Nullity

► Full Reference: G. J. Martin, “Clauses et contrats, modalités de l’obligation de vigilance” (Clauses and Contracts, Modalities of the Vigilance Obligation), in M.-A. Frison-Roche (dir.), L’Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, coll. “Régulations & Compliance”, 2025, pp. 663-678. - read the general presentation of the book, L’Obligation de Compliance, in which the contribution is published - ► This article is written in French. English summary of this contribution (done by the Journal of Regulation & Compliance – JoRC): The author focuses on what are often referred to as “CSR clauses”, insofar as they constitute a way for companies to implement their Compliance Obligation. In a practice that is still “in its infancy”, companies thus contractualise their ethical aspiration and their legal obligation, defining more precisely along the way what the Compliance and/or Vigilance obligation is for them, notably through internal and/or external standards, associating with them mechanisms of evaluation, audit and specific sanctions, such as termination. In addition, the contract organises the articulation with commercial clauses having another purpose. This is all the more necessary as the purpose of these clauses is also to make the legal obligation “trickle down” beyond the first contractual circle. The risk of imbalance must be avoided. The clauses must be precise and limited, notably in space and time. Secondly, the author examines the articulation between ordinary Contract Law and the special Law of Vigilance. Having laid down that the contract is the means, and even the only means, of transforming Soft Law into Hard Law in the relations between the contracting parties, the author considers that if such a clause appears in a commercial contract falling within a situation covered by the 2017 law (value chain, parent company–subsidiary relationship), there is a cumulation of capacities. Conflicts of jurisdiction with the Tribunal judiciaire de Paris (Paris First Instance Civil Court) therefore arise, and one may regret the abandonment of the solution adopted by the Cour de cassation (French Court of cassation) opening an option of jurisdiction. Another difficult articulation will have to be made in the event of nullity of the CSR clause, an annulment that the ordinary judge may pronounce, depending on whether or not the judge considers it decisive for other clauses, or even for the contract. In the event of non-performance of the clause, the termination of commercial relations may be pronounced, but it may be thought that a notice period must be respected. Finally, if the very purpose of the contract is the performance of the Vigilance obligation, this must not amount to a delegation that would nullify the legal principle of personal liability. - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche’s courses -