🚧Compliance Law and Systemic Litigation

1. A new foundation has created a new branch of Law: Compliance Law⚓Legal systems have changed, and Compliance Law in its uniqueness reflects this change and plays a powerful part in it. Through new blocks of compliance rules, particularly at European level, such as data protection (GDPR), anti-money laundering (AMLA), protection of the climate balance (CS3D), sustainability of banking and financial systems (Banking Union), etc., many legal compliance techniques (always the same📎!footnote-4579) have been developed and imposed on large companies which must establish and handle them: alert, mapping, assessment, programme, etc,. These new regulatory blocks only make sense in relation to their "Monumental Goals"📎!footnote-4578: the goal in Ex Ante is to detect systemic risks and prevent crises so that the systems in question do not collapse, so that they "sustain". All the legal instruments of these corpus of legal rules and decisions in question are normatively anchored in these Monumental Goals, which are the active unifying core of Compliance Law (I).

The courts are the guardians of this new and highly ambitious regulatory framework, which relies on the practical ability of companies to implement it (II). They ensure that the technical provisions are applied teleologically in each of these compliance blocks and that these regulatory corpus support each other, since it is always the same systemic goal that is served through the "Compliance Obligation"📎!footnote-4584 to which companies are subject: to ensure that the systems (banking, financial, climate, digital, energy, etc.) do not collapse, that they are sustainable, and that the present and future human beings involved in them are not crushed by them but, on the contrary, benefit from them.

This unity is still little perceived, in particular because the myriad of changing regulatory provisions pulverises the simplicity and profound unity of Compliance Law. Entrusting the "regulatory mass" to algorithms increases this pulverisation, bringing together knowledge in silos, corpus by corpus, which makes the whole ever more incomprehensible and therefore impossible to handle since Interregulation in practice takes place📎!footnote-4580. Recognising instead the Judge's place, i.e. at the centre📎!footnote-4581 makes it possible to master this new branch of Law. But the Judge has an even more important role in what is, by transitivity, a "Systemic Litigation".

2.  The transmission of the systemic object of Compliance Law to litigation ⚓ Indeed, the Litigation that emerges from the new Compliance Law is also fundamentally new, and this by Transitivity. The Normative Goal of Compliance Law is to make systems sustainable (or robust, or resilient, the vocabulary varies, the goal being the same). The result is disputtes which are always "Systemic Litigation" (III). The place and role of everyone have been transformed (IV). 

I. THE REGULATORY BLOCKS OF COMPLIANCE TAKE ON MEANING AND UNITY THROUGH THEIR NORMATIVE ANCHORING IN THEIR MONUMENTAL GOALS OF SYSTEM SUSTAINABILITY 

3. The unmanageable mass of compliance blocks ⚓ It is generally agreed that "Compliance Law"📎!footnote-4540 covers what can be described as "blocks". It is by metonymy that they are referred to as "regulations". It is a perspective to associate with each  ambition a set of laws, directives, etc., and above all soft law, decisions of various authorities, case law, doctrines of economic and financial places, etc. For example, when we talk about the "GDPR", we are referring to the entire body of legislation, decisions and doctrine by which companies must ensure the protection of personal data. The complaint is almost universal about the uncertainty surrounding the handling of all these provisions. The protest is not so much about the principle of compliance itself, against which there is a call for 'deregulation', but rather about this 'mille-feuille' of a thousand provisions, a thousand interpretations for each one and a thousand interferences between each block. One sighs at the legal insecurity and uncertainty, and rightly so, because these blocks of compliance are said to be "unmanageable": Compliance Law should therefore be done away with, not on principle (because the Monumental Goals being pursued are approved) but because of these technical forms that are unmanageable by the companies subject to them and by the individuals concerned📎!footnote-4582.

4. Not admitting the unmanageability of compliance blocks without transferring them to algorithms, remedies worse than the evil ⚓ Since it seems to be unanimously agreed that it is impossible to apprehend line by line within each compliance block the content of what one is obliged to do and that this unmanageable nature is unacceptable, in particular because of the sanctions that are nonetheless incurred, if one does not want to conclude that the fight against corruption, harmful climate change, etc. must therefore be abolished, the solution most often proposed, especially in the United States, is (if not to magically abolish all regulations) to insert these compliance blocks into an algorithmic system (known as A.I.), the solution most often proposed, especially in the United States, is (if not to magically remove all regulations) to insert these compliance blocks into an algorithmic system (known as A.I.) and the "compliance issue" would no longer even arise...📎!footnote-4541. This can be useful, as a tool📎!footnote-4542, but increases the pulverisation, the algorithm being no able to "read", does not "know", does not "understand". This illusion of "mastery", i.e. a machine being the master, increases the need for a global comprehension of Compliance Law, notably by compagnies, by stakeholders, by judges.

5. The sustainability of systems by concern for the human beings involved gives unity to the compliance blocks ⚓This global vision, common to all the compliance blocks, is given by the imperative that the systems involved (banking, financial, energy, transport, climate, digital, etc.) do not collapse, that they last. The principle of system sustainability is at the heart of Compliance Law and gives it its unity and simplicity. In Europe📎!footnote-4567, this sustainability is intended to benefit present and future human beings involved in the systems📎!footnote-4568 Sustainability is therefore a technical and political concept📎!footnote-4569.

6. The companies obligation of result to set up compliance structures⚓In order to be deployed, Compliance Law, the Ex Ante📎!footnote-4570 branch of Law, is based on a "Compliance Obligation"📎!footnote-4543, borne by companies📎!footnote-4566, which is expressed through and beyond the many and varied technical compliance obligations. First of all, it consists of setting up compliance structures (information, alerts and warning, investigation, sanction, training, assessment structures, etc.). This is a structural obligation of result, because without these structures the desired outcome cannot even be imagined.

7. The obligation of means to produce efficient systemic effects contributing to achieving the Monumental Goals targeted by the regulatory blocks ⚓But the essential thing is in the effects produced thanks to these compliance structures. It's about changing behaviour, obtaining a culture of probity, respect for others and nature, listening, etc. It is an obligation of means because it is then a question of contributing to the achievement of this Monumental Goal which is the protection of an absolute and distant other, in space and in time, showing the points of contact between Compliance and Ethics📎!footnote-4588. . 

II. THE JUDGE, GUARDIAN OF THE UNIFIED NORMATIVE ANCHORING OF COMPLIANCE BLOCKS

8. The judge, guardian of the Compliance Obligation⚓ While the algorithm promises that we could mechanically obtain total conformity with a thousand regulations, by ticking a thousand boxes, thus avoiding crossing any lawyer or judge, practice shows the growing Jurisdictionalisation of Compliance📎!footnote-4544. Not only does the judge articulate the use of compliance techniques with the principles of law, for example the rights of the defence📎!footnote-4572,, but he also establishes the principles of Compliance Law, the very ones that are lacking in these siloed blocks of compliance, principles that make it possible to articulate them and give them coherence, security and life. It ensures that companies carry out their compliance obligation in a way that corresponds to the aim sought by the author of the texts📎!footnote-4545, i.e. for the proper present and future operation of the systems for the benefit of the people involved. This contribution is an obligation of means.

III. THE EMERGING SYSTEMIC LITIGATION,  TRANSLATION OF THE SYSTEMIC COMPLIANCE LAW

9. The system is in the cause: the ‘systemic cause’ ⚓ It follows that the system involved in the lawsuit, for example the climate system in a litigation concerning the vigilance obligation📎!footnote-4573, is ‘in the cause’, i.e. in the situation that is brought to the judge's attention and that he must consider in order to judge📎!footnote-4546. It is because the legislator, and possibly the contracting parties📎!footnote-4547, wanted to preserve a system that the company is subject to the compliance obligation on behalf of which a lawsuit is being brought. Therefore, the ‘reason for the trial’ is the system itself. This gives the trial a monumental dimension, as highlighted by Professor Nicolas Cayrol📎!footnote-4548. The system itself is involved in the case, which thus becomes a ‘systemic case’, a procedural concept proposed in 2021📎!footnote-4549.

10. The novelty of "systemic litigation" brought about by Compliance Law ⚓Systemic Litigation, which brings together systemic causes beyond the various types of proceedings, thereby encouraging the perspective of Procedural Law📎!footnote-4550, is new in that its purpose is to bring to the attention of the court a situation in which a systemic difficulty is alleged, through concrete elements, which it is asked to remedy not only through a particular solution but also a solution with a systemic effect.

This is therefore a jurisdictional duplication of the logic of Compliance Law, which calls for both informal and contentious proceedings, since the dispute between the two opponents is no longer the first thing to consider📎!footnote-4551. This justifies mediation all the more because the removal of the dispute between the individual parties may make it possible to concentrate forces on devising solutions to systemic problems, and the judicial arena may be conducive to this. This transitivity between Compliance Law, which is new, and Systemic Litigation, which is new, results in renewed roles for each.

IV. THE RENEWED ROLES OF EACH IN THE CONTINUUM OF COMPLIANCE LAW AND SYSTEMIC LITIGATION

11. The new role of the parties to the dispute, split into two ⚓The parties to the proceedings who are likely to go beyond the expression of their own interests have a privileged place. This is why the State, the public prosecutor (including in commercial cases, but also in civil cases) and NGOs are natural parties, even "necessary parties"📎!footnote-4552 in Compliance Litigation. We should not take offence at this. But the judge is right to ensure that this privileged position of speaking, alleging and requesting in the name of an interest that goes beyond one's own is not used beyond or alongside the interest of the system, which is justified by the strict control of each person's interest in acting📎!footnote-4554. Indeed, there is always a risk when the systemic dimension of litigation prompts the parties to the dispute to split into two, defending not only the interests of their person but also the interests of the system, a splitting which evokes the duality of the particular interest and the general interest to which traditional procedure has always had difficulty adhering but which Compliance Law inserts by transitivity into Litigation through the concept of "stakeholder".

12. Parties to the proceedings alongside the parties to the dispute ⚓In the same movement of "stakeholders" that has turned Company Law upside down📎!footnote-4555, parties to the proceedings are developing alongside the parties to the dispute, capable of expressing the interest of the system, which corresponds to what Professor Thibaud Goujon-Bethan has termed the "arrière-litige (beyong-litigation)"📎!footnote-4558. These will include amici curiae, regulators and administrations (including in civil litigation), scientists, NGOs (not parties to the litigation). Cross-examination will then be an appropriate way of taking evidence.

13. The office of the Judge in Systemic Compliance Litigation ⚓The Judge is faced with the dizzying task of understanding the interests of the system, even though he/she is not necessarily a judge specialising in this sort of Litigation📎!footnote-4559. He/she must train himself/herself to find robust solutions for the future, since Compliance Litigation is about the future of systems📎!footnote-4560. Solutions, such as remediation, mediation and the appointment of a monitor, must be given priority. Even if this is mainly a matter of training, culture and dialogue among judges, the question of evidence concerning a compliance obligation that will be increasingly transterritorial📎!footnote-4561 , or even aterritorial, particularly in digital matters, will require an adaptation of the evidentiary office.

14. The Judge, a Systemic Player in Compliance Systems⚓Moreover, in the same way that the French Conseil d'Etat sees itself as "the Regulator of Regulators", the Judge must appear as an institution that is both central and "ordinary" (in the sense of non-pathological) in Compliance Law. Insofar as he/she settles a systemic dispute📎!footnote-4564  in the course of which he/she identifies the guiding principles of this new branch of Law that the mass of regulations paradoxically masks, principles produced from the first instance📎!footnote-4562 , the judge participates with the other actors involved in the sustainability of the systems. . 

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