Economic Law, Regulation and Compliance

Full reference: Frison-Roche, M.-A., Compliance et arbitrage. Rapport de synthèse: un adossement (Compliance and Arbitration: a Backing. Conclusion), in Frison-Roche, M.-A. & Racine, J.-B., Compliance et Arbitrage (Compliance and Arbitration), Colloquium co-organised by the Journal of Regulation & Compliance (JoRC) and the Centre de recherches sur la Justice et le Règlement des Conflits (CRJ) of Panthéon-Assas University (Paris II), with the support avec the International Court of Arbitration, Paris, 31st of March 2021 -   Read the program of this colloquium See Marie-Anne Frison-Roche's conclusion in video (in French, with English subtitles) These notes of the conclusion have been written as the colloquium took place.  See the video of the entire colloquium (in French, with English subtitles) - This colloquium is part of the Cycle of colloquium 2021 organized by the Journal of Regulation & Compliance (JoRC) and its partners around the topic Compliance Juridictionnalization.   This manifestation is in French but the interventions will be the basis for a specific chapter of the English collective book directed by Marie-Anne Frison-Roche, Compliance Juridictionnalization, co-published by the JoRC and Bruylant. An equivalent book in French, La Juridictionnalisation de la Compliance, directed by Marie-Anne Frison-Roche, will be co-published by the JoRC and Dalloz.    Read the notes established for the conclusion below ⤵️

Full reference : Frison-Roche, M.-A., Le "Droit européen de la Compliance" : un rempart contre la crise ? ("European Compliance Law": a bulwark against the crisis?") in Option Finances, Les Défis Conformité / Compliance (Conformity/Compliance Challenges), 15th of September 2020, Paris. Read the program (in French) Read the slides of the intervention (in French)   It was possible to attend to the manifestation in live A bilingual video will be aviaible soon.   Summary of the intervention: This intervention as keynote speaker was at the articulation between the first two sessions, one on "strategy in times of crisis" and the other on "good governance", and the third session on technology. Because the question is: "?Does Europe has the pretension to prevent crisis, thank to Compliance Law ?" The answer must be: Yes or No. If Europe has this pretension to allow answering Yes, and it must have it, it must have, through its public institutions and the crucial European companies – expressing their raison d'être – a clear, simple and coherent vision of the "monumental goals" that it pursues. Compliance Law is adequate for such an "enterprise" (an "enterprise" always being an "adventure") since it is defined through its monumental goals, including crisis prevention, for which Europe must and is able to develop an exemplary model. When this is done, and it is in the process of being done, it is necessary but sufficient to carry out the technical work of adjusting the legal technical tools with these monumental goals. -

Complete reference : Frison-Roche, M.-A., The tools of Compliance and the Theorie of Climates, in "Geographical pregance in Compliance Tools" (Les outils de la Compliance et la Théorie des climats, in La prégnance géographique dans les outils de la Compliance), February 4, 2020, Nice.    Conference Summary: Starting from Montesquieu's "climate theory", affirming that human beings would be of a different nature in different places of the world, which therefore requires different rules of government according to these places, a theory which echoes the geographical confinement that Pascal operated on the Laws, we can think that, as with any rule, Compliance legal rules, which ensure compliance of the behavior of human beings to the rules, this will vary depending on whether we are below or beyond the Pyrenees. But on this geographical dimension so natural one can on the contrary and at first doubt. Indeed, by presenting it as a simple process, which artificial intelligence based on algorithms could fully take care of, by its absence of substance this dimension loses all relevance. Except falling into the other excess consisting in posing that everything is only a question of "pure compliance culture" or that this is only the dressing of a pure balance of power, between geographical areas, for example the United States and Europe, and in this Law of palisade geo-politics is to such an extent that it would have devoured Law. It is necessary to keep the measure of things and on the contrary organize in a second time a kind of triptych and firstly find what comes from the accumulation of technical and immutable information, secondly what comes from local phenomena but requieres global standards of compliance which can be technically attached because of their "crucial nature" and thirdly also assume "political pretensions of monumental goals" which contest the borders and the branches of the Law which guard these.  If we manage to do this, then Compliance Law not only manages to get rid of what undermines it, that is, its mechanical temptation offered by technology and its disappearance by political power, keeping substance without being violent. . Indeed by respecting geography the West does not have to dictate "its" law. On the contrary, it must take concrete lying to the Kanak Law, which does not define the Law as what is stated and applied, but as a 'path'. Thus in the technique of responsible investments, because the Law of Compliance is teleological, the Subject of law, that is to say the company (which is in position, for example that invests) does not prohibit but organizes the transition so that the beneficiary of the device is not himself sanctioned, for example abandoned to corruption, but accompanied towards the exit of the system. The integration of time and the concept of 'duration', common to compliance law and regulation law (the Law of Compliance being the internalisation of Regulations in entities capable of implementing them) involving the articulation between the territory and duration (which is not permitted by Competition Law).     Read the presentation of this conference on the Geographical pregnance in Compliance Tools  See the other conferences of the complete cycle on Compliance Tools. Read the general presentation of the conferences cycle.   Read the working paper which is the basis of this conference.    Consult the slides on which the conference is based (in French).   Summary : Starting from Pascal's "climate theory", one might think, as with any rule, Compliance, which ensures that human behaviour conforms to the rules, it varies, depending on whether one is "below or beyond the Pyrenees". . But of this geographical dimension so natural, on the contrary and at first one can doubt. Indeed by presenting Compliance as a simple process, which artificial intelligence based on algorithms could fully support, by its absence of substance this geographical dimension loses all relevance. Except to fall into the other excess of asking that everything is only a matter of 'compliance culture' or that it is the dressing of a pure balance of power, between geographical political areas, for example the United States and Europe, and in this Law of façade the geo-politics is at this point all that it would have devoured Law. We need to keep Reason, instead organizing a kind of tryptic and find what is the accumulation of technical and immutable information, which is local phenomena but to which standards of global Compliance can be technically attached because of their "crucial nature" and also assume "political pretensions of monumental goals" that challenge the borders and branches of Law that guard them. If we manage to do this, then not only  Compliance Law manages to get rid of what undermines it, that is its mechanical temptation offered by technology and its disappearance by political power, keeping substance without being violent. . Indeed by respecting geography the West does not have to dictate "its" Law. On the contrary, it must take concrete conception, borrowing to Kanak Law, which does not define Law as what is stated and applied, but as a 'path'. Thus in the technique of responsible investments, because Compliance Law is teleological, the subject of law, that is to say the company (which is in position, for example to invests) does not prohibit but organizes the transition so that the beneficiary of the device is not himself sanctioned, for example abandoned to corruption, but accompanied towards the exit of the system of corruption. The integration of time and the concept of 'duration', common to Compliance Law and Regulation Law (the Law of Compliance being the internalisation of Regulations in entities capable of implementing them) involving the articulation between the territory and duration (which is not the rule of Competition Law). 

Reference : Frison-Roche, M.-A., General presentation of the cycle of conferences on Les outils de la Compliance  (Compliance Tools) and  "Théorie générale de la cartographie des risques" (Legal Theory of Risk Mapping), conference made in French, in Département d'Economie de Sciences Po & Journal of Regulation & Compliance (JoRC),  La cartographie des risques, outil de la Compliance (Risk Mapping, as Compliance Tool), November 28th, 2019, Sciences Po, Paris.    Read the  General Presentation ot the cycle of conferences about the Compliance Tools   Read the General Presentation of the book written in English to be published   Read the General Presentation of the serie Régulations & Compliance in which the book will be published   Summary of the conference Risk mapping is both central to the obligations or practices of companies and little apprehended by the legal systems. It is not expressly referred to by the French legal system, except for the special national laws known as "Sapin 2" and "Vigilance". But if we are out of this field, because there is only a description and not a legal definition, even less a legal notion, we do not know what legal regime to apply to the action of mapping risks. It is therefore useful, indeed compelling, to define the legal concept of risk mapping. Starting from what is still the safest ground, namely these two special laws, to go towards less secure legal grounds, such as the doctrine of the authorities or the commitments of the companies, even the ISO certifications obtained in this matter. Through a few judicial decisions and legal reasoning, a legal notion of the action of mapping risks emerges. It is advisable to proceed in 5 steps (the working document follows another approach). The first, based directly on the two available laws, apprehends the action of mapping when it comes into execution of a special legal obligation. The decision rendered in 2019 by the French Commission des sanctions of the Agence Française Anticorruption (French Corruption Agency's Sanctions Commission) draws probate games as to the demonstration of the execution of the obligation and the probationary system can be extended. In the same way the decision of the French Conseil constitutionnel (Constitutional Council) in 2017 on the "Vigilance Act" shows that a mechanism referred to as a "modality" is legitimate with regard to the goal, which is, concerning this tool, the establishment of a responsibility for others. It is therefore the concern for the situation of others that can be targeted by the Law thanks to Compliance Tool, especially Risk Mapping. The second theme aims to map risks as a fact of good management for a company, while the enterprise is not constrained by a legal obligation. This fact is a paradox because the Regulatory Authority and the Judge may, where the conduct that was to be prevented occurs, for example a market abuse or an anti-competitive behavior, either qualify as an aggravating circumstance or as an attenuating circumstance. Consideration of the theory of incentives should lead to the adoption of the American solution, that is to say the qualification of an effective cartography as a mitigating fact. European case law is not yet fixed, especially in terms of Competition Law's compliance. The third theme is the mapping action carried out by an entity which, in doing so, exercises power over a third party. Because cartography is as much an obligation as a power, possibly on a third party. The Conseil d'État (French Council of State) in 2017 qualified risk mapping as an act of grievance, but doing so legitimately, since it was to prevent forest fires efficiently. This solution based on the teleology attached to Compliance Law can be transposed to other areas. Going further, one may consider transforming this action from de facto status to legal status on the part of the company, if it thus identifies risks for third parties. It would thus give third-party creditors the right to be in a position to measure the risks that weigh on them. Risk mapping would thus be part of a broader unilateral commitment by powerful companies, recognizing the existence of risks for third parties to enable them to know their nature and extent. If this responsibility Ex Ante (characteristic of Compliance Law) is fulfilled, then the Ex Post liability of the company could no longer be retained. This is the ongoing issue of the Johnson & Johnson trial (2019 American judgment), in terms of medical compliance. Because if one can argue that there exists through this kind of risk mapping that the posology a "subjective right to be worried about the risks related to the taking of the drug", the patient remains free in the use of it. The question of whether third-party education is included in the mapping, since the alert is already included in it, is an open question. For now, the answer is negative. Indeed and in a fifth time, appears the liberal definition of Compliance Law through the apprehension that the Law must make of the cartography of the risks. Beyond the rational act that any person has to control their risks for their own interest, by preventing the damaging effects of that from the crystallization of risk has in fact proved, it is a question of preserving an external interest for the preservation of which the Law must intervene because the subject of law, in particular the company will be less likely to be concerned. By the imprint of the law, risk mapping expresses the concern for an external interest, either of a system or of a third party. But this support in Ex Ante implies force (Sapin 2, Vigilance, financial market information obligation) or will (social responsibility, ethical commitment, adoption of non-financial standards) relates only to information, its constitution, its intelligibility and its hierarchy. Then it is the actors exposed to the risks, able to understand in Ex Ante the extent as far as they are concerned, either the entity itself, or the thirds, to choose to run them to no.     Consult the two sets of slides as basis of the conference:    Slides served as basis for the General Presentation of the cycle of conference on the Compliance Tools (in French)  Slides served as basis for the specific contribution "Théorie générale de la cartographie des risques / Legal Theory of Risk Mapping" (in French).   Read the working paper served as basis for the conference -

Generale Reference : Frison-Roche, M.-A., Les solutions offertes par le Droit de la Compliance pour lutter effectivement contre les contrefaçons de masse (The solutions offered by Compliance Law  to fight effectively against mass counterfeiting) , in Seminar of the Association des Praticiens du Droit Droit des Marques et des Modèles (APRAM), La contrefaçon de masse : va-t-on un jour réussi à y mettre un frein ? Quelques nouvelles pistes de réflexion (How to stop the mass Counterfeiting?, some new ideas), Paris, September 27, 2019.  Read the program of the Seminar. (in French) This conference is based on the report given to the French Government and published in July2019 : The contribution of Compliance Law to the Governance of Internet. It is also based on the new contribution to the new edition of the Grands Arrêts de la propriété intellectuelle : "Le maniement de la propriété intellectuelle comme outil de régulation et de compliance"(in French).  This publication is based on this Working Paper : The use of Intellectuel Property as a tool for Regulatory and Compliance Perspectives.      Summary : In this seminar devoted to new ways of reacting to "mass counterfeiting", the idea here is to start from the observation of an increase in the ineffectiveness of intellectual property rights – and thus of the I.P. Law. Law being a practical art, it is not a simple inconvenience, it is a central question. This can be remedied by improving the Ex Post legal process, but we can think of finding Ex Ante mechanisms. The Regulatory Law is Ex Ante, but digital world is not a sector, it is the world itself. A promising direction is therefore Compliance Law, in that it is both Ex Ante and non-sectoral. The contribution shows how Compliance Law is already useful, could be developed and how it could be applied so that these specific rights could be effectively protected in a digital world, where for the moment counterfactors have in fact the means to ignore them.   See the slides. (in French)