The recent news
Feb. 15, 2024
Publications
🌐follow Marie-Anne Frison-Roche on LinkedIn
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► Full Reference: M.-A. Frison-Roche, "Adjusting General Procedural Law to Compliance Law by the Nature of things", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2024, pp. 273-28.
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📝read the article
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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks
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📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published
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The principal elements of this articles had been presented during the scientific manifestation held on September 23, 2021, at Dauphine University in Paris, coorganised by the Journal of Regulation & Compliance (JoRC) and the Institute Droit Dauphine.
In the book this article is placed in the chapter II about the General Procedural Law in the Compliance Law.
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► Summary of the article (done by the Journal of regulation & Compliance - JoRC): General Procedural Law is an invention, essentially due to Professor Motulsky, going well beyond the gain that one always has in comparing types of procedures with each other. As he asserted, there is Natural Law in General Procedural Law, in that as soon as there is the Rule of Law Principle there cannot be, whatever the "procedure", even the "process", such and such way of doing things: for example, to decide, to seize the one who decides, to listen before deciding, to contest the one who has decided.
General Procedural Law therefore depends on the nature of things. However, Compliance Law organizes things in a new way. Therefore, both the simple and iron principles of General Procedural Law creep in where we do not expect them at first sight, because there is no judge, this character around whom ordinary procedures fit together. The principles of General Procedural Law are essential in companies. Even if the regulations do not breathe a word about it, it is up to the Judges, in particular the Supreme Courts, to recognize this nature of things because on this effect of nature that General Procedural Law is built: when compliance mechanisms oblige companies to strike, General Procedural law must oblige, even in the silence of the texts, to arm those who can be hit, even stand up against devices that would set aside too much these defenses that are easily considered contrary to efficiency (I).
But because it is a question of making room for this nature of the things of which the Rule of Law Principle entrusts the custody to the Judge and the Lawyer, the General Procedural Law must also adjust itself to what the extraordinary new branch of Law Compliance Law is. Indeed, Compliance Law is extraordinary in that it expresses the political pretention to act now so that the future will not be catastrophic, by detecting and preventing the realization of systemic risks, or even that it is better, by building effective equality or real concern for others. Because it is the Monumental Goals that defines this new branch of Law, a disputed systemic issue, possibly disputed by several parties before a judge, the procedural principles used by the court must be broadened considerably: they must then include civil society and the future (II).
General Procedural Law thus naturally acquires an even more place than in the classic branches of Law since on the one hand it imposes itself outside of trials, particularly in companies and on the other before the courts it involves people who had hardly any place to speak and thinks themselves, especially the systems entering the "causes" of Compliance now debated before the Judge.
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Feb. 9, 2024
Conferences
🌐follow Marie-Anne Frison-Roche on LinkedIn
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► Full Reference: M.-A. Frison-Roche, "Le renforcement des engagements de Compliance par le renvoi Ex Ante à l'arbitrage international" ("Reinforcing Compliance commitments by referring Ex Ante to International Arbitration"), in L. Aynès, M.-A. Frison-Roche, J.-B. Racine and E. Silva-Romero (dir.), L'arbitrage international en renfort de l'obligation de Compliance (International Arbitration in support of the Compliance Obligation), Journal of Regulation & Compliance (JoRC) and Institute of World Business Law of the ICC (Institute), Conseil Économique Social et Environnemental (CESE), Paris, February 9, 2024
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🧮see the full programme of this event
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🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)
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🔲see the slides used to support the presentation (in French)
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📝This conference and the Working Paper on which it is based are to be linked with the article to be published in the book📘Compliance Obligation
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🎤see a presentation of the conference "Préalable : ce qu'est l'Obligation de Compliance" ("Prerequisite: what is the Compliance Obligation"), given at the same symposium
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🎤see a presentation of the conference "Préalable : ce qu'est un engagement" ("Prerequisite: the Commitment"), given at the same symposium
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► Presentation of the conference: It was initially planned that I would speak on the subject Le renforcement des engagements de Compliance par le renvoi Ex Ante à l'arbitrage international (Reinforcing Compliance commitments through the Ex Ante referral to International Arbitration), but it was agreed with the other organisers of the symposium that after defining the concept of the Compliance Obligation📎!footnote-3390 I would refocus my second speech, mentioned above, on what a Commitment is📎!footnote-3391, an essential prerequisite for dealing with the subject of International Arbitration in support of the Compliance Obligation. Developments on Reinforcing Compliance commitments through the Ex Ante referral to International Arbitration will appear in the forthcoming books: L'obligation de Compliance (in French), Compliance Obligation (in English). Nevertheless, if I had dealt with this subject, I would have raised the following points:
- The inclusion of an offer of arbitration in the field of Compliance implies considering it in a contract as well as in a non-contractual commitment, and studying which category of Compliance Obligation the offer may apply to.
- This insertion benefits from taking the form of a "graduated offer", in a crescendo organised by the company ex ante and offered to the stakeholders: conciliation, mediation and arbitration, in "circles of trust"📎!footnote-3387. This is supported by the current French amicable settlement policy.
- The result was that I had to prepare a long "preliminary" discussion of what a "commitment" is, without which it seemed difficult to talk in concrete terms about the effective insertion of an offer of arbitration if we did not know whether such links or words had a constraining effect on the person issuing them in relation to the person benefiting from them. After discussions with the other speakers, it became clear that it would be more effective to give a talk devoted solely to the question of the legal definition of commitment. We therefore decided to allocate this second speaking slot to the notion of commitment. Since the written words do not have the same constraints, it will take up the initial construction, insisting on the different supports, either compliance contracts, or associations with compliance clauses, relating to different Compliance obligations, in particular on information or audit or Vigilance📎!footnote-3388, because the company must have the legal power corresponding to the mission that the State entrusts to it through Compliance📎!footnote-3389.
- The offer must be carefully drafted to explain its purpose, and its organisation must prove the reality of this purpose: to give access to a judge to people affected by the company's activity, and not to block it.
- This will therefore be available in detail in the forthcoming books:
- M.-A. Frison-Roche (ed.), 📕L'obligation de Compliance
- M.-A. Frison-Roche (ed.), 📘Compliance Obligation
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Feb. 9, 2024
Conferences
🌐follow Marie-Anne Frison-Roche on LinkedIn
🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law
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► Full Reference: M.-A. Frison-Roche, "Préalable : ce qu'est un engagement" ("Prerequisite: the Commitment"), in L. Aynès, M.-A. Frison-Roche, J.-B. Racine and E. Silva-Romero (dir.), L'arbitrage international en renfort de l'obligation de Compliance (International Arbitration in support of the Compliance Obligation), Journal of Regulation & Compliance (JoRC) and Institute of World Business Law of the ICC (Institute), Conseil Économique Social et Environnemental (CESE), Paris, February 9, 2024
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🧮see the full programme of this event
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🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)
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🔲see the slides used to support the presentation (in French)
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🎤see a presentation of the conference "Préalable : ce qu'est l'Obligation de Compliance" ("Prerequisite: what is the Compliance Obligation"), given at the same symposium
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🎤see a presentation of the conference "Le renforcement des engagements de Compliance par le renvoi Ex Ante à l'arbitrage international" ("Reinforcing Compliance commitments by referring Ex Ante to International Arbitration") which was finally not pronounced but will be the subject of an 📝article in the forthcoming book 📘Compliance Obligation
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► Presentation of the conference: Having defined the Compliance Obligation in "Préalable : ce qu'est l'Obligation de Compliance" ("Prerequisite: what is the Compliance Obligation"), I set out to define what a commitment is.
No one doubts that commitments, as words, constitute facts that can engage the liability of companies if there are inconsistencies or lies. The question today is whether a commitment can constitute a legal act, binding in ex ante.
Companies make commitments either to fulfil their legal Compliance obligations, which is simply obeying the law, or to express their own wishes, either for themselves or for others. The cases are often confused, even though the scope is not the same.
If the commitment takes the form of a contract, Compliance is concerned if the contract is used as an Ex Ante Compliance Tool📎!footnote-3383, either if the entire contract has this purpose, or if a compliance clause is inserted, and an arbitration clause may be linked to it.
The commitment, a concept that comes more from the Economics of Regulation, was conceived between a Regulatory Authority and a Company: it is the unilateral decision of the Authority that gives legal force to the commitment. Case law confirms this (Conseil d'État (French Council of State)📎!footnote-3384 and Conseil constitutionnel (French Constitutional Council)📎!footnote-3385) and this is particularly clear in Competition Law, but it is also true of the convention judiciaire d'intérêt public - CJIP (French Judicial Public Interest Agreement).
If commitment is central to Compliance, particularly Vigilance, it is because Compliance Law is an extension of Regulatory Law📎!footnote-3386. The company is forcibly instituted by the Compliance regulator, particularly in value chains, or on digital spaces (DSA).
In drawing up a plan, the company is fulfilling its legal obligation. But if we were to consider that it is a commitment, then we would also have to consider that the plan is the result of its will, that it must consult the stakeholders in its preparation, but that the source of the plan is its will: the provisions are not stipulations, are not applications of the law, but unilateral voluntary provisions.
In this respect, and because its source is the will of the company (which does not prevent its co-construction), a plan could contain a "graduated offer" of arbitration.
This offer could be included in commitments that are less regulated by law, such as those made in the context of CSR.
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Feb. 9, 2024
Conferences
🌐follow Marie-Anne Frison-Roche on LinkedIn
🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law
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► Full Reference: M.-A. Frison-Roche, "Préalable : ce qu'est l'obligation de Compliance" ("Prerequisite: the Compliance Obligation"), in L. Aynès, M.-A. Frison-Roche, J.-B. Racine and E. Silva-Romero (dir.), L'arbitrage international en renfort de l'obligation de Compliance (International Arbitration in support of the Compliance Obligation), Journal of Regulation & Compliance (JoRC) and Institute of World Business Law of the ICC (Institute), Conseil Économique Social et Environnemental (CESE), Paris, February 9, 2024
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🧮see the full programme of this event
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🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)
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🔲see the slides used to support the presentation (in French)
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🎤see a presentation of the conference "Préalable : ce qu'est un engagement" ("Prerequisite: the Commitment"), given at the same symposium
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🎤see a presentation of the conference "Le renforcement des engagements de Compliance par le renvoi Ex Ante à l'arbitrage international" ("Reinforcing Compliance commitments by referring Ex Ante to International Arbitration") which was finally not pronounced but will be the subject of an 📝article in the forthcoming book 📘Compliance Obligation
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► Presentation of the conference: I have first dealt with the very definition of the Compliance Obligation.
After showing that the relationship between Compliance Law and International Arbitration will naturally develop, because the companies subject to it are international, because they contractualise their legal Compliance obligations and because Compliance is being jurisdictionalised📎!footnote-3379, the arbitrator being the natural judge since he is a global judge and the judge of the contract, I pointed out that Compliance Law does not simply entrust arbitration with the task of preventing evils, such as corruption pacts, but that it creates positive obligations for companies: to detect and prevent behaviour whose systemic effect is deleterious.
This culture of compliance is achieved either through compliance contracts📎!footnote-3380 (which outsource the handling of audits, alerts, the drawing up of plans, etc.), or through compliance clauses📎!footnote-3380, which are inserted into distribution or supply contracts, etc.; arbitration clauses are linked to these. Thus, the alliance between Compliance and Contract is an indirect mode of alliance between Arbitration and Compliance Obligation.
The obligation of Compliance which then takes concrete form consists for the company not in making effective Ex Ante all the regulations which apply to it (conception of conformity which is at once unreasonable, blind and impossible), but in making its best efforts, which it must make visible (see Compliance Evidence System📎!footnote-3381) to achieve Monumental Goals.
These Monumental Goals are systemic. The aim is to protect systems from collapse (Negative Monumental Goals) or to make them better (Positive Monumental Goals)📎!footnote-3382. By making companies accountable, via this Ex Ante Law whose object is the future, the systemic evils of corruption, money laundering, discrimination, climate change and hatred are combated, thus finding substantial unity. The Positive Monumental Goals aim to engender sustainability, security, respect for human beings, etc. in systems, be they banking, financial, digital, climatic, etc.
The role of the Judge, and therefore also that of the Arbitrator, is renewed.
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Feb. 3, 2024
Interviews
► Référence complète : Ch. Lapp, "L’usage par les entreprises des outils de la compliance (d’une façon non-mécanique)", entretien mené par M.-A. Frison-Roche à l'occasion d'une série d'entretiens sur le Droit de la Compliance, in Fenêtres ouvertes sur la gestion, émission de J.-Ph. Denis, Xerfi Canal, enregistré le 12 décembre 2023, diffusé le 3 février 2024
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🌐consulter sur LinkedIn la présentation de l'interview de Christophe Lapp
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🌐consulter sur LinkedIn le compte-rendu de l'interview de Christophe Lapp
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🎥visionner l'interview complète sur Xerfi Canal
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► Point de départ : En 2023 Christophe Lapp écrit une contribution sur 📝La compliance dans l'entreprise : les statuts du process, dans 📕La juridictionnalisation de la Compliance.
🧱lire la présentation de cette contribution ➡️cliquerICI
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► Résumé de l'entretien :
Marie-Anne Frison-Roche. Question : Dans votre article vous affirmez qu’« il faut dépasser la conformité pour aller vers la Compliance », pouvez-vous nous en dire plus ?
Christophe Lapp. Réponse : Il répond que
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MaFR. Q. : On dit souvent que la Compliance est perçue comme une perte de compétitivité. Quel est votre point de vue de praticien international ?
Ch.L. R. : Il répond que
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MaFR. Q : Certaines entreprises s’interrogent sur l’over compliance ; que leur répondre ?
Ch.L. R.: Il répond que
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Feb. 1, 2024
Teachings
🌐follow Marie-Anne Frison-Roche on LinkedIn
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► Full Reference: F. Ancel & M.-A. Frison-Roche, Droit de la compliance (Compliance Law), École nationale de la magistrature - ENM (French National School for the Judiciary), in collaboration with the École de Formation professionnelle des Barreaux du ressort de la cour d'appel de Paris - EFB (Paris Bar School), Paris, February 1 and 2, 2024
This teaching is given in French.
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► Presentation of the Teaching: The aim of this two-day conference is to enable judges and lawyers to grasp the issues, objectives and methods that define Compliance Law as it is practised in companies.
The speakers will illustrate the growing trend towards litigation, which is difficult to reconcile with the supranational dimension, or even indifference to territories, for example when disputes concern systemic climate or digital issues: the result is a renewal of the role of the judge and the role of lawyers.
This must be set against the renewal of the role and operation of companies themselves.
This is analysed from the perspective of Civil Law, in particular Contract Law and Liability Law. Company Law and Criminal Law are also addressed, as well as the way in which the legal system now integrates governance, regulation, climate and digital issues and the smooth operation of financial markets through Compliance techniques.
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► Organisation of the Teaching: This conference is divided into two parts.
The first day is designed as a presentation of the major themes through which Compliance Law crosses the branches of traditional Law. The speakers will be professors of Law who will successively summarise the branches of Law and put into perspective the way in which Compliance imperatives give rise to new situations, new difficulties and new solutions.
This enables the second day to focus on practical and topical issues and to debate controversial questions between people of different sensibilities. The participants tend to be judges, members of regulatory authorities, lawyers, members of associations and so on.
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► Enrolment procedure: The course is open to all judicial and consular magistrates, as well as lawyers.
Registrations can be made directly with the ENM or with the EFB.
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► Speakers :
🎤François Ancel, Judge at the Première Chambre civile de la Cour de cassation (First Civil Chamber of the French Court of cassation)
🎤Thomas Baudesson, Attorney at the Paris Bar, Partner at Clifford Chance
🎤Guillaume Beaussonie, Full Professor at Toulouse 1 Capitole University
🎤Jacques Boulard, Premier Président de la Cour d’appel de Paris (First President of the Paris Court of Appeal)
🎤Marie Caffin-Moi, Full Professor at Paris Panthéon-Assas University
🎤Malik Chapuis, Judge at the Tribunal judiciaire de Paris (Paris First Instance Civil Court)
🎤Lucie Chatelain, Advocacy and Litigation Manager - Civil Liability of Parent Companies, Sherpa
🎤Jean-Benoît Devauges, Directeur Juridique, Ethique et Gouvernance des entreprises (Legal, Ethics and enterprises governance Director), MEDEF
🎤Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC)
🎤Arnaud Gossement, Attorney at the Paris Bar, Partner at Gossement Avocats
🎤Thibault Goujon-Bethan, Full Professor at Jean Moulin Lyon 3 University
🎤Christophe Ingrain, Attorney at the Paris Bar, Partner at Darrois Villey Maillot Brochier
🎤Isabelle Jegouzo, Director of the Agence française anticorruption - AFA (French Anti-Corruption Agency)
🎤Anne-Valérie Le Fur, Full Professor at Versailles Saint-Quentin-en-Yvelines University
🎤Charlotte Michon, Attorney at the Paris Bar, partner at Charlotte Michon Avocat
🎤Jean-Baptiste Racine, Full Professor at Paris Panthéon-Assas University
🎤 Jean-Christophe Roda, Full Professor at Jean-Moulin Lyon 3 University
🎤Jérôme Simon, 1er Vice-Procureur Financier (First Financial Vice-Prosecutor)
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🧮read below the programme put together and organised by François Ancel and Marie-Anne Frison-Roche, as well as the reports of each presentation⤵️
Feb. 1, 2024
Conferences
🌐follow Marie-Anne Frison-Roche on LinkedIn
🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law
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► Full Reference: M.-A. Frison-Roche, "Compliance et Responsabilité civile : comprendre et raison garder" ("Compliance and Civil Liability: understanding and keeping our heads"), in Droit de la compliance (Compliance Law), École nationale de la magistrature - ENM (French National School for the Judiciary) in collaboration with the École de Formation professionnelle des Barreaux du ressort de la cour d'appel de Paris - EFB (Paris Bar School), Paris, February 1, 2024.
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► This conference is given in French.
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🧮see the full programme of this event (in French)
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🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)
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🔲see the slides used to support the presentation (in French)
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📝This conference and the Working Paper on which it is based are to be linked with the article to be published in the book📘Compliance Obligation
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🎤see a presentation of the conference "Droit de la Compliance : tour d'horizon" ("Compliance Law: overview"), given at the same symposium
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► Presentation of the conference : It is difficult, even artificial, to separate the presentation of the relationship between Compliance Law and Civil Liability from the consideration given in Compliance to Criminal Liability, sanctions and the whole contractual organisation. But, if only for reasons of time, this will be done.
The chosen method consists of using decisions handed down either under Compliance Law, an emerging branch of Law of which an overview has been given before📎!footnote-3362, or under Special Liability Laws, such as Company Law (but here too the field of analysis is huge), or under Ordinary Civil Liability Law. The latter is often the preferred approach.
It always seems that civil liability and Compliance Law are both intimate and have a difficult relationship. To understand them, before embarking on crusades in one direction or another, it is technically necessary to look at the liabilities attached to the application of "compliance regulations" imposed on economic operators, who contractualise the resulting legal obligations and whose third parties may also rely on breaches on the grounds of civil liability. This is the first stage of the analysis. Much is made of the Vigilance technique. Even if this is the advances point of Compliance, we also need to look at the GDPR, the French co-called "Sapin 2" law, Anti-Corruption, etc.
However, civil liability is not the same depending on whether the obligation, legal and/or contractual, in relation to which it arises as a cause of action, gives rise, depending on the case, the text and the person, to an obligation of means or an obligation of result. If there is one principle to bear in mind, particularly in the mind of the judge, it is that, unless a text or clause provides otherwise, an obligation is an obligation of means.
This essential question raises the need to better define the "Compliance Obligation", which consists of prevention and detection, with the economic operator making his "best efforts" with regard to the monumental goals to which the various regulations (thus finding their unity) are normatively anchored. The Ex Ante evidential dimension thus comes to the fore.
In the second part of the analysis, which continues to be based on court decisions, we need to measure the "points of contact" between these "special compliance responsibilities" and the Ordinary Law of Civil Liability. Indeed, because this is a profound movement that runs through the entire legal system, expressing a social demand that distinguishes Western law from the rest of the world, Ordinary Liability Law has long had a preventive dimension and targets operators in a different way, not only because of their power, but also because of their "mission". This is expressly stated in the case law, and these points of contact do not justify opposing the two branches. It would only be if Compliance Law were confused with its instrument, "conformity", and if new principles were invented in an Ordinary Law, that clashes could arise.
In the third stage of the analysis, which can be applied to the principles at stake today, it should be remembered that while there is no general Compliance Obligation under Ordinary Law, which implies detecting and preventing for oneself and for others any breach of any applicable regulation likely to harm others, there is a principle of freedom, as the Conseil constitutionnel (French Constitutional Council) regularly reminds us. Unless we change the legal system so that people become nothing more than subjects who obey all regulations and let it be seen that they do so, with the judge's role being limited to punishing them for not doing so. Indeed, the principle of freedom remains the foundation both of the Ordinary Civil Liability Law (and not of repression, as in Chinese Law) and of the Special Law of Compliance (and not of conformity, as in Chinese law).
In conclusion, it appears that the evolution of Civil Liability, in particular due to the spirit of a Compliance Law that is articulated with it, is leading to a twofold movement: from Ex Post liability to Ex Ante responsibility📎!footnote-3363, and from Liability to Accountability.
To accompany this movement, alliances are being forged and must be fostered, which brings Compliance Law face to face with Competition Law, alliances often forged by contract and for which the role of the judge is being renewed, particularly through mediation techniques.
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Feb. 1, 2024
Conferences
🌐follow Marie-Anne Frison-Roche on LinkedIn
🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law
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► Full Reference: M.-A. Frison-Roche, "Droit de la compliance : tour d'horizon" ("Compliance Law: Overview"), in Droit de la compliance (Compliance Law), École nationale de la magistrature - ENM (French National School for the Judiciary) in collaboration with the École de Formation professionnelle des Barreaux du ressort de la cour d'appel de Paris - EFB (Paris Bar School), Paris, February 1, 2024.
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► This conference is given in French
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🧮see the full programme of this event (in French)
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🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)
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🔲see the slides used to support the presentation (in French)
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🎤see a presentation of the other speech about "Compliance et Responsabilité civile : comprendre et raison garder" ("Compliance and Civil Liability: understanding and keeping our heads"), given at the same symposium
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► Presentation of the conference: Compliance Law is mysterious in itself, because it is still in creation📎!footnote-3241, because its presence and power are felt, but it is difficult to grasp it. It is necessary, however, because it deals with the most important, even the most dramatic, facts and carries with it the greatest ambitions. Magistrates must also "make the effort" to participate in the "adventure of Compliance Law", because it affects, and even overturns, all subjects, and because the Prosecutor and the Judge play an increasing role in it📎!footnote-3242.
Because the purpose of this conference is to introduce the two days of a training course designed for magistrates and open to lawyers, it only provides an "overview" of, so that we do not get lost in the sprawling regulations, the global mechanisms and the political ambitions that permeate them.
Therefore, without going into any of the subjects, it is about opening up four ways of entering what is a branch of Law that is being born before our eyes:
1. Understanding Compliance Law through "regulations"
2. Understanding Compliance Law through "tools"📎!footnote-3243
3. Understanding Compliance Law through "methods"
4. Understanding Compliance Law through "goals"📎!footnote-3244
The four approches are legitimate because the four dimensions are articulated in the legal system, notably case law.
But the more positive Law is consolidated, the more its normativity through the goals that give normativity, or even a simplicity without which the whole is not humanly controllable.
These Goals are Monumental and Europe bears them more and better than other areas of the world📎!footnote-3245.
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