🚧Laws, Compliance, Contracts, and Judges: places and alliances

1. Substantial Definition of Compliance Law by its negative and positive Monumental Goals🖇Compliance Law is an « Adventure»📎!footnote-2875 that brings together those who have a common ambition: to act systemically on the future, either to avoid a collapse (negative monumental goals) or to deploy a system better than the one in which some human beings live (positive monumental goals)📎!footnote-2876. Compliance Law is therefore not just about "obeying" in "conformity" with applicable rules. Indeed, "conformity" is only one tool among others of this branch of Law whose contours are narrower than our general and common obligation to respect the legal rules.

2. Compliance, a systemic branch of Law, conceived and deployed teleologically🖇More narrow in the rules targeted, Compliance Law is much more ambitious since its object is to safeguard systems (banking, financial, informational, energy, climate, etc.), or even to improve them so that the human beings who live in them can remain there, or even flourish📎!footnote-2884. By its very nature Compliance Law therefore develops in a teleological manner, its legal instruments being created, developed and interpreted on the basis of these goals, which give it unity, predictability, and simplicity📎!footnote-2885.

3. Implication of immediate and continuous actions, of which Vigilance is the advanced manifestation 🖇In this Law whose the object is the future, immediate actions are required, notably structural actions, for example the adoption of plans, to generate long-term effects and cultural changes, reflecting the political nature of a branch that extends Regulatory Law. The Vigilance mechanism is therefore neither particular nor isolated. It can only be understood as the "leading edge" of Compliance Law as a whole📎!footnote-2877.

4. Need to articulate the available forces, through legal instruments and their authors: laws, contracts and judgments🖇These negative ambitions (to avoid disasters, especially climatic ones📎!footnote-2886 or in the digital space📎!footnote-2887) and positive ones (improving the situation of human beings who are too "invisible", including for the Law📎!footnote-2888 (especially in companies or supply chains) are of such a magnitude that it is necessary to situate the actors: legislator, companies and stakeholders, judges. This makes it possible to articulate them in relation to each other. This articulation can be conceived in two ways: either in the sense of obedience, a traditional conception that organises a reign of regulation that all would serve, or in the sense of an alliance, where all forces converge towards the same monumental goals.

5. Traditional hierarchical conception of the regulations giving orders, the actors only showing their obedience🖇In this conception of regulatory efficiency, the order is issued by texts, most often takes the form of prohibitions produced by Criminal Law📎!footnote-2889,, for example the prohibition of bribery and money laundering. The judge intervenes to punish the one who has violated the prohibition. This judge who always punishes is above all, first and foremost, the criminal judge. The powers of the public prosecutor are increasing📎!footnote-2890 such as the Competition Authority, the Anti-Corruption Agency or the Financial Markets Authority📎!footnote-2891, comme l'Autorité de concurrence, l'Agence française anticorruption ou l'Autorité des marchés financiers.  The movement referred to as Compliance Jurisdictionalisation📎!footnote-2892 describes the simple obedience to the Law, with the sanctioning of violations aimed at the effectiveness of the rule. It is to be hoped that prosecutors, criminal courts, and sanction commissions in the Regulatory bodies do not forget their functional nature as judges: even when it is only a question of making the regulation effective, they continue to act within the processual framework consubstantial to any trial, in particular the adversarial process and the rights of the defence.

6. Obedience of the company that applies the compliance regulation within itself by punishing itself 🖇This declination of obedience reaches the company more directly when it prosecutes itself through internal investigations, denounces itself📎!footnote-2893 and ends up accepting its sanction, for which it has provided the means to the public authority. However, the rights of the defence in internal investigations are being erased📎!footnote-2894  as the Regulator and the Prosecutor require the transmission of information according to a principle of collaboration. However, the company has judged its employees and is putting them at risk of being sanctioned. This trend shows that things are out of place when one thinks only in terms of the obedience of actors and the effectiveness of regulations, and that the Rule of Law principle can be compromised. To defend the Rule of Law, it is important to be careful not to use legal concepts as images, in particular the vocabulary of 'contract' too easily.

7. In obedience to the Law through sanction, the "contract" may be no more than a metaphor🖇For the regulations to be effectively obeyed, arrangements, commitments and acceptances of all kinds are in fact favoured under Compliance. This can be accepted, but in a legal system every must always know the exact correspondance between words and facts to understand where one stands.  Thus what is referred to as the "contractualisation of criminal trials"📎!footnote-2878 is only a metaphor: the Deferred Prosecution Agreement (DPA) or the Convention judiciaire d'intérêt public (CJIP) are not contracts and the seriousness of the Law should exclude that one speaks by image because any margin left to the company to negotiate does not mean "contract": a contract is based above all on contractual freedom implying the freedom not to say yes, which a company cannot do once the process has been initiated and the information transmitted.

8. The use of contracts to fulfil its legal compliance obligation🖇. On the other hand, companies have developed a properly contractual practice, which has nothing to do with these previously described techniques. Without the need for a specific law, companies, subjects of Compliance Law, can choose any effective means to give concrete form to their legal compliance obligation, they can use all the means at their disposal: unilateral commitments, soft law, pedagogy, ethics, sanctions, but also contracts. Through their practice, they will show that they respect their legal compliance obligation. The contract is then the means by which the company concretises its legal compliance obligation, a contract by which the regulation is propagated. The contractual tool is greatly appreciated, as it is more easily indifferent to borders, espouses the space and duration of value chains📎!footnote-2895, etc.

9. The use of the contract as a compliance service regarding the regulations: the "compliance contract"🖇 Let us imagine, as a textbook hypothesis, that a company does not like the legal constraints of compliance that weigh on it. It does not want to mobilise its internal resources but nevertheless wants to comply with the regulations (for many reasons). It will then outsource this task, most often regulatory block by regulatory block, entrusting a service provider with the task of ensuring its compliance with the Europe GDPR, another with the task of setting up its whistleblowing system, another with the task of monitoring the sustainability due diligences plan, etc. From these contracts📎!footnote-2896  which correspond to a demand, born of these legal requirements, was born the "compliance market" which is growing at an exponential rate. It remains to write the regime of this "special contract", of which compliance is the very object.

10. Contracts with a different purpose but involving or justifying the insertion of "compliance clauses"🖇 In addition, in contracts reflecting the economic activity of the company, for example in supply contracts, a clause will be inserted whereby the company that supplies the material undertakes to ensure that the manufacturing conditions comply with the Code of Compliance and Ethics of the buyer who will use it to make the finished product and sell it to the final consumer. Similarly, a clause in the framework distribution contract will stipulate that the distributor must submit a compliance audit to its partner each year, particularly in terms of an effective fighting against corruption, and the latter may come at any time to check the accuracy of this commitment.

11. The development of compliance clauses and contracts regarding monumental goals through the autonomous will of the company: obliging itself beyond the regulatory constraint🖇 In the first type of clauses and contracts, the company, being in a relationship of obedience to the regulations, imagines modalities of its own to fulfil its own "compliance obligation" that the Law has drawn up. But the company is a legal person that not only carries out the order given to it by the Law but can also express its own goals📎!footnote-2901. These will reinforce those of the legislator. Because the general Goals of Compliance Law benefit from them, these contracts, often corresponding to incentives, must be interpreted broadly by the judge, since they serve the principle of compliance.

12. The natural presence of the judge as an agent of effectiveness of the parties' will🖇 Since there is a contract - and not just a "contractualisation" - the judge naturally intervenes, whether he is a specialised judge or a judge of general law, the claim that algorithms and smart contracts able eliminate judges being an illusion📎!footnote-2880. Cases of contractual inexécution,  breach, etc., will be submitted to the judge, who will have to interpret the contracts and the applicable texts, with reference to the Compliance system that the contractual instrument activates.

13. The natural action of the judge to help companies to move from the contractual tool of conformity to the contractual tool of Compliance. The judge, who is virtually present in every contract, ensures that the purpose of the contract and its compliance stipulations are put into practice. Firstly, the judge must consider his office at the level of the 'conformity' tool alone. Indeed, if we consider that the company must "comply with the regulations", the judge's office, in transparency of the contract, will be to verify the adequacy of the parties' contractual behaviour to what is prescribed by the  regulations, which is interpreted teleologically in relation to these goals📎!footnote-2881. Secondly, the judge must interpret the contract or clause as a 'compliance tool', favouring the effective interpretation for the monumental goals of the compliance system, in which the parties wanted to participate. His office then shifts from Ex Post to Ex Ante📎!footnote-2881, in order solutions emerge regarding monumental goals📎!footnote-2899. The rapprochement of the parties through mediation must be favoured by the judge📎!footnote-2900.

14. The issuance by the judge of standards of proof of the effectiveness of the contract to serve the monumental goals of the compliance system. The judge is then at the centre of what must be the alliance of forces if the compliance system is to be powerful enough to protect and even build the future. For this to happen, laws, contracts, commitments, and behaviours must be "effective, efficient and effective" in relation to the monumental goals pursued📎!footnote-2902. The judge must identify the standards of proof establishing the actors are assisting the legislator in his ambition for the future. He looks at the evidence provided by the parties obliged to make their best efforts to fulfil their contractual commitments to achieve these goals. The means of proof are the effects already achieved and those that can presumably be projected. The evidence is thus provided in a continuum📎!footnote-2903.

15. The reciprocal porosity between compliance clauses, compliance contracts, and the judge's methods. Just as the judge must interpret compliance contracts and compliance clauses in a teleological manner to respect the teleological nature of Compliance Law of which they are the instruments, so the benefits of the judge's methods deserve to be borrowed by clauses. For example, "due process" clauses to develop common compliance tools, mediation clauses or dispute board clauses.

16. Conclusion.  Thus Regulations, Compliance, Contract and Judge cease to be four terms that are far from each other or that must necessarily be placed in a hierarchy: there are sufficient points of contact between them to produce the alliance of forces required to respond through Law to the systemic challenges of the future, such as digital technology and climate, in the face of which we are all isolated, ignorant, weak and powerless.

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