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MAFR Chronicles Compliance Law

📝Contrat de compliance, clauses de compliance

► Full Reference: M.-A. Frison-Roche, "Contrat de compliance, clauses de compliance", Chronique of Compliance Law, D. 2022, pp. 2115-2117. - 📝reac the article (this article is written in French) - ► English summary of the article: Compliance Law is often seen only as an obligation to comply with regulations. Contract Law is masked by the study of texts and sanctions. Civil liability cases are beginning to highlight the commitments of companies, acts of will. It remains to discern the importance of contracts. First, there is a specific contract: the "compliance contract". Its purpose is to provide a third party with a service, the means for the company to "comply" with the legal systems requirements ("contract of conformity"), and/or to enable the company to achieve the monumental goals that characterize Compliance Law (contract of compliance). The interpretation and the regime of these compliance contracts must be marked by the Compliance Law that permeates it. Secondly, there are a multitude of stipulations aimed at conformity and Compliance. - 🚧read the working paper written in English: Compliance contract, Compliance stipulations - 📚read the other articles published in this chronique of Compliance Law published in the Recueil Dalloz. - 🌐 follow Marie-Anne Frison-Roche sur LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe  to the Newsletter MAFR Regulation, Compliance, Law 

Conferences

🎥The articulation between the part and the whole, in👫🏻Automated compliance: “the” solution or “a” solution?, in🧮Gaia-X Summit22, The Future is Gaia-X

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "The distinction between the part and the whole", contribution of the Chapter 2 of the third global Summit of Gaia-X, Chapter on Automated compliance: "the" solution or "a" solution?,  November 17, 2022, Paris. - This intervention took place in a panel moderated by🕴️Hubert Tardieu, Board of Direction Gaia-X, with: 🕴️Martine Gouriet, Board of Direction Gaia-X and Directrice des Usages numériques EDF – DSIG 🕴️Jakob Rehof, Chair, Software Engineering, Technical University Dortmund Faculty of Computer Science and Director Research Strategy, Fraunhofer-ISST 🕴️Joëlle Toledano, Conseil National du Numérique (CNNum), Chaire Gouvernance & Régulation (Université Dauphine) – Emeritus Professor - 🧮see  the Summit general programme programme - 🚧read the working paper, basis of this intervention. - 🎥 see this intervention and debate - 📝read the presentation of the intervention done in the GaiaX Global Summit of 2020 -  

Publication director

🏗️ direction of the collection: 📚Cours Dalloz – Série Droit privé

📚Publication of : 🕴️Dominique FENOUILLET, 📕Droit de la famille (Family Law), 5th ed.

► Full Reference : D. Fenouillet, Droit de la famille (Family Law), 1st ed. 1997 – 5th ed., 2022, Dalloz, “Cours Dalloz-Série Droit privé” Series, 673 p. - ► General presentation of the book (written in French) : This textbook, up to date with the latest texts, is intended for all law students and all practitioners updating their knowledge of family law. Its first part deals with « couples » (married, divorced, unmarried), its second part being devoted to « the child » (filiation and status). Finally, a last part develops « the family beyond » (name, maintenance obligations and family property). - 📚See the entire collection in which the book is published. -

Conferences

🎤Audition as amica curiae by the Paris First Instance Civil Court, in summary proceedings, on the Compliance System and the place of the duty of vigilance in it

► Full Reference: M.-A. Frison-Roche, Audition as amica curiae by the Paris First Instance Civil Court, in summary proceedings, on the Compliance System and the place of the duty of vigilance in it, 26 October 2022 - The hearing was held in the presence of two other amici curiae, also appointed by the Court: Professors Jean-Baptiste Racine and Bruno Deffains. The hearing was requested by and on the initiative of the Paris First Instance Civil Court in connection with a dispute between associations and TotalEnergie, the former alleging breaches of due diligence by the latter, and the Court asking highly qualified individuals to shed light on the Compliance System and its implications. - 📝read the hearing report published on 27 October 2022 by Olivia Dufour (Actu-juridique) 📝read the article reporting on the hearing of 7 December 2022, representing the presentation of Compliance Law by MaFR, published on 7 December 2022 by Mathilde Golla (Les Echos) 📝read the article on the use of amicus curiae, starting with the use made in this case, published on 8 December 2022 by Nicolas Cayrol (Recueil Dalloz) - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR. Regulation, Compliance, Law

Publication director

🏗️ direction of the collection: 📚Cours Dalloz – Série Droit privé

📚Publication of : 🕴️Daniel MAINGUY, 📕Contrats spéciaux (Specific Contracts), 13th ed.

► Full Reference : D. Mainguy, Contrats spéciaux (Specific Contracts), 13th ed., 2022, Dalloz, “Cours Dalloz-Série Droit privé” Series, 701 p. - ► General presentation of the book (written in French) : In this « Course » intended for students and practitioners alike, Daniel Mainguy sets out the technical rules specific to the various specific contracts, depending on whether they relate to a thing or to a service. For each specific contract, the book sets out the rules proper to it, drawn both from the French Civil Code and from the statutes specific to it, as well as from the case law that has accumulated on it. « Usual contracts » as much as « specific contracts », they reflect our whole life, from the most everyday (sale, loan, etc.) to the most sophisticated arrangements. - 📚See the entire collection in which the book is published. 📚In this collection, this book is more particularly related to the following books : 🕴️R. Cabrillac, 📕Droit des obligations (Law of Obligations) 🕴️J.-B. Seube, 📕Droit des sûretés (Law of Security Interests) 🕴️J.-D. Pellier, 📕Droit de la consommation (Consumer Law) 🕴️S. Piédelièvre, 📕Instruments de crédit et de paiement (Credit and Payment Instruments) 🕴️Ph. Pétel, 📕Procédures collectives (Insolvency Proceedings) -

Videos

🎤Compliance Law in Entreprise: theory and practices, in 📅Notarial engineering

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: Frison-Roche, M.A., La compliance en entreprise : aspects théoriques et pratiques, in 118ième Congrès des Notaires, L'ingénierie notariale, Marseilles, October 12, 2022.  This Masterclass is given in French. - ► English Presentation of this Masterclass: This two-hour Masterclass aims to introduce, regarding the role of the Notary in companies and vis-à-vis them, Compliance Law.  This discover of Compliance Law is built on a description of the new Compliance techniques of which companies are the object or the source (I) then, faced with such a mass of new standards, because this is incomprehensible and uncontrollable if these so many regulations are not "conceived", explain what can give meaning to this Compliance Law, namely the "Monumental Goals" which animate it and give it meaning (II). Like the Regulation Law that Compliance prolongs, Compliance Law is a teleological branch of law that requires that the application and interpretation of norms be done by these Monumental Goals. -   This Masterclass is given in French: see some technical references in English ⤵️

Publication director

🏗️ direction of the collection: 📚Cours Dalloz – Série Droit privé

📚Publication of : 🕴️Michel VÉRON and 🕴️Guillaume BEAUSSONIE, 📕Droit pénal des affaires (Business Criminal Law), 13th ed.

► Full Reference : M. Véron and G. Beaussonie, Droit pénal des affaires (Business Criminal Law), 13th ed., 2019, Dalloz, “Cours Dalloz-Série Droit privé” Series, 739 p. - ► General presentation of the book (written in French) : In a renewed presentation, this textbook covers a subject characterised by the diversity of its sources. It stresses that this subject increasingly falls within economic law as much as within criminal law, which has an impact on the regime of the applicable rules and on the solutions adopted. Moreover, Business Criminal Law is today marked by a shift towards administrative sanctions, an increased international perspective and the forceful entry of Constitutional Law. - 📚See all the books of the same collection “Cours Dalloz – Série Droit privé“, and in particular : 📕Droit pénal général (General Criminal Law) 📕Procédure pénale (Criminal Procedure) 📕Droit pénal spécial (Special Criminal Law) -

Articles in a legal collective publication

📝Compliance, the new legal way for human values: towards an Ex Ante Responsibility, in 📗Evolução do Direito no século XXI. Seus princípios e valores: ESG, Liberdade, Regulação, Igualdade e Segurança Jurídica. Homenagem ao Professor Arnoldo Wald, vol. 2, Direito Privado

► Full Reference: M.-A. Frison-Roche, "Compliance, the new legal way for human values: towards an Ex Ante Responsibility", in Evolução do Direito no século XXI. Seus princípios e valores: ESG, Liberdade, Regulação, Igualdade e Segurança Jurídica. Homenagem ao Professor Arnoldo Wald, vol. 2, Direito Privado, São Paulo, Editora IASP, 2022, pp. 977-983 - ► Summary of the article:  For the first time, the future is the first question for the Humanity. The classical legal conception of Tort Law concerns the Past, the philosophical conception of Hans Jonas, a Responsability for the Future, an Ex-Ante Responsability must become a legal notion.  Traditionally, the Legislator takes decision for the Future and the Judges takes ones for the Past, but now in front of the possible disparition of human beings on this planet, global and catastrophic perspective, all legal perspectives need to be used, breaking the classical repartition, in the priority of the future.  To do something, the Responsability must be put on everyone in a legal force, not only on the classical subject of Law and because of past behaviors, but because the operators, States, firms, or individuals, are "in position" to do so.  This new "Ex-Ante Responsability" is an essential part of the Compliance Law, very new branche of Law, with an extraterritorial effect, to find immediate and active solutions for the future. Because the issue is global, international Arbitration is in position to apply the conception, because international arbitrators are the global judges. This new conception of legal Ex-Ante Responsability, declared by courts, expressed human values, such as the concerns for the others, in concordance withe the humanist tradition of European and American Law, Compliance being not at all to obey regulations but to concretise an alliance a Monumental Goal, here for the preservation of human beings in the future, and the powers and the legal duties of corporate and people to do so.  - 📝read the article - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

Conferences

🎥 Regulatory Law and Compliance, expression of the Professional Order missions, in🧮Une profession face aux défis de la société

  ► Full Reference: Frison-Roche, M.A., Régulation et Compliance, expression des missions d'un Ordre, in📅 Ordre des Géomètres-experts, Une profession face aux défis de la société, Le Havre, September 15, 2022.  - 📅 read the general of the manifestation de la manifestation (in French) - 🎥watch the one-minute video summarizing the twenty-minutes intervention (in French) - 🚧 read English Presentation of the Working Paper which has been the basis of this conference   ► English Summary of this intervention: Professional orders should not present themselves as exceptions, however legitimate they may be, in relation to a principle, which would be the competitive system, but as the expression of a principle. This principle is expressed by two branches of Law whose importance is constantly growing in European Law, liberal branches which are based on the conception of economic life and the definition of company, turned towards the future: the Regulatory Law and Compliance Law, two branches of Law both related and distinct. Indeed, and this is the topic of the first part, Competition Law conceives professional orders as exceptions since these "corporations" constitute structural agreements. French domestic legal system both consolidates the professional orders by backing them up to the State, which would sub-delegate its powers to them, but involves them in the questioning by the European Union of the States and their tools. Most often the temptation is then to recall with a kind of nostalgia the times when the professional orders were the principle but, except to ask for a restoration, the time would be no more. A more dynamic approach is possible, in accordance with the more general evolution of Economic Law. Indeed, the Professional Order is the expression of a profession, a little-exploited concept in Economic Law, over which the Order exercises the function of "Second-level Regulator", the public authorities exercising the function of "First-level Regulator". The Banking and Financial Regulatory Law is built in this way and operates thank to that, at national, European, and global level. This is what should be linked. The Professional Orders therefore have the primary function of spreading a "Culture of Compliance" among the professionals they supervise and beyond them (clients and stakeholders). This culture of Compliance is developed regarding the missions which are concretized by the professionals themselves. Therefore, the second part of the Working Paper deals with the legal evolution of the notion of "Mission" which has become central in Economic and General Law, through the technique of the mission-based company. However, there are multiple points of contact between the raison d'être, the company with a mission and Compliance Law as soon as the latter is defined by the concrete and overly ambitious goals that it pursues. : the Monumental Goals. Each structure, for example the French Ordre des Géomètres-Experts, is legitimate to set the Monumental Goal that it pursues and that it inculcates, in particular the conception of territory and the living environment, joining what unites all the Monumental Goals of Compliance: concern for others. The French Ordre des Géomètres-Experts, is adequate because it has a more flexible relationship, both tighter and broader, with the territory than the State itself. By instilling this in professionals, the Professional Order develops in the practitioner an "ex ante responsibility", which is a pillar of Compliance Law, constituting both a charge and a power that the practitioner exercises, and of which the Professional Order must be the supervisor. - ► to go further ⤵️  Frison-Roche, M.-A., 📘Compliance Monumental Goals, 2021 Frison-Roche, M.-A., 💻Appliquer la notion de "Raison d'être" à la profession du Notariat, 2021 -

Working papers

🚧Compliance contract, compliance clauses

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, Compliance contract, compliance clauses, working paper, September 2022. - ►Summary of this working paper:  Compliance Law has multiplied obligations. However, although Tort Law is emerging in Compliance issues and contracts are multiplying in practice, for the moment the relationship between Compliance Law and Contract Law is not very visible (I). However, there are contracts whose sole purpose is to give concrete form to Compliance, which creates a specific contract and must influence its implementation (II). Moreover, there is much to learn from the diversity of compliance stipulations scattered throughout a wide range of contracts (III). - 🔓read the developments below⤵️

Articles in The Journal of Regulation & Compliance « JoRC »

📝Place et rôle des entreprises dans la création et l’effectivité du Droit de la Compliance en cas de crise, in 🕴️M.-A. Frison-Roche (ed.), 📕Les Buts Monumentaux de la Compliance

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Place et rôle des entreprises dans la création et l'effectivité du Droit de la Compliance en cas de crise" ("Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in Crisis"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 339-352. - 📝read the article (in French)    - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references, and hyperlinks - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): This article has a very topic: the place of private Companies, regarding the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test" it brings evidence. Let us take it as such. Indeed, during the health crisis, Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength? -

Articles in The Journal of Regulation & Compliance « JoRC »

📝Définition du principe de Proportionnalité et Définition du Droit de la Compliance, in 🕴️M.-A. Frison-Roche (ed.), 📕Les Buts Monumentaux de la Compliance

  - ► Full Reference: M.-A. Frison-Roche, "Définition du principe de proportionnalité et définition du Droit de la Compliance" ("Definition of the Proportionality principle and definition of Compliance Law"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 245-271. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The use of Proportionality always limiting powers is only justified when it is about sanctions, but sanctions are only one tool among others in Compliance Law, intended moreover to have little place in this Ex Ante branch of Law. And returning to the very nature of Compliance Law, which relies on operators, private or public, because they are powerful, then using proportionality to limite powers is detrimental to Compliance Law.  However, nothing requires that. Compliance Law is not an exception that should be limited. On the contrary, it is a branch of Law which carries the greatest principles, aimed at protecting human beings and whose Normativity lies in its "Monumental Goals": detecting and preventing future major systemic crisis (financial, health and climate ones). However, literally the principle of Proportionality is: "no more powers than necessary, as many powers as necessary". The second part of the sentence is independent of the first: this must be used. Politics having fixed these Monumental Goals, the entity, in particular the company, must have, even tacitly, "all the necessary powers" to achieve them. For example, the power of vigilance, the power of audit, the power over third parties. Because they are necessary to fulfill the obligations that these "crucial operators" must perform as they are "in a position" to do so. So instead of limiting the powers, the Principe of Proportionality comes to support the powers, to legitimize them and to increase them, so that we have a chance that our future is not catastrophic, perhaps better. In this respect, Compliance Law, in its rich Definition, will itself have enriched the Principle of Proportionality. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

Articles in The Journal of Regulation & Compliance « JoRC »

📝Les Buts Monumentaux, cœur battant du Droit de la Compliance, in 🕴️M.-A. Frison-Roche (dir.), 📕Les Buts Monumentaux de la Compliance

🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Les Buts Monumentaux, cœur battant du Droit de la Compliance" ("Monumental Goals, beating heart of Compliance Law"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 21-44. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published -     ► Summary of the article:  Compliance Law can be defined as the set of processes requiring companies to show that they comply with all the regulations that apply to them. It is also possible to  define this branch of Law by a normative heart: the "Monumental Goals". These explain the technical new legal solutions, thus made them clearer, accessible and anticipable. This definition is also based on a bet, that of caring for others that human beings can have in common, a universality.  Through the Monumental Goals, appears a definition of Compliance Law that is new, original, and specific. This new term "Compliance", even in non-English vocabulary, in fact designates a new ambition: that a systemic catastrophe shall not be repeated in the future. This Monumental Goal was designed by History, which gives it a different dimension in the United States and in Europe. But the heart is common in the West, because it is always about detecting and preventing what could produce a future systemic catastrophe, which falls under "negative monumental goals", even to act so that the future is positively different ("positive monumental goals"), the whole being articulated in the notion of "concern for others", the Monumental Goals thus unifying Compliance Law. In this, they reveal and reinforce the always systemic nature of Compliance Law, as management of systemic risks and extension of Regulation Law, outside of any sector, which makes solutions available for non-sector spaces, in particular digital space. Because wanting to prevent the future (preventing evil from happening; making good happen) is by nature political, Compliance Law by nature concretizes ambitions of a political nature, in particular in its positive monumental goals, notably effective equality between human beings, including geographically distant or future human beings. The practical consequences of this definition of Compliance Law by Monumental Goals are immense. A contrario, this makes it possible to avoid the excesses of a "conformity law" aimed at the effectiveness of all applicable regulations, a very dangerous perspective. This makes it possible to select effective Compliance Tools with regard to these goals, to grasp the spirit of the material without being locked into its flow of letters. This leads to not dissociating the power required of companies and the permanent supervision that the public authorities must exercise over them. We can therefore expect a lot from such a definition of Compliance Law by its Monumental Goals. It engenders an alliance between the Political Power, legitimate to enact the Monumental Goals, and the crucial operators, in a position to concretize them and appointed because they are able to do so. It makes it possible to find global legal solutions for global systemic difficulties that are a priori insurmountable, particularly in climate matters and for the effective protection of people in the now digital world in which we live. It expresses values that can unite human beings. In this, Compliance Law built on Monumental Goals is also a bet. Even if the requirement of "conformity" is articulated with this present conception of what Compliance Law is, this conception based on Monumental Law is based on the human ability to be free, while conformity law supposes more the human ability to obey. Therefore Compliance Law, defined by the Monumental Goals, is essential for our future, while conformity law is not. -