9 February 2024 · Conferences

🎤Le renforcement des engagements de compliance par le renvoi Ex Ante à l’arbitrage international (Reinforcing Compliance commitments by referring Ex Ante to International Arbitration), in 🧮L’arbitrage international en renfort de l’obligation de Compliance

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► Full Reference: M.-A. Frison-Roche, “Le renforcement des engagements de Compliance par le renvoi Ex Ante à l’arbitrage international” (“Reinforcing Compliance commitments by referring Ex Ante to International Arbitration”) (planned but not delivered), in L. Aynès, M.-A. Frison-Roche, J.-B. Racine and E. Silva-Romero (dir.), L’arbitrage international en renfort de l’obligation de Compliance (International Arbitration in support of the Compliance Obligation), Journal of Regulation & Compliance (JoRC) and Institute of World Business Law of the ICC (Institute), Conseil Économique Social et Environnemental (CESE), Paris, February 9, 2024

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🧮see the full programme of this event

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consult on LinkedIn a general presentation of this event, which links to a presentation of each speech (in French)

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🧱consult the scientific direction sheet of this event, which gives an account of the various speeches made

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🔲see the slides that were to support the presentation (in French)

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📝This conference, which was to be delivered, and the Working Paper on which it is based are to be linked with the article to be published in the book📘Compliance Obligation

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🎤see a presentation of the conference “Préalable : ce qu’est l’Obligation de Compliance” (“Prerequisite: what is the Compliance Obligation”), given at the same symposium

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🎤see a presentation of the conference “Préalable : ce qu’est un engagement” (“Prerequisite: the Commitment”), given at the same symposium

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► Presentation of the conference: It was initially planned that I would speak on the subject Le renforcement des engagements de Compliance par le renvoi Ex Ante à l’arbitrage international (Reinforcing Compliance commitments through the Ex Ante referral to International Arbitration), but it was agreed with the other organisers of the symposium that after defining the concept of the Compliance Obligation📎¹ I would refocus my second speech, mentioned above, on what a Commitment is📎²

🕴️M.-A. Frison-Roche, 🎤Préalable : ce qu'est un engagement (Prerequisite: the Commitment), in 🧮L'arbitrage international en renfort de l'obligation de Compliance (International Arbitration in support of the Compliance Obligation), 2024., an essential prerequisite for dealing with the subject of International Arbitration in support of the Compliance Obligation. Developments on Reinforcing Compliance commitments through the Ex Ante referral to International Arbitration will appear in the forthcoming books: L’obligation de Compliance (in French), Compliance Obligation (in English). Nevertheless, if I had dealt with this subject, I would have raised the following points:

I would have shown that the inclusion of an offer of arbitration in the field of Compliance implies considering it in a contract as well as in a non-contractual commitment, and studying which category of Compliance Obligation the offer may apply to.
I would have added that this insertion benefits from taking the form of a “graduated offer”, in a crescendo organised by the company ex ante and offered to the stakeholders: conciliation, mediation and arbitration, in “circles of trust”📎³. This is supported by the current French amicable settlement policy.
The result was that I had to prepare a long “preliminary” discussion of what a “commitment” is, without which it seemed difficult to talk in concrete terms about the effective insertion of an offer of arbitration if we did not know whether such links or words had a constraining effect on the person issuing them in relation to the person benefiting from them. After discussions with the other speakers, it became clear that it would be more effective to give a talk devoted solely to the question of the legal definition of commitment. We therefore decided to allocate this second speaking slot to the notion of commitment. Since the written words do not have the same constraints, it will take up the initial construction, insisting on the different supports, either compliance contracts, or associations with compliance clauses, relating to different Compliance obligations, in particular on information or audit or Vigilance📎⁴, because the company must have the legal power corresponding to the mission that the State entrusts to it through Compliance📎⁵.
The offer must be carefully drafted to explain its purpose, and its organisation must prove the reality of this purpose: to give access to a judge to people affected by the company’s activity, and not to block it.
This will therefore be available in detail in the forthcoming books:
- M.-A. Frison-Roche (ed.), 📕L’obligation de Compliance
- M.-A. Frison-Roche (ed.), 📘Compliance Obligation