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► Full reference: Frison-Roche, M.-A., The judge-judged: Articulate words and things face to the difficult conflicts of interest, in L'entreprise instituée Procureur et Juge d'elle-même par le Droit de la Compliance, colloquium coorganized by the Journal of Regulation & Compliance (JoRC) and Lyon 3 Law School, 23rd of June 2021.
📊 Read the slides on which this conference is based.
🎥 See the video of this conference.
📅 This colloquium is part of the cycle of colloquium 2021 organized by the Journal of Regulation & Compliance (JoRC) and its partners about Compliance Juridictionnalization.
📕 📘 The conference is the first basis for the writing of an article, forthcoming in a book whose the French version is La juridictionnalisation de la Compliance, co-published by the JoRC and Dalloz, and whose the English version Compliance Juridictionnalisation, is co-published by the JoRC and Bruylant.
🔻 Summary of the conference: read below
Because the theme of this general thinking on the firm established as Judge and Prosecutor of itself by Compliance Law relates to a set of other reflections concerned with the adjustment of words and things, the way in which the relationship between the ones and the others evolve, this work will relate on the question of knowing if this evolution is radical or not, when one speaks about "judge".
Because "judging" is a word that Law argue with others fields, but that it has appropriated itself not so much to have more powers, for example the one of monitoring and punishing, but on the contrary to impose limits, since to those who judge has at his or her feet the chains of procedure, which makes such exercised power bearable for the other. This is why those who want the power to judge would often wish not to have the title, because to have de jure the title of judge is to be subject to the correlated regime, it is to submit to procedural correctness.
Law detects who judge and constraint this so powerful to procedure. But it also has the power to establish the judge and all the other characters of the trial. He usually does this with clarity by distinguishing some of the things. It is so important that this advice has constitutional value. Thus, not only the one who judges must be named thus but the procedural apparatus which goes with the character and which constitutes a way of doing things and fundamental rights, are not "granted" by kindness or in a second step: it is a block. If you didn't want to have to endure procedural rights, you didn't have to want to be a judge. Admittedly, one could conclude from this that the procedure would therefore have become "substantial"; by this elevation, it is rather a question of saying that the procedure would no longer be a "serving matter": it is a kind of declaration of love for the procedure, as long as one affirms that in the act of judging, to investigate or to prosecute, are "naturally" attached the rights for the one who is likely to be the object.
Compliance Law, in search of allies to achieve Monumental Goals for the attainment of which it was instituted, will require, or even requires private companies to go and seek themselves, that is to say - to say to investigate, facts likely to be reproached to it. Compliance Law will also require that they prosecute those who have done these acts. He will again demand that they sanction the acts that people have done in his name.
This is clearly understood from the point of view of Ex Ante efficiency. Confusion is often very effective. For example, it is more efficient that the one who pursues is also the one who instructs and judges, since he or she knows the case well. Besides, it is more efficient that he or she also takes the rules, so he or she knows better than anyone the "spirit" of the texts. This was often emphasized in Regulatory Law. But all this is not taken for granted.
For two reasons, one external and the other internal.
The first, external reason is that we could not "appoint" a judge who is not. This would be too easy, because it would then be enough to designate anyone, or even to do it oneself to appropriate the regime that goes with it, in particular being able to obtain that others obey even though they are not subordinate or that it transmits information, even though it would be a competitor : it would then be necessary to call back only the judge could appoint himself or herself judge! and in this new era, here are companies that would be judges, prosecutors, investigators! The times would therefore be so serious and in such great disorder that it would be necessary to come back to this tautology there ... But are we in such a radicality? Moreover, do judges have "the prerogative" of judgment and the Law has not admitted this for a long time? As soon as the procedure is there in Ex Ante and the control of the judge in Ex Post?
The second reason, internal to the company, is that the company investigates itself, judges itself, sanctions itself. However, the legal person expressing his or her will only through its organs, we underline in practice the difficulties for the same human being to formulate grievances, as he or she is the agent of the legal person, to the natural person that he or she himself or herself is. The two interests of the two are not the same, are often opposed, and how the secrets of one can be kept with respect to the other. It is all the mystery, even the artifice of legal personality that appears and we understand better that Compliance Law no longer wants to use this strange notion. Because all the rules of procedure cannot mask that to continue oneself does not make more sense than to contract with oneself. This conflict of interest is impossible to resolve because naming the same individual x then naming him or her y, by declaring open the dispute between them does not make sense.
This dualism, which is impossible to admit when it comes to playing these functions with regard to corporate officers, can be brought to life again by setting up trusted third parties who will carry the secrets and oppositions. For example, by the designation of two separate lawyers by the human representative and the directing human being, each lawyer being able to have secrets for each other and to oppose each other. These spaces of reconstitution of the so "natural" oppositions in procedure between the one who judges and the one who is judged can also take the technological form of platforms: where there is no longer anyone, where the process has replaced the procedure, there is no longer any human judgment. We can see that the fear of conflicts of interest is so strong that we resign ourselves to saying that only the machine would be "impartial", a derisory conception of impartiality against which it is advisable to fight.
This then leads to a final question: can the company claim to exercise the jurisdictional power to prosecute and judge and investigate without even claiming to be a prosecutor, an investigating judge, or a court? The advantage would be to be able to escape the legal regime that classical law attaches to its words, mainly the rights of the defense, the rights of action and the principle of publicity of justice. When Facebook "react" to the decision of May 5, 2021 adopted by what would be an Oversight Board to yet decide "as a consequence" of a 2-year suspension of Donald Trump's account, the art of qualifications seems to be used in order to avoid any regime constraint. But this art of euphemism is very old. Thus the States, when they wanted to increase repression, presented the transformation of the system as a softening of it through the "decriminalization" of economic law, transferred from the criminal courts to the AAI. The efficiency was greatly increased, since the guarantees of the criminal procedure ceased to apply. But 20 years later, words found their way back to things: under Criminal Law, slept the "criminal matter", which requires the same "impartiality". A judge once affirmed it and everything was changed. Let us therefore wait for what the Courts will say, since they are the masters of qualifications, as Article 12 of the Code of Civil Procedure says, which Motulsky wrote there.