Sept. 10, 2020

Publications

The Adventure of Compliance Law

by Marie-Anne Frison-Roche

This working document is the basis of an article written in French and published in the Recueil Dalloz in the Chroniques MAFR Droit de la Compliance (see the English presentation of this Chronique).

Read the presentation in English ot the other chroniques published by the Recueil Dalloz in these series Chroniques MAFR Droit de la Compliance

Adventures always have a beginning. Often distant, sometimes forgotten, and  never live in the past, only keep a red string which can be traced.

I arrived at Sciences Po (Paris) in 2001 to enter a space where there was at this time only one professor of Public Law, attached to the Political Science Commission since Law did not exist as an autonomous subject in this establishment.

There, I created a course, Les Grandes Questions du Droit, a Commission of specialists to welcome other Law professors, of Private Law and Public Law, who were recruited in large numbers for permanent positions to teach in the master that I founded the Master de Droit économique  ("Master of Economic Law") there in 2004!footnote-1899. Regulation Law had a central place there, everyone has his/her favorite topics.

It was for developing this Regulation Law that I founded  and the Concours international d’arbitrage de Paris ("Paris International Arbitration Competition") founded in 2005, originally focused on the links between Regulation and Arbitration, and the Forum de la Régulation  ("Regulation Forum") founde in 2001 and the  Chaire Régulation ("Regulation Chair")Forum de la Régulation , whose partners also supported the International Arbitration Competition. 

 

Then, as adventures always included twists and turns, I stopped leading these structures and participating in them and have opened other projects, the red string remaining.

 

 

The new adventure is the Adventure of Compliance, Compliance Law being the extension of Regulation Law!footnote-1889.

Compliance Law perhaps provokes as many questions and skepticism as Regulation Law  did when I wrote  in the "Recueil Dalloz" « Le Droit de la Régulation" ("Regulation Law"), insisting for example in this article on importance of interregulation!footnote-1890 or on interference with contracts. The article « Le Droit de la Compliance »  ("Compliance Law") published in the same  Recueil Dalloz in 2016 follows on from this move. 

 

Compliance Law is a new Branch of Law!footnote-1891.

 

So how concretely to make it happen?

The Compliance Law construction will be all the more paradoxically slowed down if, to show its importance and underline its autonomy,  everything is perceived in what is done in Compliance (because there are so many actions, training, decisions and texts, in all the countries of the world - now a sort of "passion" for Compliance exists, with the part of loathing that this implies ...) as an extension of the subjects which are already known: Company Law, but more effective and efficient ; Environmental Law, but more effective and efficient ; Public Law, but more effective and efficient, Labor Law, but more effective and efficient, and so on.

Then Compliance Law would be reduced to being what makes all Law “more effective and efficient”. It would be the entry into majesty of the Ex Post to Ex Ante execution routes. The Americans refer to these techniques, which are administrative in nature, to make the rules "more effective", by the term enforcement (which has not a direct equivalent in continental legal vocabulary). It would undoubtedly be simpler to reduce Compliance Law to being means of execution of the Ex Ante, it would be simpler but it would be such a shame, especially for those who like adventure.

For those who love adventure, that is to say the invention of the future, it is better to imagine a Law which does not yet exist and which expresses a "pretension"!footnote-1892, what never have made the voies d'exécution. "Pretension" can be defined as wanting to achieve something that does not yet exist and that will not exist if nobody does not act. It is in human nature to "pretend", no doubt that forms the point of contact between Law and Politics, which allows Law to be not only technique and not only market!footnote-1893.

This pretension that Compliance Law, in its novelty, its vigor, its youth, has the strength to support, is a set of "monumental goals"footnote-1894 whose breadth and perhaps excess are already falling out of the arms of some, but not all: fighting corruption, fighting climate change, organizing access to culture, protecting children, fighting slavery, opening up the digital space, fighting against hate, and so on.

But what a pretension… Yes, Compliance Law is characterized by its great pretension because they are "monumental goals". I can hear the skeptics, of course, but I also feel the sea breeze, which calls to close the books, to listen to the judges read such subtil judgments on the protection of personal data, to reflect on the future. All of these monumental goals are the definition of Compliance Law, which gives it its unity, which alone justify the violence of Compliance because it is always about protecting the person.

We are urged either to live in uncertainty or to demand certainty from the legal system. This security would be in the sole "efficiency" of the rules whose content would itself be indifferent (since Compliance Law would be enforcement), situation which politically raises concerns because everything can be done efficiently and many bureaucrats, humans or machines, will for example make systems of surveillance, effective and efficient, thank to this mechanical conception of Compliance Law and without a Compliance Law which is on the contrary intimate with its goals, themselves intimate with the protection of the person. Such a  mechanical Compliance Law would be a great danger.

The goals being constitutive of Compliance Law, it is then necessary but sufficient to be certain of the goals that we want to achieve, which shows the political and moral dimension of Compliance Law, its articulation with the private firms' raison d'être !footnote-1895 and the States' place that remains that of the States!footnote-1896.

These monumental goals give unity to Compliance Law, this new branch of Law !footnote-1897 which pretends to protect human beings. What are already done, they are the violent legal techniques that are deployed under Compliance, what must be built and claimed they are the monumental goals without which this violence would not be bearable but for which it is required.

Monumental Goals must be explicit in the texts, as they are in the European Banking Union. They must be checked by judges, as they have just been in the Vivendi judgment of 3 September 2020 issue by the Court  of Justice of the European Union.

We have just cast off the moorings, Regulation Law remaining present in Compliance Law which carries with it the concern for the general interest that all can bear, and on which a Europe placing the human being at the center of the system is being built!footnote-1898.__

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1

The multiple and successive presentations of the Master de Droit Economique (Master of Economic Law) as it was conceived for almost 10 years are no longer accessible on the Sciences Po website, having not  myself kept track of what it was from its conception in 2001 until 2009, when I stooped to assume responsibility for it.

2

Frison-Roche, M.-A., From Regulation Law to Compliance Law, 2017

3

See for example after a first development  on "Interregulation in 2001 in the article  "Regulation Law" in 2001, the article dedicated to this notion taken as a hypothesis  in 2005 : "'The hypothesis of Interregulation"

4

On the fact that  Compliance Law, extension of Regulation Law, has released the moorings, becoming detached from it, s. in  Chroniques MAFR - Compliance Law, Compliance Law beyond Regulation Law, 2018.

5

On the central notion of "pretension", which Compliance Law carries in in its very definition, making Compliance Law particularly adequate in a globalized system and makes it able to "regulate globalization", see Frison-Roche, M.-A., Globalization from the point of view of Law, 2017. 

7

On the notion of "Monumental Goals", put on the center of the Compliance Law definition since 2016, Frison-Roche, M.-A., Compliance Law, 2016. 

This is the justification in particular of the extraterritorial effect of Compliance Law, giving the criterion separating  illegitimate extraterritorial effects (in particular embargoes) and legitimate extraterritorial effects (in particular the fight against corruption or the protection of crucial forests and more generally the protection of human being): Frison-Roche, M.-A, Compliance Law and extraterritoriality: a natural and effective couple for the future of Europe, 2020.

This links Compliance Law and the construction of European sovereignty: Frison-Roche, M.-A., Can European Compliance Law prevent crisis?, 2020.

On the book dedicated on this notion, Frison-Roche, M.-A. (ed.), Compliance Monumental Goals2022.

8

On the presence of the raison d'être in the Compliance Law definition, Frison-Roche, M.-A., The practical utility of a definition of Compliance Law, August. 2020.

9

Frison-Roche, M.-A., Globalization from the point of view of Law, 2017.

10

As it was difficult before to conceive and for others to admit that Regulation Law did indeed constitute a branch of Law: Frison-Roche, M.-A., Regulation Law, as branch of Law, 2002.

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