Sept. 1, 2022
Thesaurus : Doctrine
► Full reference: André, Ch., Souveraineté étatique, souveraineté populaire : quel contrat social pour la compliance ? (" State sovereignty, popular sovereignty: what social contract for compliance? "), in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, to be published.
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📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published
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► Summary of the article (done by the Author): The “Compliance Monumental Goals” serve as vectors for “common” social values: the proposal is simple, but it seems both familiar and strange to a criminal lawyer.
Familiar, because even if compliance transcends the borders of academic disciplines, it shares with criminal law a logic sanctioning attacks on social interests. Strange, because Monumental Goals convey social values by sweeping away all the learned discussions that have been going on since Beccaria about the foundations and axiological functions of punishment. Indeed, the social values promoted by Monumental Goals are “common” in every sense of the word.
First, they are shared and internalized by the largest enterprises in the Western world, without the need for an international treaty on protected values. The question of sovereignty is overshadowed.
Second, they are common in that they are commonplace, ordinary, approved of by most Western consumer-citizens: probity, equality, respect for the environment, who would not be in favour of respecting them? Hence it is in companies’ interest to communicate and diffuse, urbi and orbi, how they respect these Monumental Goals. The question of citizens’ consensus on values is sidestepped, as they are supposed to be derived from the obvious (even if the goals could be achieved by different means, or even contradict each other).
Third, these values are common because they now enlist a multitude of communicants (the “compliance officer”, among others) who, more or less gracefully - the meticulous liturgy of compliance can put off some officiants and incite buffoonery - seek to spread the cult of these values at all levels of business. Since these values are respected, they are necessarily respectable: businesses become moralized by the multitude who respect them. Existence precedes essence, and the values conveyed contribute to the businesses’ raison d’être, beyond the pursuit of profit. The question of effectiveness vanishes, since these values are already there, regularly monitored, both internally and by public authorities. Sovereignty, citizenship, effectiveness: the logic of Compliance supplants the academic debates of criminal lawyers with practical solutions. Perhaps this is how the goals are “monumental”: vast, global, overwhelming. Compliance may not be the best of all worlds, but it is most certainly another world.
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June 14, 2021
Compliance: at the moment
► Do Compliance and Democracy have a relationship? China replies: no. Europe responds and must respond: they are intimate. The definition of Compliance Law is therefore essential.
In an interview of great clarity given in French to the Newspaper Les Echos on June 2, 2021, about Brexit, China and Russia (➡️📝 "Brexit, Chine, Russie : les confidences de la diplomate Sylvie Bermann"), Sylvie Bermann reminds the evolution of China. She sums up the situation as follows: « La Chine ne veut pas dominer le monde, elle veut être la première et surtout qu'on ne puisse pas lui imposer un système, la démocratie » ("China does not want to dominate the world, it wants to be the first and above all that no one can impose on it a system, Democracy,").
This is reflected in China's conception of Compliance Law. If one defines Compliance Law only as a "method" for the effectiveness of rules, consisting of a kind of "Ex Ante enforcement process" leading to 100% effectiveness of regulations by subjects who must show to everyone the respect they have for these regulations and who are rewarded by this proof thus given, then China, in its current use of Law, illustrates exactly this definition: subjects, individuals and companies, prove their "obedience" to rules - whatever the rules" substantial content -, which is evaluated ("rating") and rewarded, in a mechanical reign of the Ex Ante, served by technologies. Democratic mechanisms are not required; they are even disturbed, because they interfere with the efficiency of the system. The technological and purely technocratic conception of Compliance ("Regulation by data", for example) uses the same definition of Compliance Law, which leads to choose algorithms’ efficiency.
Europe must keep going to make another choice: European Compliance was born out of the Court of Justice of the European Union’s case law, in the 2014 judgment, Google Spain (➡️📝CJEU, Google Spain, May 13, 2021), to protect the person by inventing a subjective right: the right to be forgotten, in a digital space with infinite memory. Based on the Rule of Law, Compliance Law is then defined by its Monumental Goals, which are the protection of people and puts the judge at the center. It is the reverse of Chinese mechanics.
Therefore, they are definitions that lead the world: about the definition of Compliance Law by "Monumental Goals", see ➡️📅 the 2021 cycle of colloquia co-organized by the Journal of Regulation & Compliance (JoRC) and its university partners on Monumental Goals; on the technical influence of this definition on "Compliance tools" ➡️📕see Frison-Roche, M.-A., Legal Approach to Compliance Tools: Building by Law the unity of Compliance Tools from the definition of Compliance Law by its "Monumental Goals", 2021.
Aug. 14, 2020
Newsletter MAFR - Law, Compliance, Regulation
Full reference: Frison-Roche, M.-A., Is Regulating Hate and Infox a legal obligation imposed to the Digital Enterprises or the expression of their free will to contribute to Democracy?, Newsletter MAFR - Law, Compliance, Regulation, 14th of August 2020
Read, by freely subscribing, other news in the Newsletter MAFR - Law, Compliance, Regulation
Summary of the news
Internet permits to access to expanded knowledge but also make easier the broadcasting of fake news and hate speeches. Unfortunately, public powers cannot know who broadcast these fake news and hate speeches and are so not able to fight efficiently against this. A solution would be to expect from digital firms that they find a way to contain these fake news and hate speeches that they structurally contribute to diffuse.
Digital firms already do that and especially Facebook which plans to sensibilize its American users to 2020 presidential elections. However, digital firms explain that if they fight against fake news and hate speeches, it is only because of its Corporate Social Responsibility (CSR). But, even if it is a calculus to get a better reputation and avoid boycott actions, this remains a willingness of the firm which is therefore neither forced to succeed, nor even to act.
The solution proposed by Compliance Law is to make of this effort a legal obligation by internalizing in crucial operators (digital firms) the "monumental goal" to fight against fake news and hate speeches so that digital companies are required to act and that they are supervised by public authorities in this task. The forthcoming law about digital services will impose to digital firms Ex Ante obligations while the law of 22 of December 2018 related to the fight against information manipulation already forces platforms operators a legal obligation to "cooperate" in the fight against fake news.
To go further, read :
Feb. 28, 2018
Thesaurus : Doctrine
Référence complète : Supiot, A., De la citoyenneté économique, Entretien réalisé par Thibault Le Texier, in Démocratiser l'entreprise, Esprit n° 442, 2018.
Les étudiants de Sciences-po peuvent consulter l'article via le Drive, dossier MAFR "Régulation & Compliance".
Aug. 23, 2017
Thesaurus : Doctrine
Référence générale : Coen, P., Internet contre internh@te : Plaidoyer pour le respect. 50 propositions pour détoxer les réseaux sociaux, coll. "Pour mieux comprendre", Le bord de l'eau, 2017, 188 p.
Lire la quatrième de couverture.
May 17, 2017
Thesaurus : Doctrine
May 17, 2017
Thesaurus : Doctrine
► Référence complète : Mélanges Joël Monéger, Liber Amicorum en l'honneur du Professeur Joël Monéger, LexisNexis, 2017, 818 p.
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📝Lire la quatrième de couverture.
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► Lire la présentation des articles publiés dans ces Mélanges :
🕴️Champaud, Cl.,📝 Source et nature épistémologique de la Doctrine de l'entreprise.
🕴️Dion, N., 📝L'idée d'entreprise-système en droit des sociétés.
🕴️Fox, E., 📝The new world order.
🕴️Nihoul,P., 📝Concurrence et démocratie.
🕴️Palmer, V., 📝Empires as engines of mixed legal systems
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🗒️Les étudiants inscrits au cours de Marie-Anne Frison-Roche peuvent accéder au texte de ces articles.
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Feb. 22, 2017
Thesaurus : Doctrine
Updated: July 31, 2013 (Initial publication: Sept. 13, 2011)
Teachings : Les Grandes Questions du Droit, semestre d'automne 2011
Updated: July 31, 2013 (Initial publication: Sept. 20, 2011)
Teachings : Les Grandes Questions du Droit, semestre d'automne 2011
Updated: July 31, 2013 (Initial publication: Dec. 6, 2011)
Teachings : Les Grandes Questions du Droit, semestre d'automne 2011