► Full reference : M.-A. Frison-Roche, “Compliance and General Contract Law: a difficult marriage, a promising marriage”, Newsletter MAFR. Law, Compliance, Regulation, 8 October 2026.
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In the cycle of colloquia that the Journal of Regulation & Compliance (JoRC) co-organises in 2026 on the theme “Compliance and Contract”, 🧱⚙️ see the presentation of the cycle
the colloquium co-organised with the University Paris 1 Panthéon-Sorbonne, and more particularly the Sorbonne Legal Research Institute (IRJS), under the scientific responsibility of Nicolas Bargue, Marie-Anne Frison-Roche and Julia Heinich, took place in Paris on 7 October 2026. Its theme was:
COMPLIANCE AND GENERAL CONTRACT LAW
The speakers were Julia Heinich, Professor at the Sorbonne Law School (University Paris 1 Panthéon-Sorbonne); Nicolas Bargue, Associate Professor at the Sorbonne Law School (University Paris 1 Panthéon-Sorbonne), co-director of the Contract, Civil Liability and Insurance department of the IRJS; Marie-Anne Frison-Roche, Professor of Regulatory and Compliance Law, Director of the Journal of Regulation & Compliance (JoRC) and of the European School of Regulatory and Compliance Law (EeRC); Jean-Baptiste Barbièri, Professor at the University Toulouse Capitole; Philippe Stoffel-Munck, Professor at the Sorbonne Law School (University Paris 1 Panthéon-Sorbonne), with Thomas Whitehouse, trainee lawyer; Laurent Aynès, Emeritus Professor at the Sorbonne Law School (University Paris 1 Panthéon-Sorbonne).
Opened by the addresses of Julia Heinich and Nicolas Bargue, the proceedings took place over a morning, around four presentations. A first, short synthesis can be offered.
đź”´ Marie-Anne Frison-Roche, Autonomy of will, commitments and Compliance
At the heart of Contract Law, as of Compliance Law, there is will. But whose will? If the Monumental Goals proceeded only from the will of political bodies, the contract would be merely a path taken by the law to apply itself better, and companies mere executors. I argued, on the contrary, that the contract and the Compliance clause must be linked to the primary source of the contract: the autonomous wills of the contracting parties.
I first measured the concrete stakes of identifying this source, by distinguishing three conceptions: the contract as the “mouthpiece” of the regulator (the “cuckoo law” that settles into the contract), the contracting parties as “good soldiers” who merely choose the means, and autonomous and convergent wills, which take their share of the legal ambitions, and even add their own goals to them. Since the economy is not administered, it is the latter that must prevail. A liberal conception follows from this: activity contributing to the Monumental Goals is not subject to prior authorisation, the clause is presumed lawful, and what exceeds the legal obligation falls within free commitment. Everything that is not prohibited is permitted.
I then asked that we stop confusing the legal obligation to conform with the bond of obligation: the person subject to the law is not a debtor, stakeholders are not creditors, a company “debtor erga omnes” would be a debtor towards no one, and the importance of the goal does not dispense with fault, damage or causation. “Commitments” are not by themselves obligations, but they are not nothing: a fact, a situation that grounds expectations, civil liability being incurred if proof of a breach, damage and a causal link is provided. But they become a source of obligation as soon as they are incorporated into a contract, which is frequent.
Finally, the company may freely occupy the “contractual sphere” to build its own “Contractual Compliance System”: it cannot “act against” the law, but it can “act like” it and “do more”. The contract, a binding Ex Ante instrument, is the junction point between networks and the pyramid of norms. It must make the goal explicit, in the particular contract or in the framework contract, to guide the judge and to reach what the law does not reach. Under the control of the judge, who ensures that the will of one party is not more decisive than that of the other.
🔴 Jean-Baptiste Barbièri, Regulatory contracts generated by compliance
Jean-Baptiste Barbièri defines the regulatory contract as the contract by which the company expresses its norm and shares it with its co-contracting party in order to identify, detect and sanction risks. The broader the obligations thus transmitted, the more delicate the situation, and even more so when they take the form of a charter signed by the co-contracting parties.
Everything depends on the structure chosen. The company may scatter compliance clauses in each of its contracts, the obligation then ending with the contract, each subsidiary having to receive the parent company’s clauses. It may also build a genuine regulatory contract at group level, a framework contract or a separate contract binding all the contracting parties of the group’s entities, but this raises the question of multi-party contracts and that of subsidiaries that have no contractual relationship with the parent company. Finally, it may have its partners adhere to a pre-existing regulatory contract, a solution that is probably too general when regulations become specialised. Sector initiatives, as in the chemical industry, thus pool supplier audits.
The speaker also develops the question of the control of the regulatory contract, exercised by the “hegemon”. It depends on the instrumentum and involves the control of balance. The framework contract is not excessive in itself. But it must be well drafted and well implemented, since imposing these norms on subsidiaries could expose the company to being characterised as a de facto director, and an egalitarian regulatory contract may expose it to being characterised as a de facto partnership.
He also stresses the care that must be taken so that the development of Compliance Law through such regulatory contracts does not run counter to Competition Law. In particular, these contracts have the effect, or even the object, of sharing information, which may raise difficulties.
đź”´ Philippe Stoffel-Munck, with Thomas Whitehouse, Third parties to contracts with a compliance dimension
Philippe Stoffel-Munck, who shared the microphone with Thomas Whitehouse, trainee lawyer, author under his supervision of a Master’s thesis on “the protection of third parties through the contractualisation of the duty of vigilance”, points out at the outset that the autonomy of will makes it possible to adapt what the parties do in value chains, but runs up against a major obstacle: the privity of contracts (Civil Code, art. 1199).
Thomas Whitehouse recalled the terms of the subject: the duty of vigilance is a legal obligation, breach of which falls within extra-contractual liability; yet companies spread it by contract along their chains of activities, imposing vigilance commitments on their partners. The question remains whether those whom these commitments aim to protect can rely on them.
Philippe Stoffel-Munck distinguishes truly external third parties, notably NGOs, from less external third parties, located at tiers N-1, N-2, etc. of the chain. The challenge is to offer them a contractual action, since effectiveness requires Ex Ante action, which the contract produces and civil liability does not offer. Contractual liability is therefore a first avenue; the action for specific performance is another, not in the strict sense, for lack of a “performance” owed to them, but through the stipulation for the benefit of a third party, or even a tacit stipulation for the benefit of a third party, as case law accepted for the safety obligation (Cass. civ., 6 Dec. 1932).
Four obstacles remain: the device is artificial (“fictitious”, as Rodière said); it gives way if the contract excludes any stipulation for the benefit of a third party; the third party will be bound by the limits of the contract; and the legislator seems to anchor vigilance in extra-contractual liability, with the rule of non-cumulation.
There remain actions within the chain of activities, by internalising the requirement in a contract, or the tort action of one link against another for contractual breach, which raises the question of the enforceability of clauses against third parties. The speaker develops in particular the enforceability of the arbitration clause binding two partners in the chain, which, in his view, must be enforceable against the party controlling the chain.
🔴 Laurent Aynès, The scope of contracts expressing the Compliance imperative
Laurent Aynès contrasts two conceptions of the contract. The material conception, that of the Civil Code, sees in the contract an economic transaction in the interest of the creditor and the debtor, centred on performance and consent. He contrasts it with the functional conception, which makes it an instrument for achieving the Law, in the same way as statute: a process, a commitment of will, the exchange of wills to carry out a transaction specific to the parties becoming secondary. In his view, it is this second conception that is developing with Compliance, as it does more generally with the contractualisation of public action.
This conception focuses mainly on clauses, which form an architecture, as was detected early on by Jean-Marc Mousseron and conceptualised by Geneviève Helleringer: audit clause, information transmission clause, etc.
This new conception has two advantages: giving binding force to elements of soft law, and enabling the parties to rely on a contractual sanction.
But should the general regime govern these commitments? Does the company subject to the law become a creditor? Probably not, a claim being a subjective right aimed at an interest that enters one’s assets, which does not correspond to what Compliance aims at. Can the policing of clauses (Civil Code, arts. 1170 and 1171) apply?
How should such contracts be interpreted? Normally, one should refer to the common intention of the parties. But here, one should rather refer to the Monumental Goals that guided the law. This shows once again the distance between General Contract Law and Compliance Law.
Should General Contract Law be “forced”, so that it becomes a sort of Societal Contract Law, incorporating all these ambitions of Compliance Law? In the speaker’s view, it would probably be better to clearly recognise the existence of a special Compliance Law, since it is within it that innovation has taken place.
A few observations by way of synthesis
Three strategies that interlock, three actors, three wills. They must converge
Having had the good fortune to listen to these excellent presentations, reported here, I was struck by their convergence and complementarity.
What emerges from the presentations and discussions, in the memory of what we learned on 25 September at the colloquium co-organised by the JoRC and the University Jean Moulin Lyon 3 on clauses, is that we are at the beginning of the use of contracts to serve the ambitions carried by Compliance Law and entrusted to systemic operators.
This is developing very quickly, companies developing their clause books and today conceiving in a more global way how they use General Contract Law. This is happening with difficulties and trial and error, because the two logics must adjust to each other, but this makes it all the more promising, as there are many new initiatives to take.
Overall strategies are emerging, on the part of several types of actors. This can be seen first on the part of Legislators and regulators, strategies that consist in targeting the contract in order to delegate to companies, as a means of applying regulation and according to the will of the regulators. This takes in particular the form of series of model clauses, to be copied. The contract would then be no more than the envelope chosen by the regulator to designate one of its modes of implementation.
It can then be seen on the part of the Courts which, faced with what would be a gap in the legal system, create from scratch what must be new contractual obligations and a new spirit of the Contract, going beyond the guardianship entrusted to them of ensuring binding force and the absence of significant imbalance. The contract would then be drawn into a jurisprudential Compliance policy, which arises because the State on the one hand and companies on the other have not formulated their ambitions clearly enough.
It is finally expected, and more legitimately, from companies that develop projects including the effect of their present and future action on everything around them: this strategy, which constitutes their Raison d’ĂŠtre, takes the form of soft law and of organisation-contracts, which Company Law has multiplied and on which value chains have been built.
These three strategies interlock. The third is the most legitimate to materialise, since the primary source of the contract remains the free and autonomous will of every legal subject. But it presupposes, because these are not simple exchange contracts carried out in the instant of markets but long-term contracts, that companies fully exercise their freedom, freedom of enterprise and freedom of contract, to organise this mission over the long term.
General Contract Law is certainly renewed by this, but remains founded on freedom, and confirms that Compliance Law, which then converges with it, is, like Regulatory Law, the liberal pillar of European construction.
TO GO FURTHER
This colloquium continues in the next one of the cycle, 🧮 Compliance, contracts and chains of activities.
The contributions from this colloquium will form a chapter of the book 📕Compliance et Contrat, published in the series Régulations & Compliance and co-published by the JoRC and Éditions Lefebvre-Dalloz.
This chapter will confront General Contract Law with Compliance Law. It will first distinguish what is contractual from what comes close to it, with the contributions of Marie-Anne Frison-Roche on commitments and Laurent Aynès on the functional contract. It will then measure what General Contract Law brings to Compliance, with the contributions of Jean-Baptiste Barbièri on regulatory contracts and Philippe Stoffel-Munck, with Thomas Whitehouse, on third parties to contracts. The book is published in parallel in English, under the title Compliance and Contract, in the series Compliance & Regulation, co-published by the JoRC and Éditions Lefebvre-Bruylant.
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