29 August 2025 · Working papers

Working Paper, basis for an article (in French)

🚧Compliance Law and Systemic Litigation

complianceTech®️.

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► Full Reference: M.-A. Frison-Roche, Compliance Law and Systemic Litigation, Working Paper, August 2025.

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📝 This bilingual Working Paper is the basis of the article published in French "Droit de la compliance et contentieux systémique"

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► Summary of this Working Paper: Legal systems have changed, and Compliance Law, in its uniqueness, reflects this change and plays a powerful role in it. New sets of compliance rules, particularly at European Union level, covering data protection (GDPR), anti-money laundering (AMLA), climate balance protection (CS3D) and banking and financial system sustainability (Banking Union), have been developed and imposed on large companies, which must implement them: alerts, mapping, assessment, sanctions, etc. These new regulatory frameworks only make sense in relation to their ‘Monumental Goals’: to detect systemic risks ex ante and prevent crises so that the systems in question do not collapse, but ‘last’. All the legal instruments in the corpus are normatively rooted in these monumental goals, which are the core that unifies Compliance Law (I).

The judge is the guardian of this new and highly ambitious regulatory framework, which relies on the practical ability of companies to implement it (II). Courts ensure that the legal technical provisions are applied in a teleological manner in each of these compliance blocks and that the regulations support each other, because all compliance regulations serve the same systemic goal: to ensure that the systems (banking, financial, climate, digital, energy, etc.) do not collapse, but sustains, and that present and future human beings are not crushed by them, but rather benefit from them. This unity is still little perceived because so meticulous regulations pulverise this profound unity of Compliance Law into a myriad of changing provisions. Entrusting the ‘regulatory mass’ to algorithms increases this fragmentation, making the whole even more incomprehensible and therefore impossible to handle. On the contrary, recognising the judge's place, i.e. at the centre, makes it possible to master this new branch of law. But the judge's sole function is not to restore clarity to a body of law covered by the dust of its own technicality.

There is a transfer to Litigation of the systemic object of Compliance Law. Indeed, the litigation that emerges from the new Compliance Law is itself fundamentally new, by transitivity. Indeed, the purpose of Compliance Law is to make systems sustainable (or resilient, or robust, depending on the terminology used). This results in litigation that is itself ‘Systemic Litigation’ (III), most often brought by an organisation against a systemic operator. The place and role of each party are transformed (IV).

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1. A new foundation has created a new branch of Law: Compliance Law⚓Legal systems have changed, and Compliance Law in its uniqueness reflects this change and plays a powerful part in it. Through new blocks of compliance rules, particularly at European level, such as data protection (GDPR), anti-money laundering (AMLA), protection of the climate balance (CS3D), sustainability of banking and financial systems (Banking Union), etc., many legal compliance techniques (always the same📎¹) have been developed and imposed on large companies which must establish and handle them: alert, mapping, assessment, programme, etc,. These new regulatory blocks only make sense in relation to their "Monumental Goals"📎²: the goal in Ex Ante is to detect systemic risks and prevent crises so that the systems in question do not collapse, so that they "sustain". All the legal instruments of these corpus of legal rules and decisions in question are normatively anchored in these Monumental Goals, which are the active unifying core of Compliance Law (I).

The courts are the guardians of this new and highly ambitious regulatory framework, which relies on the practical ability of companies to implement it (II). They ensure that the technical provisions are applied teleologically in each of these compliance blocks and that these regulatory corpus support each other, since it is always the same systemic goal that is served through the "Compliance Obligation"📎³ to which companies are subject: to ensure that the systems (banking, financial, climate, digital, energy, etc.) do not collapse, that they are sustainable, and that the present and future human beings involved in them are not crushed by them but, on the contrary, benefit from them.

This unity is still little perceived, in particular because the myriad of changing regulatory provisions pulverises the simplicity and profound unity of Compliance Law. Entrusting the "regulatory mass" to algorithms increases this pulverisation, bringing together knowledge in silos, corpus by corpus, which makes the whole ever more incomprehensible and therefore impossible to handle since Interregulation in practice takes place📎⁴. Recognising instead the Judge's place, i.e. at the centre📎⁵ makes it possible to master this new branch of Law. But the Judge has an even more important role in what is, by transitivity, a "Systemic Litigation".

2. The transmission of the systemic object of Compliance Law to litigation ⚓ Indeed, the Litigation that emerges from the new Compliance Law is also fundamentally new, and this by Transitivity. The Normative Goal of Compliance Law is to make systems sustainable (or robust, or resilient, the vocabulary varies, the goal being the same). The result is disputtes which are always "Systemic Litigation" (III). The place and role of everyone have been transformed (IV).

I. THE REGULATORY BLOCKS OF COMPLIANCE TAKE ON MEANING AND UNITY THROUGH THEIR NORMATIVE ANCHORING IN THEIR MONUMENTAL GOALS OF SYSTEM SUSTAINABILITY

3. The unmanageable mass of compliance blocks ⚓ It is generally agreed that "Compliance Law"📎⁶ covers what can be described as "blocks". It is by metonymy that they are referred to as "regulations". It is a perspective to associate with each ambition a set of laws, directives, etc., and above all soft law, decisions of various authorities, case law, doctrines of economic and financial places, etc. For example, when we talk about the "GDPR", we are referring to the entire body of legislation, decisions and doctrine by which companies must ensure the protection of personal data. The complaint is almost universal about the uncertainty surrounding the handling of all these provisions. The protest is not so much about the principle of compliance itself, against which there is a call for 'deregulation', but rather about this 'mille-feuille' of a thousand provisions, a thousand interpretations for each one and a thousand interferences between each block. One sighs at the legal insecurity and uncertainty, and rightly so, because these blocks of compliance are said to be "unmanageable": Compliance Law should therefore be done away with, not on principle (because the Monumental Goals being pursued are approved) but because of these technical forms that are unmanageable by the companies subject to them and by the individuals concerned📎⁷.

4. Not admitting the unmanageability of compliance blocks without transferring them to algorithms, remedies worse than the evil ⚓ Since it seems to be unanimously agreed that it is impossible to apprehend line by line within each compliance block the content of what one is obliged to do and that this unmanageable nature is unacceptable, in particular because of the sanctions that are nonetheless incurred, if one does not want to conclude that the fight against corruption, harmful climate change, etc. must therefore be abolished, the solution most often proposed, especially in the United States, is (if not to magically abolish all regulations) to insert these compliance blocks into an algorithmic system (known as A.I.), the solution most often proposed, especially in the United States, is (if not to magically remove all regulations) to insert these compliance blocks into an algorithmic system (known as A.I.) and the "compliance issue" would no longer even arise…📎⁸. This can be useful, as a tool📎⁹, but increases the pulverisation, the algorithm being no able to "read", does not "know", does not "understand". This illusion of "mastery", i.e. a machine being the master, increases the need for a global comprehension of Compliance Law, notably by compagnies, by stakeholders, by judges.

5. The sustainability of systems by concern for the human beings involved gives unity to the compliance blocks ⚓This global vision, common to all the compliance blocks, is given by the imperative that the systems involved (banking, financial, energy, transport, climate, digital, etc.) do not collapse, that they last. The principle of system sustainability is at the heart of Compliance Law and gives it its unity and simplicity. In Europe📎¹⁰, this sustainability is intended to benefit present and future human beings involved in the systems📎¹¹ Sustainability is therefore a technical and political concept📎¹².

6. The companies obligation of result to set up compliance structures⚓In order to be deployed, Compliance Law, the Ex Ante📎¹³ branch of Law, is based on a "Compliance Obligation"📎¹⁴, borne by companies📎¹⁵, which is expressed through and beyond the many and varied technical compliance obligations. First of all, it consists of setting up compliance structures (information, alerts and warning, investigation, sanction, training, assessment structures, etc.). This is a structural obligation of result, because without these structures the desired outcome cannot even be imagined.

7. The obligation of means to produce efficient systemic effects contributing to achieving the Monumental Goals targeted by the regulatory blocks ⚓But the essential thing is in the effects produced thanks to these compliance structures. It's about changing behaviour, obtaining a culture of probity, respect for others and nature, listening, etc. It is an obligation of means because it is then a question of contributing to the achievement of this Monumental Goal which is the protection of an absolute and distant other, in space and in time, showing the points of contact between Compliance and Ethics¹⁶. .

II. THE JUDGE, GUARDIAN OF THE UNIFIED NORMATIVE ANCHORING OF COMPLIANCE BLOCKS

8. The judge, guardian of the Compliance Obligation⚓ While the algorithm promises that we could mechanically obtain total conformity with a thousand regulations, by ticking a thousand boxes, thus avoiding crossing any lawyer or judge, practice shows the growing Jurisdictionalisation of Compliance📎¹⁷. Not only does the judge articulate the use of compliance techniques with the principles of law, for example the rights of the defence📎¹⁸,, but he also establishes the principles of Compliance Law, the very ones that are lacking in these siloed blocks of compliance, principles that make it possible to articulate them and give them coherence, security and life. It ensures that companies carry out their compliance obligation in a way that corresponds to the aim sought by the author of the texts📎¹⁹, i.e. for the proper present and future operation of the systems for the benefit of the people involved. This contribution is an obligation of means.

III. THE EMERGING SYSTEMIC LITIGATION, TRANSLATION OF THE SYSTEMIC COMPLIANCE LAW

9. The system is in the cause: the ‘systemic cause’ ⚓ It follows that the system involved in the lawsuit, for example the climate system in a litigation concerning the vigilance obligation📎²⁰, is ‘in the cause’, i.e. in the situation that is brought to the judge's attention and that he must consider in order to judge📎²¹. It is because the legislator, and possibly the contracting parties📎²², wanted to preserve a system that the company is subject to the compliance obligation on behalf of which a lawsuit is being brought. Therefore, the ‘reason for the trial’ is the system itself. This gives the trial a monumental dimension, as highlighted by Professor Nicolas Cayrol📎²³. The system itself is involved in the case, which thus becomes a ‘systemic case’, a procedural concept proposed in 2021📎²⁴.

10. The novelty of "systemic litigation" brought about by Compliance Law ⚓Systemic Litigation, which brings together systemic causes beyond the various types of proceedings, thereby encouraging the perspective of Procedural Law📎²⁵, is new in that its purpose is to bring to the attention of the court a situation in which a systemic difficulty is alleged, through concrete elements, which it is asked to remedy not only through a particular solution but also a solution with a systemic effect.

This is therefore a jurisdictional duplication of the logic of Compliance Law, which calls for both informal and contentious proceedings, since the dispute between the two opponents is no longer the first thing to consider📎²⁶. This justifies mediation all the more because the removal of the dispute between the individual parties may make it possible to concentrate forces on devising solutions to systemic problems, and the judicial arena may be conducive to this. This transitivity between Compliance Law, which is new, and Systemic Litigation, which is new, results in renewed roles for each.

IV. THE RENEWED ROLES OF EACH IN THE CONTINUUM OF COMPLIANCE LAW AND SYSTEMIC LITIGATION

11. The new role of the parties to the dispute, split into two ⚓The parties to the proceedings who are likely to go beyond the expression of their own interests have a privileged place. This is why the State, the public prosecutor (including in commercial cases, but also in civil cases) and NGOs are natural parties, even "necessary parties"📎²⁷ in Compliance Litigation. We should not take offence at this. But the judge is right to ensure that this privileged position of speaking, alleging and requesting in the name of an interest that goes beyond one's own is not used beyond or alongside the interest of the system, which is justified by the strict control of each person's interest in acting📎²⁸. Indeed, there is always a risk when the systemic dimension of litigation prompts the parties to the dispute to split into two, defending not only the interests of their person but also the interests of the system, a splitting which evokes the duality of the particular interest and the general interest to which traditional procedure has always had difficulty adhering but which Compliance Law inserts by transitivity into Litigation through the concept of "stakeholder".

12. Parties to the proceedings alongside the parties to the dispute ⚓In the same movement of "stakeholders" that has turned Company Law upside down📎²⁹, parties to the proceedings are developing alongside the parties to the dispute, capable of expressing the interest of the system, which corresponds to what Professor Thibaud Goujon-Bethan has termed the "arrière-litige (beyong-litigation)"📎³⁰. These will include amici curiae, regulators and administrations (including in civil litigation), scientists, NGOs (not parties to the litigation). Cross-examination will then be an appropriate way of taking evidence.

13. The office of the Judge in Systemic Compliance Litigation ⚓The Judge is faced with the dizzying task of understanding the interests of the system, even though he/she is not necessarily a judge specialising in this sort of Litigation📎³¹. He/she must train himself/herself to find robust solutions for the future, since Compliance Litigation is about the future of systems📎³². Solutions, such as remediation, mediation and the appointment of a monitor, must be given priority. Even if this is mainly a matter of training, culture and dialogue among judges, the question of evidence concerning a compliance obligation that will be increasingly transterritorial📎³³ , or even aterritorial, particularly in digital matters, will require an adaptation of the evidentiary office.

14. The Judge, a Systemic Player in Compliance Systems⚓Moreover, in the same way that the French Conseil d'État sees itself as "the Regulator of Regulators", the Judge must appear as an institution that is both central and "ordinary" (in the sense of non-pathological) in Compliance Law. Insofar as he/she settles a systemic dispute📎³⁴ in the course of which he/she identifies the guiding principles of this new branch of Law that the mass of regulations paradoxically masks, principles produced from the first instance📎³⁵ , the judge participates with the other actors involved in the sustainability of the systems. .

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🕴️M.-A. Frison-Roche (dir.), 📘Compliance Tools, 2021.
🕴️M.-A. Frison-Roche (dir.), 📘Compliance Monumental Goals, 2023.
🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
On this "interregulation", which is required as soon as the State no longer operates by centralising power, while sectoral organisations naturally generate this interregulation, see🕴️M.-A. Frison-Roche, L'hypothèse de l'interrégulation ("the hypothesis of the "interregulation"),🕴️M.-A. Frison-Roche (dir.), 📕Les risques de régulation("Regulation Risks"), 2005.

Interregulation is facilitated and increased by Compliance Law because of the internalisation of rules applied by operators which are themselves multi-sectoral and articulate within themselves several sectoral regulat, thus reconstituting a centralisation with which the traditional State had broken away, while going beyond the borders within which it is limited in principle. On this movement, which increases the sovereign power of States, see 🕴️M.-A. Frison-Roche , 📓L'apport du droit de la compliance à la gouvernance d'Internet ("The contribution of Compliance Law to the Governance of Internet"), report to the French Government, 2019 (see the English summary).
🕴️M.-A. Frison-Roche, 📝Reinforce the Judge and the Lawyer to impose Compliance Law as a characteristic of the Rule of Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024
sans s'arrêter à la question de la définition du Droit de la Compliance, question qui est pertinente mais qui est traitée dans d'autres travaux. Voir d'une façon initiale 🕴️M.-A. Frison-Roche,📝 Le droit de la compliance, 2016.
🕴️M.-A. Frison-Roche, 📝"Obligation upon Obligation work", in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
🕴️P. Ohm, 📝Toward Compliance Zero: AI and the Vanishing Costs of Regulatory Compliance, 2025.
🕴️M.-A. Frison-Roche , 🔄Chronicle MAFR Dalloz Compliance Law, 📝Compliance et conformité : les distinguer pour les articule (Compliance and conformity: distinguish them in order to articulate them), 2024.
🕴️M.-A. Frison-Roche (dir.), 📕Pour une Europe de la Compliance, 2019.
🕴️J.-B. Racine, 📝Compliance Obligation and Human Rights, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026 ; see also, 🕴️M.-A. Frison-Roche, 📝Rigths, primary and natural Compliance Tools, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Tools, 2021.
This is why the sustainability of systems is a principle, particularly in its legal aspects, shared between democratic legal systems and those that are not, particularly for climate sustainability and the sustainability of the digital infrastructure, while when it takes on a more political dimension, particularly on information and equality between human beings, there is divergence, even confrontation.

Chinese Compliance Law is an example of this, particularly as regards Climate Compliance Law. On the universal nature required, due to the interdependence of technical systems, see what is happening in particular with the domain name infrastructure : Durabilité de l'Internet : le rôle des opérateurs du système des noms de domaine. Compliance et régulation de l'espace numérique (Internet Sustainability: the role of the operators of the Domain Name System. Compliance and Regulation of the Digital Space), 2025.

Chinese Compliance Law is an example of this, particularly in the area of Climate Compliance. On the universal nature required, given the interdependence of technical systems, see the example of domain name infrastructure, Durabilité de l'Internet : le rôle des opérateurs du système des noms de domaine. Compliance et régulation de l'espace numérique, 2025.
Ex Ante branch, as is Regulatory Law, which Compliance Law extends. This Ex Ante nature has immense consequences for companies, since they have to be "active", whereas it is usually the States that activate the regulations, and the role of the judge himself/herself, which was by nature Ex Post, knowing past situations in order to resolve them, is going to move towards the future and face this paradox: "knowing" a future that we do not know (the possible crisis, the possible damage, etc.).

On the first issue, s. 🕴️M.-A. Frison-Roche, 📝Le couple Ex Ante - Ex Post, justificatif d'un droit spécifique et propre de la régulation, in 🕴️M.-A. Frison-Roche (dir.), 📕 Les engagements dans les systèmes de régulations, 2006.

On the second issue, s. infra⤵️ ; and 🕴️M.-A. Frison-Roche (dir.), 📕 Contentieux systémique émergent (Emerging Systemic Litigation, 2025
🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
🕴️M.-A. Frison-Roche, 📝The Compliance Obligation, a burden borne by systemic companies, giving life to Compliance Law. In practice, to have an overall vision to determine what can be demanded under Compliance, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
On these contact points, see 🕴️M.-A. Frison-Roche, 📝Will, Heart and Calculation, the three marks surrounding the Compliance Obligation , in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026 ; see also "Les points de contact entre l'obligation de compliance et la RSE (The points of contact between the compliance obligation and CSR)", audition before the French Cour de cassation, Oct. 2025.
🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024.
🕴️M.-A. Frison-Roche et 🕴️M Boissavy (dir.), 📕 Compliance et droits de la défense, 2024.
🕴️K. Lenaerts, 📝Le juge de l'Union européenne dans une Europe de la Compliance, in 🕴️M.-A. Frison-Roche (dir.), 📕Pour une Europe de la compliance, 2019.
🕴️M.-A. Frison-Roche, 📝, La vigilance, pointe avancée et part totale de l'obligation de compliance, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
In French, the terme of cause is not so easy than the English term of case. But it is also adequate. Indeed, the term 'cause' is an appropriate one, albeit an old one, and is used in article 5 of the French Civil Code, to make it clear that while the judge must develop his powers to grasp the elements of the cause submitted to him/her before ruling, he/she must not, however, draw up a general rule. As this very important legal disposition says: "Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises"( 'Judges are forbidden to rule by way of general and regulatory provision on the causes submitted to them').
On this hypothesis,🕴️M.-A. Frison-Roche,📝"Obligation upon obligation work", in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
To demonstrate this, 🕴️N. Cayrol, 📝Procedural Principals in Compliance Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024.
🕴️M.-A. Frison-Roche, 🚧The hypothesis of the category of the Systemic Cases brought before the Judge, 2021.
🕴️M.-A. Frison-Roche, 📝General Procedural Law, prototype of the Compliance Obligation, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
mafr, ...., Mélanges Dominique d'Ambra, à paraître.
An expression rightly used by the Court of Appeal in The Hague which, in its ruling of 12 November 2024 in the famous Shell dispute, both dismissed the NGO plaintiffs and stated that in climate disputes civil action must be taken, that there are therefore "necessary parties" and that it may be the NGOs if other parties are involved.
Court of Paris, 18 June 2024 ; see 🕴️Th. Goujon-Bethan, 📝Present and Future Challenges of Articulating Principles of French Civil and Commercial Procedure with the logic of Compliance, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
🕴️V. Magnier,📝Transformation of Governance and the Vigilance, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
🕴️Th. Goujon-Bethan,📝 Present and Future Challenges of Articulating Principles of French Civil and Commercial Procedure with the logic of Compliance, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
On the French saga of the attribution to the Judicial Court of Paris of jurisdiction for Vigilance Litigation, a Systemic Litigation, a jurisdiction which is a special jurisdiction and not an exclusive jurisdiction, see 🕴️F. Ancel, 📝Vigilance Obligation and Litigation: a competence to be shared, in🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
On this point,🕴️M.-A. Frison-Roche , conclusion, in Dans l’espace de justice, les pratiques juridictionnelles au service du futur (In the space of Justice, jurisdictional practices at the service of the Future), 2024.
On this point, 🕴️J.-Ch. Roda, 📝Proof that Vigilance has been properly carried out with regard to the Compliance Evidence System, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
The Hight Judge François Ancel proposes that the courts should develop a specific procedural way of dealing with these compliance disputes, by developing the principles of Security, Proportionality and Sustainability, and that they should also develop, in a dialogue between the courts, a jurisprudential policy that gives everyone, and especially companies, a reference point. S. F. Ancel, 📝Quel rôle pour le juge aujourd'hui dans la compliance ? Quel office processuel du juge dans la compliance ? (What role do judges play in Compliance today? What i the judge's procedural role in Compliance?, in Conseil d'État & Cour de cassation (dir.), De la régulation à la compliance : quel rôle pour le juge ?, 2024.

There's no better way to express it.

See from the same author: 🕴️F. Ancel, 📝Compliance Law, a new guiding principle for the Trial?,

L'on ne saurait mieux dire.
🕴️O. Douvreleur, 📝Compliance and Judge of the Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024.
An expression rightly used by the Court of Appeal in The Hague which, in its ruling of 12 November 2024 in the famous Shell dispute, both dismissed the NGO plaintiffs and stated that in climate disputes civil action must be taken, that there are therefore "necessary parties" and that it may be the NGOs if other parties are involved.
🕴️V. Magnier,📝Transformation of Governance and the Vigilance Obligation, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
🕴️V. Magnier,📝Transformation of Governance and the Vigilance Obligation, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
🕴️O. Douvreleur, 📝Compliance and Judge of the Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024.
The Hight Judge François Ancel proposes that the courts should develop a specific procedural way of dealing with these compliance disputes, by developing the principles of Security, Proportionality and Sustainability, and that they should also develop, in a dialogue between the courts, a jurisprudential policy that gives everyone, and especially companies, a reference point. S. F. Ancel, 📝Quel rôle pour le juge aujourd'hui dans la compliance ? Quel office processuel du juge dans la compliance ? (What role do judges play in Compliance today? What i the judge's procedural role in Compliance?, in Conseil d'État & Cour de cassation (dir.), De la régulation à la compliance : quel rôle pour le juge ?, 2024.

There's no better way to express it.

See from the same author: 🕴️F. Ancel, 📝Compliance Law, a new guiding principle for the Trial?,
Ex Ante branch, as is Regulatory Law, which Compliance Law extends. This Ex Ante nature has immense consequences for companies, since they have to be "active", whereas it is usually the States that activate the regulations, and the role of the judge himself/herself, which was by nature Ex Post, knowing past situations in order to resolve them, is going to move towards the future and face this paradox: "knowing" a future that we do not know (the possible crisis, the possible damage, etc.).

On the first issue, s. 🕴️M.-A. Frison-Roche, 📝Le couple Ex Ante - Ex Post, justificatif d'un droit spécifique et propre de la régulation, in 🕴️M.-A. Frison-Roche (dir.), 📕 Les engagements dans les systèmes de régulations, 2006.

On the second issue, s. infra⤵️ ; and 🕴️M.-A. Frison-Roche (dir.), 📕 Contentieux systémique émergent (Emerging Systemic Litigation, 2025.
🕴️M.-A. Frison-Roche, 📝, La vigilance, pointe avancée et part totale de l'obligation de compliance, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026.
🕴️N. Cayrol, 📝Procedural Principles in Compliance Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024 ; see also 🕴️M.-A. Frison-Roche, 📝General Procedural Law, prototype of the Compliance Obligation, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
🕴️N. Cayrol, 📝Procedural Principles in Compliance Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2024., 2024. ; see also 🕴️M.-A. Frison-Roche, 📝General Procedural Law, prototype of the Compliance Obligation, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
For instance, 🕴️Liisa Pakosta, Minister of Justice and Digital Affairs of Estonia, says : "Le véritable problème ne réside pas tant dans la réglementation en elle-même que dans l’ambiguïté : la Cour européenne a tranché sur trop de questions différentes, créant un climat d’imprévisibilité pour les entreprises. Si nous voulons que les entreprises innovent et restent rentables, nous avons besoin de règles stables, transparentes et prévisibles. L’innovation prospère lorsque le cadre est clair, cohérent et équitable pour tous, permettant ainsi aux entreprises internationales et aux citoyens de bénéficier de services numériques fiables." ("The real problem is not so much the regulation itself as the ambiguity: the European Court has ruled on too many different issues, creating a climate of unpredictability for businesses. If we want businesses to innovate and remain profitable, we need stable, transparent and predictable rules. Innovation thrives when the framework is clear, consistent and fair to all, allowing international businesses and citizens to benefit from reliable digital services.") (📝L’autonomie numérique européenne face à la guerre hybride : les leçons de l’Estonie, 2025)
🕴️M.-A. Frison-Roche, 📝"Obligation sur obligation vaut", in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
Journal of Regulation & Compliance (JoRC), Cycle of colloquia 2026, Compliance and Contract
🕴️M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2026
🕴️M.-A. Frison-Roche, 📝Compliance Monumental Goals, beating heart of Compliance Law, in 🕴️M.-A. Frison-Roche (dir.), 📘Compliance Monumental Goals, 2023.

FieldsPhilosophy, theory and sociology of law, Justice and procedure, Economic Law, Regulation and Compliance

TagsCompany lawyerSystemic LitigationEmerging Systemic LitigationCompliance Lawrisk mappingBranch of LawEvaluationSystemic RiskLawyer