Feb. 2, 2023

Publications

📝Conforter le rôle du juge et de l'avocat pour imposer la Compliance comme caractéristique de l'État de Droit, in🕴️M.-A. Frison-Roche (ed.), 📕La juridictionnalisation de la Compliance

by Marie-Anne Frison-Roche

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► Full Reference: M.-A. Frison-Roche, "Conforter le rôle du Juge et de l'Avocat pour imposer la Compliance comme caractéristique de l'État de Droit" ("Reinforce the Judge and the Attorney to impose Compliance Law as a characteristic of the Rule of Law"), in M.-A. Frison-Roche (dir.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 29-55. 

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► This article is the introduction of the book.  

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📝read the article (in French)

 

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks 

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📕read a general presentation of the book, La juridictionnalisation de la Compliancein which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): One can understand that the compliance mechanisms are presented with hostility because they seem designed to keep the judge away, whereas there is no Rule of Law without a judge. Solid arguments present compliance techniques as converging towards the uselessness of the judge (I). Certainly, we come across magistrates, and of all kinds, and powerful ones, but that would be a sign of imperfection: its ex-ante logic has been deployed in all its effectiveness, the judge would no longer be required... And the lawyer would disappear so with him...

This perspective of a world without a judge, without a lawyer and ultimately without Law, where algorithms could organize through multiple processes in Ex Ante the obedience of everyone, the "conformity" of all our behaviors with all the regulatory mass that is applicable to us, supposes that this new branch of Law would be defined as the concentration of processes which gives full effectiveness to all the rules, regardless of their content. But supposing that this engineer's dream is even achievable, it is not possible in a democratic and free world to do without judges and lawyers.

Therefore, it is imperative to recognize their contributions to Compliance Law, related and invaluable contributions (II).

First of all, because a pure Ex Ante never existed and even in the time of the Chinese legists, people were still needed to interpret the regulations because a legal order must always be interpreted Ex Post by who must in any case answer the questions posed by the subjects of law, as soon as the political system admits to attributing to them the right to make claims before the Judge. Secondly the Attorney, whose office, although articulated with the Judge's office, is distinct from the latter, both more restricted and broader since he must appear in all cases where the judicial figure puts himself in square, outside the courts. However, Compliance Law has multiplied this since not only, extending Regulatory Law, it entrusts numerous powers to the administrative authorities, but it also transforms companies into judges, in respect of which the attorneys must deal with.

Even more so, Compliance Law only takes its sense from its Monumental Goals. It is in this that this branch of the Law preserves the freedom of human beings, in the digital space where the techniques of compliance protect them from the power of companies by the way that the Compliance Law forces these companies to use their power to protect people. However, firstly, it is the Judges who, in their diversity, impose as a reference the protection of human beings, either as a limit to the power of compliance tools or as their very purpose. Secondly, the Attorney, again distinguishing himself from the Judge, if necessary, reminds us that all the parties whose interests are involved must be taken into consideration. In an ever more flexible, soft, and dialogical Law, everyone presenting himself as the "advocate" of such and such a monumental goal: the Attorney is legitimate to be the first to occupy this place.

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