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Full reference: Frison-Roche, M.-A., Describing, conceiving and correlating compliance tools, in order to use them adequately, in Frison-Roche, M.-A. (ed.), Compliance Tools, series Regulation & Compliance, Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 9-32.

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Summary of the article: The article is the general introduction to the book on Compliance tools. In its first part it develops the overall problematic. In its second part, it presents each of the contributions, placed in the overall construction of the work.

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Read a general presentation of the book in which this article has been published.

Full Reference : Frison-Roche, M.-A..,Rights, primary and natural Compliance Tools, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 319-342

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Article Summary: In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools".

But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law.

We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space.

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Read the bilingual working paper, with additional developments, technical references and hyperlinks, on which this article is based 

Read the General Presentation of the book in which this article has been published

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► Full reference : Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals", in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, pp. 35-46

Summary of the article : The "tools of Compliance" do not stack on top of each other. They form a system, thanks to a unity drawn from the goals that all these multiple and different tools serve: the "Monumental Goals" by which Compliance Law is defined.

All these tools are configured by these goals and for mastering all these techniques, it is essential to put them all in perspective of what Compliance Law is, which is designed teleologically with regard to its goals. Extension of Regulatory Law and like it, Compliance Law is built on a balance between the principle of competition and other concerns that public authorities claim to take care of. Compliance Law has moreover more "pretensions" in this respect, for example in environmental matters. All the means are then good, the violence of the tools marrying without difficulty with the voluntary commitments since it is the goals which govern this branch of Law.

As legal solutions adopted show, a common method of interpretation and common levels of constraint for all Compliance Tools result from this definition. Starting from the goals (in which legal normativity is housed), the interpretation of the different tools is thus unified. Moreover, the different degrees of constraint do not operate according to the consideration of sources (traditional legal criterion) but by the goals, according to the legal distinction between obligations of means and obligations of results which result from the articulation between tools, of which the establishment is an obligation of result, and the goal, of which the achievement is only an obligation of means.

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📝 Read the bilingual working paper on which rely this article.

📝 Read a general presentation of the book in which this article has been published.

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► Full Reference: Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) & Bruylant, 2021.

This book in English is the first title of this collection integrally dedicated to Compliance Law, in that it is the extension of Regulation Law. 

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📚  Read the titles of this series in English co-published by Bruylant. 

📚   This collection in English is articulated with a collection co-published between the Journal of Regulation & Compliance and Dalloz.

📕Thus, in parallel, a book in French, Les Outils de la Compliance is published. 

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📅   This book is published after a  cycle of colloquiums organised by the Journal of Regulation & Compliance (JoRC) and Partners Universities.

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► General Presentation of the collective book: The political dimension of Compliance Law lies in the goals it aims to achieve. To achieve them, the concern for these goals is internalized in "crucial operators", which may be obliged to concretize "monumental goals" set by public authorities. These public bodies control the Ex Ante reorganization that this implies for these companies and sanction Ex Post the possible inadequacy of the companies, which have become transparent to this end. The effectiveness and efficiency of this internalization, without which the statement of these goals is worth nothing, is based on the Compliance tools that are deployed.

These appear to be very diverse but their substantial unity (topic which will be the subject of a forthcoming book) makes it possible to study the tools put in place from a unique perspective, by not isolating them in a particular branch of Law, Criminal law or International Law for example, but by measuring what is common to them, notably Anticipation, Trust, Commitment, Responsibility, Incentive, and so on. If the Compliance tools vary, it is rather not only according to the sectors, finance and banking appearing then as the advanced point of the general Compliance Law, for example in environmental matters, but also according to the countries and the cultures. It is in fact about them that legal cultures seem to oppose.

The book aims to understand these "tools" by going beyond the description of each instrument, for which we already have many monographs, for analyzing them through the issues of Risks, required Expertises, Training. Sovereignty claims, Incentives, mechanical aptitude of Technologies. It is through these themes that are analyzed by the authors, experts in the field, what we always want to understand better: Compliance Programs, Whistle blowing, Mapping, Sanctions, Extraterritoriality, etc.

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Read the summary of the book. 

Read the foreword, summarizing all the contributions.  

Présentation of the book contributions:

📝Amico, Th., Compliance or the passage from ex post to ex ante: A Copernican revolution for the criminal lawyer?

📝Banck, A., The maturity of the Compliance tool’s user, first criterion of the choice of the salient tool

📝Burlingame, Coppens R., Power, N, Lee, D.H., Anti-Corruption Compliance: Global Dimension of Enforcement and Risk Management

📝Calandri, L., Incentive(s) and Self-Regulation(s): which place for Compliance Law in the Audiovisual Sector? 

📝Causse, H., Compliance Training: Through and Beyond Traditional Legal Training

📝Frison-Roche, M.-A., Describing, designing and correlating Compliance Tools to have a better use of it

📝Frison-Roche, M.-A., Building by Law the Unicity of Compliance Tools from the Definition of Compliance Law by its "Monumental Goals"

📝Frison-Roche, M.-A., Drawing up Risk Maps as an obligation and the paradox of the "Compliance risks" ​

📝 Frison-Roche, M.-A., Incentives and Compliance, a couple to propel

📝 Frison-Roche, M.-A., Resolving the contradiction between sanctions and incentives under the fire of Compliance Law

📝 Frison-Roche, M.-A., Rights, primary and natural Compliance tools

📝 Frison-Roche, M.-A., Training: content and container of Compliance Law​

📝 Galland, M., The Regulator's Inspection of the Effectiveness of the Compliance Tools Implemented by the Company

📝 Granier, C., The Normative Originality of Compliance by Design

📝 Guillaume, N., Compliance risk mapping: first insights of challenges, limits and good practices

📝Guttierez-Crespin, A., Audit of Compliance Systems​

📝 Koenigsberg, S. and Barrière, F., The Development of Attorney's Compliance Expertise

📝 Larouer, M., The Manifestation of Incentives Mechanisms in French Compliance Law

📝 Merabet, S., Morality by Design

📝 Pailler, L., Technological Tools, Compliance by Design and GDPR: the Protection of Personal Data from Design

📝 Racine, J.-B., Geographical dominance in the choice and the use of Compliance Tools. Introductory remarks

📝Rapp, L., Incentive Theory and Governance of Space Activities

📝 Roda, J.-C., Compliance by design in antitrust: between innovation and illusion

📝 Salah, M., Conception and Application of Compliance in Africa

📝 Tardieu, H., Data Sovereignty and Compliance

📝 Thouret, T., Training and Compliance, Two Correlated Information Transmission Tools

Full reference : Frison-Roche, M.-A., Incentives and Compliance, a promising couple to increase the Compliance Law utility, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Régulations & Compliance", Journal of Regulation & Compliance and Bruylant, 2021, p. 141-148

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Summary of the article: The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times. 

First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means. 

In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.  

However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing... Secondly, and as if that were a kind of consolation ..., Compliance would not be really Law either ... We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place... Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is. 

To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive.

This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition.

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Read the bilingual work paper, with additional developments, technical references and hyperlinks on which this article is based

Read a general presentation of the book in which the article has been published.

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Full Reference: Frison-Roche, M.-A., Training: content and container of Compliance Law, in Frison-Roche, M.-A. (ed.), Compliance tools, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 245-264

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Summary of the article

Firstly, as Training is a specific Compliance tool, it is supervised by Regulators. It becomes mandatory when it is contained in Compliance programs or sanction decisions. Since effectiveness and efficiency are legal requirements, what is the margin of companies to design them and how to measure the result?

Secondly, as long as each Compliance tool includes, more and more, an educational dimension, we can take each of them to identify this perspective. So even condemnations and prescriptions are so many lessons, lessons given, lessons to be followed. The question is then to know who, in this so pedagogical Compliance Law, are the "teachers"?

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This article is based on a bilingual Working Paper, including additional technical developments, pop-up notes and hypertext links.

Consult an overview of the volume in which the article was published.

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Full reference: Frison-Roche, M.-A., Resolving the contradiction between "sanction" and "incentive" under the fire of Compliance Law, in Frison-Roche, M.-A. (ed.), Compliance Tools, series "Regulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 101-112

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Summary of the article: Compliance and Incentives appear at first glance to be totally opposite. For two major reasons. Firstly, because sanctions have a central place in Compliance Law and that the incentives suppose an absence of constraint on the operators. Secondly, because the incentives are linked to self-regulation and that Compliance Law assumes a strong presence of public authorities. Thus, one should choose: either Compliance or Incentives! Either the effectiveness of one or the effectiveness of the others; either the techniques of one, or the techniques of others; either the philosophy of one or the philosophy of the other. Resign oneself to the waste that such a necessary choice would imply. But to put the terms in this way amounts to thinking poorly about the situations and reducing the fields of the solutions they call for. If we take a rich definition of Compliance Law, we can on the contrary articulate Compliance and Incentives. From this perspective, sanctions can no longer become what blocks the use of incentives but, on the contrary, what constitutes them. Even more, the coupling between the Incentives and the requirements of Compliance Law must be strongly encouraged, as soon as the public authorities supervise in Ex Ante all the initiatives taken by the "crucial operators".

This working document deals with the first issue. Indeed, the so-called incentive theory targets mechanisms which do not directly resort to constraint. They would therefore have little place in Compliance Law. But it seems saturated with sanction procedures. We can even say that it seems to put them at the center, the public authorities presenting the number of sanctions as a sign of success, while the companies seem obsessed with their prospects, the two concerns ending in such a strange convergence that are the Convention Judiciaire d'Intérêt Public (non-prosecution agreement).

The honest observer cannot help but be immediately uneasy. Indeed, it can only raise the definition of the sanction as a "constraint" triggered Ex Post, at the very heart of a Compliance Law which is presented as a set of Ex Ante mechanisms. Based on this contradiction in terms, should we give up the association and think that it would be wrong against the spirit to think of the sanction as an incentive?

It is undoubtedly in this connection that one perceives most clearly the clash of two cultures, which do not communicate, while technically they apply to the same situations. Indeed, because Compliance was designed by Finance, everything is a tool for it. Therefore, the tendency to think of the sanction only as an incentive is very strong in Compliance Law, manifests itself continuously and will not stop (I). But whatever the reasons for conceiving it this way, the principles of the rule of law cannot disappear and if we do not want them to be erased, then they must be articulated (II). This is an essential game (II).

This is why we can literally say that Compliance has set Criminal Law on fire by its conception, logical but closed in on itself, of sanctions as simple incentives. In order for Law to remain, however, we must hold a very firm definition of Compliance Law centered on its Monumental Goal, which is the protection of the person.

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Read the bilingual working paper, with additional developments, technical references and hyperlinks, on which this article is based.

Read a general presentation of the book in which this article is published.

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General reference : Frison-Roche, M.-A., Drawing up Risk Maps as an Obligation and the paradoxe of the "Compliance Risks", in Frison-Roche, M.-A. (ed.), Compliance Tools, serie "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Bruylant, 2021, p. 61-72

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Summary of the article :

There are few synthetic or theoretical studies on Risk Mapping even though it is in fact the Compliance central tool, perhaps because it is more a management tool than a legal one. Risk Mapping is often described but does not receive any other legal qualifications than being a "modality", suffering in this respect from an evil which affects the whole of Compliance, still little understood by Law, attention often so focused on the Ex Post (sanctions) while Compliance is by nature in the Ex Ante. Going from disarray to incomprehension, everyone can note the existence of "compliance risks" among the mapped risks, because if as so many affirm that it would be necessary to speak only of simple conformity as obedience, demonstrated in Ex Ante, to Law, how a sub-set of a tool would therefore have the same object as the set of Law that this tool serves ... This aporia can only be resolved if Compliance Law is defined substantially by its "monumental goals" which exceed obedience to regulations.

Consequently, Law taking up Risk Mapping, this mechanism may first appear as an ancillary obligation to the main obligation consisting in achieving "monumental goals". The ancillary obligation to draw up the maps is an obligation of result, while the main obligation to achieve the monumental goals is an obligation of means. These cartographies being very diverse and being only occasionally targeted by specific laws, it can also constitute only a legal fact or, through the play of various charters, a unilateral legal commitment. But it isnbecoming the basis of an autonomous legal obligation incumbent on enterprises in position to know certain risks, obligation referring to the existence of a subjective right tof knowing and measuring them ("right to be worried") which the third parties who are going to run them would hold, thus allowing them to choose to run them, or not.

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Read the bilingual working paper, with additional developments, technical references and hyperlinks, on which this article is based 

Read a general presentation of the book in which the article is published

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