Food for thoughts

Full reference: Frison-Roche, M.-A., Regulation, Compliance & Cinema: learning about Internet Regulation with the series "Criminals"​, Newsletter MAFR - Law, Compliance, Regulation, 21st of September 2020

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Summary of the news: 

Season 2 Episode 3 of the British version of the series "Criminals" features the character of Danielle. Danielle is a mother which has decided to hunt down pedophiles on social networks in order to trap them and show to the world their acts. Danielle insists on the efficiency of her action with regard to the police and justice that she finds unproductive. In the episode, Danielle is accused of defamation by the police. While policemen try to explain to Danielle the importance of using a regular procedure and to respect the Rule of Law aiming to prove its accusations, she makes efficiency her only principle. According to her, her methods get results (on the contrary of those used by the police which respect procedures) and those she accuses to be pedophiles do not deserve defense rights. 

We can learn three lessons from Danielle's story: 

1. If Compliance Law is just a process of application of mechanical rules, then Rule of Law is not salient face to the principle of efficiency. But, if Compliance Law is defined by its "monumental goals" and that the respect of Rule of Law is erected in "monumental goal", then efficiency and Rule of Law become compatible and congruent. 
2. The digital space must be disciplined by crucial digital firms supervised by public authorities, like in France or Germany for hate speeches and disinformation. 
3. Compliance Law, and Law in general, must be pedagogue towards individuals as Danielle which do not understand why their behaviors are reproachable. 

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Full reference: M.-A. Frison-Roche, Se tenir bien dans l'espace numérique, in Penser le droit de la pensée. Mélanges en l'honneur de Michel Vivant, Lexis Nexis and Dalloz, 2020, pp. 155-168.

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📝Read the article (in French)

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🚧Read the working paper, written in English, on which this article is based, with additional developments, technical references, and hyperlinks

English summary of the article: The digital space is one of the scarce spaces not framed by a specific branch of Law, Freedom also offering opportunity to its actors to not "behave well", that is to express and diffuse broadly and immediately hateful thoughts through Hate speechs, which remained before in private or limited circles. The intimacy of Law and of the legal notion of Person is broken: Digital permits to individuals or organizations to act as demultiplied and anonymous characters, digital depersonalized actors who carry behaviors that are hurtful to other's dignity. 

Against that, Compliance Law offers an appropriate solution: internalizing in digital crucial operators the mission to disciplinary and substantially hold the digital space. The digital space has been structured by powerful firms able to maintain order. Because Law must not reduce digital space to be only a neutral market of digital prestations, these crucial operators, like social networks or search engines, must be forced to substantially control behaviors. It could be about an obligation of internet users to act with their face uncover, "real identity" policy controlled by firms, and to respect others' rights, privacy rights, dignity, intellectual property rights. In their Regulatory function, digital crucial firms must be supervised by public authorities. 

Thus, Compliance law substantially defined is the protector of the person as "subject of law" in the digital space, by the respect that others must have, this space passing from the status of free space to the one of civilized space, in which everyone is obliged to behave well. 

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Read to go further: 

• Frison-Roche, M.-A., L'apport du Droit de la Compliance à la gouvernance d'Internet, 2019
• Frison-Roche, M.-A. (dir.), Internet, un espace d'interrégulation, 2016

Full reference: Agence Française Anticorruption (French anticorruption agency), Département de l'appui aux acteurs économiques (Support to economic actors department), La politique cadeaux et invitations dans les entreprises, les EPIC, les associations et les fondations (Gifts and invitations policy for firms, public firms, associations and fondations), Guide pratique 2020 (Practical Guide 2020), 11th of September 2020, 14 p.

Read the practical guide in French

Full reference: Frison-Roche, M.-A., Conflict of interests & "revolving doors"​: what the European Ombudsman said in May 2020, the European Banking Authority agreed in August.Three lessons, Newsletter MAFR - Law, Compliance, Regulation, 7th of September 2020

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Summary of the news: 

Supervision and regulation authorities' impartiality and independence are conditioned to the fact that their members do not have any conflict of interest with the sector that they supervise or regulate. Such an absence of conflict of interest is necessary to guarantee a climate of trust between the authority and operators. This supposes that regulation and supervision authority members do not cumulate functions of operator and of regulator/supervision during but also after their mandate in the regulation/supervision authority because the anticipation of a future hiring can influence present decisions. 

On 2nd of August 2019, the executive director of the European Banking Authority (EBA) informed the authority of its willingness to become PDG of the Association des marchés financiers en Europe, lobby of the financial sector. EBA approved this perspective. However, "Change Finance", a civil coalition, sized the European Mediator explaining that such a professional reorientation created an inevitable conflict of interest. The European Mediator reacted on 7th of May 2020 through a recommendation saying that although EBA took preventive measures, theses measures are not sufficient with regard to the risks. In this recommendation, the European Mediator also made some general propositions to manage future conflicts of interest:

• The interdiction for senior managers to have positions able to create a conflict of interest for two years.
• The information of senior managers and candidates to senior managers positions of the actual rules.
• The implementation of internal procedures blocking access to confidential information to the member who notified its willingness to occupy later a position able to constitute a conflict of interest with its current position. 

In a letter of 28th of August 2020, the president of EBA told to the European Mediator that he accepts these remarks and propositions. 

In this particular case, we can draw three lessons:

1. The difficult articulation between independence/impartiality (necessary for trust) and regulator/supervisor expertise. The European Mediator and the ABE are agree that the interdiction to get some positions must be limited in time.
2. The necessity that everyone can anticipate rules correctly.
3. The necessity to preserve legal security. 

Full reference: Frison-Roche, M.-A., Compliance by Design, a new weapon? Opinion of Facebook about Apple new technical dispositions on Personal Data protection, Newsletter MAFR - Law, Compliance, Regulation, 31st of August 2020

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Summary of the news:

Personal Data, as they are information, are Compliance Tools. They represent a precious resource for firms which must implement a vigilance plan in order to prevent corruption, money laundering or terrorism financing, for examples. It is the reason why personal data are the angular stone of "Compliance by design" systems. However, the use of these data cannot clear the firm of its simultaneous obligation to protect these same personal data, that is also a "monumental goal" of Compliance Law. 

In order to be able to exploit these data in an objective of Compliance and protecting them in the same time, the digital firm Apple adopted for example new dispositions in order to the exploitation of the Identifier For Advertisers (IDFA) integrated in the iPad and in the iPhone and broadly used by targeted advertising firms, is conditioned to the consumer's consent.

Facebook reacted to this new disposition explaining that such measures will restrict the access to data for advertisers who will suffer from that. Facebook suspects Apple to block the access to advertisers in order to develop its own advertising tool. Facebook guaranteed to advertisers who work with it that it will not take similar measures and that it will always favor consultation before decision making in order to concile sometimes divergent interests. 

We can sleep and already make some remarks:

• GDPR imposing to companies that they guarantee a minimal level of protection for personal data does not apply in the United-States. It is then possible that Apple acted through Corporate Social Responsibility (CSR), more than through legal obligation. 
• The mode of regulation used here is the "conversational regulation" theorized by Julia Black. Indeed, regulators let the forces in presence discuss. 
• This "conversational regulation" does not seem to be very efficient in this case and an intervention of administrative authorities or of judges could be justified via Competition Law, Regulation Law or Compliance Law, knowing that Competition Law will favor access right to information and Regulation or Compliance Law private life right. 

The whole paradox of Compliance Law rests in the equilibrium between circulation of information and secret. 

Full reference: Frison-Roche, M.-A., "Interregulation"​ between Payments System and Personal Data Protection: how to organize this "interplay"​?, Newsletter MAFR - Law, Compliance, Regulation, 27th of August 2020

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Summary of the news

Regulation Law, in order to recognize and draw the consequences from the specificities of some objects, has been build, at the start, around the notion of "technical sector" although their delimitation is partially related to a political choice. But, in facts, there are multiple points of contacts between sectors, actors moving from one to another as objects. The regulatory solution is so to climb over some technical borders through the methodology of interregulation which is by the way the only one to enable the regulation of some phenomena going beyond the notion of sector and related to Compliance Law. 

This news takes the exemple of companies furnishing new payment services. In order to they can provide these services, these firms needs to access to banking accounts of concerned people and so to very sensitive personal data. Regulation of such a configuration needs a cooperation between the banking regulator and the personal data regulator. Legislation being not sufficient to organize in Ex Ante this interregulation, the European Data Protection Board has published some guidelines on 17th of July 2020 about the way it conceives the articulation between the PSD2 (European directive about payment services) and GDPR and has announced that it intended to expand the circle of its interlocutors to do this interregulation. Such an initiative from EDPB can be justified by the uncertainty  about how interpreting both texts and articulating them.   

Full reference: Frison-Roche, M.-A., Difficulty of Compliance in Self-Regulation system: example of the Summer 2020 meetings of OPEC about the "conformity"​ for Oil Market Stability​, Newsletter MAFR - Law, Compliance, Regulation, 26th of August 2020

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The world production of oil is largely coordinated by the Organization of the Petroleum Exporting Countries (OPEC) and especially by its Joint Ministerial Monitoring Committee (JMMC). On 15th of July 2020, this Committee decides to reduce the world production of oil in order to maintain a certain price stability in a context of restricted demand because of the COVID-19 pandemic. 

However, such a stability can be maintained only if each member respects this decision and effectively reduce its production level. This meeting of 15th of July also aimed to get member's conformity. In order to get this conformity, the JMMC declared that it will use "name and shame", shaming countries which do not respect the Committee's declaration and naming those which respect it. A second meeting, on 19th of August 2020, reminded to non-compliant countries their obligation and urged them to comply before the 28th of August. 

We can observe two things: 

• The term used by the Committee is "conformity" and not "compliance", which implies less adherence to "monumental goals than the mechanical respect of formal rules.
• In an self-regulation system where there is not supposed to be a need for "conformity", the need for it is a clue that this self-regulation is malfunctioning.

Full reference: Frison-Roche, M.-A., The always in expansion "Right to be Forgotten"​: a legitimate Oxymore in Compliance Law built on Information. Example of​ Cancer Survivors Protection, Newsletter MAFR - Law, Compliance, Regulation, 25th of August 2020 

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Summary of the news

The "right to be forgotten" is an invention of the Court of Justice of the European Union during the case Google Spain in 2014. It implies that digital firms block the access to personal data of someone who asks it. This "right to be forgotten", which permits to impose secret to third parties has largely been generalized by GDPR in 2016. This new fundamental subjective right is a very political and European right. United-States which, on the contrary of Europe, did not experience nazism, links the "right to be forgotten" to the protection of consumer, conception which especially leads California Consumer Privacy Act adopted in 2018 to link this right to a situation of absence of necessity of this data for the firm which obtained it. 

In Europe, this willingness to protect directly the person increases the scope of such a subjective right. Thus, in France and in Luxembourg, since 2020, a cancer survivor can thus ask that such an information is not accessible among his or her health data, especially for insurance companies which use them in their risk calculus to set premium amount. Netherlands will do the same in 2021 to fight against discrimination between banks' and insurances' clients. 

The "monumental goal" is therefore not so much here the protection of individual freedoms as the protection of the vulnerable person, which is bye the way the keystone of a Compliance Law, concealing sometimes prohibition to circulate information (as here) and sometimes obligation to circulate information (in other cases, where the alert must be given) depending on whether vulnerable people are protected either by one or by the other.

Full reference: Frison-Roche, M.-A., The control by regulator of the essential infrastructure manager's investment plan: example of electric network and the notion of "doctrine", Newsletter MAFR - Law, Compliance, Regulation, 24th of August 2020

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On 31st of July 2020, the Commission de Régulation de l'Energie (CRE and French energy regulator) has examined the investment plan of the French electric network manager (RTE) as it does every year. This investment plan is an economic document but it also contains societal purposes, especially the adaptation of the electric network in order to integrate renewable energies. 

The control by the CRE is not a financial control. The crucial operator (RTE) is free to decide the way it wants to manage its budget. The CRE just advices on the financial side by recommending for exemple to be more flexible in its financial strategies. The true CRE's control is about the investment plan's general orientations, the methodology of needs analysis and crucial operator's investment choices which must be aligned with those of the regulator.

Such a control leads to the emergence of an "investment doctrine" from the side of the crucial operator, mixing its own choices and the regulator's guidelines. Beyond this, the elaboration of the investment plan is the result of a true co-writing between the regulator and the firm which discuss together, exchanges points of view and methods. Such a method, expressing a kind of coregulation, could be used in other sectors. 

► Référence complète : Dreyfuss, S., Remplacer la culture de la corruption par une culture de la compliance : l’Europe prend ses responsabilités pour son propre avenir, Le Grand Continent, août 2020. 

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📝 Lire l'article. 

Full reference: Frison-Roche, M.-A., Can Coordination between local Regulators replace a unique centralized Regulator? Example of the European organisation of the Open Internet Principle, Newsletter MAFR - Law, Compliance, Regulation, 18th of August 2020

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To go further, read Marie-Anne Frison-Roche's article: The hypothesis of interregulation 

Summary of the news

The principle of "open internet" enshrined in the European regulation of 30th of April 2016 guaranteeing a non discriminatory access to Internet contents and services. However, there is no European regulator to implement such a principle. Is it possible to guarantee the effectivity of this principle without a central regulator in charge of this principle? 

On 11st of June 2020, the BEREC (Body of European Regulators for Electronic Communications) adopted guidelines concerning the application of the open internet principle. The BEREC is not a European regulator but a network of national regulators aiming to coordinate their actions. This body is only a consultative body but its recommendations are taken into account by national authorities which have deep legal power, as Osborne-Clarke said about the technical implementation of the European principle of open internet at the national level.  

It is thus non necessary to have a central regulator to ensure the effectivity of a principle since the moment when there is a local regulators network able to coordinate their actions through soft law.   

Full reference: Frison-Roche, M.-A., Risk Mapping: is it legally different when it is made by Regulatory Bodies or by Regulated Enterprises?, in  Newsletter MAFR - Law, Compliance, Regulation, 17th of August 2020

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Each year, the Autorité des marchés financiers (French financial markets regulator), the European Central Bank and the Agence française anti-corruption (French anti-corruption agency) publish risk maps. At first glance, risk maps established by the regulator aim to both help regulator and the regulated company to face risks by anticipating them. These documents would only be an assistance brought to firms in their Compliance mission and not an injunction from the regulator to take into account the risks that it emphasizes.  

However, Law forces firms to do their own risk maps under penalty of sanctions. Since the regulator has previously published its own risk map, can companies, obliged to write theirs, deviate from it? If the firm follows the map published by the regulator, can it protect itself against this if it is accused of not having fulfilled its compliance obligations? On the contrary, if the operator does not follow regulator's risk map, can this be blamed on it? Formally, regulator's risk maps do not come with an injunction to take it into account but, as everyone knows, any recommendation from a regulator or supervisor must be taken into account.

The legal solution could here be the implementation of a system of "comply or explain" which would mean that if the firm decides to no follow the risk map established by the regulator, it must be able to justify its choice. 

To go further, read:

• Frison-Roche, M.-A., Legal Theory of Risk Mapping, center of Compliance Law, working paper, 2020

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

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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 : 

• Frison-Roche, M.-A., When Facebook "Invite" Each Internet User to Act Against COVID-19 by Redirecting Him or Her Towards Public Information Center, Is It by Legal Obligation (Compliance) or by Corporate Social Responsibility (CSR)? With Which Consequences?, working paper, 2020
• Frison-Roche, M.-A., Having a Good Behavior in the Digital Space, working paper, 2020

Full reference: Frison-Roche, M.-A., Why the decision of the French Constitutional Council of 7.08.2020 about authors of terrorist offences is so informative for Compliance & Criminal Law, Newsletter MAFR - Law, Compliance, Regulation, 13th of August 2020

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On 7th of August 2020, the Conseil Constitutionnel (French Constitutional Court) made a decision concerning the constitutionality of a French law implementing safety measures against authors of terrorist offenses after their sentence. The law permitting to impose, through an act from the administration, various controls or interdiction to communicate with some people for authors of terrorist offenses after the end of their sanction.  

Although the Conseil Constitutionnel estimated that such dispositions was disproportionate with regards to the objective, which prompted it to censor the text, it recognized that, since terrorism seriously disturbs public order through intimidation and terror, the fight against terrorism contributes to the objective of constitutional value consisting of preventing attacks on the public order. Thus it is not the nature but the intensity of the proposed measures which pushed the Conseil Constitutionnel to state this text not constitutional. By the way, the Conseil affirms that if the legislator submits it a law whose the measures are more proportionate to the goal, these, although Ex Ante and justified only by the existence of a risk, will be declared in conformity with the Constitution.

The Conseil Constitutionnel confirms here that the fight against terrorism financing is a "monumental goal" of Compliance Law. 

Full reference: Frison-Roche, M.-A., Against money laundering, what time matters? Does it work, between ExAnte and ExPost? (BIL case), Newsletter MAFR - Law, Compliance, Regulation, 11th of August 2020

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The activity of money laundering is detrimental not only in itself but also because it permits the development and the sustainability of other criminal activities such as drug trafficking, weapon trafficking or human beings selling. Fighting against money laundering could permit to indirectly fight against these underlying activities, by the way very difficult to fight. Thus, the fight against money laundering has become a "monumental goal", which justifies the adoption of tools sometimes much more powerful than those used by classical criminal Law. For the sake of efficiency, the legal obligation to prevent money laundering is given to every body able to do it, as banks, real estate agents or gaming society, under the penalty of sanction. 

On 10th of August 2020, the Luxembourgish financial market supervisor convicts the International Bank of Luxembourg to pay a fine of 4,5 millions of euros because of weaknesses detected in its process of fight against money laundering. However, when the sanction has been pronounced, the bank had already remedied the weaknesses identified. It is important to observe that what is important for Compliance Law, it is not that a non compliant behavior is punished but rather that the crucial firm modifies its behavior in order to being more efficient in the realization of the "monumental goal", only concern of the public authority. Thus, an Ex Post sanction against the crucial operator is not an end in itself and can be justified only if it permits to incite the crucial operator to act or rather to desincite to do anything. Compliance Law is an Ex Ante legal system. 

To go further, read: 

• Frison-Roche, M.-A., Le couple Ex Ante - Ex Post, justificatif d'un droit spécifique et propre de la Régulation, 2006 (in French)

Full reference : Frison-Roche, M.-A., The practical utility to have a firm definition of "Compliance", Newsletter MAFR - Law, Compliance, Regulation, 10th of August 2020.

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Some says that defining Compliance is a theoretical and non useful exercice that should be left aside to tackle the study of concrete technical cases. However, to be able to use Compliance tools, it is first necessary to have a clear, firm and simple idea of what is Compliance. Moreover, the future of this new branch of law intensely depends on the definition we choose to use. 

Compliance Law gives to some crucial private firms new responsibilities such as the one to fight against global dangers or the one of saving the planet. In this, Compliance Law can be perceived as a kind of new deal between the private sector and public authorities, with the only difference that this time the consent of the private sector is not required.

Some would say that the concretization of such projects is the duty of the State and that private firms, if they must respect the rules, do not have to find a way to concretize a "monumental goal". However, the world face new and systemic dangers in the face of which the State alone is powerless, technically or geographically, and against which crucial companies can act.

It is not about, as some advocate to put human being aside of Compliance Law by letting machines decide. It is about placing the human being and its protection at the heart of Compliance Law. In this, Compliance Law can become a new humanism. 

To go further, read Marie-Anne Frison-Roche's working paper, The Dreamed Compliance Law 

Full reference: Faure-Muntian, Valeria and Fasquelle, Daniel, Information Report of the Commission des Affaires économiques (committee on economic affairs) on digital platforms, Assemblée National (National Assembly), June 2020, 104p.

Read the Report

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► Full Reference: M.-A. Frison-Roche, The dreamed Compliance Law, Working Paper, June 2020. 

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This Working Paper, "The Dreamed Compliance Law", is the basis for an article, written in French, "La compliance" (Compliance), inserted in the collective work to be published under the direction of Jean-Baptiste Racine, Le Droit économique du XXIème siècle (The XXIe century Economic Law , in the Serie Droit & Economie,   LGDJ-Lextenso, 2020.

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No one can know what the Law of the 21st century will be. Pretending to know it is just not to realize its ignorance. Why then writing about it, since the future is always surprising?

One can only write about the unknown part of the Law of tomorrow. If the future is then modeled on what was written, so much the better for the prophet, a tribute that can, for example, be paid to Pierre Godé!footnote-1813 who described in 1999 what was going to be 10 years later "Law of the future" constituted by Environmental Law!footnote-1804. If the future denies the author or if its contours in no way follow the lines of the written word, this is not serious since the writing of the Law, even if it has the specificity of being partly prescriptive in that it has the power to write the future, a normative pen that rounds up letters!footnote-1805, it participates in all writing: above all to be that of a dream.

Lévi-Strauss argued that teaching is defined as dreaming out loud. Teaching and describing the Law of a century that we will never know gives even more freedom to dream about it. This freedom increases when the object is a branch of Law in the process of being born, state of the stammering "Compliance Law" of which some still maintain, as it was made for Regulation Law, that there is not existing. The hand can then, as it pleases, trace its beautiful or hideous features: what face will Compliance Law have, as soon as we assume that it will exist?

It may as well be a nightmare (I) as a happy dream (II).

It is up to us to choose in which category this branch of Law will flourish. Because what we can be sure of is this fulfillment. It is certainly already taking sides to presuppose the very existence of Compliance Law. Not only to consider it possibility with hostility because to be an enemy of something or someone is already to recognize their existence. Before that, two objections radically block the very existence of Compliance Law and their shadow remains in the future of it!footnote-1809.

Firstly, it is said that Compliance does not come under Law, but for example only ethics since it would consist in keeping well in companies which care about the interest of others or the planet, for example by spontaneous care of the environment; Compliance being a crystallization of social responsibility, the one for which we have our conscience, we express our "raison d'être" and we are not accountable!footnote-1807. Or it would consist in technologically putting in place tools for capturing technical information using data storage and processing methods. Compliance is then a sub-category of "Data Regulation"!!footnote-1814, a mechanical concept in which Law is no more present. In these two perspectives, Compliance Law cannot exist, no more tomorrow than it would exist today. These two radical conceptions, completely entrusting Compliance mechanisms to everyone except lawyers, do not make sense because it suffices to note the development of judgments and laws to measure the legal phenomenon already present!footnote-1808.

Second, there would be many Compliance mechanisms but insufficient to constitute a branch of Law. Indeed we would find Compliance in Company Law, Labor Law, Financial Law, Banking Law, Criminal Law, Administrative Law, European Law, International Law, etc.

These classic branches, which have been formed for so long, depending on the point of view adopted, would gain in modernity or be threatened with decay by this kind of extension which will be Compliance. There would thus be as many "little legal sectoral rules" as there are branches of law. These new internal developments would be like a new bud, on which care should be taken - if the tree regains its strength - or a weed to be eradicated - if the French garden loses its perspective.

Thus the matter being scattered as many as specialist lawyers, often criminalists or specialists in banking and Financial Law, then tomorrow all specialists in all branches of Law, this could constitute the most radical obstacle to the constitution of Compliance Law. Indeed, we would come back to confuse Compliance and the "modernization" of Law itself as a whole, since it would only be a question of perfecting each of the classic branches of the legal system.

If we keep in this half-sleep that is any projection in the future the hope of a constituted branch of Law, we must discard these two perspectives of annihilation, either in the total absence of Law or in recovery by all Law. To dismiss the sorrowful spirits who see no future in Compliance and keep only its enemies in the space of this article, let us assume that Compliance Law will exist in the 21st century. In what form and by what means, in the palm of which institutions, in the shadow of which legal system? Since it is a question of projecting ourselves onto the black screen of our nights of dreamy lawyers, let us take the current state only as a trailer. Like the one developed by the genius who by the contempt not only brought down into the flames of hell the cinema which has become a consumer industry with which producers force-feed us but offered us the vision of its future. What is what we see today the trailer? We let our imagination run wild since the trailer films are autonomous works compared to the film which follows them.

We have no idea what will happen and what we are watching from the brief and violent current images of Compliance Law, the cinema of which rather makes a hero of the whistleblower!footnote-1811 and a character of the narrow and ridiculous importance of the compliance officer!footnote-1812, does little to help us. But if we force the features of the present lineaments, the alternative of this Law in childhood is therefore that of a nightmare (I) or an idyllic solution for difficulties that will increase (II).

Everything will depend on the concept that we will retain of Compliance Law. Because the script is not written, because Compliance Law is a Law with a political dimension, that it is defined by the ambitions that we can claim to have by setting monumental goals that we are going to achieve, a claim that will make it one major branch of the Law of tomorrow, or we can abandon any claim, lower our heads and arms, and reject any claim. It is then that the power of Compliance Law, which will be no less great, will turn against us, human beings, as in a nightmare.

Like the precedent cycles dedicated to the general topic of Compliance, aiming to build a "Compliance Law" and aiming also to be published in the series Regulation & Compliance, coedited by the Journal of Regulation & Compliance and Dalloz, this cycle continues to deepen a specific aspect of this emerging branch of Law which has been applied before being designed.  

The year 2020-2021 will give rise to two full and distinct cycles, the former deepening a key concept of Compliance Law, that are "monumental goals" and the later deepening a phenomenon with multiple roots and consequences: "the juridictionnalization of Compliance". 

The juridictionnalization of Compliance is perhaps as ancient as Compliance mechanisms themselves.  

These various conferences will take place in different places, according to the role played by the very numerous universities which, this year once again, support the Journal of Regulation & Compliance for the realization of this cycle. This cycle will give rise to two books, one in French: La Juridictionnalisation de la Compliance, and the other in English : Juridictionnalization of Compliance. 

This cycle of colloquia The juridictionnalization of Compliance will start in October 2020 and will take place until December 2021.

Full reference: Salah, M. M., The Legal Framework for New Silk Roads: a Globalized Law at the Service of a Global ambition. When China Discovers the Virtues of Globalization of Law, International Business Law Journal, n°3, 2020, p. 319-351

This article is available for Sciences Po's students via the Drive in the folder MAFR Regulation et Compliance

Full reference: White Paper on Leveling the Playing Field as Regards Foreign Subsidies adopted by European Commission on 17th of June 2020, 49p.

Read the report

Full reference: Fasterling, B., "Criminal Compliance - Les risques d'un droit pénal du risque", Revue internationale de droit économique, 2016/2 (t.XXX), p. 217-237

Read the article.

Full reference: Support, A., "La refondation de l'Europe ne pourra se faire sans sortir des traités actuels" ("The refoundation of Europe cannot be done without leaving the current treaties"), column in Le Figaro, 22nd of May 2020

Read Alain Supiot's column (in French)

In this column, Alain Supiot underlines the opportunity offered by the judgment of the Court of Karlsruhe of May 5, 2020 concerning the proportionality of the unconventional monetary measures adopted by the ECB.

Full reference: Pistor, K., Germany Constitutional Court Goes Rogue, Project Syndicate, 8th of May 2020

Read the article