► Full Reference:
M.-A. Frison-Roche, "
Considérer la géographie pour réussir le Devoir de Vigilance" ("Taking Geography into account for a successful Vigilance Duty"), concluding speech
in Devoir de vigilance, quelles perspectives africaines ? Regards croisés en droit international, droit comparé et droit OHADA (Vigilance Duty : what African perspectives? Cross-analysis of International Law, Comparative Law and OHADA Law), Institut de Recherche en Droit des Affaires et du Patrimoine (IRDAP), Bordeaux, 15 November 2024. -
🧮see the full programme of this manifestation (in French) -
► English summary of this concluding speech: This concluding speech was made "on the bench", i.e. directly after listening to all the day's speakers. It is not, therefore, based on an
a priori conception of the subject, but on the impression that emerged from the whole, as one speaker followed another. The general impression is that these compliance instruments, of which the vigilance tool is the spurred head, are only appropriate if they fulfill the purpose for which they were devised and imposed, which presupposes that they are appropriate to the concrete situations to which they apply: to the country, to the legislation that shapes and expresses this country, to its economy, to its population. There is certainly room for improvement. But Vigilance legal instruments, like Compliance Law, are new mechanisms that are in the process of taking shape: we must seek to improve them and find solutions:
🧱🕴🏻mafr,
🚧Duty of Vigilance: the way forward, 2024 This is not easy, especially if we get lost in the jigsaw puzzle of texts and decisions in which the vigilance technique fits, particularly at French, European and international level:
🧱🕴🏻mafr,
🚧Vigilance, a piece of the European puzzle, 2023 Listening to all the many and varied speakers, it is clear that progress needs to be made to ensure that the Vigilance instrument takes greater account of the concrete situations reflected in the various legal systems of African countries, and in particular the unified OHADA legal system. It can be done, as long as everyone is willing to bear it in mind.
🧱🕴🏻J.-B. Racine,
📝Geographical dominance in the choice and the use of compliance tools. Introductory remarks,
in 🧱🕴🏻mafr (ed.),
📘Compliance Tools, 2021 The speakers demonstrated that the good feelings of Paris or Brussels can pave the way for African hell, for example when about the children labour. The same is true of the fight against corruption, as Mohamed Salah showed.
🧱🕴🏻M.M. Salah ,
📝Conception and Application of Compliance in Africa,
in 🧱🕴🏻mafr (ed.),
📘Compliance Tools, 2021 - Meanwhile, listening to each other, it appears that often, despite using the same words, the speakers were not talking about the same thing, particularly not in terms of what the very term "Vigilance" refers to, the difference between the French and English being a challenge because "due diligences" are not the same than Vigilance duty . This is a sign that what we call a
duty, or an
obligation, or a spontaneous
commitment, or a
legal order criminally sanctioned, which are not at all the same thing, shows the immaturity of this notion of "Vigilance". What's more, we sometimes talk about the climate, or human rights, or the need to fight corruption or money laundering. These latter concerns are undoubtedly covered by texts classified under Compliance Law, some of which assert that Vigilance is the cutting edge, while others claim that Compliance is alien to or merely a component of Vigilance, because Vigilance embraces ethics, while Compliance is merely obedience to the norm ('conformity'). It is clear that the
absence of an agreement on definitions is a handicap in practice, as we do not know which legal regime will apply. This uncertainty is problematic in practice because the regulations don't lay down definitions which alone make it possible to deduce the outline of the obligations of each party, particularly not those of the companies, which ask for instructions for use. Companies receive contradictory interpretations for the same situation, depending on who you are dealing with (a regulator or an NGO for example) or depending on the text (a text specific to the industrial activity, a text specific to the country, or a text from the country of the ordering company on the duty of vigilance, or a text from ordinary contract law or a text that will come from a soft law that remains rather mysterious). This uncertainty feeds the passion that surrounds the issue of vigilance, with everyone speaking out, the specialists who want to talk about it being suspected of being a technocrat or captured, and those who don't speak out being the local population for whom others speak out. As a result, two phenomena are set to persist, which we had hardly anticipated but which are set to increase: the
contractualisation of all vigilance mechanisms and the
jurisdictionalisation of all vigilance organisation. - The
first phenomenon is the contracting of Vigilance. This contractualisation is the means by which companies have been carrying out their legal compliance obligations for years, using a contractual art that is becoming increasingly sophisticated. We have very little information on these contracts, which are nonetheless what allow companies to obey the regulations and also to add to them, a combination of obedience and contractual freedom, the effects of which in practice have not yet been fully measured.
🧱🕴🏻mafr,
🚧Will, Heart and Calculation, the Three Traits Encercling the Compliance Obligation, 2024
🧱🕴🏻mafr (ed.),
📘Compliance and Contract, 2025 But they do raise essential questions. Firstly, they will bring back the jurisdiction of general courts , for example the commercial courts (
tribunaux de commerce) in France, and the courts of the countries where the industrial operations take place: moreover, they are the natural route to international arbitration. They are a new type of contract, since they structure "value chains" (a managerial concept).
🧱🕴🏻mafr,
🚧Compliance Contract, Compliance Clauses, 2022 There are two key issues concerning these contracts: they directly concern African countries, their economic activity and their populations, as described throughout all the speeches. The first is to know who governs the structural apparatus constituted by these 'regulatory contracts' through which chains of activity are built as durable structures. Who is strong and who is weak, between companies and states? The second is to find out how much of the reality of the country and of local economic activity is taken into account by the subsidiary, and how much consideration is given to the local people involved: are the people who are actually involved really "taken into consideration" when we speak for them? Who is best placed to speak on their behalf, to defend them, to get to know them? If we want to contextualise, refine and get to know the situation as closely as possible, in other words if we want to have definitions so that we know what we are talking about, but at the same time start from geographical and human realities, then it is the Judge who appears because the court starts from the facts. - This is the
second phenomenon that has emerged and is set to increase: the
jurisdictionalisation of Vigilance.
🧱🕴🏻mafr (ed.),
📘Compliance Jurisdictionalisation, 2023 This is understandable, since the judge is able to take cognisance of the facts, the situation in Uganda or Tanzania, and what is often referred to as the "extraterritoriality" of the Compliance mechanisms being thus compensated for. However, the exclusive jurisdiction of the Paris Court of First Instance (decided in France by a 2021 law) may become more difficult, as it is even further away from Africa than the ordering company is. But it is precisely the contract judges who can be called upon to rule on the basis of Contract Law. This central role of the judge raises a number of procedural difficulties that have either not yet been resolved, moreover are not still being perceive
🧱🕴🏻mafr (dir.),
🧮Le Droit processuel de la Vigilance (Vigilance Genreral Procedural Law), 2024 At the interface between procedure and substance, evidentiary issues require the development of a new evidentiary system. When the relevant facts are in Africa but the company accountable for them is in France under legislation adopted in Europe, this must be taken into account.
🧱🕴🏻mafr,
📝The Judge, the Compliance Obligation and the Company. The Compliance Evidence System, in 🧱🕴🏻mafr (ed.),
📘Compliance Jurisdictionalisation, 2023 What's more, since the Monumental Goal is to prevent, manage and detect risks, it is the future that is the main object of proof. A difficult subject by its very nature of the future, which calls for caution. Caution is to be expected from Judges, who may prefer the solution of an agreement: the contract and the commitment come back, for example through mediation, among the methods of conflict resolution. But as close as possible to where it happens, OHADA's courts can then be called upon to hear States and populations. What is more, in contractualisation (at which point the two major phenomena, contractualisation and jurisdictionalisation, enter into a dialectic), the clauses work together to activate the natural judge of the international contract, including vigilance clauses: the international arbitrator.
🧱🕴🏻L. Aynès,
📝How international arbitration can reinforce the Compliance Obligation,
in 🧱
🕴🏻mafr (ed.),
📘Compliance Obligation, 2025 OHADA has institutional arbitration mechanisms. Now is the time to guide them so that they open up Africa to Vigilance and open up Vigilance to Africa. In concrete terms. -
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