Updated: Oct. 25, 2017 (Initial publication: May 27, 2016)
This working paper initially served as a basis for a synthesis report made in French in the colloquium organized by the Association Henri Capitant in the International German Days on the subject of "Le Droit et la Mondialisation" (Law and Globalization).
It serves as a second basis for the article (written in English, with a Spanish Summary) to be published in the Brezilian journal Rarb - Revista de Arbitragem e Mediação (Revue d`Arbitrage et Médiation).
In it French version, it serves as a basis for the article, written in French, to be published in the book La Mondialisation.
In this working paper, notes are included, including developments, references and links to work and reflections on the theme of globalization.
It uses the Bilingual Dictionary of the Law of Regulation and Compliance.
To access the French version of the working paper, click on the French flag.
Globalization is a confusing phenomenon for the jurist. The first thing to do is to take its measure. Once it has been taken, it is essential that we allow ourselves to think of something about it, even if we have to think about it. For example, on whether the phenomenon is new or not, which allows a second assessment of what is taking place. If, in so far as the law can and must "pretend" to defend every being, a universal claim destined to face the global field of forces, the following question - but secondary - is formulated: quid facere? Nothing ? Next to nothing ? Or regulate? Or can we still claim that the Law fulfills its primary duty, which is to protect the weak, including the forces of globalization?
Let us begin the peripheries of Law in globalization.
Globalization is a confusing phenomenon for everyone. It is no doubt even more so for the jurist for whom words are normative acts and which stumbles on the definition of globalization
Perhaps this is why lawyers are as impressed by the argument of globalization, which is often cited to argue that the time of imperative legislations is over, or that Roman law may well turn into its grave, Globalization would pass over the corpse of the Civil Code. The more mysterious the notion is, the more names it has, the more it sets back the jurist of good tradition, global trade being as upgraded when it is designated as "globalization", the zest of English leading to the globalization that parses Of reports, even written in French or Spanish or Italian. . The global language being English, the Globalization is English also.
If we take up the movement of this wave, it is appropriate first of all to take stock of what is globalization (I). It is only relevant that the usefulness, if not necessity, is posed to think about this movement of globalization. There is a legal imperative to formulate an assessment if it is posited that the Law has the mission of protecting every human being, a concern that is supported by the Law. Then, because Law is also a technique, we can ask ourselves the question of Quid facere? But in practice it can not be said that under the pretext that the field of the world forces is very powerful and that the Law appears to be very weak in its claims to protect every human being in its dignity, it would for this reason disappear from the World stage (II).
On the contrary. It is at the foot of the wall of Globalization that today we can measure the claim of Law to defend humanity.
See for ex. Marie-Anne, Frison-Roche, Le droit des deux mondialisations, in Terré, F., (dir), La mondialisation entre illusion et utopie, Archives de Philosophie du Droit, Tome 47, Dalloz, pp. 17-23.
May 11, 2017
Reference : Frison-Roche, M.-A., Le contrat est-il l'instrument optimal de la RSE ? ("Is the Contract the optimal instrument of CSR?") in Trébulle, F.-G. (modérateur), Les instruments de la RSE : le contrat (The instruments of CSR"), cycle of conferences organized by the Cour de cassation (French Civil Supreme Court and the Universities of Paris-Dauphine, Paris VIII and Paris I),Cour de cassation, Paris, 11 mai 2017.
Corporate Social Responsibility belongs to Economic Law. It thus enters into its logic of efficiency, leading to apprehend any legal mechanism as an instrument, the contract as the others. This does not mean that everything is only an instrument, on the contrary. Economic Law, when it takes the form of Regulation Law, places the principles in the aims pursued. It is in these principles that it can meet CSR if the goals are the same.
In view of these aims, everything is an instrument. On the scale of goals which are "monumental"
New laws, such as in France in 2016 the Sapin 2 law or in 2017 the law establishing a "duty of vigilance" with uncertain contours, may use the contract only as a vehicle for legal obligations to be performed by the company
But the contract can also be chosen as an instrument by the company in that it pursues the same goals of general interest, becoming global
In this, the contract converges towards what is being constructed: a Compliance Law.
For a whole demonstration, see Frison-Roche, M.-A.,From Regulation Law to Compliance Law, 2017.
On this notion of "global general interest", and maybe of "global public service", see Frison-Roche, M.A., From Regulation Law to Compliance Law, 2017 .
Dec. 17, 2014
Oct. 22, 2014
Thesaurus : 06.1. Textes de l'Union Européenne
Référence complète : Directive 2014/95/UE du Parlement européen et du Conseil du 22 octobre 2014 modifiant la directive 2013/34/UE en ce qui concerne la publication d'informations non financières et d'informations relatives à la diversité par certaines grandes entreprises et certains groupes