Sept. 19, 2024

Conferences

Conference

🎤Comment s’adapter au contentieux émergent de la compliance (How to adapt to Emerging Compliance Litigation)

by Marie-Anne Frison-Roche

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► Full ReferenceM.-A. Frison-Roche, "Comment s’adapter au contentieux émergent de la compliance" ("How to adapt to Emerging Compliance Litigation"), in Association nationale des juristes de banque (ANJB), September 19, 2024, Paris,

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This conference is being held with another speaker, Maître Jean-Pierre Picca.

It is followed by a discussion with the audience.

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🧮see the full programme of this manifestation

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► English Summary of this conference: Compliance Law is a new branch of Law, teleological in nature, whose legal normativity is rooted in its goals.These are systemic goals of preserving systems by detecting the risks that weaken them and preventing the failures that can destroy them. It is therefore an Ex Ante branch of Law, the implementation of which will weigh on the "entities" in a position to detect risks and prevent failures so that these systemic goals are achieved.  As such, they are "Monumental Goals" in that they are political goals aimed at complete systems. It is therefore essential to distinguish between "conformity Law", which simply consists of "complying" with the applicable regulations, and Compliance Law, which consists of contributing to the achievement of these "Monumental Goals", either by force (legal obligation) or by choice (raison d'être, company with mission, contractual obligation, CSR). In this respect, Compliance Law is both much more limited in its aims and much more ambitious, since it is about building the future rather than mechanically complying with regulations.

The banking sector, which can be considered an exception to the principle of Competition, which is based on extreme mobility and the absence of rents, the destruction of the weakest, risk-taking, the lack of solidity of the operator posing no problem, appears to be the paragon of the principle of Compliance, which is based on the sustainability of systems ensured by the solidity of the operators themselves, their solidarity, the exchange of information, and integrated supervisors. For example, the duty of vigilance and the information about others, and the Regulation through Supervision were born in this sector, which has internalised this sectoral concern in the banks, itself the bearer of a general concern, particularly in the European conception of continental banking. the European Banking Union  increasing this concern.

As a result, banks will internalise concerns about the future that go beyond safeguarding the banking sector, such as preventing systemic climate risk or educating the population or safeguarding people in vulnerable situations.

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The litigation that shall ensue is itself highly specific. The topic of this conference is to provide the keys to understanding how banks must play their part.

Emerging Compliance Litigation is systemic in nature. It is a reflection of the Ex Ante organisation whereby entities are asked to make a contribution to the achievement of Monumental Goals. In a dispute between two opposing parties, an individual or an NGO or a trade union or a municipality or a State and a bank, a conflict arises between what might be called the party claiming to represent the present and future interests of a system, for example the climate system or the social relations system, and the bank which has a legally imposed "compliance obligation" to help protect this system.

The author who described this perfectly was Chaïm Perelman, particularly in his 1978 book, Logique juridique, which describes audience circles.

We need to understand the systemic construction of the judicial instance.

The bank must not let to be confined itself solely to its role as litigant, while the other party, for example an NGO, in its role as guardian of "civil society" or the "climate system" or the "effective equality between human beings", going beyond this first circle between the litigans and brings the system itself into the proceedings. 

This is where the adaptation has to take place. 

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This adaptation is procedural, evidentiary and substantive.

 

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