Publications [810]

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🚧Compliance Law and Systemic Litigation

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► Full Reference: M.-A. Frison-Roche, "La considération par l'arbitrage de l'obligation de Compliance pour une place d'arbitrage durable" (Arbitration consideration of Compliance Obligation for a sustainable Arbitration Place), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2025, pp.451-470.

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📝read the article (in French)

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🚧read the bilingual Working Paper on the basis this contribution has been built, with more developments, technical references and hyperlinks.

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📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published

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► English summary of this contribution : The first part of this study assesses the evolving relationship between Arbitration Law and Compliance Law, which depends on the very definition of the Compliance Obligation (I). Indeed, these relations have been negative for as long as Compliance has been seen solely in terms of "conformity", i.e. obeying the rules or being punished. These relationships are undergoing a metamorphosis, because the Compliance Obligation refers to a positive and dynamic definition, anchored in the Monumental Goals that companies anchor in the contracts that structure their value chains.

Based on this development, the second part of the study aims to establish the techniques of Arbitration and the office of the arbitrator to increase the systemic efficiency of the Compliance Obligation, thereby strengthening the attractiveness of the Place (II). First and foremost, it is a question of culture: the culture of Compliance must permeate the world of Arbitration, and vice versa. To achieve this, it is advisable to take advantage of the fact that in Compliance Law the distinction between Public and Private Law is less significant, while the concern for the long term of contractually forged structural relationships is essential.

To encourage such a movement to deploy the Compliance Obligation, promoting the strengthening of a Sustainable Arbitration Place (III), the first tool is the contract. Since contracts structure value chains and enable companies to fulfill their legal Compliance Obligation but also to add their own will to it, stipulations or offers relating to Arbitration should be included in them. In addition, the adoption of non-binding texts can set out a guiding principle to ensure that concern for the Monumental Goals is appropriate in order the Compliance Obligation to be taken into account by Arbitrators.

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Aug. 29, 2025

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🚧The part of Non-contentious in the judicial treatment of Compliance cases

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► Full Reference: M.-A. Frison-Roche, Compliance Law and Systemic Litigation, Working Paper, August 2025.

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📝 This bilingual Working Paper is the basis of the article published in French "Droit de la compliance et contentieux systémique"

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► Summary of this Working Paper: Legal systems have changed, and Compliance Law, in its uniqueness, reflects this change and plays a powerful role in it. New sets of compliance rules, particularly at European Union level, covering data protection (GDPR), anti-money laundering (AMLA), climate balance protection (CS3D) and banking and financial system sustainability (Banking Union), have been developed and imposed on large companies, which must implement them: alerts, mapping, assessment, sanctions, etc. These new regulatory frameworks only make sense in relation to their ‘Monumental Goals’: to detect systemic risks ex ante and prevent crises so that the systems in question do not collapse, but ‘last’. All the legal instruments in the corpus are normatively rooted in these monumental goals, which are the core that unifies Compliance Law (I).

The judge is the guardian of this new and highly ambitious regulatory framework, which relies on the practical ability of companies to implement it (II). Courts ensure that the legal technical provisions are applied in a teleological manner in each of these compliance blocks and that the regulations support each other, because all compliance regulations serve the same systemic goal: to ensure that the systems (banking, financial, climate, digital, energy, etc.) do not collapse, but sustains, and that present and future human beings are not crushed by them, but rather benefit from them. This unity is still little perceived because so meticulous regulations pulverise this profound unity of Compliance Law into a myriad of changing provisions. Entrusting the ‘regulatory mass’ to algorithms increases this fragmentation, making the whole even more incomprehensible and therefore impossible to handle. On the contrary, recognising the judge's place, i.e. at the centre, makes it possible to master this new branch of law. But the judge's sole function is not to restore clarity to a body of law covered by the dust of its own technicality.

There is a transfer to Litigation of the systemic object of Compliance Law. Indeed, the litigation that emerges from the new Compliance Law is itself fundamentally new, by transitivity. Indeed, the purpose of Compliance Law is to make systems sustainable (or resilient, or robust, depending on the terminology used). This results in litigation that is itself ‘Systemic Litigation’ (III), most often brought by an organisation against a systemic operator. The place and role of each party are transformed (IV).

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Aug. 15, 2025

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► Full reference : M.-A. Frison-Roche, The role of Discretionary Jurisdictio in the judicial treatment of Compliance cases, working paper, August 2025.

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📗This working document was prepared as a contribution to the collective book offered to Professor Dominique d'Ambra, to be published and given to her in October 2026.

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► Summary of the working document : Based on the definition of Judicial Office, the procedural principles that derive from it and the consequent powers that judges exercise, the objet of this study is to measure the degree of discretion that exists in the judicial treatment of compliance, without direct consideration for the dispute between litigants. This part is very ignored, when it should be given top priority. Indeed, because Systems are involved in compliance cases brought before civil or commercial judges, we are seeing a development of this discretionary element in judicial fonction. Discretionary matters differ from unilateral discretionary procedures, and this discretionary element relates to what the judge examines, possibly in the context of a dispute.

The first part of this contribution therefore aims to describe the natural development of the discretionary power of the judge to deal with compliance cases brought before them. This role stems from the fact that, even when triggered by a dispute, what is submitted to the judge is a situation composed of a system, which cannot defend its interests before the civil or commercial judge in this Systemic Litigation arising from the very nature of Compliance Law and the Compliance Obligations it engenders on systemic entites. Moreover, it is the Future whose interests must be considered and protected, which the judge must do directly.

This leads to the second part of the contribution, calling for a rethinking of the procedure and the role of the Compliance Judge, so that ex gratia matters can be dealt with. The judge must therefore verify that there are no conflicts of interest between the litigants, including hidden ones, and must learn about the systems involved. The inquisitorial principle must therefore be strengthened. But at the same time, since the primary aim is not to settle a dispute but to resolve a systemic problematic situation, the judge must facilitate the movements of the parties, and the adversarial principle must also be strengthened. Must be encouraged this activation of a powerful and discretionary approach, not as an exception but as a principle fully articulated with a contentious principle, with the dispute being only a means used by the necessary parties to enable systemic compliance situations to be resolved.

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Updated: July 25, 2025 (Initial publication: March 6, 2024)

Publications

🚧Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator

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► Full Reference: M.-A. Frison-Roche, Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator, Working Paper, March 2024.

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📝 This Working Paper is the basis of the article "Compliance Obligation: build a compliance structure producing credible effects in the perspective of the Monumental Goals targeted by the Legislator", in📘 Compliance 'Obligation de Compliance,

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► Summary of this Working Paper: This article explains what companies' Compliance Obligation" is. Delving into the mass of compliance obligations, it uses the method of classification of those that are subject to an obligation of result and those that are subject to an obligation of means. It justifies the choice of this essential criterion, which changes the objects and the burden of proof of companies that are subject to an obligation of result when it comes to setting up "compliance structures" and are subject to an obligation of means when it comes to the effects produced by these compliance structures.

Indeed, this article goes on to analyse each body of regulations ("Sapins 2", "Vigilance", CSRD, CS3D, DSA, NIS2, DMA, DORA, AML-FT, ....) and the technical compliance obligations they impose, dividing them into obligations of result or obligations of means, depending on the text. This table of positive law thus drawn up, with reference to all the articles of the texts, shows that in positive law the Compliance Obligation has above all an evidential dimension, which is developed in the third part of the article: the company must show that it has put in place the compliance structures (obligations of result) required by the texts and it is up to third parties who criticise it for the unsatisfactory effects that these structures would have produced, according to them, to show that there is a fault or negligence on the part of the company (obligation of means).

Indeed, rather than getting bogged down in definitional disputes, given that Compliance Law is itself a nascent branch of Law, the idea of this contribution is to take as a starting point the different legal regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they have to apply them to the letter and sometimes they are only sanctioned in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it would be risky to transpose the expression and regime of contractual obligations to legal obligations put by legislation, starting from this observation in the evidentiary system of compliance of a plurality of obligations of means and of result, depending on whether it is a question of this or that technical compliance obligation, we must first classify them. It would then appear that this plurality will not constitute a definitive obstacle to the constitution of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable "mass of regulations".

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (effaciety) are obligations of means. This is even more the case when the Goal is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else, all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, commensurate with these Goals. In addition, because these structures (alert mechanisms, training, audits, contracts and clauses, etc.) have real meaning if they are to produce effects and behaviours that lead to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the entreprise's position, ultimately Goals at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial company, responsible Ex Ante, should organise itself and behave.

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Regulation and economic law

Updated: June 5, 2025 (Initial publication: June 20, 2024)

Publications

🚧Will, Heart and Calculation, the three traits encercling the Compliance Obligation

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📝Le Droit de la compliance, voie royale pour réguler l'espace numérique (Compliance Law as a Royal Road for regulating the Digital Space), in📚Enjeux numérique,📗Régulation et Compliance

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► Full Reference: M.-A. Frison-Roche, The will, the heart and the calculation, the three traits encercling the Compliance Obligation, March 2024.

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📝 This Working Paper is the basis for the contribution "The will, the heart and the calculation, the three traits encercling the Compliance Obligation", in📘Compliance Obligation.

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► Summary of this Working Paper: There is often a dispute over the pertinent definition of Compliance Law, but the scale and force of the resulting obligation for the companies subject to it is clear. It remains difficult to define. First, we must not to be overwhelmed by the many obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this obligations list is very long, it is also open-ended, with companies themselves and judges adding to it as and when companies, sectors and cases require.

Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much a matter of will, a generous feeling for a close or distant other in space or time, or the result of a calculation. This plurality does not pose a problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation. Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.

In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that of the Legislator, the vocabulary of self-regulation and/or ethics being used in this perspective, because it affirms that it devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it does so nonetheless because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, lead us to say that all this is merely a calculation.

Thus, the contribution sets out to identify the Compliance Obligation by recognising the role of all these different sources. It emphasises that, in monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems - banking, financial, energy, digital, etc. - in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick by which the Compliance Obligation is measured, and with it all the secondary obligations that give it concrete form, whatever their source and whatever the reason why the initial standard was adopted.

In order to define Compliance's Obligation, the contribution endeavours to recognise the contribution of all these three sources: Will, Heart and Calculation.

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Regulation and economic law

June 4, 2025

Publications

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📝Réguler le numérique, ou Sisyphe heureux (Regulating Digital, or a happy Sisyphus), in 📚Enjeux numérique, 📗Compliance et nouvelles régulations (Compliance and New Regulations)

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► Full Reference: M.-A. Frison-Roche, "Le Droit de la compliance, voie royale pour réguler l'espace numérique" (Compliance Law as a Royal Road for regulating the Digital Space), in P. Bonis et L. Castex (dir.), Compliance et nouvelles régulation, Annales des Mines, coll. "Enjeux numériques", juin 2025, pp.69-77.

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📝 read the article (in French)

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🚧This article is underpinned by a English Working Paper in English, with additional technical developments and hypertext links. : Compliance Law as a Royal Road for regulating the Digital Space

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► English Summary of this article: In order to describe the role of Compliance Law in regulating the digital space and to conclude that this new branch of Law is the 'royal road' to this end, this study proceeds in 6 stages.

Firstly, at first sight and conceptually, there is a gap between the political idea of Regulating and the ideas (freedom and technology as 'law') on which the digital space has been built and is unfolding.

Secondly, in practice, there is such a huge gap between the ordinary methods of Regulatory Law, which are backed by a State, and the organisation of the Digital Space by these economic operators, that are both American and global.

Thirdly, the political claim to civilise the Digital Space remains and is growing, relying on the very strength of the entities capable of realising this ambition, these entities being the crucial digital operators themselves, seized as Ex Ante.

Fourthly, it corresponds to the conception and practice of a new branch of Law, Compliance Law, which should not be confused with "conformity" and which is normatively anchored in its "Monumental Goals".

Fifthly, Compliance Law internalises Monumental Goals in the digital operators which disseminate them through structures and behaviours in the digital space.

Sixthly, through the interweaving of legislation, court rulings and corporate behaviour, the Monumental Goals are given concrete expression, willingly or by force, in ways that can civilise the digital space without undermining the primacy of freedom.

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Regulation and economic law

June 4, 2025

Publications

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🚧Pour maîtriser la masse réglementaire de la Compliance, la penser comme un puzzle

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► Full Reference: P. Bonis & M.-A. Frison-Roche, "Réguler le numérique, ou Sisyphe heureux" (Regulating Digital, or a happy Sisyphus), in P. Bonis & L. Castex (dir.), Compliance et Nouvelles Régulations, Les Annales des Mines, series "Enjeux numériques, June 2025, p.5-7.

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📝read the article (in French)

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📗read the table of content of this special issue of Enjeux numérique, Régulation et Compliance (in French), in which this introductory article is published.

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► English Summary of this article: This introduction to the collective publication on Regulation and Compliance, which aims to bring order to the Digital space, takes up the idea expressed by Camus when he referred to 'happy' Sisyphus, and expresses the idea that Regulation and Compliance are applied to this area with difficulty, relentlessness and failure, with texts constantly being adopted, modified and amplified on all sides, while the Digital Space is constantly changing, and the slope is constantly being climbed again. But this should not be seen as a failure, not even a flaw, because it is in the nature of digital regulation to always place the regulatory apparatus on our shoulders.

This weight is shared by all, by the Authorities of all countries, because there is something common to all and also because there is something specific for each, because the techniques differ and because the visions of the world that the Politicians print in the texts and project in the Digital will always differ. This weight is also shared by companies, which internalise the rules through Compliance mechanisms, making them necessary agents for the efficiency and sustainability of the digital system, but also players in it, in articulation with Internet users in a permanent and unstable articulation with the local to the finest and this global that the Internet has invented.

This presentation opens the series of contributions to the collective publication Régulation et Compliance, which makes up this special issue of Enjeux numériques in Annales des Mines.

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🌐read also the English presentation of:🕴️Marie-Anne Frison-Roche, 📝Le Droit de la compliance, voie royale pour réguler l'espace numérique (Compliance Law as a Royal Road for regulating the Digital Space)

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Regulation and economic law

May 31, 2025

Publications

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📝100 fois remettre la Compliance sur le métier de la Stratégie ("100 times put Compliance back on the Strategy agenda")

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► Full Reference : M.-A. Frison-Roche, To master the regulatory mass of Compliance, think of it as a jigsaw puzzle, Working Paper , May 2025

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📝 This Working Paper underpins the Newsletter MAFR Law -Compliance - Regulation of 2 June 2025 :

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► Summary of this Working Paper: People are rightly complaining that Europe's regulatory and compliance regulations are too numerous, too complicated and too changeable. As a result, they are said to be unmanageable.

Three solutions are proposed: specialise lawyers, regulatory corpus by regulatory corpus; deregulate; entrust everything to algorithms.

These are inadequate solutions, because regulations cannot be understood unless they are put into perspective with the rest of the legal rules .; we have entered a new world, and these new regulations reflect the need for a new Law (unless we want to destroy the Law itself, which is what some people are dreaming of doing); algorithms reproduce past solutions and do not produce the new legal conception required.

For an appropriate solution, we need to move away from a word-by-word understanding of the regulatory and compliance regulations and understand them as a whole, not only in relation to the purpose that gives them meaning, but also in relation to each other. In the positive sense of the term, they form a European 'jigsaw puzzle'. We need to look at the overall picture in which each regulation fits and makes sense. It finds its simplicity in relation to its purpose.

It is always a question of working towards the sustainability of systems by asking companies to contribute so that the systems do not crush human beings but benefit them. Thus, in practice, the Monumental Goals of Compliance Law give clarity to the body of regulations which, when seen as a whole, are manageable and practical. Judges interpret them in this way.

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Regulation and economic law

May 28, 2025

Publications

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📝Le "Grand Arrêt" de la Cour d'Appel de Paris du 7 mai 2025, Dalloz et al. c/ Forseti

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► Full Reference: M.A. Frison-Roche, "100 fois remettre la Compliance sur le métier de la Stratégie" (100 times put Compliance back on the Strategy agenda), in Lettre d'information Compliance. Groupe SNCF, 100ième issue, 28 may 2025.

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📝read the article (in French)

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► English presentation of this article: This anniversary article sets out what Compliance is and should be in a large group. It expresses it in 4 points:

1. Actively master regulations by understanding their spirit

2. Improving risk detection without taking away the entrepreneurial spirit

3. Promoting convergence and managing conflict

4. Strengthen the company's identity by focusing on its strategic ambitions

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Regulation and economic law

May 15, 2025

Publications

► Full Reference : M.A. Frison-Roche, Le "Grand Arrêt" de la Cour d'appel de Paris du 7 mai 2025, Dalloz et al. c/Forseti, D.2025, p.

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📝reread the article (in French)

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► Ench presentation of this article: The first part of the article describes the Paris Court of Appeal's ruling against the company that created a Legaltech platform under the trade name 'Doctrine', which offers a large number of court rulings, particularly from lower courts. Sued for unfair competition by a group of publishers offering a similar service, they were not convicted at first instance, but were convicted by the Court of Appeal because it appeared that they had fraudulently obtained thousands of judgments, which, under Civil Law, constitutes unfair competition to the detriment of the plaintiffs.

The second part of the article draws 6 lessons from this. The power of general law. On the benefits that the perpetrator has derived from the slowness of justice. On the importance of Open Data. On the fact that the law is not mastered by accumulating data but by putting it into perspective through the thinking of authors and publishers. On the indifference for this of the financiers who built and resold the "Doctrine" website. On the very nature of a 'Grand Arrêt', such as this one.

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Regulation and economic law

May 4, 2025

Publications

🚧Compliance Law as the Royal Road for regulatinf the Digital Space

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🚧Arbitration, a highly appropriate technique for deploying Compliance Law, in particular to satisfy the Vigilance Obligation

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► Full Reference: M.-A. Frison-Roche, Compliance law as a Royal Road for regulating the Digital Space, Working Paper, May 2025

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📝 This Working Paper is the English basis for an article written in French "Le Droit de la compliance, voie royale pour réguler l'espace numérique", in 📕

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► Summary of this Working Paper: In order to describe the role of Compliance Law in regulating the digital space and to conclude that this new branch of Law is the 'royal road' to this end, this study proceeds in 6 stages. Firstly, at first sight and conceptually, there is a gap between the political idea of Regulating and the ideas (freedom and technology as 'law') on which the digital space has been built and is unfolding. Secondly, in practice, there is such a huge gap between the ordinary methods of Regulatory Law, which are backed by a State, and the organisation of the Digital Space by these economic operators, that are both American and global. Thirdly, the political claim to civilise the Digital Space remains and is growing, relying on the very strength of the entities capable of realising this ambition, these entities being the crucial digital operators themselves, seized as Ex Ante. Fourthly, it corresponds to the conception and practice of a new branch of Law, Compliance Law, which should not be confused with "conformity" and which is normatively anchored in its "Monumental Goals". Fifthly, Compliance Law internalises Monumental Goals in the digital operators which disseminate them through structures and behaviours in the digital space. Sixthly, through the interweaving of legislation, court rulings and corporate behaviour, the Monumental Goals are given concrete expression, willingly or by force, in ways that can civilise the digital space without undermining the primacy of freedom.

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🔓read the Working Paper below⤵️

April 5, 2025

Publications

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🚧The Contract, a Compliance tool: the Obligation for a platform to control content (French Supreme Judicial Court, 15 January 2025) :

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► Full Reference: M.-A. Frison-Roche, Arbitration, a highly appropriate technique for deploying Compliance Law, in particular to satisfy the Vigilance Obligation, Working Paper, March 2025.

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🎤 This Working Paper was developed as a basis for the Overhang👁 video on ... April 2025 : click HERE

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🎬🎬🎬In the collection of the Overhangs👁 It falls into the Notion category.

►Watch the complete collection of the Overhangs👁 : click HERE

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► Summary of this Working Paper: If Arbitration has so far not developed much in Compliance Law, it is because this new branch of Law is not well known. Indeed, if it were simply a matter of 'conformity' with mandatory regulations, then Arbitration involving rights that are freely available to the parties and Compliance would be 2 worlds that must ignore each other.

But Compliance Law is defined quite differently. Its normativity lies in the Monumental Goals set by the political authorities, which oblige large companies, because these compagnies are in a position to do so, to contribute to achieving these Goals, namely the future preservation of the Systems (banking, digital, climate, energy, etc.) and human beings involved. While the Goal is constrained, the company is free to choose the means, as long as these means are credible. Arbitration is one of them. From the arbitration clause to the appropriate award.

One example is the Duty of Vigilance, the cutting edge of Compliance. In order to effectively find solutions in the value chain that the company governs, Arbitration is a suitable means of achieving the Monumental Goals of environmental protection and human rights, under the control of the Judge.

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March 29, 2025

Publications

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🚧 Obligation upon Obligation is valid and useful

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► Full Reference: M.-A. Frison-Roche, The Contract, a Compliance tool: the Obligation for a platform to control content CE, 27 January 2025, B. c/ CNIL, Working Paper, March 2025.

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🎤 This Working Paper was developed as a basis for the Overhang👁 video on 29 March 2025 : click HERE (in French)

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🎬🎬🎬In the collection of the Overhangs👁 It falls into the News category.

►Watch the complete collection of the Overhangs👁 : click HERE

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► Summary of this Working Paper: The ruling handed down on 15 January 2025 by the Commercial, Economic and Financial Chamber of the French Judicial Supreme Court (Cour de cassation) provides a solution to the issue of content control in the digital environment. It resolves what appears to be the aporia so often emphasised, and even claimed, namely the impossibility of developing an effective controlling technology.

To do this, the Court disregarded the applicable laws and referred to the electronic payment contract between the bank and the platform, which contained a clause on Vigilance against unlawful content, linked to a termination clause. It held that this clause was fully effective. This solution, so simple and so strong, can make a major contribution to regulating the digital space, if the banks so wish, because what platform can do without reliable electronic payment services?

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Regulation and economic law

Updated: March 5, 2025 (Initial publication: June 13, 2023)

Publications

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📝La part de la volonté dans l’obligation de compliance : Obligation sur Obligation vaut".

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► Full Reference: M.-A. Frison-Roche, The role of will in the Compliance Obligation: Obligation upon Obligation is valid and useful, Working Paper, June 2023.

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🎤 This working paper was originally drawn up as a basis for the talk, Obligation on Obligation is worth, on the first day of the conference I co-organised:🧮Compliance : Obligation, devoir, pouvoir, culture (Compliance: Obligation, duty, power, culture), on 13 June 2023.

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It was subsequently used as the basis for a forthcoming article:

in📕L'obligation de compliance, in the collection 📚Régulations & Compliance

📝The role of will in the Compliance Obligation: Obligation upon Obligation is valid and useful,

in📘Compliance Obligation, in the collection 📚Compliance & Regulation

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► Summary of this Working Paper: The demonstration of the part played by the entreprises' Will in the Compliance Obligation incumbent on them is carried out in 3 stages.

The first stage of the demonstration consists in finding the part played by the free will of companies in their Compliance Obligation by putting an end to two confusions: the first which, within the Law of Contract and Tort itself but also within Compliance Law, splits and confuses "free will" and "consent", which would no longer require freely expressed acceptance; the second, specific to Compliance Law, which confuses "Compliance" and "conformity", reducing the former to mechanical obedience which could exclude any free Will.

Having clarified this, the rest of the study focuses on the 2 ways in which a company subject to a Compliance Obligation by compulsory regulations expresses a part of its free Will, which the study expresses in this proposed adage: Obligation upon Obligation is valid, since the legal obligation to which the company responds by the obedience owed by all those subject to the regulations may be superimposed by its free Will, which will then oblige it.

The first case of Obligation upon Obligation, studied in a second part, concerns the means by which the compulsory Compliance Obligation is implemented, the company subject to the Monumental Goals set by the Legislator remaining free to choose the means by which the company will contribute to achieving them. Its free Will will thus be exercised over the choice and implementation of the means. This can take two legal forms: Contracts on the one hand and "Commitments" on the other.

In the third part, the second case of Obligation upon Obligation, which is more radical, is that in which, in addition to Compliance's legal compulsory Obligation, the company draws on its free Will to repeat the terms of its legal Obligation (because it is prohibited from contradicting it), a repetition which can be far-reaching, because the legal nature (and therefore the legal regime) is changed. The judgment handed down by the The Hague Court of Appeal on 12 November 2024, in the so-called Shell case, illustrates this. What is more, the company's free Will can play its part in the Compliance Obligation by increasing the legal Obligation. This is where the alliance is strongest. The interpretation of the specific and diverses obligations that result must remain that of the Monumental Goals in a teleological application that gives coherence to the whole.

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Regulation and economic law

Updated: Feb. 25, 2025 (Initial publication: Dec. 2, 2023)

Publications

🚧Compliance, Vigilance and Civil Liability: put in order and keep the sense of Reason

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🚧Dans le silence des textes, vers qui se tourner en cas de manquement à une disposition du Droit de la Compliance ?

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► Full Reference : M.-A. Frison-Roche, Compliance, Vigilance and Civil Liability: put in order and keep the sense of Reason, Working Paper, June 2024

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📝 In its French version, this Working Paper is the basis of the contribution "Compliance, Vigilance et Responsabilité civile : mettre en l'ordre et raison garder", in 📕L'Obligation de Compliance

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► Summary of this Working Paper: The descriptions of the Liability incurred by large companies as a result of their compliance obligations are very diverse, even contradictory, going beyond the wishes that may be expressed as to what this liability should be. The first part of this study therefore sets out the various liabilities incurred by companies, which differ in the conditions under which they are implemented and in their scope, so as not to confuse them.

Indeed, as the various laws establish specific legal compliance obligations, they give rise to liabilities of varying conditions and scope, and it is not possible to avail of the regime of one in a situation that falls within the scope of another. It is therefore necessary to review the various bodies of compliance legislation, the GDPR, the ALM-FT regulations, the French so-called Sapin 2 law, the French so-called Vigilance law , the European IA Act , the European European DGA Act, etc., to recall the inflexion that each of these bodies of legislation has made to the liability rules applied to the companies subject to them. Nevertheless, the unicity of the Compliance Obligation, overcoming this necessary diversity of situations, regulations and liability regimes, can provide grouping lines to indicate beyond this diversity the extent of the liability incurred by companies.

Once this classification has been made, the second part of the study develops the observation that none of this can create any principle of general liability on large companies in terms of compliance, and in particular not in terms of vigilance. It is not possible to deduce a general principle of specific obligations of liability or specific obligations to reparation, for example in the area of vigilance, as the texts creating specific vigilance obligation refer to the conditions of commun Tort Law (proof damage and causality), and International Public Law does not have the force to generate a general principle binding companies in this respect.

The third part stresses that it is nevertheless always possible to invoke Tort Law, and companies cannot claim to escape this. This may involve contractual liability, a situation becoming increasingly frequent as companies contractualise their legal compliance obligations, reproducing them but also modifying them, and as Vigilance duty is an obligation that goes beyond the specific situations covered by the regulations.

But it is essential, and this is the subject of the fourth part, not to make companies pure and simple guarantors of the state of the world, present and future. Indeed, if we were to transform sectoral compliances into illustrations of what would then be a new general principle, but one that applied only to them, they would consequently exercise the other side of this coin, namely power over others.

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🔓read the Working Paper below⤵️

Feb. 5, 2025

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🚧The French Judicial Public Interest Agreement and the time saved: the Areva and Orano CJIP of 2 December 2024

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► Full Reference: M.-A. Frison-Roche, Who is responsible for making the Compliance provision effective? Is it the company or the public authority? Example of data: CE, 27 January 2025, B. c/ CNIL, Working Paper, February 2025.

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🎤 This Working Paper was developed as a basis for the Overhang👁 video on 8 February 2025 : click HERE (in French)

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🎬🎬🎬In the collection of the Overhangs👁 It falls into the News category.

►Watch the complete collection of the Overhangs👁 : click HERE

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► Summary of this Working Paper: In its decision of 27 January 2025, B. v CNIL, the French Administrative Supreme Court (Conseil d'État ) had to provide a solution to a case that the Compliance rules applicable to data had not expressly provided for. Can a person who believes that another person has failed to fulfill their obligations under the GDPR refer the matter to the French Data Protection Regulator (CNIL) and not the data controller?

The Conseil d'État considers that the question is clear and that there is no point in referring a preliminary question to the ECJ. Indeed, the texts require the person alleging that his or her right has been infringed to first contact the data controller to have the information deleted before subsequently referring the matter to the CNIL. Furthermore, this case involved personal information inserted by doctors in an expert report submitted to a court. The Conseil d'Etat agreed with the CNIL that it was not required to review and assess the evidence, which is the role of the court.

This shows that, while the right to alert can be used to refer cases directly to the administrative authorities, here the specific takes precedence over the general, with the spirit of the Law entrusting the direct preservation of rights to the data controller, with the CNIL's supervisory and sanctioning role coming only at a later stage. This illustrates the more general nature of Compliance Law, which relies primarily on the operators themselves. Furthermore, as a melting pot of various subjective rights, in this case the right to erasure but also the right to contribute to the debates, the Conseil d'Etat stresses that it is the role of the judicial judge to ensure the fairness of the debates.

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Jan. 25, 2025

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🚧Status and Role of the 'trajectory' in Regulatory and Compliance Law

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► Full Reference: M.-A. Frison-Roche, The French Judicial Public Interest Agreement and the time saved: the Areva and Orano CJIP of 2 December 2024, Working Paper, January 2025.

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🎤 This Working Paper was developed as a basis for the Overhang👁 video on 25 January 2025 : click HERE (in French)

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🎬🎬🎬In the collection of the Overhangs👁 It falls into the News category.

►Watch the complete collection of the Overhangs👁 : click HERE

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► Summary of this Working Paper: On 2 December 2024, Areva/Orano signed a Public Interest Judicial Agreement (CJIP) with the French National Financial Prosecutor's Office, validated by the order of 9 December 2024 of the President of the Paris Judicial Court. The case concerns the bribery of a foreign public official in Mongolia through the use of an intermediary.

This perfectly illustrates the primary advantage of this Compliance Tool, which consists of closing a situation that could deprive a company of the means to act in the future. Even if neither the CJIP nor the validation order constitutes an admission of guilt or a conviction, the acts of bribery of a foreign public official can no longer give rise to prosecution.

However, the future has been taken care of, because as soon as Tracfin passed the first information to the Public Prosecutor's Office, the company cooperated and set up a programme to actively fight corruption ("compliance programme"). The CJIP extends this by a compliance programme supervised by the French Anticorruption Agency.

One month after the CJIP, the Mongolian government and the company, in the presence of the French government, announced on 17 January 2025 the signing of a contract to operate a uranium mine, the same industrial coopération that had given rise to these reprehensible acts. The CJIP made it possible to move forward in time.

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Jan. 18, 2025

Publications

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🚧The puzzle of Institutional Compliance Law and Substantive Compliance Law: the example of the European Regulations of 31 May 2024 on AMLA and enterprises compliance obligations

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► Full Reference: M.-A. Frison-Roche, Status and Role of the 'trajectory' in Regulatory and Compliance Law, Working Paper, January 2025.

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🎤 This Working Paper was developed as a basis for the Overhang👁 video on 18 January 2024 : click HERE (in French)

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🎬🎬🎬In the collection of the Overhangs👁 It falls into the Notions category.

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► Summary of this Working Paper: The notion of Trajectory is a key concept in Compliance Law. This is shown in 4 steps.

- 1. the decisive use of the trajectory in the 3 Grande-Synthe decisions of the French Conseil d'Etat,

- 2. defining the trajectory,

- 3. the application of the trajectory in various sectoral Compliances and Compliance tools,

- 4. the probationary dimension of the trajectory and the consequences for subjected entities

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Regulation and economic law

Jan. 11, 2025

Publications

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► Full Reference: M.-A. Frison-Roche, The puzzle of Institutional Compliance Law and Substantive Compliance Law: the example of the European Regulations of 31 May 2024 on AMLA and enterprises compliance obligations, Working Paper, January 2025.

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🎤 This Working Paper was developed as a basis for the Overhang👁 video on 11 January 2024 :

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🎬🎬🎬In the collection of the Overhangs👁 It falls into the News category.

►Watch the complete collection of the Overhangs👁 : click HERE

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► Summary of this Working Paper: Compliance Law is built on 2 legs, Institutions on the one hand and substantive rules on the other. For example in the United States, the 1934 Act established at the same time the prohibition and prevention of financial market abuse and the SEC. In Europe, in 2013, the Banking Union established institutions to build this Union and increased the obligations on banks.

This is perfectly illustrated by the 2 European Regulations of 31 May 2024, one creating the AMLA and the other reinforcing the compliance obligations of crucial economic operators, one text referring to the other.

Indeed, Institutional Compliance Law and Substantive Compliance Law are like 2 articulated legs. You have to know both and make them work together.

This is part of the "European puzzle", a positive expression which implies that, when assessing and interpreting a text, we should always bear in mind that it is only one element of a general picture, which is coloured by its Monumental Goal: in this case to obtain a European area where money laundering is efficiently prevented thanks to the action of the companies themselves under the supervision and support of a Supervisory Authority which coordinates the actions of the States.

If we consider only one element, we find everything 'complicated', whereas the overall picture is simple, because the Goal is simple and in Compliance Law, a branch of Teleological Law, everything is in the Monumental Goal.

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Regulation and economic law

Jan. 8, 2025

Publications

🚧Identifying and anticipating the practice of Emerging Systemic Litigation: a necessity for organizing it

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📝préface à l'ouvrage de 🕴️Y. Oubejja, 📗La puissance économique en droit de la concurrence

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► Full Reference: M.-A. Frison-Roche, Identifying and anticipating the practice of Emerging Systemic Litigation: a necessity for organizing it , Working Paper, December 2024.

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🎤This working paper was drawn up to serve as the basis for the speech that opened the colloquium L’expérience des juridictions dans le Contentieux Systémique Émergent, in the cycle of conferences-debates "Contentieux Systémique Émergent," which was held in French on 16 December 2024 at the Paris Court of Appeal.

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📝It will also constitute the basis of the first contribution to the book to be published in French in 2025, Le contentieux systémique émergent (Emerging Systemic Litigation).

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► Summary of this Working Paper : Systemic Litigation is for the moment a practice that has not been clearly identified. This is a handicap in practice, firstly because it can be confused with other things, such as the "systemic method" that this category of Litigation calls for and to which it cannot be reduced and which this method exceeds, and secondly because if this practice is not conceptualised, secondly, because if this practice is not conceptualised, even if only by a shared definition, it is difficult for the courts to organise themselves and for the potential parties to the dispute and to the proceedings to anticipate the procedural and substantive solutions that will be adopted tomorrow. The difficulty is compounded by the fact that not all emerging disputes are Systemic and not all systemic disputes are emerging. For example, banking regulation litigation and litigation concerning the operation of competitive markets or sectoral regulation are systemic disputes that are not emerging. But it so happens that technological developments have given rise to new systemic litigation, which the courts, judges and parties have had to adapt to because the systems themselves are entering the courthouses.

A series of conferences has been organised to report on this practice, focusing on technology, legislation, management, court organisation, procedure and the role of the judge.

They have thus made it possible to build up common, cross-disciplinary knowledge so that innovations can be developed and expressed in the organisation of the courts, in procedures, particularly in the relationship between judges and lawyers, and in the openness of proceedings, in the conception of the judge's office, which must be singular when the case, because a systemic is implied, is systemic. This specificity leads to judges who are less hierarchical among themselves and more specialised, leading to procedural forms that place dialogue and adversarial proceedings no longer as a desire and support but as the primary guiding principle.

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Jan. 7, 2025

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► Référence complète : M.A. Frison-Roche, préface à l'ouvrage de Y. Oubejja,, La puissance économique en droit de la concurrence, L'Harmattan Éditions, coll. "Logiques juridiques", 2025, pp.13-16

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📝Lire la préface

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► Présentation de la préface : une préface pouvant prendre plus de champ que ne le prend un ouvrage technique qui traite le thème de la puissance dans le cadre du Droit de la concurrence, la préface aborde le rapport entre le Droit et la puissance, qu'il s'agisse du fait de la puissance ou de la puissance du Droit, rapport dont l'examen remplit les bibliothèques et passionne les philosophes, les politistes et les sociologues.

Dans le Droit de la concurrence, construit sur la Liberté, qu'il s'agit du droit civil de la concurrence ou du droit système des marchés concurrentiel, la puissance est le levier mais devient l'objet du Droit, lorsque, jouxtant la Régulation la puissance devient un objet autonome d'intervention, soit que le passage vers l'Ex Ante se passe à l'occasion, celle d'une concentration, soit du fait d'une situation structurelle, celle d'un secteur. Le Droit des pratiques restrictives prend le gant de la puissance en le retournant par son revers qu'est la dépendance. Des remèdes à ce désir humain de dominer, il y a peu. L'information et la transparence en Ex Ante. Des sanctions, toujours des sanctions, en Ex Post. Des textes, toujours des textes.

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Regulation and economic law

Dec. 11, 2024

Publications

📝Les conditions requises pour favoriser la "contractualisation" du droit

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► Référence complète : M.-A. Frison-Roche, "Les conditions requises pour favoriser la "contractualisation" du droit", in G. Cerqueira & A. Schreiber (dir.), La contractualisation du droit. Approches françaises et brésiliennes, Société de législation comparée (SLC), coll. "Colloques", vol. 61, 2024, pp. 435-448

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📝lire l'article

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🚧lire le document de travail bilingue sur la base duquel cet article a été élaboré, doté de développements supplémentaires, de références techniques et de liens hypertextes

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► Résumé de l'article :

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Updated: Dec. 4, 2024 (Initial publication: Feb. 6, 2024)

Publications

🚧In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings

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📝Antitrust, natural field of Systemic Litigation

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► Full Reference: M.-A. Frison-Roche, In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings, June 2024.

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📝 This Working Paper is the basis for the contribution "In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings", in📘Compliance Obligation.

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► Summary of this Working Paper: The innocents might believe, taking the Law and its words literally, that "commitments" are binding on those who make them. Shouldn't they be afraid of falling into the trap of the 'false friend', which is what the Law wants to protect them from (as stated in the prolegomena)?

Indeed, the innocent persons think that those who make commitments ask what they must do and say what they will do. Yet, strangely enough, the 'commitments' that are so frequent and common in compliance behaviours are often considered by those who adopt them to have no binding value! Doubtless because they come under disciplines other than Law, such as the art of Management or Ethics. It is both very important and sometimes difficult to distinguish between these different Orders - Management, Moral Norms and Law - because they are intertwined, but because their respective standards do not have the same scope, it is important to untangle this tangle. This potentially creates a great deal of insecurity for companies (I).

The legal certainty comes back when commitments take the form of contracts (II), which is becoming more common as companies contractualise their legal Compliance Obligations, thereby changing the nature of the resulting liability, with the contract retaining the imprint of the legal order or not having the same scope if this prerequisite is not present.

But the contours and distinctions are not so uncontested. In fact, the qualification of unilateral undertaking of will is proposed to apprehend the various documents issued by the companies, with the consequences which are attached to that, in particular the transformation of the company into a 'debtor', which would change the position of the stakeholders with regard to it (III).

It remains that the undertakings expressed by companies on so many important subjects cannot be ignored: they are facts (IV). It is as such that they must be legally considered. In this case, Civil Liability will have to deal with them if the company, in implementing what it says, what it writes and in the way it behaves, commits a fault or negligence that causes damage, not only the sole existence of an undertaking.

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Nov. 27, 2024

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► Full Reference: M.-A. Frison-Roche, "Antitrust, natural field of systemic litigation"", Concurrences, November 2024, No. 4, Art. No. 120776.

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📝read the article (in English)

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

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► English Summary of this article: Systemic Litigation is a specific category of Litigation in which beyond the dispute between the parties the interest of a System is involved, in particular its future. Competition Law is a natural and long-standing field for this category, which is now emerging strongly for information, climate and energy systems.

It should be remembered that a market is not self-regulating and cannot continue to function in the long term unless it has the benefit of a judge, a figure who is specific in that he/she is both external to it and yet apprehends its specific interest. In order to satisfy this double requirement, liberal legal organisations often entrust the competition authority with jurisdiction over this Systemic Litigation. Ordinary courts will also hear such cases, either on appeal or in other proceedings, and it cannot be claimed that courts are excluded, the systemic dimension of the dispute being expressed by the presence of the competition authority in the proceedings. This explains the procedural rules that are hard to justify otherwise.

The Authority, the European Commission for example, must be able to develop and express the specific interests of the competition system. This special role of the competition authority in this type of litigation, because it is systemic, has been in place for decades and should serve as a model for Systemic Litigation, which is being developed for other systems whose sustainability is now referred to the courts.

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Nov. 5, 2024

Publications

📝Naissance d'une branche du Droit : le Droit de la Compliance (Births of a branch of Law: Compliance Law), in 📗Mélanges en l'honneur de Louis Vogel