Conferences [510]

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► Référence complète : M.-A. Frison-Roche, ""Compliance" et "conformité" : les distinguer/mieux les articuler", in 19ème Université AFCDP des DPO, Association française des correspondants à la protection des données à caractère personnel (AFCDP), Maison de la Chimie, 7 février 2025 de 8 heures à 16 heures 30

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► Full Reference: M.-A. Frison-Roche, Identifier et anticiper la pratique du Contentieux Systémique Émergent (Identifying and anticipating the practice of Emerging Systemic Litigation) ; Presentation of L’expérience des juridictions dans le Contentieux Systémique Émergent (Courts Experience in Emerging Systemic Litigation), in cycle of conference-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, 16 December 2024, 2pm.-6pm., Cour d'appel de Paris, Première Chambre (First Chamber).

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🧮see the full programme of this event

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⚙️This event has been conceived as a part of the cycle of conference-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche

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► English Summary of the conference: 

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► Full Reference: M.-A. Frison-Roche, "L'impact du contentieux systémique sur l'office du juge" ("The Impact of Systemic Litigation on the Judge's Office"), Centre de droit privé et Unité de droit judiciaire, Université libre de Bruxelles (ULB), 26 November 2024, Brussels

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The event was organised by Professors 🕴️Séverine Menetrey, 🕴️Michèle Grégoire and 🕴️Stéphanie Lagasse.

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🕴️🕴️Before the general debate with the audience, the conference were followed by the speechs of two discussants:

• 🕴️Benoît Frydman, professor of the ULB
• 🕴️Bénédicte Inghels, Advocate General at the Belgian Court of Cassation

 They spoke in a personal point of view and their words are not reported here.

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► English summary of this conference: The first part of this conference consisted in defining what "systemic litigation" is. This concept was proposed in 2021: it refers to the hypothesis in which a system is involved in a dispute, and the judge's role is to take into account the interests of these systems which, however diverse they may be, all have similar interests. These identical interests are mainly future interests, which consist in not disappearing, the principle of sustainability being common to all the systems involved.

🔴on this notion proposed in 2021: 🕴️mafr, 🚧The Hypothesis of the Category of Systemic Cases brought before the Judge, 2021

Once this definition has been shared, the challenge for judges, who are often general law judges, particularly civil law judges, is how to deal with this new type of litigation. The first challenge is an institutional one. The emergence of systemic litigation justifies the creation of specialised chambers, which are linked to or reflect the specialisation of judges, itself linked to their ad hoc training.

🔴on the judges training, see the cycle on the Contentieux Systémique Émergent - CSE (Emerging Systemic Litigation - ESL) : 🕴️mafr, 🎤L'Émergence du Contentieux Systémique (Emergence of Systemic Litigation), 2024

The second issue is procedural. Judges need to adapt pre-trial procedures and find ways of knowing and understanding how systems work, before they can listen to their needs. But there are many people who claim to represent these needs: the classic question of the quality and interest for the people to be admitted to go before the court is central in systemic litigation. The first court decisions are rightly cautious, because it is so easy to want to defend the future interests of a system... But the judge must remain in control of the proceedings, and not allow the litigants to appropriate the systemic issue, for which the judge must innovate, in particular through the recourse he may choose to make to amici curiae.

The third issue is the art of judging, in this case the art of deciding, because it is difficult to judge the future, to judge a system, and this need to decide the future is normally the role of the Legislator. However, judges must respond to the new demands built before them, both before the lower courts and the higher courts. Here again, prudence must guide them in deciding.

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🌐read  the report of this conference published on LinkedIn

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► Full Reference: M.-A. Frison-Roche, "Synthèse" ("Synthesis"), in M.-A. Frison-Roche (dir.), Dans l’espace de justice, les pratiques juridictionnelles au service du futur (In the Space of Justice, Jurisdictional Practices at the Service of the Future), in Cour de cassation, cycle of conferences "Penser les pratiques juridictionnelles au service d’un espace de justice" ("Thinking about jurisdictional practices in the service of an area of justice"), 21 November 2024, 4pm.-6pm.

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🧮see the program of this manifestation (in French)

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► English summary of this conference:  The topic covered takes account of the fact that this scientific event comes almost last in this cycle of conferences Penser les pratiques juridictionnelles au service d’un espace de justice ("Thinking about jurisdictional practices in the service of an area of justice"). Indeed, 'jurisdictional practices' have previously been addressed insofar as they are 'at the service of a European area of justice' (February 2023), enlightened (March 2023), attractive (June 2023), interactive (September 2023), peacemaking (December 2023).

The approach here is different and complementary. The conference's starting point is the observation that, today, many new claims are made before Judges that relate directly to the Future. Admittedly, in their traditional role, Judges deal with the Future of disputed situations, but today it is the Future of Systems in their entirety that is sometimes submitted to them through a dispute or a claim. Moreover, they may be asked to find a systemic solution. The possible presence of future generations is just one sign of this change.

The courtroom may seem unsuitable for trials of such gigantic proportions, both in terms of their subject matter and their impact.

No doubt a distinction must be drawn between judges, some of whom may appear more familiar than others with the systemic issues that the Future brings with itself. Perhaps the judge's prudence should guide him/her in the use they make of their powers when they relate to the future, for example in the handling of sanctions, because the future by its very nature contains an element of the unknown, a fundamental prudence that the principle of the legality of offences and penalties expresses.

But the future is not a blank page and Judges, without inventing it, can, indeed must, monitor the coherence of those who write the legal rules, if they are constitutional judges, and of those who write contracts and commitments, if they are civil and commercial judges. In order to fulfill their role, particularly with regard to the demands of stakeholders, judges need to think about and deal with this new systemic object before them: the future.

To understand it, Judges draw on available jurisdictional practices, adjust others and combine them, using new methods.

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🧮see below the complete programme of this manifestation⤵️

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► Full Reference: M.-A. Frison-Roche, "Choix et embranchements de compétences lorsqu'un enjeu de vigilance est allégué" ("Choice and Branching of Jurisdiction when a Vigilance issue is Alleged"), in Le Droit processuel de la Vigilance (Vigilance General Procedural Law), in cycle of conference-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, November 18, 2024, 11h-12h30, Cour d'appel de Paris, Cassin courtroom

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🕴️An other speaker to this conference is Natalie Fricero, Emeritus Professor at Côte d'Azur University

🧮see the full programme of this event

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⚙️This event was conceived as part of the "Emerging Systemic Litigation" cycle of conference-debates, organized by the Paris Court of appeal, in conjunction with the French Court of cassation, the Versailles Court of appeal, the French National School for the Judiciary and the Paris Bar School, under the scientific direction of Marie-Anne Frison-Roche.

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► English Summary of the conference: This speech opens the conference. It therefore logically focuses on the question of "jurisdictional competence". It is divided into successive points which are progressively linked to each other.

The first point consists to insist on this rule : the organisation of the courts and their jurisdiction can never be detached from the substance of the matter in dispute. This explains why the issue of jurisdiction is such a source of passion for as long as the very definition of Vigilance remains so contentious, and why the 2021 legislature's belief that it could put out the fire has only served to exacerbate it.

The second point relates to the first proposed solution, i.e. maintaining the exclusivity of the Paris First Judicial Court, which is acceptable in principle because by specialising judges acquire a "technical competence" but which presents a very damaging "Bibendum risk".

The third point relates to the second solution proposed, namely the reference to the Motulskian notion of the 'basis of demand', which provokes a fork in the road, with the risk of interminable conflicts and divergent interpretations.

The fourth point is the need to find the best solution, i.e. the least bad solution, consisting above all of forming practical alliances, without requiring new texts, for this particular type of litigation which does not come under any branch of Law and which justifies a dialogue between the heads of the courts.

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🔓read the key points of this speech below ⤵️

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► Full Reference: M.-A. Frison-Roche, "Les spécificités à concevoir dans l'audience publique des contentieux systémiques de vigilance" ("The Specific Features of Public Hearings to conceive on Vigilance Systemic Litigation"), in Le Droit processuel de la Vigilance (Vigilance General Procedural Law), in cycle of conference-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, November 18, 2024, 11h-12h30, Cour d'appel de Paris, Cassin courtroom

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🕴️An other speaker to this conference is Natalie Fricero, Emeritus Professor at Côte d'Azur University

🧮see the full programme of this event

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⚙️This event was conceived as part of the "Emerging Systemic Litigation" cycle of conference-debates, organized by the Paris Court of appeal, in conjunction with the French Court of cassation, the Versailles Court of appeal, the French National School for the Judiciary and the Paris Bar School, under the scientific direction of Marie-Anne Frison-Roche.

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► English Summary of the conference: 

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► Full Reference: M.-A. Frison-Roche, "Considérer la géographie pour réussir le Devoir de Vigilance" ("Taking Geography into account for a successful Vigilance Duty"), concluding speech in Devoir de vigilance, quelles perspectives africaines ? Regards croisés en droit international, droit comparé et droit OHADA (Vigilance Duty : what African perspectives? Cross-analysis of International Law, Comparative Law and OHADA Law), Institut de Recherche en Droit des Affaires et du Patrimoine (IRDAP), Bordeaux, 15 November 2024.

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🧮see the full programme of this manifestation (in French)

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► English summary of this concluding speech: This concluding speech was made "on the bench", i.e. directly after listening to all the day's speakers. It is not, therefore, based on an a priori conception of the subject, but on the impression that emerged from the whole, as one speaker followed another.

The general impression is that these compliance instruments, of which the vigilance tool is the spurred head, are only appropriate if they fulfill the purpose for which they were devised and imposed, which presupposes that they are appropriate to the concrete situations to which they apply: to the country, to the legislation that shapes and expresses this country, to its economy, to its population.

There is certainly room for improvement. But Vigilance legal instruments, like Compliance Law, are new mechanisms that are in the process of taking shape: we must seek to improve them and find solutions:

🧱🕴🏻mafr, 🚧Duty of Vigilance: the way forward, 2024

This is not easy, especially if we get lost in the jigsaw puzzle of texts and decisions in which the vigilance technique fits, particularly at French, European and international level:

🧱🕴🏻mafr, 🚧Vigilance, a piece of the European puzzle, 2023

Listening to all the many and varied speakers, it is clear that progress needs to be made to ensure that the Vigilance instrument takes greater account of the concrete situations reflected in the various legal systems of African countries, and in particular the unified OHADA legal system.

It can be done, as long as everyone is willing to bear it in mind.

🧱🕴🏻J.-B. Racine, 📝Geographical dominance in the choice and the use of compliance tools. Introductory remarks, in 🧱🕴🏻mafr (ed.), 📘Compliance Tools, 2021

The speakers demonstrated that the good feelings of Paris or Brussels can pave the way for African hell, for example when about the children labour. The same is true of the fight against corruption, as Mohamed Salah showed.

🧱🕴🏻M.M. Salah ,📝Conception and Application of Compliance in Africa, in 🧱🕴🏻mafr (ed.), 📘Compliance Tools, 2021

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Meanwhile, listening to each other, it appears that often, despite using the same words, the speakers were not talking about the same thing, particularly not in terms of what the very term "Vigilance" refers to, the difference between the French and English being a challenge because "due diligences" are not the same than Vigilance duty . This is a sign that what we call a duty, or an obligation, or a spontaneous commitment, or a legal order criminally sanctioned, which are not at all the same thing, shows the immaturity of this notion of "Vigilance". What's more, we sometimes talk about the climate, or human rights, or the need to fight corruption or money laundering. These latter concerns are undoubtedly covered by texts classified under Compliance Law, some of which assert that Vigilance is the cutting edge, while others claim that Compliance is alien to or merely a component of Vigilance, because Vigilance embraces ethics, while Compliance is merely obedience to the norm ('conformity').

It is clear that the absence of an agreement on definitions is a handicap in practice, as we do not know which legal regime will apply. This uncertainty is problematic in practice because the regulations don't  lay down definitions which alone make it possible to deduce the outline of the obligations of each party, particularly not those of the companies, which ask for instructions for use. Companies receive contradictory interpretations for the same situation, depending on who you are dealing with (a regulator or an NGO for example) or depending on the text (a text specific to the industrial activity, a text specific to the country, or a text from the country of the ordering company on the duty of vigilance, or a text from ordinary contract law or a text that will come from a soft law that remains rather mysterious).

This uncertainty feeds the passion that surrounds the issue of vigilance, with everyone speaking out, the specialists who want to talk about it being suspected of being a technocrat or captured, and those who don't speak out being the local population for whom others speak out.

As a result, two phenomena are set to persist, which we had hardly anticipated but which are set to increase: the contractualisation of all vigilance mechanisms and the jurisdictionalisation of all vigilance organisation.

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The first phenomenon is the contracting of Vigilance. This contractualisation is the means by which companies have been carrying out their legal compliance obligations for years, using a contractual art that is becoming increasingly sophisticated.

We have very little information on these contracts, which are nonetheless what allow companies to obey the regulations and also to add to them, a combination of obedience and contractual freedom, the effects of which in practice have not yet been fully measured.

🧱🕴🏻mafr, 🚧Will, Heart and Calculation, the Three Traits Encercling the Compliance Obligation, 2024

🧱🕴🏻mafr (ed.), 📘Compliance and Contract, 2025

But they do raise essential questions. Firstly, they will bring back the jurisdiction of general courts , for example the commercial courts (tribunaux de commerce) in France, and the courts of the countries where the industrial operations take place: moreover, they are the natural route to international arbitration. They are a new type of contract, since they structure "value chains" (a managerial concept).

🧱🕴🏻mafr, 🚧Compliance Contract, Compliance Clauses, 2022

There are two key issues concerning these contracts: they directly concern African countries, their economic activity and their populations, as described throughout all the speeches.

The first is to know who governs the structural apparatus constituted by these 'regulatory contracts' through which chains of activity are built as durable structures. Who is strong and who is weak, between companies and states?

The second is to find out how much of the reality of the country and of local economic activity is taken into account by the subsidiary, and how much consideration is given to the local people involved: are the people who are actually involved really "taken into consideration" when we speak for them? Who is best placed to speak on their behalf, to defend them, to get to know them?

If we want to contextualise, refine and get to know the situation as closely as possible, in other words if we want to have definitions so that we know what we are talking about, but at the same time start from geographical and human realities, then it is the Judge who appears because the court starts from the facts.

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This is the second phenomenon that has emerged and is set to increase: the jurisdictionalisation of Vigilance.

🧱🕴🏻mafr (ed.), 📘Compliance Jurisdictionalisation, 2023

This is understandable, since the judge is able to take cognisance of the facts, the situation in Uganda or Tanzania, and what is often referred to as the "extraterritoriality" of the Compliance mechanisms being thus compensated for.

However, the exclusive jurisdiction of the Paris Court of First Instance (decided in France by a 2021 law) may become more difficult, as it is even further away from Africa than the ordering company is. But it is precisely the contract judges who can be called upon to rule on the basis of Contract Law.

This central role of the judge raises a number of procedural difficulties that have either not yet been resolved, moreover are not still being perceive

🧱🕴🏻mafr (dir.), 🧮Le Droit processuel de la Vigilance (Vigilance Genreral Procedural Law), 2024

At the interface between procedure and substance, evidentiary issues require the development of a new evidentiary system. When the relevant facts are in Africa but the company accountable for them is in France under legislation adopted in Europe, this must be taken into account.

🧱🕴🏻mafr, 📝The Judge, the Compliance Obligation and the Company. The Compliance Evidence System, in 🧱🕴🏻mafr (ed.), 📘Compliance Jurisdictionalisation, 2023

What's more, since the Monumental Goal is to prevent, manage and detect risks, it is the future that is the main object of proof. A difficult subject by its very nature of the future, which calls for caution. Caution is to be expected from Judges, who may prefer the solution of an agreement: the contract and the commitment come back, for example through mediation, among the methods of conflict resolution.

But as close as possible to where it happens, OHADA's courts can then be called upon to hear States and populations.

What is more, in contractualisation (at which point the two major phenomena, contractualisation and jurisdictionalisation, enter into a dialectic), the clauses work together to activate the natural judge of the international contract, including vigilance clauses: the international arbitrator.

🧱🕴🏻L. Aynès, 📝How international arbitration can reinforce the Compliance Obligation, in 🧱🕴🏻mafr (ed.), 📘Compliance Obligation, 2025

OHADA has institutional arbitration mechanisms.

Now is the time to guide them so that they open up Africa to Vigilance and open up Vigilance to Africa.

In concrete terms.

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► Full Reference: M.-A. Frison-Roche, "Entreprises assujetties au Droit de la Compliance : la charge de prouver la crédibilité de la trajectoire des actions entreprises à partir des structures mises en place" ("Companies subject to Compliance Law: the burden of proving the credibility of the course of action taken on the basis of the structures put in place"), in Les techniques probatoires adéquates dans le Contentieux Systémique Émergent (Appropriate Evidentiary Techniques in Emerging Systemic Litigation), in cycle of conference-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, October 14, 2024, 11am.-12.30pm., Paris Court of Appeal, Cassin courtroom

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🧮see the full programme of this event

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► English Summary of the conference : As developed below, the presentation shows that Systemic Litigation highlights what is incumbent on systemic companies: first and foremost, a permanent Evidential Obligation that they must satisfy with regard to stakeholders, in particular investors, partners, consumers and public opinion, whether or not there is a lawsuit. But it is essential to determine the purpose of this proof, the burden of which is permanent. It is a question of showing the efforts made on an ongoing basis by the crucial company to ensure that the system in which it operates does not collapse ("Negative Monumental Goal"), or even that it improves ("Positive Monumental Goal"). As these are inherently future factual goals, which is akin to impossible proof, it is a question of demonstrating "Credibility", i.e. showing that the structures put in place by the company and the behaviour already obtained by it, both internally and externally, generate a "trajectory" which can reasonably be expected to produce the effects expected by the Legislator which places obligations on companies. This is relevant whatever the systems involved, be they banking, financial, energy, climate, digital, etc., and whatever the monumental systemic goal targeted, be it the fight against corruption, money laundering, harmful climate change, the establishment of effective equality between human beings, respect for others, etc.

It is in this new conception that the traditional notions of the object of proof, the burden of proof, presumption, means of proof, exemption from proof, and above all the judge's evidentiary role, must be adjusted to the Systemic Litigation that is emerging.

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► Full Reference: M.-A. Frison-Roche, "Devoir de vigilance et litiges commerciaux : Anticiper l'"incidence" et s’organiser" ("Duty of vigilance and Commercial Litigation: Anticipating the "impact" and getting organised"), in L'incidence du devoir de vigilance sur les litiges commerciaux (The Impact of the Duty of Vigilance on Commercial Litigation), Tribunal de commerce de Paris (Paris Commercial Court), Droit & Commerce and Association Française en Faveur de l'Institution Consulaire (AFFIC), Tribunal de commerce de Paris, September 25, 2024, 17.15pm to 20pm

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🌐read the report of this speech on LinkedIn (in French)

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🧮see the full programme of this event (in French)

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🧱consult the scientific coordination sheet of this event

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🌐consult on LinkedIn a general presentation of this event (in French)

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► English Summary of the conference: After listening to the enlightening speeches of François Ancel and Jean-Christophe Roda, I had the great opportunity to emphasise, as they did, that the duty of vigilance, in the respect of French laws of 2017 and 2021, with a view to the transposition of the CS3D, does not imply, so brutally as has been said, a lack of knowledge by judges other than those of the Tribunal judiciaire de Paris (Paris First Instance Civil Court) of this new Law, which is the extension of Compliance Law, as François Ancel reminded us.

Because Commercial Court judges deal with Contract Law on a daily basis, and because companies build their value chains through contracts that should be described as "regulatory contracts", the duty of vigilance has an "impact" on these disputes.

These disputes may be of a "systemic" nature.

This can only result not in jurisdictional trenches, but in "shared jurisdiction", along the lines drawn by François Ancel. This sharing must be built through a dialogue between judges, a necessary method on which Patrick Sayer concluded this elaborate conference on an essential and forward-looking subject.

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► Full Reference: M.-A. Frison-Roche, "Comment s’adapter au Contentieux Émergent de la Compliance" ("How to adapt to Emerging Compliance Litigation"), in , Association nationale des juristes de banque (ANJB), September 19, 2024, Paris,

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This conference is being held with another speaker, Maître Jean-Pierre Picca.

It is followed by a discussion with the audience.

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🧮see the full programme of this manifestation

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► English Summary of this conference: Compliance Law is a new branch of Law, teleological in nature, whose legal normativity is rooted in its goals.These are systemic goals of preserving systems by detecting the risks that weaken them and preventing the failures that can destroy them. It is therefore an Ex Ante branch of Law, the implementation of which will weigh on the "entities" in a position to detect risks and prevent failures so that these systemic goals are achieved.  As such, they are "Monumental Goals" in that they are political goals aimed at complete systems. It is therefore essential to distinguish between "conformity Law", which simply consists of "complying" with the applicable regulations, and Compliance Law, which consists of contributing to the achievement of these "Monumental Goals", either by force (legal obligation) or by choice (raison d'être, company with mission, contractual obligation, CSR). In this respect, Compliance Law is both much more limited in its aims and much more ambitious, since it is about building the future rather than mechanically complying with regulations.

The banking sector, which can be considered an exception to the principle of Competition, which is based on extreme mobility and the absence of rents, the destruction of the weakest, risk-taking, the lack of solidity of the operator posing no problem, appears to be the paragon of the principle of Compliance, which is based on the sustainability of systems ensured by the solidity of the operators themselves, their solidarity, the exchange of information, and integrated supervisors. For example, the duty of vigilance and the information about others, and the Regulation through Supervision were born in this sector, which has internalised this sectoral concern in the banks, itself the bearer of a general concern, particularly in the European conception of continental banking. the European Banking Union  increasing this concern.

As a result, banks will internalise concerns about the future that go beyond safeguarding the banking sector, such as preventing systemic climate risk or educating the population or safeguarding people in vulnerable situations.

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The litigation that shall ensue is itself highly specific. The topic of this conference is to provide the keys to understanding how banks must play their part.

Emerging Compliance Litigation is systemic in nature. It is a reflection of the Ex Ante organisation whereby entities are asked to make a contribution to the achievement of Monumental Goals. In a dispute between two opposing parties, an individual or an NGO or a trade union or a municipality or a State and a bank, a conflict arises between what might be called the party claiming to represent the present and future interests of a system, for example the climate system or the social relations system, and the bank which has a legally imposed "compliance obligation" to help protect this system.

The author who described this perfectly was Chaïm Perelman, particularly in his 1978 book, Logique juridique, which describes audience circles.

We need to understand the systemic construction of the judicial instance.

The bank must not let to be confined itself solely to its role as litigant, while the other party, for example an NGO, in its role as guardian of "civil society" or the "climate system" or the "effective equality between human beings", going beyond this first circle between the litigants and brings the system itself into the proceedings. 

This is where the adaptation has to take place. 

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This adaptation is procedural, evidentiary and substantive.

The procedural adaptation must take place even before any litigation, since there is a continuum between Ex Ante and Ex Post, with the Judicial System itself being just one accountability method (rendering of accounts) among others. This accountability takes place in relation to a ‘mission’ that is entrusted to the banks in relation to the goals: prevention, detection and the fight against corruption, money laundering, climate change, etc., by building alliances, making good use of information (knowing how to take it, knowing how not to pass it on, knowing how to pass it on).

The procedure, i.e. the way in which something is done, must reflect a substantial element, in that it engenders a ‘sense of responsibility’: the purpose of Compliance Law is to ‘make powers accountable’ and to build on positions of power. The proper procedure is to make ‘good use of one's power’ for the benefit of others. Techniques for ‘taking others into consideration’ are an essential element. Consideration by the person who agrees to exercise power (the power to finance, the power to gather information, the power to organise together, the power to contract).

Evidentiary’ adaptation: indifference of evidentiary obligations and rights to the procedural position of the parties. The firm has a ‘Compliance Obligation’ even if it is the defendant in the proceedings. The object of proof is given to it by the Monumental Goals that the Law or its own will require it to help achieve. Its burden is to show that it is helping to achieve these goals, by acting for the future (for example, by knowing its customers, or by taking into account the interests of its stakeholders, etc.).

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► Structure of the speech: 

I. The current situation: suffering the harmful consequences of reducing Compliance Law to the mechanics of "conformity".

II. The opportunity for banks to adapt by understanding Compliance Law and going beyond the mechanics of conformity: the European puzzle, its apparent complexity, its architectural clarity (CSRD/CS3D/DSA).

III. The opportunity for banks not to allow themselves to be trapped in proceedings that are merely sanctions, transferred from Ex Post to Ex Ante: the emergence of Systemic Compliance Litigations before the Ordinary Law Courts (French Law of 2017 on Vigilance; Paris Court of appeal decisions of 18 June 2024).

IV. What is expected of banks in Systemic Compliance and Vigilance Litigations before the Ordinary Courts, reflecting the dialogue and action required by Compliance Law (article to be published). 

V. The opportunity for banks to adapt to the new evidentiary dimension of emerging Compliance and Vigilance Litigation (article to be published).

VI. The opportunity for banks to adapt to the new Ex Ante dimension of Systemic Compliance and Vigilance Litigation, Litigation which deals with the future (article to be published).

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► A few bibliographical references: 

🕴️M.-A. Frison-Roche, 📝Compliance Law, 2016

🕴️M.-A. Frison-Roche, 📝Compliance and conformity: distinguish them in order to articulate them, 2024

🕴️M.-A. Frison-Roche, 📝Duty of Vigilance: the way forward, 2024

🕴️M.-A. Frison-Roche, 📝Systemic Litigation, 2024

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► Full Reference: M.-A. Frison-Roche, participation to the round table "Le droit à l'enfant : réalité ou faux concept ?" ("The right to a child: reality or false concept?"), in Regards croisés sur les nouvelles filiations, Cour d'appel de Paris (Paris Court of Appeal), September 12, 2024

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🧮see the full programme of this event

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► Summary of the conference: 

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🌐follow Marie-Anne Frison-Roche on LinkedIn

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► Full Reference: M.-A. Frison-Roche, "Pourquoi les textes et la pratiques sur le rapport de durabilité vont engendrer un Contentieux Systémique" ("Why the texts and practices on sustainability reporting will give rise to Systemic Litigation"), in Le rapport de durabilité : obligation et Contentieux Systémiques Émergents (The Sustainability Report: Emerging Systemic Obligation and Litigation), in cycle of conference-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, September 19, 2024, 11h-12h30, Cour d'appel de Paris, Cassin courtroom

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🧮see the full programme of this event

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► English summary of the conference: Systemic Litigation refers to a specific category whose proposed category in 2021 refers to "cases" brought before the courts, sometimes specialised, sometimes under ordinary law courts: these are cases in which not only are the parties involved in their dispute but also a system is itself involved, with the procedure and the judge having to allow the interests of the system to be taken into consideration.

However, what is also the subject of new terminology, namely the "Sustainability Report", reflects the same legal revolution: the company must be able to assess not only its economic and financial performance, which is the subject of accounting, but also its development in terms of what it does externally in terms of ESG and what the outside world does about it.

In this perspective, the whole Information System is being transformed, and in different ways depending on the standards adopted, in the United States, Europe or elsewhere, either it is sufficient to obtain Information, no more, so that third parties can adjust their behaviour, mainly investments, or, as in Europe, Law includes a more substantial perspective, so that the company itself adjusts its own behaviour, its Governance, its position in the world, in a renewed relationship with its stakeholders. In Europe, saying and doing are intertwined, CSRD being twinned with CS3D.

Moreover, we can therefore consider that non-financial information, through the sustainability report, its assurance of credibility and the regulation of the audit carried out on it, is itself a system.

The sustainability report, inside the sustainability system, is then interwoven with other systems, which are themselves the subject of Emerging Systemic Litigation: firstly Vigilance, which has been studied as a field of systemic litigation, and then artificial intelligence field, which has been studied in the same way.

The Sustainability Report, insofar as it intersects with the sustainability obligation implied by the duty of Vigilance, may be attracted to the Systemic Litigation to which Vigilance gives rise. In the same way, algorithms can be a tool for data accumulating and matching ESG criteria, which could have the same attraction effect. If this happens, this dimension will have to be present and understood, for example through amici curiae mechanism, in conjunction with the Regulators and the professions concerned.

In addition, as in any emerging mechanism, and as we have seen for example in relation to rating agencies, Tort Law may interfere if the liability of either the company or the person who carried out the audit were to be appreciated, the systemic perspective then having to be integrated into the handling of the case, even before the non-specialised judge.

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► Full Reference: M.-A. Frison-Roche, "Les deux rencontres entre l'intelligence artificielle et le Contentieux Systémique" ("The two meetings between Artificial Intelligence and Systemic Litigation"), in L’intelligence artificielle, nouveau champ de Contentieux Systémique (Artificial intelligence, new field of Systemic Litigation), in cycle of conferences-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, June 24, 2024, 11am-12.30pm, Cour d'appel de Paris, Cassin courtroom.

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🧮see the full programme of this event

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► English Summary of the conference: In the general presentation on the theme itself, I underlined "The two meetings between Artificial Intelligence and Systemic Litigation".

The focus of this conference is not the state of what is usually called Artificial Intelligence, but rather how to correlate AI and "Emerging Systemic Litigation" (ESL).

This involves recalling what "Systemic Litigation" is (1), then looking at the contribution of Artificial Intelligence to dealing with this type of litigation (2), before considering that the algorithmic system itself can be a subject of Systemic Litigation (3).

1. What is the Systemic Litigation that we see Emerging?

On the very notion of "Emerging Systemic Litigation" (ESL), proposed in 2021, read : M.-A. Frison-Roche, 🚧The Hypothesis of the category of Systemic Cases brought before the Judge, 2021

Emerging Systemic Litigation concerns situations that are brought before the Judge and in which a System is involved. This may involve the banking system, the financial system, the energy system, the digital system, the climate system or the algorithmic system.

In this type of litigation, the interests and future of the system itself are at stake, "in the case". The judge must therefore "take them into consideration"📎!footnote-3679.

In this respect, "Emerging Systemic Litigation" must be distinguished from "Mass Litigation". "Mass litigation" refers to a large number of similar disputes. The fact that they are often of "low importance" is not necessarily decisive, as these disputes are important for the people involved and the use of A.I. must not overpower the specificity of each one. The fact remains, however, that the criterion for Systemic Litigation is the presence of a system. It may happen that a mass litigation calls into question the very interest of a system (for example, value date litigation), but more often than not the Systemic Litigation we see emerging is, unlike mass litigation, a very specific case in which one party, for example, formulates a very specific claim (e.g., asking for considerable work to be stopped) against a multinational company, and will thus "call into question" an entire value chain and the obligations incumbent on the powerful company to safeguard the climate system, which is therefore present in the proceedings (which does not, however, entitle it to make claims, but which must be taken into consideration).

2. The contribution of Algorithmic Power in the conduct of a Systemic Litigation

In this respect, AI can be a useful, if not indispensable, tool for mastering such Systemic Litigation, the emergence of which corresponds to a novelty, and the knowledge of which is brought before the Ordinary Law Judge.

Indeed, this type of litigation is particularly complex and time-consuming, with evidentiary issues at the heart of the case, and with expert appraisal following on from expert appraisal. Expert appraisals are difficult to carry out. AI can therefore be a means for the judge to control the expert dimension of Systemic Litigation, in order to curb the increased risk of experts capturing the judge's decision-making power.

The choice of AI techniques presents the same difficulties as those that have always applied to experts. It is likely that certification mechanisms, analogous to registration on expert lists, will be put in place, if we move away from construction by the courts themselves (or by the government, which may pose a problem for the independence of the judiciary), or if we want control over tools provided by the parties themselves, with regard to the principle of equality of arms due to the cost of these tools.

3. When it is the Algorithmic System itself that is the subject of a Systemic Litigation: its place is then rather in defense

Moreover, the algorithmic system itself gives rise to Systemic Litigation, in that individuals may bring a case before the courts claiming to have suffered damage as a result of the algorithmic system's operation, or seeking enforcement of a contract drawn up by the system. It is in the realm of the Ordinary Contract and Tort Law that the system may find itself involved in the jurisdictional proceedings.

It is noteworthy that, compared with the hypotheses hitherto favored in previous conference-debates, notably those of April 26, 2024 on Emerging Systemic Litigation linked to the Duty of Vigilance📎!footnote-3681, the systems involved have been taken into consideration more behind the claims articulated by the plaintiffs, since they allege that a system has been attacked. It would then be "civil society" acting against the company. In the case of the algorithmic system, the initial litigation is made up of allegations that accuse the system of infringing rights (e.g. copyright, right to privacy, etc.).

However, the instance changes if the system is no longer presented as the potential "victim" but rather as the potential "culprit". In particular, it is much less clear what type of intervener in the proceedings, who is not necessarily a party to the dispute, should speak to explain the system's interest, particularly with regard to the sustainability and future of the AI system.

This is an area for further consideration by heads of courts.

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► Full Reference: M.-A. Frison-Roche, Participation in the panel "Une Gouvernance responsable : vers un mieux vivre ensemble ?" ("Responsible governance: towards a better way of living together"), in Grenelle du Droit 5. L'avenir de la filière juridique, Association française des juristes d'entreprise ("The future of the legal profession"), AFJE), Cercle Montesquieu and Paris Panthéon-Sorbonne University, Campus Port-Royal Université Paris 1 Panthéon-Sorbonne, 1 rue de la Glacière, 75013 Paris, June 12, 2024

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🧮See the full programme of this event (in French)

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🎥watch the interview made just after this round-table discussion (in French)

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🪑🪑🪑🪑🪑 will also be taking part in this round-table discussion:

🕴️Yves Garagnon, Chairman of Dilitrust,

🕴️Pierrick Le Goff, lawyer, partner at De Gaulle Fleurance,

🕴️Sabine Lochmann, Chairman of Ascend,

🕴️Vincent Vigneau, President of the Commercial, Economic and Financial Chamber of the Cour de cassation (French Judicial Supreme Court)

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► English presentation of my intervention in this event's opening plenary  round-table: In this plenary round table which opens the event, devoted to the theme of 'responsible corporate governance', for my interventions based on my work I will have the opportunity to address more particularly these different perspectives:

• How the new Compliance Law, which gives concrete expression to the responsibility of enterprises in a new relationship with States and with civil society, constitutes a 'legal revolution
• 💡for the record, mafr,📝Compliance Law, 2016 ; (ed.) 📘Compliance Monumental Goals, 2022

• how the judgment handed down by the Tribunal judiciaire de Paris (Paris First Instance Civil Court) on 28 February 2023 (Total Ouganda case) is remarkable and already constitutes a turning point in case law
• 💡for the record, mafr, 🎤audition as amica curiae, hearing of 26 October 2022 before the first instance Paris Court; (ed)📘Compliance Jurisdictionalisation, 2024

• how the relationship between States and enterprises is being renewed by this profound legal movement expressed by Compliance Law
• 💡for the record, mafr et M. Boissavy (ed.), 📕Compliance et droits de la défense - Enquêtes internes, CJIP, CRPC, mafr (dir.), 📘 Compliance Obligation, 2025

• how internal lawyers have a decisive and central role to play in this movement, particularly in the mechanism of vigilance / corporate sustainability due diligence, the "cutting edge" of Compliance Law,
• 💡for the record, mafr, 📝Contract of Compliance, Compliance stipulations, 2023 ; (ed.), 📘Compliance and Contract, 2025

• what is meant by the "Ex Ante responsibility" of enterprises, which does not necessarily entail their Ex Post liability, a distinction which lawyers are the guardians of
• 💡for the record, mafr, 📝La responsabilité Ex Ante, pilier du Droit de la Compliance ("Ex-Ante Responsability, Compliance Law Pillar"), 2021

• how European Compliance Law is profoundly humanist, an identity that distinguishes European Compliance from American Compliance and, above all, from Chinese Compliance.
• 💡for the record, mafr (ed.), 📕Pour une Europe de la Compliance ("For the Europe of the Compliance"), 2017

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read the  article about this round table written by Delphine Bauer in Actu-Juridique (in French)

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► Full Reference: M.-A. Frison-Roche, "Le Contentieux Systémique Emergent du fait du système numérique ("emerging systemic litigation arising from the digital system"), in Les contrôles techniques des risques présents sur les plateformes et les contentieux engendrés (Technical controls on the risks present on platforms and the disputes that arise), in cycle of conferences-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, May 27,2024, 9h-10h30, Cour d'appel de Paris, Cassin room

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🧮see the full programme of this event

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🧮see the full programme of the entire cycle Contentieux Systémique Émergent (Emerging Systemic Litigation)

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🔲see the slides (in French), basis of this conference

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🌐read on  LinkedIn the summary of this conference les slides

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🎤read  the presentation of the second conference in this manifestation: "Un contentieux systémique in vivo : le cas dit des sites pornographiques" ("a Systemic Litigation in vivo: the case of pornographic prestations platforms")

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🧱read the general presentation of this scientific coordination of this manifestation and its various speechs

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🌐read on LinkedIn the summary of this manifestation in the Newsletter MAFR Regulation, Compliance, Law

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► Summary of this conference: This speech is a prelude to the three more specific speeches and aims to show how the digital system, by its very nature, produces and will produce "Systemic Litigation". 

Systemic Litigation" is defined by "cases" (a procedural notion) brought before judges, who may be judges of first instance, or possibly emergency judges, in which the interests, or even the future, of a system are involved beyond the dispute between the parties. 

This Systemic Case may be brought before a specialised judge, including the juridictional body of a Regulatory or Supervisory Authority, but also before a judge of ordinary Law, on the basis of a special text but possibly on the basis of a text of ordinary Law. This can lead to a fragmentation of litigation, even though the unity of the system remains, or even is at stake, in the present and in the future.

The "digital system" is an example of the "natural" production of Systemic Litigation which arise as a result of the Digital System alone, in particular because of the systemic risks inherent in this system, and the fact that their prevention and management are internalised in the operators who have built and manage the system (Compliance Law). The issue is therefore one of Interregulation.

Platforms in particular give rise to Systemic Litigation because of the specific nature of certain risks, for example disinformation, terrorism, destruction of rights (copyright being just one example), the risk of minors having access to content that is destructive for them, and so on.

Digital Systemic Litigation has only just begun.

It is essential that judges are prepared for this and that they face up to it together through dialogue.

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► Référence complète : M.-A. Frison-Roche, "Un contentieux systémique in vivo : le cas dit des sites pornographiques", in Les contrôles techniques des risques présents sur les plateformes et les contentieux engendrés, in cycle de conférences-débats "Contentieux Systémique Émergent", organisé à l'initiative de la Cour d'appel de Paris, avec la Cour de cassation, la Cour d'appel de Versailles, l'École nationale de la magistrature (ENM) et l'École de formation des barreaux du ressort de la Cour d'appel de Paris (EFB), sous la responsabilité scientifique de Marie-Anne Frison-Roche, 27 mai 2024, 9h-10h30, Cour d'appel de Paris, salle Cassin

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🧮consulter le programme complet de cette manifestation

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🧮consulter le programme de l'ensemble du cycle Contentieux Systémique Émergent

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🔲consulter les slides ayant servi de support à l'intervention

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🌐consulter sur LinkedIn les slides ayant servi de support à l'intervention

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🎤consulter une présentation de la seconde intervention de Marie-Anne Frison-Roche prononcée lors de cette conférence-débat : "Le contentieux Systémique Emergent du fait du système numérique"

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🧱consulter la fiche de coordination scientifique de cette manifestation, rendant compte des différentes interventions

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🌐consulter sur LinkedIn le compte-rendu de cette manifestation, publié dans la Newsletter MAFR Regulation, Compliance, Law

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► Résumé de cette conférence : 

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► Full Reference: M.-A. Frison-Roche, "Synthèse" ("Synthesis"), in Concurrence : les enjeux de la Compliance​, May 24, 2024, Paris, Collège européen de Paris, Paris Panthéon-Assas University, 28 rue Saint-Guillaume

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🧮see the full programme of this event (in French): 

🌐read the  la newsletter MAFR Law, Compliance, Regulation on 26 Mai 2024 about this colloquium and this synthesis (in English)

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► Summary of this concluding conference:The conference was based on the 'framework document' on conformity programmes published by the French Competition Authority, the Autorité de la concurrence, on 24 May 2022 and focused on one of the tools used, namely risk mapping. The care taken to bring together academics whose job it is to give an account of reality by classifying and naming it, which makes it easier to handle, and people who every day in enterprises find solutions to anticipate difficulties so that they can be resolved, or even prevented from arising, has borne fruit.

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From all the presentations and discussions, 4 perspectives emerge, each showing what has been achieved, what may still emerge in interaction with all the other mechanisms in Compliance Law that incorporate risk mapping (for instance ,the French 2016 so-called "Sapin 2" law, the French 2017 so-called "Vigilance" law, the CS3D European directive, etc.) and the other mechanisms that are correlated with risk mapping (audit, internal investigations, evidence likely to be raised before a judge by the enterprise and/or by a stakeholder and what remains uncertain in this 2022 framework document.

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The first perspective is the basis of these recommendations, encouragement, methods, advice, etc.

The second perspective is the means developed to establish and implement these compliance programmes.

The third perspective is the scope of this framework document, which also depends to a large extent on the scope of the compliance programmes adopted by the firms themselves.

The fourth perspective is that of the subjects of law who are obliged, or who benefit from the adoption of such  compliance programmes in Competition Law.

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During this conclusion, based solely on what each speaker had to say, I continued my reflections in each of these 4 directions.

This reminded me of some of my work made in English on this subject: 

• M.-A. Frison-Roche (ed.), 📘Compliance Tools, ,2022

• M.-A. Frison-Roche, 🚧 Support from Compliance Law for day-to-day management of Competition Law, 2021

• M.-A. Frison-Roche, 🚧 Competition Law and Compliance Law, 2018

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► Full Reference: M.-A. Frison-Roche, "Les voies d'innovations juridiques face aux nouveaux "défis climatiques" ("Innovative legal solutions to the new "climate challenges""), in C. Arnaud, O. de Bandt et B. Deffains (dir.), Nouveaux défis - Regards croisés : Droit, Économie et Finance. Quel Droit face au Changement Climatique ? (("New challenges - Crossed perspectives : Law, Economics and Finance. What Law in the Face of Climate Change?"), Banque de France (French Central Bank) and CRED/Paris Panthéon-Assas University, Paris, Centre de Conférence de la Banque de France, April 2, 2024

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🧮See the full programme of this event

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🔲see the slides, basis of this conference (in French)

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► Summary of this conference: In response to the question of how the Law can produce 'innovations' to meet the 'climate challenges', the process is based on the three traditional sources of Law, which are, firstly, laws and regulations, secondly, the commitments of individuals, mainly contracts, and thirdly, court rulings.

At first sight, the Law in its traditional conception and practice is weak in the face of climate change. This weakness is inherent in the nature of climate change, which is at once future, global and systemic, in the face of these three sources of Law, which do not address all three dimensions at once. The scale of the legal innovation required to ensure that one or more articulated sources can grasp the future, the global and the systemic is therefore clear. And yet this is what is happening.

As far as laws and regulations are concerned, they do not seem very appropriate because they are, by their very nature, a territorial limit, and international treaties are very difficult to negotiate. The interweaving of European regulations, for example the CSRD and the CS3D, which mirror each other, may be more effective. As far as 'commitments' are concerned, a concept which in Law is not very precise outside of contracts and liability cases📎!footnote-3568, contracts are above all a means for companies to fulfill their legal obligations, and a contract always implies a judge. At first sight, however, the judge is the least well placed to respond to 'climate challenges', particularly in France where he is said or wished to be powerless, where he rules on the past and where, especially the civil judge, he settles a one-off dispute between two singular parties.

But a major change has occurred with the emergence of a new branch of law: the Compliance Law, a teleological branch of Law whose legal normativity is lodged in the Monumental Goals📎!footnote-3572 that it pursues, namely the preservation of systems, for example the climate system. In France, the so-called "Sapin 2" law in 2016, followed by the so-called "Vigilance" law in 2017, illustrate this. And the Judge is at the centre of it all.

In this global, systemic, extraterritorial perspective, the object of which is the future - Compliance Law is, moreover, rejected by many legal experts - the legislative innovation is major. Indeed, the law of 23 March 2017, known as "Vigilance" designated large companies, because they are "powerful", because they are "in a position to act" to "detect and prevent" breaches of the environment and human rights. The 2017 law copied the "compliance tools"📎!footnote-3573 put in place by the Sapin 2 anti-corruption law: risk mapping, plans, alerts, audits, internal investigations, and so on. 

Only large companies are subject to the Compliance Law, notably the Vigilance Law, since they are the only ones in a position to act, in this case "parent companies or principals", and borders are no longer limits since the obligation, creating personal liability for the company📎!footnote-3574, extends throughout the "value chain". The notion and fact of "systemic dispute" is emerging before the courts. In France, the Paris Court of First Instance has exclusive jurisdiction. European legislation is proving more difficult to draw up, because although it is compulsory to provide information on these "extra-financial" subjects (CSRD), the directive on the duty of vigilance, which has just been adopted, does not go any further than the French law of 2017.

On the second point, that of commitments, we are only at the beginning. Judges do not transform ethical statements into "unilateral legal commitments", and vigilance does not transform company law into co-management. But contracts do form a global network through which companies adjust their various legal obligations. This is why arbitrators, the only "global judges", will soon be involved in this systemic litigation📎!footnote-3575, and more general case law is to come on "compliance contracts and clauses"📎!footnote-3576.

But the most innovative aspect undoubtedly comes from the courts. Perhaps and notably in France because it is from where we least expect it, the civil courts, that the imagination comes, but also the guarding of the great principles of the Rule of Law, because for the moment the case law is reasonable. This innovation has not come about proprio motu: the judges are not taking action, it is the NGOs that are conducting a kind of litigation policy, systematically giving formal notice to the major energy companies, but also to the major banks and insurers on climate issues, alleging non-compliance with their vigilance plans. The interim relief judge at the Paris Court of First Instance must then provide answers in systemic disputes, of which the so-called "Total Uganda"📎!footnote-3577 case is an example.

The courts are demonstrating a great deal of innovation. The Court of First Instance's interim relief judge has appointed amici curiae📎!footnote-3569, the Paris Court of Appeal has set up a specialised chamber📎!footnote-3570, and training conferences have been set up on this "Emerging Systemic Litigation"📎!footnote-3571.

In conclusion, Law is in the process of being rebuilt through a new branch of Law, Compliance Law, whose the very purpose, as an extension of and going beyond Regulatory Law📎!footnote-3578, is to preserve systems, in particular the climate system, in a profoundly renewed role for judges📎!footnote-3580.

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► Full Reference: M.-A. Frison-Roche, "L’émergence du Contentieux Systémique" ("Emergence of the Systemic Litigation"), in Importance et spécificité du Contentieux Systémique Émergent (Importance and specificity of the Emerging Systemic Litigation), in cycle of conferences-debates "Contentieux Systémique Émergent" ("Emerging Systemic Litigation"), organised on the initiative of the Cour d'appel de Paris (Paris Cour of Appeal), with the Cour de cassation (French Court of cassation), the Cour d'appel de Versailles (Versailles Court of Appeal), the École nationale de la magistrature - ENM (French National School for the Judiciary) and the École de formation des barreaux du ressort de la Cour d'appel de Paris - EFB (Paris Bar School), under the scientific direction of Marie-Anne Frison-Roche, March 29, 2024, 11h-12h30, Cour d'appel de Paris, salle Masse

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🧮see the full programme of this event

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🧮see the programme of the entire cycle Contentieux Systémique Émergent

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🌐consult on LinkedIn the report of this speech (in French)

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🌐consult on LinkedIn a general présentation of this event, which links to a presentation and a report of each speech (in French)

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🧱consult the scientific coordination sheet of this event, which gives an account of the various speeches made

____

🔲see the slides used to support this intervention (in French)

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🚧read the bilingual Working Paper which is the basis of this speech

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► English Summary of the conference: We are seeing the emergence of what should be referred to as a category of its own: the "Systemic Litigation". This concept, proposed in 2021📎!footnote-3521, refers to the hypothesis in which a system is 'involved' in a particular 'case' submitted to the judge. The presence of a system should not be confused with a systemic analysis of a phenomenon. The term 'cause' must be understood in the procedural sense, as used in article 5 of the Code civil (French Civil Code). Specifically, the prohibition contained in article 5 of the French Civil Code does not apply because a system thus involved calls for factual responses and solutions and not necessarily general and abstract solutions: the solution of a systemic nature and scope, that the presence of a system in a cause calls for, may be a factual solution, even if it radiates out from the system as a whole. But precisely because the presence of a system in the case often gives rise to a question that is itself systemic, the judge, if he wishes to comply with article 4 of the French Civil Code, must respond not only a minima by not evading the question, for example of systemic risks, but also fully by providing systemic solutions, for example remedies to preserve in the future the solidity and durability of the systems involved in the case. 

These systems may be of different kinds: banking, financial, transport, health, energy, digital, algorithmic or climatic. Their presence in cases brought to the attention of judges, the variety and difficulties of which will be seen in later contributions, leads to basic questions relating to the emergence of Systemic Litigation: firstly, how can Systemic Litigation be defined? Secondly, what makes this category of litigation emerge? The answers to these two questions have essential practical consequences. 

The new solutions must be based on a classic distinction, used in particular in criminal and administrative proceedings, which are more objective, but also in civil proceedings, notably by Hébraud, namely the distinction between the "party to the dispute/litigation" and the "party to the proceedings". Depending on whether it is accepted that the system should be considered as a "party to the litigation", which would allow it, through an entity that is legitimate in expressing it, to allege claims and formulate demands against an adversary, or as a "party to the proceedings", a much broader category, which would allow the judge to hear the interests of the systems involved without individuals being able, on behalf of a system, to formulate claims against or for the benefit of a party to the litigation.

This makes it possible to innovate while preserving the measure of which the judge is the guardian.

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► Full Reference: M.-A. Frison-Roche, "Discussion" ("Discussion"), in E. Renaud & L. Turcat (dir.), Regards sur la justice, 10ième séance, École normale supérieure (ENS), Paris, Salle Dussane, 45 rue d’Ulm, 75005 Paris, April 24, 2024

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🧮See the full programme of this event

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► Presentation of the conférence: 

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► Full Reference: M.-A. Frison-Roche, "L’enjeu de la confidentialité des avis juridiques internes au regard des « Buts Monumentaux » de la Compliance" ("The issue of confidentiality of in-house legal opinions with regard to the "Monumental Goals" of Compliance"), in L’instauration d’un Legal Privilege à la française. Le temps de l’action au service de la souveraineté et de la compétitivité de nos entreprises, Association française des juristes d'entreprise (AFJE), Association nationale des juristes de banque (ANJB) et Cercle Montesquieu, March 7, 2024, Maison de la Chimie, 28 rue Saint Dominique Paris

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📝On the same topic, read the article of Marie-Anne Frison-Roche "La compliance, socle de la confidentialité nécessaire des avis juridiques élaborés en entreprise" ("Compliance, the cornerstone of the confidentiality required for in-house legal opinions")

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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

____

🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)

____

🧱consult the scientific direction sheet of this event, which gives an account of the various speeches made

____

🔲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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► 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

____

🧮see the full programme of this event

____

🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)

____

🧱consult the scientific direction sheet of this event, which gives an account of the various speeches made

____

🔲see the slides used to support the presentation (in French)

____

🎤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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► 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

____

🧮see the full programme of this event

____

🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)

____

🧱consult the scientific direction sheet of this event, which gives an account of the various speeches made

____

🔲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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► 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.

____

🧮see the full programme of this event (in French)

____

🌐consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)

____

🧱consult the scientific direction sheet of this event, which gives an account of the various speeches made

____

🔲see the slides used to support the presentation (in French)

____

📝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 

____

🎤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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