🚧Will, Heart and Calculation, the three traits encercling the Compliance Obligation

1. Plurality of techniques which give concrete form to the Compliance Obligation, convergence towards the Monumental Goals of Compliance Law✏️🖍️🖊️There is often a dispute about the very definition of what Compliance Law is, but there is a clear sense of the scale and force of the obligation which results from it for the companies subject to it. It remains difficult📎!footnote-3621. First and foremost, however, we must not to be overwhelmed by the multiple technical obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this is a very long list, but it is an open-ended one, with companies themselves and judges adding to it as companies, sectors and cases📎!footnote-3622.

Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much the result of a will, a generous feeling for a close or distant Other in space or time, or the result of a calculation. This plurality does not pose problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation. Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.

2. Plurality of what produces the Compliance Obligation, convergence towards the Monumental Goals of Compliance Law ✏️🖍️🖊️So, In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that one of the legislator, the vocabulary of self-regulation and/or ethics being often used in this case, because it affirms that company devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it decide to de so  because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, leads us to say that all this is merely a calculation.

3. The contribution to the Monumental Goals, the result of a will, heartfelt and calculation ✏️🖍️🖊️We can observe the Wills that have shaped the Compliance Obligation over time, to which is added an heartfelt impulse that should not be scoffed at, because it is also in this impetus that we can find the strength that is required to serve the ambitions for the future served by Compliance Law, without, however, underestimating the part played by the many calculations that each of us makes in order to take advantage of this new branch of Law so that the Obligation costs us as little as possible and yields us as much as possible.

4. Construction of the contribution ✏️🖍️🖊️ Thus, in order to understand the Compliance Obligation, it is necessary to recognise the part played by all these three sources. In monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems - banking, financial, energy, digital, etc. - in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick against which the Compliance Obligation is measured, and with it all the secondary compliance obligations that give it concrete form, whatever their source and whatever the reason for adopting the initial standard. The Compliance Obligation is born of a will, that of the legislator, supported by that of the company subject to it (I). It is also the result of what might be called a 'heartfelt impulse' because, in Europe at least, it is indeed concern for others, even if they are far away in space and time, that underpins this desire to make sustainable systems that should benefit human beings and not the other way round (II). This does not contradict the calculation that each of us must make about the benefits of participating in this great future of Compliance (III).

I. THE WILLS SHAPING THE COMPLIANCE OBLIGATION

5. Initially, the will of the Legislator, a sometimes illegitimate manifestation of his arbitrary power ✏️🖍️🖊️The first will to impose itself is that of the Legislator. It has never been so forcefully asserted than today. Both spatially, since we never cease to speak of "extraterritoriality", the American legislator in particular throwing a law that concerns his interests beyond his territory in front of all the other legislators, which triggered a feeling of injustice, aggression, or even an act of war, particularly on the part of the other legislators affected by their feeling of sovereignty📎!footnote-3704,

It is understandable that this act, which consists of a State issuing legislation to defend its own interests by imposing it on other States which do not necessarily share the same interests, has been qualified negatively, Compliance Law being taken as the expression of the Will of one State over the others, of the most powerful, here the United States, against all the others, which have become vassals.

This protest of principle, which is understandable on the part of the other States thus summoned to collaborate or face sanctions, is equally understandable on the part of companies, because it is in the same way that they receive the injunction to obey from a legislator, whose jurisdiction they may not be under, for example when they are European firms and it is a question of an American Law concerning facts and persons with no relation to American territory📎!footnote-3705.

These criticisms are well-founded when the tools of Compliance are used by Judges or Regulators to monitor, order and punish actors who are nevertheless outside theirs jurisdiction, in a common law sense of this word for no other reason than to serve the own interests of the author of the norm, for example the effectiveness of a blockade that the State issuing the norm has decided on or international sanctions that it has taken to punish a State that has opposed it. 

6. The legitimate will of the Legislator based on the objective globality of the situation which is the subject of the Compliance Obligation ✏️🖍️🖊️ But a completely different situation is constituted when it is a question of having control over a situation which, in fact, is global, for example forests which are devastated by fires or catastrophic felling because these forests supply the globe with oxygen and they require time for their reconstitution requires time📎!footnote-3707. Therefore, it is appropriate to speak of "Global Law", because the object itself is global and it is a necessity to adopt global legislation imposing effective solutions today to preserve the future in order to provide solutions, international treaties only producing this effect with great difficulty, not being worth a "Global Legislator"📎!footnote-3706.

7. The legitimate Will of the Legislator based on the political ambition of a consideration for a distant Other ✏️🖍️🖊️ But when the so-called French "Vigilance" law was passed in 2017📎!footnote-3708, it was not just a matter of responding to an objectively global situation, namely the environment and above all the climate, it was also a matter of the legislature imposing its Will on parent companies or principals so that they prevent, or detect in order to put an end to, human rights abuses in the value or activities chains they have put in place. This is no longer an imperative dictated by the situation, because the future may continue to unfold in a world where human rights are not respected over the majority of its surface. But the French legislature, and now the European legislature too through the Directive of 2024📎!footnote-3708, are determined to take an interest in what happens to human beings far away, so that this does not happen in the future: almost every study describing the genesis of the 2017 law begins with a reminder of the Rana Plaza disaster📎!footnote-3710. 

8. The difference in the state of the legislative Will depending on whether it expresses pure power, whether it takes account of the present or anticipated state of the world, or whether it articulates a global political ambition ✏️🖍️🖊️ It is clear from the foregoing that the Will of the Legislator thus creates an obligation of compliance on the part of the State, on other States, including those outside its 'jurisdiction', and companies, including in this same extraterritorial deployment, either through a phenomenon of pure power, which sovereignty is sometimes - wrongly - criticised for📎!footnote-3711, or by the observation of a situation from which the Legislator is content to draw the technical consequences, or by a global and argued political ambition. Looking at this trilogy, the question that comes to mind is: why only now?

9. Why now? Newly global systems; newly political awareness ✏️🖍️🖊️ What seems to be a "reawakening" of Compliance is primarily due to the systems mechanism. In fact, it is because in the United States the 1929 crisis, the origin of which is rooted in systemic financial dysfunction, justified the construction of the first Compliance Law to prevent such a crisis from recurring, while in Europe the crisis in the constitution of computer files on individuals justified a second Compliance Law, partly identical in nature and partly different from its American precedent📎!footnote-3712. Today, Compliance Law is taking on an unprecedented scope, not only because finance has pulverised space and time through the digitalisation of the world📎!footnote-3712, this globalisation being of a different nature to the mondialisation of the exchange of goods📎!footnote-3714, but also because new global systems have emerged with such unprecedented interdependence and speed of effect that they must be considered as new by nature, as digital space, or new by a first global crisis as climate space. These new systems bring with them new systemic risks, such as the radical risk of extinction, including of democracy (digital space) or the human race (climate space).

But it may be a question of a new political awareness in the face of something that already exists. Legislators, by definition, have the right to take sides. For example, to mobilise companies so that human beings are effectively in a situation of equality when the de facto situations do not lend themselves to it. 

The reaction to these two types of Will will not be the same, and the order given by the Legislator will not be the same, because the Legislator's Will is more imposing in the first case, which can be based on the nature of things, than in the second (about human rights), for which the Legislator, however sovereign, will have to convince in order to be followed. The theory of incentives should find its place to a greater extent in this perspective.

This is why Digital Compliance Law could be closer to Climate Compliance Law, since they aim to ensure the technical sustainability of the system, i.e. that its constituent pillars do not disappear, whereas the promotion of human rights, however laudable, will require other methods. 

Looking at the art of the writing of laws and regulations and observing their implementation, it is not certain that this duality was taken into consideration by the authors of the texts, even though the effectiveness of the latter is a more acute criterion in Compliance Law than in other branches of Law, since it is in the Goals to be achieved that the law's normative force is anchored. This is also due to the fact that it is not always easy to distinguish between the two hypotheses: this is particularly true of the compliance obligation imposed on companies that have built up value chains.

10. The difficulty of distinguishing between the novelty of situations to which the Legislator is responding and an autonomous political ambition: the case of value chains ✏️🖍️🖊️Indeed, the value chain is an organisation chosen by the company to improve its performance in relation to its competitors: Rather than go for multiple instant contracts available through the pollicitation of the competitive market, the company chooses to structure itself not only internally but also externally by making its supply chain solid through long-term contracts and structuring all kinds of services it needs. The contract is thus a construction tool📎!footnote-3715 by which the company builds an alternative to two models: the competitive market, which is too fickle, and vertical integration, which is too rigid. It is therefore the company's intention to create this situation in order to increase its chances of winning out over its competitors.

But the factual situation that this produces is so structuring that the Legislator may wish to intervene in the two ways previously identified (objective reaction to a state of the world; political reaction). Firstly, the global economy has been transformed by these structural chains of activities, which are very similar to essential infrastructures and which must not collapse because it is often on them that supply works and national industries are based, which leads us to preserve the downstream, in particular contractual power. Today, therefore, they are part of an objective state of the world, which was not the case when the very notion of the value chain was developed in 1985.

However, the political Will is very strong since the texts do not concern the downstream part of the chain, served by the contract technique, but the downstream part, with the suppliers of materials, goods and services being protected by the Compliance Obligation which weighs on the master operator of the chain, who must ensure, through Vigilance, the sustainability of the whole and the protection of those who live in it, which corresponds exactly to the definition of Compliance Law, of which Vigilance is there fore the advanced point📎!footnote-3716.

The more companies that have chosen to build their model on these chains will not only accept the objective goal of ensuring their sustainability, which they accept quite readily and therefore appreciate the English wording of the Directive of 13 June 2024 (Corporate Sustainability Due Diligence Directive - CS2D) more than the French wording (Directive sur le devoir de vigilance des entreprise en matière de durabilité), but will also take on board the more political goal of protecting the human beings who depend on these structured chains thus constructed. They can then add their own political Will to that of the Legislator. We just mention this perspective because this is the subject of another contribution: "Obligation on Obligation is relevant"📎!!footnote-3718.

11. The legislator's Will leaving it up to the companies to choose the means to achieve their legal Compliance Obligation ✏️🖍️🖊️ Even if we remain in a unilateral relationship between the Legislator's Will, which orders the company to use its position to achieve the Monumental Goals by which Compliance Law defines itself, the company subject  achieving its Compliance Obligation in this way📎!footnote-3717, the latter, because it must not simply obey, must draw on the power to tend in a credible trajectory towards the achievement of these Goals. In these more classical terms, this consists on the one hand in equipping itself with the required instruments, a structural obligation which is a legal obligation of result, and using them to the best advantage which is an obligation of means. This perspective is neither developed because another contribution is dedicated to this question:  "Obligation of Compliance: use its position to help achieve the Monumental Goals of Compliance Law"📎!footnote-3719.

12. The role of the Judge with regard to Wills in determining the Compliance Obligation ✏️🖍️🖊️ All this has a direct effect on the Judge. Indeed, the judge's role is to apply the law in accordance with the will of the legislator, in the same way that the contract, that "little law", does. In the same way that a company that is subject to the law only obeys Compliance's legislation properly, i.e. effectively, by using its position to obtain effects that will tend towards the Monumental Goals sought by the Law, in the same way the Judge will have to interpret not only the Law but also contracts in the light of these Goals📎!footnote-3720. It will be relevant for him to distinguish between the 3 aforementioned states of the Legislator's Will (discretionary power; consequence drawn from an objective state of the world; expressed political will to make the world a better place).

The Judge role is complex and new because, firstly, as the contract is the primary means by which companies implement the legal Compliance Obligation to which they are subject and combines their own Will to choose the most appropriate means, or even to adjust or increase the legal goals📎!footnote-3721, it must articulate the two Wills. Because, secondly, the legislation of the Law of Compliance having as its object the preservation of systems and therefore dealing with the future, in the same way that by nature the contract has as its object the future but here has as its object to make effective a law which aims to build the future of systems, the Judge office tends to become Ex Ante. This certainly illustrates the trace that Compliance Law retains of Regulatory Law, which it extends and exceeds📎!footnote-3722, but is unusual for the Judge, whose traditional office is turned towards the past📎!footnote-3723.

II. THE IMPULSE OF THE HEART, THE DRIVING FORCE OF THE COMPLIANCE OBLIGATION

16. The Compliance obligation, a place of apparently contradictory norms: from penal steel to tenderness for gender humain✏️🖍️🖊️ But not everything is a matter of Will, whether that of the Legislator, the company, stakeholders and people concerned. If we define Compliance Law as concern for the people affected by the systems in question, because they may be endangered by them and because they should, on the contrary, benefit from them📎!footnote-3724, Monumental Goal indeed, there is a surge of generosity that irrigates all the tools, in their protective dimension, since Vigilance often consists, for the powerful company, in taking charge of the interests of the smaller ones. It is, moreover, because this concern is technically present that we can attest to the reality of this concern for others, whereby one person takes care of another, even though he has not been ordered to do so and has no interest in doing so. This explains the astonishing mix of multiple criminal provisions, such as in the French so-called "Sapin 2" law, which puts the public prosecutor at the centre of the system, and ethical charters, with no standards of opposite types taking precedence over each other.

Texts and authors often use the two expressions "compliance obligation" and "compliance duty", whereas the obligation refers more to the Law in that the subject of the Law cannot evade the prohibition or prescription, whereas the duty leads to compliance without a legal source listed as binding, which frees it from the legal will, and without the subject taking into consideration the consequences of his action, which removes him/her from the Calculation. But the texts that refer to the 'duty' of vigilance deduce multiple expresses 'obligations' for the companies subject to it, which shows that the concepts are not used very strictly: in fact, a moral obligation cannot give rise to a legal obligation. Instead, it should be considered that the legal Compliance Obligation has a moral component, which can be found both in the various technical obligations and in the very principle of the Compliance Obligation.

Moreover, Law has never abandoned its moral impregnation and, through deontology, has embraced rules and disciplines based on groups' collective conception of what is good. This is particularly the case for both professions and sectoral structures, which enables the Duty of Compliance to be deployed in a sustainable and effective manner due to the cohesion and permanence of these groups, which are often transnational📎!footnote-3729.

The firm itself, insofar as it is a sustainable organisation made up of a group of people sharing a common project📎!footnote-3730, is particularly suited to disseminating and maintaining an ethical obligation over time.

17. The continuum between raison d'être, CSR and Compliance ✏️🖍️🖊️ The legal system has expressed this through the continuum that has been established between raison d'être, corporate social responsibility (CSR) and the Compliance Obligation📎!footnote-3731. Indeed, CSR expresses the concern that the enterprise has for a collective interest that goes beyond its immediate interest and in which it wants to participate insofar as it is itself an actor in the community.  In France, in the 2019 so-called Pacte law, the French legislator formulated the company's social interest as including consideration of the social and environmental dimension of its activity. What's more, the company can crystallise this through its raison d'être, or even establish itself as a company with a "mission". The numerous works on CSR, raison d'être, the mission-driven company and the place of ethics in corporate governance show the points of contact that have multiplied as Compliance Law itself has developed through its Monumental Goals.

This is because these Monumental Goals target the interests of systems, to which companies may not be immediately sensitive, particularly when it is not the system that is consubstantial with them: for instance, the interests of the climate system will be more remote for banks than the interests of the banking system; the interests of the democratic system will be more remote for digital operators than cybersecurity, and so on. This is even truer when it comes to the interests of the people concerned: the interests of people working upstream in the chain of activity will be more remote for the master company than those of its immediate employees, etc.

This is why it is often Ethics that supports the Compliance Duty, because concern for a distant Other, to obtain that they are not crushed by the system but benefit from it. That presupposes that we detach ourselves from our isolation and look beyond our neighbor. There, as Professor Muriel Fabre-Magnan has shown about the duty of Vigilance📎!footnote-3732, Vigilance, insofar as it refers to a 'duty' which benefits people whom the company does not know and for whom it has no interest, goes beyond the duty of care and must not be confused with it.

18. The oxymoron of an increase in the strengths and weaknesses of commitment with regard to the Compliance Obligation, creating soupçon✏️🖍️🖊️ The result is an oxymoron. Indeed, because Ethics consists in committing oneself to an action that is oriented towards the good, even if it costs and does not pay off, an action that is shared within a community in which this is expressed, for example by a charter or a code of Ethics📎!footnote-3733, this is much more practically efficient than the order that comes from the Will, whether that one of the legislator or that one of the company itself📎!footnote-3734. Indeed, since this is an impulse shared by all, and first and foremost by those at the top who are the managers, setting the example according to the most classic model of Ethics📎! !footnote-3735, The question, maybe the impasse, of Regulatory art, i.e. namely on the one hand the asymmetry of Information that always exists between the one who issues an order and the one who must execute it and on the other hand the effectiveness of control, is thus evacuated, since it is indeed a "momentum". What's more, because of the company's stability and because Ethics are collective, the principle of Sustainability, which is central to the Compliance Obligation, is better served.

The impetus of a collective Heart, i.e. the business Ethics specific to a place, a sector and/or a firm, is best able to build a sustainable Compliance Culture, since it efficiently internalises the Compliance Monumental Goals of Compliance📎!footnote-3739.

But this position of strength is also its first weakness: third parties do not believe the ethical declarations made by companies, whether written or oral. At best, there is the suspicion that they are just empty words, a marketing ploy to evade the order issued by the Legislator and the markets Regulators of markets📎!footnote-3736  or for instance the anticorruption supervisory bodies📎!footnote-3737. At worst, ethical discourse is accused of being used to evade the legislative Will to protect people, particularly workers📎!footnote-3738.

19. To go beyond the oxymoron, the primary challenge of the impulse of the Heart: its support of legal prescriptions ✏️🖍️🖊️ This strength and weakness inherent in this ethical dimension of the Compliance Obligation leads to what could be a legal aporia: what place should be given to this dimension by which those subject to it could claim to free themselves from imperative rules? The first answer is certainly not to allow a rule of collective morality to replace a legal prescription but, as in a contract, a will is in no way damaged or diminished because it is supported by the ethical adherence of the people concerned, and the person applying the rule may be just as concerned as the person benefiting from the rule.

Indeed, it is the primary challenge of one of the technical obligations of compliance, i.e. Education, to encourage this moral impetus of support from the people who apply the rule so that they take it on board by measuring the good they are doing for others by respecting the law. For example, by fighting corruption, deforestation, misinformation or illiteracy, they are serving the good of a distant Other. 

20. To go beyond the oxymoron, the second challenge of the impulse of the Heart: making its proof available by demonstrating the effects produced ✏️🖍️🖊️ The second response, which constitutes the major legal challenge of Compliance Law lies in proof📎!footnote-3740. Indeed, while proof is a major issue for the Compliance Obligation due to its jurisdictional nature of this obligation and despite its Ex Ante nature📎!footnote-3741, when it comes to an ethical commitment, a specific evidential difficulty is added: the commitment resulting, for example, from an ethical charter or a declaration to do good for others is addressed to several circles of audience📎!footnote-3742who are more or less skeptical. There is therefore a need to show the reality of the impulse of the Heart, it effectiveness: by a reversal of terms, it is no longer the prescription that produces the execution, but rather the execution that produces the credibility - i.e. the proof - of the very reality of the ethical prescription. 

Therefore, the burden of proof that rests on the person claiming to be ethically committed obliges him/her to prove the reality of this commitment by the effects produced, for example the education and help actually provided, the words previously spoken in this sense being only an indication of this. But as soon as the effects have been produced, especially if they follow the same trajectory as that implied by the Will, then the ethical source is a very powerful reinforcement of the Compliance Obligation.

The force of morality thus leads companies to integrate the whole into their strategy. The  European directive of 13 June 2024 on the duty of Vigilance also requires companies to integrate it into their overall strategy, i.e. into their Calculations. Compliance Law, an Economic Law that extends the Law of Regulation📎!footnote-3743, is designed to accommodate these enterprise's Calculations. 

III. THE CALCULATION OF INTEREST, THE CEMENT OF THE COMPLIANCE OBLIGATION

21. The new tools of Compliance, designed to be used by the calculating company: the perfect illustration by the DPA ✏️🖍️🖊️ In the name of efficiency, so much so that some present Compliance as nothing more than an efficiency process📎!footnote-3744, the Compliance Obligation is redesigned to match the company's calculations, which will lead it to use its Will in order to serve its interest, which will converge with the Will of the Legislator or stakeholders, not out of concern for them but to serve its own interest. There may be coincidences: for example, the company calculates the decisions to be taken in the light of the risks surrounding it, risk mapping being in many ways a management tool like any other📎!footnote-3745.. In the same way, it is in the company's interest to detect and prevent the weaknesses of its partners in the value chain it has decided to structure, a strategic choice whose organisation it bears for the long term, Vigilance being a managerial quality. To such an extent that Compliance Law has been presented by some as a managerialisation of Law, rather than a subjection of companies, since the Law has used these management tools to insert its own objectives: Vigilance duty of vigilance is a strong illustration of this, since it must form part of the group's overall strategy and the adoption and implementation of the vigilance plan is an act of management📎!footnote-3747.

But it is the Deferred Prosecution Agreement (DPA), this new legal instrument linked to Compliance Law📎!footnote-3746, which best illustrates this recognition of the Calculation. Indeed, the DPA mechanism is based on the calculation made by the company that it is better to enter into this agreement with the Prosecuting Authority rather than endure a trial. This innovation, justified by the need to satisfy the general interest, is successful because the company calculates the benefit it derives from it. 

22. The reasons for the company subject to the Compliance Obligation to endure it: to no longer hear about it, to control its own structure, to increase its power, concern for its reputation, another legitimate form of powerful and exposed operators ✏️🖍️🖊️ Professors Laurent Benzoni and Bruno Deffains, by comparing "Compliance suffered" and "Compliance chosen"📎!footnote-3748, show the interest of this second branch of the alternative. Thus to continue the example of the DPA, the company's calculation is simple: the advantage of closing the case by ensuring that the proceedings are not opened, or are closed. The company's Compliance Obligation is not undermined, not only because this practice stems from the legal texts, but also because the Convention contains commitments for the future constituting effective compliance programmes.

It is not certain that the other people affected by the Agreement have the same interest in it, in particular the agent, employees, suppliers, etc. They were not able to participate in the drafting of the Agreement, in which the internal investigation report played a decisive role and which will be prejudicial to them. They were not able to participate in the drafting of the Agreement, in which the internal investigation report played a decisive role and which will be detrimental to them. But their own calculations have no place in their bilateral contractual relationship. In particular, in France in the similar mechanism of the Convention judiciaire d'intérêt public (CJIP), the rights of the defence, which will be invoked later by them when they are implicated, will most often be invoked too late with regard to them since the facts then alleged will have been previously established in their absence, at a time when the calculation of the others had led to the transmission of Information that they would have kept secret if they had been there📎!footnote-3749.

The firm will also calculate the interest it has in fulfilling its Compliance Obligation in order to better control its internal and external organisation by obtaining Information, in particular through alerts, audits and investigations!footnote-3752. It will calculate the proper management of its Compliance Obligation, either because its non-performance can damage its reputation, a consideration systematically recalled by companies📎!footnote-3751 and management professors📎!footnote-3751, or because its proper execution of its Compliance Obligation can increase specific and global confidence for its benefit.

The more companies are exposed, the more third parties are included in the Calculation. Thus companies exposed to investors are having their Compliance Obligation management refined to ensure the quality of their relationship with investors, so that it is useful to be fair. The Systemic Litigation that is emerging📎 !footnote-3753  around the Compliance Obligation, targeting through large companies the sectors and systems themselves, relying by nature on the opposition between parties, which is implied by the legal notion of litigation. But perhaps this is not the most appropriate conception to account for this type of litigation, because Compliance Obligation is a alliance between companies, State and stakeholders. At least, in the perspective of an always possible litigation, in a probationary strategy enterprises have a great interest to integrate into their overall strategy the way in which they justify the performance of their Compliance Obligation📎!footnote-3754.

22. Conclusion - the future of the use of incentives, articulation of Will, Heart and Calculation ✏️🖍️🖊️ It follows from all this that if we want companies to contribute most effectively to the achievement of these Monumental Goals, which are the preservation of systems, the protection of global public health, the preservation of the climate, the effective equality of human beings, the sustainability of energy resources, the preservation of democracy, and so on, goals whose necessity we all realise, but also the difficulties whose monumental nature equals this necessity, the solution is the convergence of the whole.

Indeed, we must not exhaust ourselves by pitting one source against another, but activate as much as possible that which links them together: incentives📎!footnote-3755. These, handled by the Legislator, consist in triggering in the people whose action is expected this one because the conditions of this one will correspond to their expectation. Incentives are not only financial: moral incentives are very important and companies must also handle them credibly and by example.

In this way, we will be better able to handle the Will, the Heart and Calculation, because in order to achieve these Monumental Goals which gave rise to the Compliance Obligation, these three forces must be united.

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