director ot the Journal of Regulation & Compliance (JoRC)

11h-11h20. title to come, by Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director ot the Journal of Regulation & Compliance (JoRC)

11h20-11h40. title to come, by Natalie Fricero, Emeritus Professor of Law at Côte d'Azur University

11h40-12h30. Debate

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Closing conference for 2024 – Monday 16 December 2024, de 11h à 12h30

L’EXPÉRIENCE DES JURIDICTIONS

DANS LE CONTENTIEUX SYSTÉMIQUE ÉMERGENT 

(THE COURTS' EXPERIENCE IN EMERGING SYSTEMIC LITIGATION)

Paris Court of Appeal, Première Chambre (First Chamber)

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