March 20, 2023
► Full Reference: M.-A. Frison-Roche, Laws, Compliance, Contracts, and Judges: places and alliances, Working Paper, March 2023.
📝this working paper is the basis for an article published in French (click HERE) in the 📚chronique of Compliance Law held in the Recueil Dalloz.
📚Read the other articles published by this Compliance Law Chronicle. open since 2018.
►Summary of this Working Paper: To understand the functioning of compliance systems in the articulation of the legal actors and the legal instruments used, whatever the technical sector considered, it is necessary to put the "law", the "contract" and the "judge" back into the perspective of legitimacy and efficiency regarding what Compliance is.
At the very least, it is a 'conformity' mechanism. In this process of simple obedience, legislators, economic operators, and judges find themselves in the position of having to obey the law in a hierarchical conception.
In a more dynamic and ambitious conception, when Compliance Law is not reduced to a more astute method of obedience but draws substantial normativity from the Monumental Goals pursued, legislators and operators enter an alliance. The contract becomes a major instrument, and the Judge becomes a major actor, no longer to punish the non-obedient but to facilitate the links to help a sustainable system.
Faced with issues such as digital, climatic, and technological challenges, where we are each so weak and isolated, we must not limit our conception and practices to the instrument of conformity but choose the substantial Compliance Law, i.e. the alliance of forces, which puts forward the contract and renews the office of the judge, with the Public Authorities remaining legitimate in setting the Monumental Goals since they commit the future of the social group.
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