"Liberalization" refers to the process of the legal end of a monopolistic organization of an economy, a sector or a market, in order to open it up to Competition.

Since it is rare for an economy to be entirely monopolistic (which presupposes an extreme concentration of political power), the phenomenon is more particularly characteristic of public sectors. Liberalization, if it is translated into Law only by a declaration of openness to Competition, is actually achieved only by a much slower implementation of the latter, since the incumbent operators have the power to check the entry of potential new entrants. This is why the process of liberalization is only effective if strong regulatory authorities are established to open up the market, weakening incumbent operators where necessary and offering benefits to new entrants through asymmetric regulation .

This Regulation aims to build Competition, now permitted by law.

This is why, in a process of Liberalization, Regulation aims to concretizeCcompetition by constructing it. This transitional regulation is intended to be withdrawn and the institutions set up to disappear, for example by becoming merely specialized chambers of the General Competition Authority, Regulation being temporary when linked to liberalization.

It is distinct from the Regulation of essential infrastructures which, as natural monopolies, must be definitively regulated. Quite often, in liberal economies, the State has asked public enterprises to manage such monopolies, particularly in the network industries, to which it has also entrusted the economic activity of the entire sector. By the liberalization phenomenon, most States have opted to retain the management of infrastructure for this operator, now an incumbent operator competing on the competing activities offered to consumers. In this respect, the Regulator forces it in two ways: in a transitional way to establish competition for the benefit of new entrants, in a definitive way insofar as it has been chosen by the State to manage the economic monopoly of infrastructure.

Even in the only relationship between competitors, Regulation has difficulty to retreat, and this often due to the Regulator. Max Weber's sociological rules  administration show about administration that the regulatory authorities, even in view of the purpose of competitive development, for example in the field of telecommunications, seek to remain, even though competition has actually been built. It does it by finding new purposes (in the above sector, the regulator could be the guardian of Net Neutralityt) or by affirming to practice a permanent "symmetric Regulation".

Référence complète : Lagarde, Ch., A regulatory Approch to FinTech, mai 2018. 

 

Lire l'article. 

► Référence complète : Agence française anticorruption (AFA), Guide du contrôle comptable anticorruption, 2022. 

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► Lire le guide

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📧 Lire le commentaire fait par Marie-Anne Frison-Roche de ce guide. 

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► Full Reference:  B. Sillaman, "Taking the Compliance U.S. Procedural Experience globally", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, coll. "Compliance & Regulation", to be published. 

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📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published

 

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► Summary of the article (done by the Journal of Regulation & Compliance): The French legal system is evolving, organizing interaction between lawyers with regulators and prosecutors, specially in investigations about corruption or corporate misconduct, adopting U.S. negotiated resolutions such as the Convention judiciaire d'intérêt public, which encourages "collaboration" between them. 

The author describes the evolution of the U.S. DOJ doctrine and askes French to be inspired by the U.S. procedural experience, U.S. where this mechanism came from. Indeed, the DOJ released memoranda about what the "collaboration" means. At the end (2006 Memorandum), the DOJ has considered that the legal privilege must remain intact when the information is not only factual in order to maintain trust between prosecutors, regulators and lawyers.

French authorities do not follow this way. The author regrets it and thinks they should adopt the same reasoning as the American authority on the secret professionnel of the avocat, especially when he intervenes in the company internal investigation.

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🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses

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Competition is the law of the market. It allows the emergence of the exact price, which is often referred to as "fair price". It means and requires that agents on the market are both mobile, that is to say free to exercise their will, and atomized, that is to say, not grouped together. This is true for those who offer a good or service, the offerers, as well as for those seeking to acquire them, the applicants: the bidders seek to attract the applicants so that they buy them the goods and services that they propose.  Bidders are in competition with each other.

In the competitive market, buyers are indulging in their natural infidelity: even if they have previously bought a product from an A supplier, they will be able to turn away from him in favor of a B supplier if the latter offers them a product more attractive in terms of quality or price. Price is the main signal and information provided by the suppliers on the market to excite this competitive mobility of the offerers. Thus, free competition accelerates market liquidity, the circulation of goods and services, raises the quality of products and services and lowers prices. It is therefore a moral and virtuous system, as Adam Smith wanted, a system which is the fruits of individual vices. That is why everything that will inject "viscosity" into the system will be countered by Competition Law as "non-virtuous": not only frontal coordination on prices but for example, exclusivity clauses, agreements by which companies delay their entry on the market or intellectual property rights which confer on the patentee a monopoly.

Admittedly, Competition Law can not be reduced to a presentation of such simplicity, since it admits economic organizations which deviate from this basic model, for example distribution networks or patent mechanisms on which, inter alia, is built the pharmaceutical sector. But the impact is probative: in the sphere of Competition Law, if one is in a pattern that is not part of the fundamental figure of the free confrontation of supply and demand, he has to demonstrate the legitimacy and efficiency of its organization, which is a heavy burden on the firm or the State concerned.

Thus, in the field of Regulation, if regulatory mechanis were to be regarded as an exception to competition, an exception admitted by the competition authorities, but which should be constantly demonstrated before them by its legitimacy and effectiveness in the light of the "competitive order", then public organizations and operators in regulated sectors would always face a heavy burden of proof. This is what the competition authorities consider.

But if we consider that regulated sectors have a completely different logic from competitive logic, both from an economic and a legal point of view, the Law of Regulation refers in particular to the notion of public service and having its own institutions, which are the regulatory authorities, then certain behaviors, in particular monopolies, are not illegitimate in themselves and do not have to justify themselves in relation to the competitive model, for they are not the exception ( Such as the public education or health service).

► Référence complète : M. Caffin-Moi, "L’imprégnation des branches du droit par les mécanismes de compliance : le contrat", in M.-A. Frison-Roche (dir.), Compliance et contrat, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. "Régulations & Compliance", à paraître

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📕lire une présentation de l'ouvrage, Compliance et contrat, dans lequel cet article est publié

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► Résumé de l'article (fair par le Journal of Regulation & Compliance - JoRC) : L'auteure commence par montrer que les contrats sont de plus en plus présents dans le Droit de la Compliance, celui-ci n'étant plus ce qui est seulement exprimé par des lois d'ordre public, tandis que le contrat ne porterait que les intérêts privés de deux parties particulières. Elle expose comment concrètement aujourd'hui, et chaque jour davantage, les contrats sont utilisés comme un instrument de diffusion de la Compliance, la Vigilance étant exemplaire de cela, les textes incitant les entreprises à le faire, la CS3D mettant "le contrat à l'honneur" par la mise en place de "cascades contractuelles", le contrat agissant à la fois en surface et en profondeur.

Mais il ne faut pas que le contrat soit un moyen de restreindre la responsabilité, et l'on trouve des points de "friction" entre Contrat et Compliance.

Tout d'abord, parce que les réglementations, voire la jurisprudence, obligent les entreprises à contracter, par exemple avec des fournisseurs de rang 2, ce qui est une atteinte à la liberté de ne pas contracter.

En outre, les Buts Monumentaux de la Compliance institutionnalisent une relation contractuelle qui peut être déséquilibrée, voire engendrer une concurrence déloyale si une entreprise s'y plie et l'autre pas, la Compliance conférant de plus des prérogatives exorbitantes à l'entreprise.

Pour ne pas provoquer trop de conflits, et l'auteure souligne que le premier est certainement celui sur la compétence juridictionnelle entre le tribunal de commerce et le Tribunal judiciaire de Paris, il faut impérativement un dialogue des juges.

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Legally, the State is a public law subject defined by territory, people and institutions. It acts in the international space and emits norms. Politically, it has the legitimacy required to express the will of the social body and to exercise the violence of which it deprives the other subjects of law. It is often recognizable by its power: its use of public force, its budgetary power, its jurisdictional power. These three powers, declining or being challenged by private, international and more satisfying mechanisms, some predicted the disappearance of the State, to deplore it or to dance on its corpse.

With such a background, in current theories of Regulation, primarily constructed by economic thought and at first sight one might say that the State is above all the enemy. And this for two main reasons. The first is theoretical and of a negative nature. The advocates of the theory of regulation deny the State the political qualities set out above. The State would not be a "person" but rather a group of individuals, civil servants, elected officials and other concrete human beings, expressing nothing but their particular interests, coming into conflict with other interests, and using their powers to serve the former rather than the latter as everyone else. The Regulation theory, adjoining the theory of the agency, is then aimed at controlling public agents and elected representatives in whom there is no reason to trust a priori.

The second reason is practical and positive. The State would not be a "person" but an organization. Here we find the same perspective as for the concept of enterprise, which classical lawyers conceive as a person or a group of people, while economists who conceive of the world through the market represent it as an organization. The state as an organization should be "efficient" or even "optimal". It is then the pragmatic function of the Regulation Law. When it is governed by traditional law, entangled by that it would be an almost religious illusions of the general interest, or even the social contract, it is suboptimal. The Regulation purpose is about making it more effective.

To this end, as an organization, the State is divided into independent regulatory agencies or independent administrative authorities that manage the subjects as close as possible, which is fortunate in reducing the asymmetry of information and in reviving trust in a direct link. The unitary, distant and arrogant State is abandoned for a flexible and pragmatic conception of a strategic state (without capital ...) that would finally have understood that it is an organization like any other ...

Competition law adopts this conception of the State, which it posed from the beginning that it was an economic operator like any other. This is how this conception which would be  more "neutral" of the world is often presented.

Successive crises, whether sanitary or financial, have produced a pendulum effect.

Now, the notions of general interest or common goods are credited of an autonomous value, and the necessity of surpassing immediate interests and of finding persons to bear superior interests or to take charge of the interests of others, even a non-immediate one, emerged.

Thus, the State or the public authority, reappears in the globalization. The Compliance Law or the Corporal Social Responsibility of the crucial companies are converging towards a consideration of the State, which can not be reduced to a pure and simple organization receptacle of externalities.

 

► Full Reference : E. Netter, "Les technologies de conformité pour satisfaire les exigences du droit de la compliance. Exemple du numérique" (Conformity technologies to meet the requirements of Compliance Caw. Digital example), in M.-A. Frison-Roche (dir.), L'obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. "Régulations & Compliance", 2024, forthcoming.

 

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📕read the general presentation of the book, L'obligation de Compliance, in which this contribution is published.

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► English summary of this contribution (done by the Journal of Regulation & Compliance) :The author distinguishes between Compliance, which refers to Monumental Goals, and conformity, which are the concrete means that the company uses to tend towards them, through processes, check-lists in the monitoring of which the operator is accountable (art. 5.2. GRPD). Technology enables the operator to meet this requirement, as the changing nature of technology fits in well with the very general nature of the goals pursued, which leave plenty of room for businesses and public authorities to produce soft law.

The contribution focuses firstly on existing technologies. Through Compliance, Law can prohibit a technology or restrict its use because it runs counter to the goal pursued, for example the technology of fully automated decisions producing legal effects on individuals. Because it is a perilous exercise to dictate by law what is good and what is bad in this area, the method is rather one of explicability, i.e. control through knowledge by others.

Regulators are nevertheless developing numerous requirements stemming from the Monumental Goals of Compliance. Operators must update their technology or abandon obsolete technology in the light of new risks or to enable effective competition that does not lock users into a closed system. But technological power must not become too intrusive, as the privacy and freedom of the individuals concerned must be respected, which leads to the principles of necessity and proportionality.

The author stresses that operators must comply with the regulations by using certain technologies if these technologies are available, or even to counteract them if they are contrary to the goals of the regulations, but this obligation of conformity is applied only if these technologies are available. The notion of "available technology" therefore becomes the criterion of the obligation, which means that its content varies with circumstances and time, particularly in the area of cybersecurity.

In the second part of this contribution, the author examines technologies that are only potential, those that Law, and in particular the courts, might require companies to invent in order to fulfill their conformity obligation. This is quite understandable when we are talking about technologies that are in the making, but which will come to fruition, for example in the area of personal data transfer to satisfy the right to portability (GRPD), or where companies must be encouraged to develop technologies that are of less immediate benefit to them, or in the area of secure payment to ensure strong authentication (SPD 2).

This is more difficult for technologies whose feasibility is not even certain, such as online age verification or the interoperability of secure messaging systems, two requirements which appear to be technologically contradictory in their terms, and which therefore still come under the heading of "imaginary technology". But Compliance is putting so much pressure on companies, particularly digital technology companies, that considerable investment is required to achieve it.

The author concludes that this is the very ambition of Compliance and that the future will show how successful it will be. 

 

 

 

 

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🦉This article is available in full texte for persons following Professor Marie-Anne Frison-Roche teaching.

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►Full Reference: Delalieu, G., La loi sur le devoir de vigilance des sociétés multinationales : parcours d’une loi improbable, Droit et Société, 2020/3, n°106, p.649-665.

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►English Summary of the Article (done by the Author): (Corporate Duty of Vigilance in France: The Path of an Improbable Statute). This article offers an analysis of the resistance encountered by defenders (NGOs and trade unions) of the French Law on Corporate Duty of Vigilance. These actors sought to behave as institutional entrepreneurs deploying intense advocacy and lobbying efforts to successfully have this bill tabled, examined, and ultimately passed by the French government. Considering this case, the concept of “institutional entrepreneurship” is discussed and then relativized using Machiavelli’s notion of “Fortuna,” to describe the “improbable” adoption of this statute. The results tend to put into perspective the importance that individual actors, including collective ones, can have in the explanation of institutional change, in favor of a multilevel analysis of change (micro, meso, macro).

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The procedural guarantees enjoyed by a person whose situation may be affected by a forthcoming judgment are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

The rights of the defense have constitutional value and constitute human rights, benefiting everyone, including legal persons. The mission of positive Law is to give effect to them in good time, that is to say from the moment of the investigation or custody, which is manifested for example by the right to the assistance of a lawyer or the right to remain silent or the right to lie. Thus the rights of the defense are not intended to help the manifestation of the truth, do not help the judge or the effectiveness of repression - which is what the principle of adversarial law does - they are pure rights, subjective for the benefit of people, including even especially people who may be perfectly guilty, and seriously guilty.

The rights of the defense are therefore an anthology of prerogatives which are offered to the person implicated or likely to be or likely to be affected. It does not matter if it possibly affects the efficiency. These are human rights. This is why their most natural holder is the person prosecuted in criminal proceedings or facing a system of repression. This is why the triggering of the power of a tribunal or a judge offers them in a consubstantial way to the one who is by this sole fact - and legitimately - threatened by this legitimate violence (one of the definitions of the State ).

The rights of the defense therefore begin even before the trial because the "useful time" begins from the investigation phase, from the searches, even from the controls, and continues on the occasion of appeals against the decision adversely affecting the decision. The legal action being a means of being a party, that is to say of making arguments in its favor, and therefore of defending its case, shows that the plaintiff in the proceedings also holds legal defense rights since he is not only plaintiff in the proceedings but he also plaintiff and defendant to the allegations which are exchanged during the procedure: he alleged to the allegation of his opponent is not correct.

They take many forms and do not need to be expressly provided for in texts, since they are principled and constitutionally benefit from a broad interpretation (ad favorem interpretation). This is the right to be a party (for example the right of intervention, the right of action - which some distinguish from the rights of the defense - the right to be questioned, such as the right to be brought into question (or examination), right to be assisted by a lawyer, right to remain silent, right not to incriminate oneself, right of access to the file, right to intervene in the debate (the rights of the defense thus crossing the adversarial principle), right to appeal, etc.

It is essential to qualify an organ as a tribunal because this triggers for the benefit of the person concerned the procedural guarantees, including the rights of the defense, which on the basis of Article 6 of the European Convention on Human Rights man was made about the Regulators yet formally organized in Independent Administrative Authorities (AAI). This contributed to the general movement of jurisdictionalization of Regulation.

Network industries are built on transport infrastructure such as telecommunications waves or data, gas or electricity, which are essential facilities.

These essential infrastructures are monitored by regulators not only for the operators to have a concrete right of access but also for a complete network of these infrastructures to be built in a space, especially in Europe, for example to achieve a European railway system.

These infrastructures also exist in banking, financial and insurance matters, which it would be futile to oppose too easily to Network industries, as financial centers are based on huge computer systems, internalized clearing houses, which are themselves Infrastructure, deserving Regulation.

In this way, the optimal infrastructure solidity, the Regulator having its final responsibility in a permanent control over the manager, whether the State or an operator - whether the operator is an operator Public or a private operator -, and the competitive dynamism of the sector that the system can also entrust to the same regulator.

This is particularly the case in Financial Regulation, which aims to optimize the places, which compete with each other, and their respective security, which itself constitutes a competitive advantage, common to all operators.

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► Full Reference: M.-A. Frison-Roche, "Concevoir l'Obligation de Compliance : faire usage de sa position pour participer à la réalisation des Buts Monumentaux de la Compliance" ("Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals"), in M.-A. Frison-Roche (ed.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, "Régulations & Compliance" Serie, 2024, to be published

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📝read the article (in French)

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🚧read the bilingual Working Paper on the basis this contribution has been built, with  more developments, technical references and hyperlinks. 

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📕read a general presentation of the book, L'Obligation de Compliance, in which this article is published 

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► English summary of this contribution: Rather than getting bogged down in definitional disputes, given that Compliance Law is itself a incipient branch of Law, the idea of this contribution is to take as a starting point the different regimes of so many different compliance obligations to which laws and regulations subject large companies: sometimes they must apply them to the letter and sometimes they are only penalised in the event of fault or negligence. This brings us back to the distinction between obligations of result and obligations of means.

Although it might be risky to transpose the expression and regime of contractual obligations to legal obligations, starting from this observation in the Compliance Evidentiary System of a plurality of obligations of means and of result, depending on whether we are dealing with this or that technical compliance obligation, we must first classify them. It would appear that this plurality does not constitute a definitive obstacle to the creation of a single definition of the Compliance Obligation. On the contrary, it makes it possible to clarify the situation, to trace the paths through what is so often described as a legal jumble, an unmanageable mass of regulations.

Indeed, insofar as the company obliged under Compliance Law participates in the achievement of the Monumental Goals on which this branch of Law is normatively based, a legal obligation which may be relayed by contract or even by ethics, it can only be an obligation of means, by virtue of this very teleological nature and the scale of the goals targeted, for example the happy outcome of the climate crisis which is beginning or the desired effective equality between human beings. This established principle leaves room for the fact that the behaviour required is marked out by processes put in place by structured tools, most often legally described, for example the establishment of a vigilance plan or regularly organised training courses (effectiveness), are obligations of result, while the positive effects produced by this plan or these training courses (efficacy) are obligations of means. This is even more the case when the aim is to transform the system as a whole, i.e. to ensure that the system is solidly based, that there is a culture of equality, and that everyone respects everyone else - all of which come under the heading of efficiency.

The Compliance Obligation thus appears unified because, gradually, and whatever the various compliance obligations in question, their intensity or their sector, its structural process prerequisites are first and foremost structures to be established which the Law, through the Judge in particular, will require to be put in place but will not require anything more, whereas striving towards the achievement of the aforementioned Monumental Goals will be an obligation of means, which may seem lighter, but corresponds to an immeasurable ambition, linked with these Goals. Moreover, because these structures (warning platforms, training, audits, contracts and clauses, etc.) only have meaning in order to produce effects and behaviour leading to changes converging towards the Monumental Goals, it is the obligations of means that are most important and not the obligations of result. The judge must also take this into account.

Finally, the Compliance Obligation, which therefore consists of this interweaving of multiple compliance obligations of result and means of using the Entreprise's position, ultimately aims at system efficiency, in Europe at system civilisation, for which companies must show not so much that they have followed the processes correctly (result) but that this has produced effects that converge with the Goals sought by the legislator (effects produced according to a credible trajectory). This is how a crucial economic operator, responsible Ex Ante, should organise itself and behave.

 

 

 

 

 

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Control is a concept so central in Regulation that, in the difficult exercise of translation, the English term of "Regulation" or the expression "Regulatory system" are often translated, for example in French,, by the French word "control" (contrôle). Indeed, the Regulator controls the sector for which he  is responsible. This control is carried out ex ante by the adoption of standards of behavior, whether the Regulator prohibits behavior or obliges the operators to do so. In addition, the Regulators exercises his control powers through the power to approve companies entering the sector or the power to certify certain types of products sold on the markets for which he is responsible. In addition, he continuously monitors the sectors for which he is responsible since his function is either to construct them to bring them to maturity or to remain in balance between the principle of competition and another concern, for example to ensure that they do not fall into a systemic crisis.

These ex ante controls radically distinguish the regulatory authority from the competition authority, which intervenes only ex post. Finally, the regulatory authority controls the sector in ex post: in this he works on a temporal continuum, sanctioning the failings he finds on the part of the operators to the prescriptions he has adopted himself. he often has the power to settle disputes if two operators compete in a dispute between them and bring it before him.

This control function specific of the regulatory authority, which it often shares with the traditional administration and which opposes it to the activity of the competition authority and the courts, is made difficult by its possible lack of independence. Indeed, because the Regulator is a State boddy, if the regulator has to control a public operator, it may risk being captured by the government, since the whole organization of the regulatory system must therefore ensure its independence not only statutory but also budgetary in relation to it. This risk of capture is permanent not only because of the government but also because of the sector. Secondly, control can be inefficient if the regulator lacks adequate, reliable and timely information, risk generated by information asymmetry.

To fight against this, according to the childish image of the stick and the carrot, we must at the same time give the regulator powers to extirpate information that the operators do not want to provide, the texts never ceasing to give regulators new powers, such as perquisitions power ou sanction ou settlemeent. Symmetrically, operators are encouraged to provide information to the market and the regulator, for example through leniency programs or the multiplication of information to be inserted in company documents. Finally, there is a difficult balance between the need to combat the capture of the regulator and the need to reduce the asymmetry of information since the best way for the latter to obtain information from the sector is by frequent attendance by operators: , This exchange that they accept very willingly is the open voice to the capture. It is therefore an art for the regulator to keep operators at a distance while obtaining from them information that only untended relationships allow him to obtain.

Moreover, the Compliance Law which is in the process of being put in place is intended to resolve this major difficulty, since the operator becomes the primary agent for the implementation of the Regulation Law, whose aims are internalized in the " crucial " and global operators perator, operator crucial and global, the Regulator ensuring the effective structural change of the operator to realize these goals of this Global Regulation Law.

 

 

Le plan est  actualisé chaque semaine au fur et à mesure que les leçons se déroulent en amphi.

Il est disponible ci-dessous.

 

Retourner à la présentation générale du cours.

 

 

(Avant le début des enseignements de Droit de la Régulation bancaire et financière, un aperçu du plan général du Cours avait été mis à disposition.)

Référence complète Fox, E., The new world order, in Mélanges Joël Monéger, Liber Amicorum en l'honneur du Professeur Joël Monéger, LexisNexis, 2017, 818 p.  

 

Paradoxically, the notion of conflict of interest seems to be at the center of Economic Law only recently in Economic Law, in both Corporate and Public Law. This is due to the philosophy which animates these two branches of Law, very different for each, and which has changed in each.

In fact, and in the first place in Public Law, in the Continental legal systems and especially in French legal tradition, on the side of the State, the one who serves it, by a sort of natural effect,, makes the general interest incarnated by the State pass before its personal interest. There is an opposition of interests, namely the personal interest of this public official who would like to work less and earn more, and the common interest of the population, who would like to pay less taxes and for example benefit trains that always arrive on time and the general interest which would be for example the construction of a European rail network.

But this conflict would be resolved "naturally" because the public official, having "a sense of the general interest" and being animated by the "sense of public service", sacrifices himself to serve the general interes. He stays late at his office and gets the trains on time. This theory of public service was the inheritance of royalty, a system in which the King is at the service of the People, like the aristocracy is in the "service of the King." There could therefore be no conflict of interest, neither in the administration nor in the public enterprises, nor to observe, manage or dissolve. The question does not arise ...

Let us now take the side of the companies, seen by the Company Law. In the classical conception of corporate governance, corporate officers are necessarily shareholders of the company and the profits are mandatorily distributed among all partners: the partnership agreement is a "contract of common interest". Thus, the corporate officer works in the knowledge that the fruits of his efforts will come back to him through the profits he will receive as a partner. Whatever its egoism - and even the agent must be, this mechanism produces the satisfaction of all the other partners who mechanically will also receive the profits. Selfishness is indeed the motor of the system, as in the classical theory of Market and Competition. Thus, in the corporate mechanism, there is never a conflict of interest since the corporate officer is obligatorily associated: he will always work in the interest of the partners since in this he works for himself. As Company Law posits that the loss of the company will also be incurred and suffered by all partners, he will also avoid this prospect. Again, there is no need for any control. The question of a conflict of interest between the mandatary and those who conferred this function does not structurally arise...

These two representations both proved inaccurate. They were based on quite different philosophies - the public official being supposed to have exceeded his own interest, the corporate officer being supposed to serve the common interest or the social interest by concern for his own interest - but this was by  a unique reasoning that these two representations were defeated.

Let us take the first on Public Law: the "sense of the State" is not so common in the administration and the public enterprises, that the people who work there sacrifice themselves for the social group. They are human beings like the others. Researchers in economics and finance, through this elementary reflection of suspicion, have shattered these political and legal representations. In particular, it has been observed that the institutional lifestyle of public enterprises, very close to the government and their leaders, is often not very justified, whereas it is paid by the taxpayer, that is, by the social group which they claimed to serve. Europe, by affirming in the Treaty of Rome the principle of "neutrality of the capital of enterprises", that is to say, indifference to the fact that the enterprise has as its shareholder a private person or a public person, validated this absence of exceeding of his particular interest by the servant of the State, become simple economic agent. This made it possible to reach the conclusion made for Company Law.

Disillusionment was of the same magnitude. It has been observed that the corporate officer, ordinary human being, is not devoted to the company and does not have the only benefit of the profits he will later receive as a partner. He sometimes gets very little, so he can receive very many advantages (financial, pecuniary or in kind, direct or indirect). The other shareholders see their profits decrease accordingly. They are thus in a conflict of interest. Moreover, the corporate officer was elected by the shareholders' meeting, that is to say, in practice, the majority shareholder or the "controlling" shareholder (controlling shareholder) and not by all. He may not even be associated (but a "senior officer").

The very fact that the situation is no longer qualified by lawyers, through the qualifications of classical Company Law, still borrowing from the Civil Contract Law, the qualifications coming more from financial theories, borrowing from the theory of the agency, adically changed the perspective. The assumptions have been reversed: by the same "nature effect", the conflict of interest has been disclosed as structurally existing between the manager and the minority shareholder. Since the minority shareholder does not have the de facto power to dismiss the corporate officer since he does not have the majority of the voting rights, the question does not even arise whether the manager has or has not a corporate status: the minority shareholder has only the power to sell his securities, if the management of the manager is unfavorable (right of exit) or the power to say, protest and make known. This presupposes that he is informed, which will put at the center of a new Company Law information, even transparency.

Thus, this conflict of interests finds a solution in the actual transfer of securities, beyond the legal principle of negotiability. For this reason, if the company is listed, the conflict of interest is translated dialectically into a relationship between the corporate officer and the financial market which, by its liquidity, allows the agent to be sanctioned, and also provides information, Financial market and the minority shareholder becoming identical. The manager could certainly have a "sense of social interest", a sort of equivalent of the state's sense for a civil servant, if he had an ethics, which would feed a self-regulation. Few people believe in the reality of this hypothesis. By pragmatism, it is more readily accepted that the manager will prefer his interest to that of the minority shareholder. Indeed, he can serve his personal interest rather than the interest for which a power has been given to him through the informational rent he has, and the asymmetry of information he enjoys. All the regulation will intervene to reduce this asymmetry of information and to equip the minority shareholder thanks to the regulator who defends the interests of the market against the corporate officers, if necessary through the criminal law. But the belief in managerial volunteerism has recently taken on a new dimension with corporate social responsability, the social responsibility of the company where managers express their concern for others.

The identification of conflicts of interests, their prevention and their management are transforming Financial Regulatory Law and then the Common Law of Regulation, because today it is no longer believed a priori that people exceed their personal interest to serve the interest of others. It is perhaps to regain trust and even sympathy that companies have invested in social responsibility. The latter is elaborated by rules which are at first very flexible but which can also express a concern for the general interest. In this, it can meet Compliance Law and express on behalf of the companies a concern for the general interest, if the companies provide proof of this concern.

To take an example of a conflict of interest that resulted in substantial legal changes, the potentially dangerous situation of credit rating agencies has been pointed out when they are both paid by banks, advising them and designing products, While being the source of the ratings, the main indices from which the investments are made. Banks being the first financial intermediaries, these conflicts of interest are therefore systematically dangerous. That is why in Europe ESMA exercises control over these rating agencies.

The identification of conflicts of interest, which most often involves changing the way we look at a situation - which seemed normal until the point of view changes - the moral and legal perspective being different, Trust one has in this person or another one modifying this look, is today what moves the most in Regulation Law.
This is true of Public and Corporate Law, which are extended by the Regulation Law, here itself transformed by Compliance Law, notably by the launchers of alerts. But this is also true that all political institutions and elected officials.

For a rule emerges: the more central the notion of conflict of interest becomes, the more it must be realized that Trust is no longer given a priori, either to a person, to a function, to a mechanism, to a system. Trust is no longer given only a posteriori in procedures that burden the action, where one must give to see continuously that one has deserved this trust.

Référence complète : Marcou, G., L'ordre public économique aujourd'hui. Un essai de redéfinition, in, Revet, TH. et Vidal, L. Annales de la régulation, IRJS, 2009, p.79 et s.

The United States established regulatory authorities at the end of the 19th century: starting from the principle of the market, they tempered it by setting up regulators, after noting market failures, for example in terms of transport, in the event of economically natural monopolies or essential facilities. The tradition of the European Union is the reverse since the States, in particular the French State, have considered that sectors of general interest, deemed unsuitable for the competitive pattern because not corresponding to the operational pattern of the meeting of supply and demand, and to serve the missions of public services, were to be held by the State, either directly by public establishments, or by public enterprises under the supervision of the ministries.

Evolution in Europe came from community Law. Indeed, after the Second World War, the idea was to build a market which was to be "common" to European countries so that they could no longer wage war on each other in the future. To achieve this goal, the borders between them were lifted thanks to the principles of free movement of people, goods and capital. In the same way, the defense by each of the States of its own national companies by State aid has been prohibited so that any company, even foreign, can enter its territory, so that a common internal market can be established. Finally, a competition Law was necessary to prohibit companies and States from hindering the free functioning of the market, which would have slowed down or even stopped the construction of this internal market, which was an essentially political goal of the Treaty of Rome.

To carry out this political goal, the European Commission and the Court of Justice of the European Union (CJEU, previously called the Court of Justice of the European Communities - CJEC - until the Treaty of Lisbon) have prohibited any behavior of agreement or of abuse of a dominant position, even on the part of public enterprises, as well as any state support (except in the event of a crisis). Likewise, in perfect political logic, but also in perfect contradiction with European national traditions, European texts, regulations or directives have liberalized previously monopolistic sectors, first of all telecommunications and then energy. This was the case for telecommunications with the 1993 directive, the 1996 directive for electricity and the 1998 directive for gas.

Because of the hierarchy of standards, the States, except to be sued before the Court of Justice by the European Commission in action for failure, were obliged to transpose by national laws these European texts. Thus, by force, community law, both through general competition Law, but above all to achieve its political goal of building a single and initially peaceful internal market, has triggered in Europe a system of economic regulation in all network industry sectors, a system which was nonetheless foreign to the culture of the Member States. This was not the case with banking and insurance regulations, sectors which have always been threatened by systemic risk, and as such have been regulated and supervised by national central banks for a very long time.

Community Law has for 30 years plunged into national Law while ignoring them, which could also be profitable, and on the basis of competition Law, the political dimension of the European project having been forgotten, no doubt over time as the War itself faded from people's minds.

The effects of globalization and the financial crisis have constituted a new turning point in Community Law which, since 2010, has been built no longer to modify national Laws - and destroy them in part - but to build a new Community Law which should neither to Competition Law nor to National Law: Community Regulation Law, which makes room for individual rights and attempts to build over time a system that is robust to crises. Thus, by texts of the European Union of 2014, both a Banking Union and a new Law on Market Abuse is being built, which aims to establish a common law for the integrity of financial markets.

One of the challenges is what could or should be reconciliation between the two Europe, an economic and still not very social Europe on the one hand and the Europe of Human Rights, which is based on the European Convention on Rights of Man. This is not on the agenda.

Une dissertation juridique suit les règles de construction et de rédaction généralement requises pour les dissertations d'une façon générale mais présente certaines spécificités.

Le présent document a pour objet de donner quelques indications. Elles ne valent pas "règles d'or", mais un étudiant qui les suit ne peut se le voir reprocher. La correction des copies tiendra compte non seulement du fait que les étudiants ne sont pas juristes, ne sont pas habitués à faire des "dissertations juridiques", mais encore prendra en considération le présent document.

 

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► Full Reference: M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, to be published

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📕In parallel, a book in French L'Obligation de compliance, is published in the collection "Régulations & Compliance" co-published by the Journal of Regulation & Compliance (JoRC) and Dalloz. 

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📚This book is inserted in this series created by Marie-Anne Frison-Roche for developing Compliance Law.

 read the presentations of the other books of this Compliance Series:

• further books:

🕴️M.A. Frison-Roche (dir.), 📘Compliance Probation system, 2027

 

• previous books:

​🕴️M.A. Frison-Roche (ed), 📘Compliance Juridictionnalisation, 2023

🕴️M.A. Frison-Roche (ed), 📘Compliance Monumental Goals, 2022

🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021

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► go to the general presentation of this 📚Series ​Compliance & Regulation, conceived, founded et managed by Marie-Anne Frison-Roche, co-published par the Journal of Regulation & Compliance (JoRC) and Bruylant. 

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🧮the book follows the cycle of colloquia 2023 organised by the Journal of Regulation & Compliance (JoRC) and its Universities partners.

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► general presentation of the book: Compliance is sometimes presented as something that cannot be avoided, which is tantamount to seeing it as the legal obligation par excellence, Criminal Law being its most appropriate mode of expression. However, this is not so evident. Moreover, it is becoming difficult to find a unity to the set of compliance tools, encompassing what refers to a moral representation of the world, or even to the cultures specific to each company, Compliance Law only having to produce incentives or translate this ethical movement. The obligation of compliance is therefore difficult to define.

This difficulty to define affecting the obligation of compliance reflects the uncertainty that still affects Compliance Law in which this obligation develops. Indeed, if we were to limit this branch of law to the obligation to "be conform" with the applicable regulations, the obligation would then be located more in these "regulations", the classical branches of Law which are Contract Law and Tort Law organising "Obligations" paradoxically remaining distant from it. In practice, however, it is on the one hand Liability actions that give life to legal requirements, while companies make themselves responsible through commitments, often unilateral, while contracts multiply, the articulation between legal requirements and corporate and contractual organisations ultimately creating a new way of "governing" not only companies but also what is external to them, so that the Monumental Goals, that Compliance Law substantially aims at, are achieved. 

The various Compliance Tools illustrate this spectrum of the Compliance Obligation which varies in its intensity and takes many forms, either as an extension of the classic legal instruments, as in the field of information, or in a more novel way through specific instruments, such as whistleblowing or vigilance. The contract, in that it is by nature an Ex-Ante instrument and not very constrained by borders, can then appear as a natural instrument in the compliance system, as is the Judge who is the guarantor of the proper execution of Contract and Tort laws. The relationship between companies, stakeholders and political authorities is thus renewed.

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🏗️general construction of the book

The book opens with a double Introduction.  The first, which is freely accessible, is a summary of the book, while the second, which is substantial, deals with the future development of the compliance obligation in a borderless economic system.

 

The first part is devoted to the definition of the Compliance Obligation. 

 

The second part presents commitments and contracts, in certain new or classic categories, in particular public contracts, and compliance stipulations, analysed and qualified regarding Compliance Law and the various relevant branches of Law.

 

The third part develops the responsibilities attached to the compliance obligation.

 

The fourth part refers to the institutions that are responsible for the effectiveness, efficiency, and efficacy of the compliance obligation, including the judge and the international arbitrator. 

 

The fifth part takes the Obligation or Duty of Vigilance as an illustration of all these considerations.

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TABLE OF CONTENTS 

 

COMPLIANCE OBLIGATION : OVERVIEW

Section 1 ♦️ Main Aspects of the Book L'Obligation de Compliance, by 🕴️Marie-Anne Frison-Roche

Section 2 ♦️ Conceiving the unicity of the Compliance Obligation without diluting it, by 🕴️Marie-Anne Frison-Roche

 

TITLE I.

IDENTIFYING THE COMPLIANCE OBLIGATION

 

CHAPTER I: NATURE OF THE COMPLIANCE OBLIGATION

Section 1 ♦️ Will, Heart and Calculation, the three marks surrounding the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 2 ♦️ Debt, as the basis of the compliance obligation, by 🕴️Bruno Deffains

Section 3 ♦️ Compliance Obligation and Human Rights, by 🕴️Jean-Baptiste Racine

Section 4 ♦️ Compliance Obligation and changes in Sovereignty and Citizenship, by 🕴️René Sève

 

CHAPTER II: SPACES OF THE COMPLIANCE OBLIGATION

Section 1 ♦️ Industrial Entities and Compliance Obligation, by 🕴️Etienne Maclouf

Section 2 ♦️ Compliance, Value Chains and Service Economy, by 🕴️Lucien Rapp

Section 3 ♦️ Compliance and conflict of laws. International Law of Vigilance-Conformity, based on recent applications in Europe, by 🕴️Louis d'Avout 

 

 

TITLE II.

ARTICULATING THE COMPLIANCE OBLIGATION WITH BRANCHES OF LAW

 

Section 1 ♦️ Constitutional dimensions of the Compliance Obligation, by 🕴️Stéphane Mouton

Section 2 ♦️ Tax Law and Compliance Obligation, by 🕴️Daniel Gutmann

Section 3 ♦️ General Procedural Law, prototype of the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 4 ♦️ Corporate and Financial Markets Law facing the Compliance Obligation, by 🕴️Anne-Valérie Le Fur

Section 5 ♦️ The Relation between Tort Law and Compliance Obligation, by 🕴️Jean-Sébastien Borghetti

Section 6 ♦️ Environmental and Climate Compliance, by 🕴️Marta Torre-Schaub

Section 7 ♦️ Competition Law and Compliance Law, by 🕴️Jean-Christophe Roda

Section 8 ♦️ The Compliance Obligation in Global Law, by 🕴️Benoît Frydman

Section 9 ♦️ Transformation of Labour Relations and Vigilance Obligation, by 🕴️Stéphane Vernac

Section 11 ♦️ Judge of Insolvency Law and Compliance Obligations, by 🕴️Jean-Baptiste Barbièri

 

 

TITLE III.

COMPLIANCE : GIVE AND TAKE THE MEANS TO OBLIGE

 

CHAPTER I: CONVERGENCE OF SOURCES

Section 1 ♦️ Compliance Obligation, between Will and Consent: obligation upon obligation works, by 🕴️Marie-Anne Frison-Roche

Section 2 ♦️ What a Commitment is, by 🕴️Marie-Anne Frison-Roche

Section 3 ♦️ Cybersecurity and Compliance Obligation, by 🕴️Michel Séjean

Section 4 ♦️  Place of Hope in the Ability to Apprehend the Future, by 🕴️

Section 5 ♦️ Legal Constraint and Company Strategies in Compliance matters, by 🕴️Jean-Philippe Denis & Nathalie Fabbe-Costes

 

CHAPTER II: INTERNATIONAL ARBITRATION IN SUPPORT OF THE COMPLIANCE OBLIGATION

Section 1 ♦️ Reinforcing Compliance Commitments by referring Ex Ante to International Arbitration, by  

Section 2 ♦️ The Arbitral Tribunal's Award in Kind, in support of the Compliance Obligation, by 🕴️Eduardo Silva Romero

Section 3 ♦️ The use of International Arbitration to reinforce the Compliance Obligation: the example of the construction sector, by 🕴️Christophe Lapp & 🕴️Jean-François Guillemin

Section 4 ♦️ The Arbitrator, Judge, Supervisor, Support, by 🕴️Jean-Baptiste Racine

Section 5 ♦️ How International Arbitration can reinforce the Compliance Obligation, by 🕴️Laurent Aynès

 

 

TITLE IV.

VIGILANCE, SPEARHEAD OF THE COMPLIANCE OBLIGATION

 

CHAPTER I: INTENSITIES OF THE VIGILANCE OBLIGATION, SPEARHEAD OF THE COMPLIANCE SYSTEM

Section 1 ♦️ Systemic Articulation between Vigilance, Due Diligence, Conformity and Compliance: Vigilance, Total Share of the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 2 ♦️ Intensity of the Vigilance Obligation by Sectors: the case of Financial Operators, by 🕴️Anne-Claire Rouaud

Section 3 ♦️ Intensity of the Vigilance Obligation by Sectors: the case of Banking and Insurance Operators, by 🕴️Mathieu Françon

Section 4 ♦️ Intensity of the Vigilance Obligation by Sectors: the case of Digital Operators, by 🕴️Grégoire Loiseau

Section 5 ♦️ Intensity of the Vigilance Obligation by Sectors: the case of Energy Operators, by 🕴️Marie Lamoureux

 

CHAPTER II: VARIATIONS OF TENSIONS GENERATED BY THE VIGILANCE OBLIGATION, SPEARHEAD OF THE COMPLIANCE SYSTEM

Section 1 ♦️ Rethinking the Concept of Civil Liability in the light of the Duty of Vigilance, Spearhead of Compliance, by 🕴️Mustapha Mekki

Section 2 ♦️ The transformation of governance and due diligence, by 🕴️Véronique Magnier

Section 3 ♦️ Technologies available, prescribed or prohibited to meet Compliance and Vigilance requirements, by 🕴️Emmanuel Netter

 

CHAPTER III: NEW MODALITIES OF THE COMPLIANCE OBLIGATION, HIGHLIGHTED BY THE VIGILANCE IMPERATIVE

Section 1 ♦️ How the Vigilance Imperative fits in with International Legal Rules, by 🕴️Bernard Haftel

Section 2 ♦️ Contracts and clauses, implementation and modalities of the Vigilance Obligation, by 🕴️Gilles J. Martin

Section 3 ♦️ Proof that Vigilance has been properly carried out with regard to the Compliance Evidence System, by 🕴️Jean-Christophe Roda

 

 

TITLE V.

THE JUDGE AND THE COMPLIANCE OBLIGATION

Section 1 ♦️ Present and Future Challenges of Articulating Principles of Civil and Commercial Procedure with the Logic of Compliance, by 🕴️Thibault Goujon-Bethan

Section 2 ♦️ Mediation, the way forward for an Effective Compliance Obligation, by 🕴️Malik Chapuis

Section 3 ♦️ The Judge required for an Effective Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

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► Full reference : M.-A. Frison-Roche, Saisir les principes du Droit de la Compliance à travers l'actualité (Understanding the principles of compliance law through current current legal cases and events), Jean Moulin  - Lyon 3 University Law Faculty, 10 December 2025.

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► Methodological presentation of this 4-hour MasterClass : It is difficult to teach a branch of law that is still being developed, to find a way to open its doors, because if by explaining its principles ex abrupto, the risk exists of remaining at the door, even though the aim is to open it. This door is all the more blocked by the accumulation of multiple regulatory corpus, which are now perceived as being linked to Compliance Law: GDPR, Sapin 2, Vigilance, Nis2, Dora, FCPA, etc.; These are highly technical and complicated, and tend to be studied in silos, with little connection between them and little articulation with the traditional branches of Law. Therefore, the principles that form the backbone of Compliance Law as an autonomous branch of Law are all the less apparent, even though they would make these "compliance blocks" more intelligible and manageable. However, setting out these principles, which shed light not only on the current positive law but also on how it will evolve, seems "theoretical".

In order to open the door to this new branch of Law, which already occupies a significant place in practice and is set to expand, so that it can be handled by lawyers who understand its spirit and is not entirely dominated by those from other disciplines who will master its tools (risk mapping, assessment, internal investigation, etc.), most often through algorithms and platforms (compliance by design), it is relevant to start with a few cases, a few decisions, a few texts, and a few comments, to gauge what they reveal.

Because the principles are already there. They are gradually emerging. The challenge is that they often emerge quickly, in a manner that is sufficiently consistent with other branches of Law, and that the legal aspect takes precedence. That is what is at stake today.

Each hour is devoted to a different case, based on a document of a different legal genre.

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⛏️Find out more  :

🕴🏻M.-A. Frison-Roche, 📝Compliance Law, 2016

🕴🏻M.-A. Frison-Roche, 📝Monumental Goals, the beating heart of Compliance Law, 2023

🕴🏻M.-A. Frison-Roche, 📝In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings, 2025

🕴🏻M.-A. Frison-Roche, 📝Compliance Law and Systemic Litigation, 2025

 

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🌐Follow Marie-Anne Frison-Roche on LinkedIn

🌐Subscribe to the Newsletter MAFR Regulation, Compliance, Law

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► Full reference : M.-A. Frison-Roche, ""Géomètres-experts : une profession qui assume concrètement sa responsabilité territoriale Géomètres-experts : une profession qui assume concrètement sa responsabilité territoriale (Chartered Surveyors: a Profession that takes its territorial responsibility seriously)", interview for JurisHebdo, 27 November 2025

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► Read the interview  (in French) in which the questions (translated below in English) were answered⤵

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Q.You helped define the raison d'être of the profession of chartered surveyors and its Professional Order. In your opinion, what is its true consequences?

 

Q. Can the raison d'être become a tool for Compliance or Governance?

 

Q. What conflicts arise around the source of compliance norms and their implementation? 

 

Q. Is this initiative part of a broader move towards social responsibility?

 

Q. How can the raison d'être influence the mission of the chartered surveyor, particularly in relation to land and environmental matters? 

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⛏️Further reading on the subject:

🕴🏻M.-A. Frison-Roche, 🎤Designing a raison d'être and explaining it, 2025

🕴🏻M.-A. Frison-Roche, 📝The Monumental Goals of Compliance, the beating heart of Compliance Law, 2023

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► Référence complète : Y. Kerbrat, "L’avis consultatif de la Cour internationale de justice du 23 juillet 2025 sur les obligations des États en matière de changement climatique", Clunet, 2025, n°4, 

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche.

🌐Follow Marie-Anne Frison-Roche on LinkedIn

🌐Subscribe to the Newsletter MAFR Regulation, Compliance, Law

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► Full reference : M.-A. Frison-Roche,  ""Ordonner la Compliance : pourquoi le faire et comment le faire ? (Organising Compliance: why do it and how to do it?)", interview Focus on... conducted for Dalloz Actu Étudiants, 13 November 2025

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► read the interview : 💬 Read the interview (in French)

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🌐read the interview presentation on LinkedIn (in French)

🌐read the interview presentation through the MAFR Newsletter Law, Compliance, Regulation, (in English)

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► presentation  of the interview by Dalloz Actu-Étudiants  : Compliance can be defined as a new branch of law that mobilises major economic players and their stakeholders to ensure that the large systems in which we live do not collapse, but remain solid and sustainable. Sanctions, contracts, ethical principles, court decisions and corporate cultures all converge to achieve this. The ambition is great, some contest it, many want to escape it. It is still difficult to define compliance, which seems to be going in all directions. Who? What? Why? How?

These are all questions addressed by Marie-Anne Frison-Roche, professor of law and editor-in-chief of the Journal of Regulation & Compliance (JoRC), together with the contributors to the collective works in the Régulations & Compliance series under her scientific direction. Compliance (JoRC), together with the contributors to the collective works in the "Regulations & Compliance" collection under her scientific direction, sheds light on with her imaginative power combined with her legal precision.

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Q.Why do the fundamental objectives of compliance unify all legal compliance techniques?

Summary of MAFR's response: because all these regulatory frameworks, which large companies are required to enforce effectively and which appear disparate, creating as many specific requirements as there are regulatory compliance blocks, find their unity when we consider the following reality: whatever the body of regulations in question (Sapin 2, Vigilance, Nis2, Dora, IAA, etc.), the aim is always to identify and prevent systemic risks so that these systems do not collapse.

 

Q. How can we define the obligation of compliance?

Summary of MAFR response: the company concerned is therefore obliged to put in place "compliance structures", such as mapping, plans, alert structures and programmes (obligation of result), but of course, and this is the key point, to achieve this goal, namely to ensure that the system in question (banking, financial, climate, digital, algorithmic, etc.) does not collapse. This is an obligation of means. This is the exact, simple definition that unifies all the regulations of the Compliance Obligation for which subject companies are responsible.

 

Q. What conflicts arise around the source of compliance standards and their implementation? 

Summary of MAFR's response: It must remain a matter of law. However, many argue that because it is only a matter of "compliance" and "ticking all the boxes", algorithms (which do not think or know anything) will do this, eliminating the need for lawyers and the law. This must be avoided. Furthermore, given the immense ambition of safeguarding systems, political and public authorities, businesses and stakeholders must join forces. They must not fight to bring each other down.

 

Q. What are the complexities of compliance law? 

Summary of MAFR's response: I would not say "complexity", because although the regulations are complicated, compliance law is fairly simple and unified around its monumental goals of safeguarding systems, ensuring their future sustainability and protecting the people involved in them. However, it is a new branch of law that is still poorly understood and therefore sometimes poorly mastered. It therefore needs to be organised.

 

Q. What is your proposal for ordering it? 

Summary of MAFR's response: Teaching more about compliance law will facilitate its organisation. The courts, to which all regulations converge through litigation, will participate in this organisation, which is necessary to ensure that regulations do not remain in silos and do not contradict each other when they have the same purpose, which constitutes their legal normativity. This new branch of law must also be articulated with all other branches of law. This is notably what the recently published book, L'obligation de compliance (The Obligation of Compliance), does.

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