General Law and Civil Law

► Full reference: M.-A. Frison-Roche, Use of private companies by Compliance Law to serve Human Rights, Working Paper, May 2023. - This Working Paper is the basis of: 🎤a conference done in French in Toulouse on June 16, 2023 📝an article previously written before and for this conference, and subsequently published in the book Puissances privées et droits de l'homme ("Private Powers and Human Rights") - ►Summary of this Working Paper: Following the legal tradition, Law creates a link between power with a legitimate source, the State, public power being its prerogative, while private companies exercise their power only in the shadow of this public power exercised ex ante.  The triviality of Economic Law, of which Competition Law is at the heart, consisting of the activity of companies that use their power on markets, relegates the action of the State to the rank of an exception, admissible if the State, which claims to exercise this contrary power, justifies it.  The distribution of roles is thus reversed, in that the places are exchanged, but the model of opposition is shared. This model of opposition exhausts the forces of the organisations, which are relegated to being the exception. However, if we want to achieve great ambitions, for example to give concrete reality to human rights beyond the legal system within which the public authorities exercise their normative powers, we must rely on a new branch of Law, remarkable for its pragmatism and the scope of the ambitions, including humanist ambitions, that it embodies: Compliance Law. Compliance Law is thus the branch of Law which makes the concern for others, concretised by human rights, borne by the entities in a position to satisfy it, that is to say the systemic entities, of which the large companies are the direct subjects of law (I). The result is a new division between Public Authorities, legitimate to formulate the Monumental Goal of protecting human beings, and private organisations, which adjust to this according to the type of human rights and the means put in place to preserve them. Corporations are sought after because they are powerful, in that they are in a position to make human rights a reality, in their indifference to territory, in the centralisation of Information, technologies and economic, human, and financial means. This alliance is essential to ensure that the system does not lead to a transfer of political choices from Public Authorities to private companies; this alliance leads to systemic efficiency. The result is a new definition of sovereignty as we see it taking shape in the digital space, which is not a particular sector since it is the world that has been digitalised, the climate issue justifying the same new distribution of roles (II).  -   🔓read the full developments below⤵️ - 🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law 

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, Laws, Compliance, Contracts, and Judges: places and alliances, Working Paper, March 2023. - . 📝this working paper is the basis for an article published in French (click HERE) in the 📚chronique of Compliance Law held in the Recueil Dalloz. - 📚Read the other articles published by this Compliance Law Chronicle. open since 2018. - ►Summary of this Working Paper: To understand the functioning of compliance systems in the articulation of the legal actors and the legal instruments used, whatever the technical sector considered, it is necessary to put the "law", the "contract" and the "judge" back into the perspective of legitimacy and efficiency regarding what Compliance is.  At the very least, it is a 'conformity' mechanism. In this process of simple obedience, legislators, economic operators, and judges find themselves in the position of having to obey the law in a hierarchical conception. In a more dynamic and ambitious conception, when Compliance Law is not reduced to a more astute method of obedience but draws substantial normativity from the Monumental Goals pursued, legislators and operators enter an alliance. The contract becomes a major instrument, and the Judge becomes a major actor, no longer to punish the non-obedient but to facilitate the links to help a sustainable system.  Faced with issues such as digital, climatic, and technological challenges, where we are each so weak and isolated, we must not limit our conception and practices to the instrument of conformity but choose the substantial Compliance Law, i.e. the alliance of forces, which puts forward the contract and renews the office of the judge, with the Public Authorities remaining legitimate in setting the Monumental Goals since they commit the future of the social group. -   🔓read bellow the developments⤵️

► Full Reference: M.-A. Frison-Roche, "Instaurer l'insécurité juridique comme principe, outil de prévention des crises systémiques catastrophiques totales" ("Establishing legal uncertainty as a principle and a tool for preventing total catastrophic systemic crises"), in G. Gerqueira, H. Fulchiron et N. Nord (eds.), Insécurité juridique : l'émergence d'une notion ?, Société de législation comparée, coll. "Colloques", vol. 53, 2023, pp. 153-167.  - 📝read the article (in French) - 🚧read the bilingual Working Papier which is the basis of the conference and this article - 🎤watch the conference of March 22, 2021 that took place in the Cour de cassation (French Court de cassation) and for which this reflection was globally led - ► English Summary of the article: "whatever it takes". In 2015, Mario Draghi used this formula to aim for the defence of the European currency, when the Euro was in danger of collapsing under the dance of the speculators who would be enriched by its collapse. Rarely has a formula been more violently political and more strongly prescriptive. It contributed to his being dubbed "Super Mario", as in the video game. The formula was used again in 2020 by the Président de la République Française (President of the French Republic) in the face of the financial turmoil caused by the health crisis that led to similar calculations. It goes beyond the mere "financial cost". With this formula, the President of the European Central Bank stated that the economic crisis in Europe was such that the institution would do everything in its power to put an end to it, without any limits; that all those who, by their behaviour, even supported by their legal prerogatives, in this case the speculators, because they were destroying the economic and financial system, would come up against this and would themselves be swept away by the Central Bank because the latter's mission, in that it is absolutely to safeguard the Euro itself, would prevail "quoi qu'il en coûte" ("whatever the cost"). At one point, the master stood up. If the royal position is the seated position, when he listens and judges, it is by rising that he shows his acceptance of also being the master, because he is in charge of more and will use everything to win. More broadly, we might consider drawing up a positive concept of legal uncertainty (which is bound to please the Hegelians), increasing legal certainty: this would make it possible to associate a clearer legal regime with the hypotheses of legal uncertainty. Indeed, rather than sweeping Law under the carpet, which explains many of the tensions between the Conseil constitutionnel (French Constitutional Council) and the Conseil d'État (Council of State) on the one hand, and the legislator and the government on the other, concerning the "État d'urgence" ("State of emergency"), we could set out the conditions in which legal uncertainty makes it possible to set aside or limit rules. The idea proposed is therefore that in "extraordinary situations", legal uncertainty would be a dimension, or even a principle which would be admissible. And developing this first point, it is proposed that the hypothesis of an "economic crisis" justifies a dimension, or even a principle of "legal uncertainty". But this first assertion needs to be tested. Is an economic crisis, a concept that needs to be defined, if it is to have such a major reversal effect, such an extraordinary 'situation'? Furthermore, to deal with this extraordinary situation constituted by an 'economic crisis', how much legal uncertainty would be legally acceptable, or even legally claimed? Could we even conceive of a reversal of principle that would bring applicable Law to an economic crisis under the aegis of legal uncertainty? In such a case, the question that then arises is to determine the conditions and criteria for emerging from the economic crisis, or even to determine the elements of perspective of an economic crisis, which could justify in advance the admission of an injection of legal uncertainty. Above all, Law has control over the future. The economic crisis should therefore be legally defined as an exceptional situation, before stressing that Regulation and Compliance Law, because on the one hand we move from crisis to crisis and on the other hand the whole system aims to avoid and manage the future crisis in advance or to exclude it; this is particularly true of health and climate issues (the way the health crisis was managed was to 'decree' that the State should initiate an economic crisis), which means that legal insecurity is no longer seen as a distant exception, a failure to be combated, but as a lever that can be used to influence the future. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: M.-A. Frison-Roche, "Contrat de compliance, clauses de compliance", Chronique of Compliance Law, D. 2022, pp. 2115-2117. - 📝reac the article (this article is written in French) - ► English summary of the article: Compliance Law is often seen only as an obligation to comply with regulations. Contract Law is masked by the study of texts and sanctions. Civil liability cases are beginning to highlight the commitments of companies, acts of will. It remains to discern the importance of contracts. First, there is a specific contract: the "compliance contract". Its purpose is to provide a third party with a service, the means for the company to "comply" with the legal systems requirements ("contract of conformity"), and/or to enable the company to achieve the monumental goals that characterize Compliance Law (contract of compliance). The interpretation and the regime of these compliance contracts must be marked by the Compliance Law that permeates it. Secondly, there are a multitude of stipulations aimed at conformity and Compliance. - 🚧read the working paper written in English: Compliance contract, Compliance stipulations - 📚read the other articles published in this chronique of Compliance Law published in the Recueil Dalloz. - 🌐 follow Marie-Anne Frison-Roche sur LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe  to the Newsletter MAFR Regulation, Compliance, Law 

► Full Reference : D. Fenouillet, Droit de la famille (Family Law), 1st ed. 1997 – 5th ed., 2022, Dalloz, “Cours Dalloz-Série Droit privé” Series, 673 p. - ► General presentation of the book (written in French) : This textbook, up to date with the latest texts, is intended for all law students and all practitioners updating their knowledge of family law. Its first part deals with « couples » (married, divorced, unmarried), its second part being devoted to « the child » (filiation and status). Finally, a last part develops « the family beyond » (name, maintenance obligations and family property). - 📚See the entire collection in which the book is published. -

► Full Reference : D. Mainguy, Contrats spéciaux (Specific Contracts), 13th ed., 2022, Dalloz, “Cours Dalloz-Série Droit privé” Series, 701 p. - ► General presentation of the book (written in French) : In this « Course » intended for students and practitioners alike, Daniel Mainguy sets out the technical rules specific to the various specific contracts, depending on whether they relate to a thing or to a service. For each specific contract, the book sets out the rules proper to it, drawn both from the French Civil Code and from the statutes specific to it, as well as from the case law that has accumulated on it. « Usual contracts » as much as « specific contracts », they reflect our whole life, from the most everyday (sale, loan, etc.) to the most sophisticated arrangements. - 📚See the entire collection in which the book is published. 📚In this collection, this book is more particularly related to the following books : 🕴️R. Cabrillac, 📕Droit des obligations (Law of Obligations) 🕴️J.-B. Seube, 📕Droit des sûretés (Law of Security Interests) 🕴️J.-D. Pellier, 📕Droit de la consommation (Consumer Law) 🕴️S. Piédelièvre, 📕Instruments de crédit et de paiement (Credit and Payment Instruments) 🕴️Ph. Pétel, 📕Procédures collectives (Insolvency Proceedings) -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, Compliance contract, compliance clauses, working paper, September 2022. - ►Summary of this working paper:  Compliance Law has multiplied obligations. However, although Tort Law is emerging in Compliance issues and contracts are multiplying in practice, for the moment the relationship between Compliance Law and Contract Law is not very visible (I). However, there are contracts whose sole purpose is to give concrete form to Compliance, which creates a specific contract and must influence its implementation (II). Moreover, there is much to learn from the diversity of compliance stipulations scattered throughout a wide range of contracts (III). - 🔓read the developments below⤵️

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, The judge, the obligation of compliance and the company. The probationary compliance system, Working Paper, August 2022. - 📝this Working paper had been made for an article:  📕 published in its French version ("Le juge, l'obligation de compliance et l'entreprise. Le système probatoire de la compliance") in the book La juridictionnalisation de la Compliance, in the series 📚Régulations & Compliance  📘published in tis English version in the book Compliance Jurisdictionalisation, in the series 📚Compliance & Regulation - ► Summary of this Working Paper: To articulate the probationary system of compliance, it should first be admitted that Evidence is a general system, built on a "probationary square" functioning whatever the situation, and that it seems that Compliance Law rejects it, being incompatible with major probative principles, as soon as Compliance is defined as the obligation that companies would have to show (which is evidence) their respect for all the regulations applicable to them. But fortunately, Compliance does not have to receive this definition. Compliance Law consists of all the principles, institutions, rules, and decisions which, in an alliance between public authorities and crucial companies, tend in a substantial way to the achievement of Monumental Goals. A branch of Ex Ante Law that protects systems and the human beings involved in them, Compliance Law aims to detect and prevent so that in the future systems will be less harmful than they would be if we do nothing, even will be better. From this required action of companies, which requires the establishment of structures and series of behaviors, a specific probationary system emerges. It is composed firstly of specific proof objects, constituted on the one hand by the structures and on the other hand by the behaviors. Secondly, the specificity of compliance, often denounced, lies in the burden of proof, the burden of which rests on the company, but it is necessary to analyze the interference with the other branches of law, which compliance cannot have destroyed. . Thirdly, the scope of the probative issues is such that the means of proof have multiplied, according to the triptych of the effectiveness, efficiency and effectiveness expected of the compliance system itself regarding the Monumental Goals (and not the regulations). Fourthly, because Compliance Law is a branch of Ex Ante Law and the Judge is nevertheless at the center, it is logical that all efforts focus on the pre-constitution of evidence.   - 🔓read the developments below ⤵️

► Full Reference : J.-B. Seube, Droit des sûretés (Law of Security Interests), 11th ed., 2022, Dalloz, “Cours Dalloz-Série Droit privé” Series, 569 p. - ► General presentation of the book (written in French) : A security interest gives the creditor an additional chance of being paid. Steeped in property law and the law of obligations, the law of security interests strikes a balance between the protection of creditors’ interests and the interest of debtors. The textbook gives the characteristic features of personal securities and real securities. The book is intended mainly for undergraduate and Master students. It sets out the rules on suretyship, the mechanisms that produce an exclusive security effect as well as those that produce only an occasional security effect. As for real securities, the author distinguishes the classic real securities from those that operate « indirectly ». - 📕Read the table of contents (in French) - 📚See the entire collection in which the book is published. -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: FM.-A. Frison-Roche, La responsabilité ex ante, pilier du droit de la compliance ("Ex-Ante Responsibility, Compliance Law Pillar"), D. 2022, chronique MAFR – Droit de la Compliance, Recueil Dalloz, March 31, 2022. - ► Article English Summary: The Law must help to face the future, which can be totally catastrophic in terms of climate and digital issues. Courts are s best placed for this, without “governing”, only relying on the commitments made by companies, governments, and legislators.  On the ordinary Tort Law, court decisions oblige these different entities to be consistent in the commitments they have made, obliging them to act in the future, formal “compliance” with the regulations cannot be sufficient. This ex-ante responsibility, founding the powers, thus constitutes a pillar of a substantial Compliance Law, showing the part that CSR and the companies with a raison d'être play in it. -   📝 read the article. (written in French) - 📚go to the presentation of the other articles published in this Chronique Droit de la Compliance made in the Recueil Dalloz.  -

► Full Reference: M.-A. Frison-Roche, "La responsabilité Ex Ante" ("Ex Ante Responsibility"), in Archives de Philosophie du Droit (APD), La responsabilité, t. 63, Dalloz, 2022, pp. 105-115 - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - ► English Summary of the article: Today, Law is faced with a strategic imperative: to turn its strength towards the future, to deal with issues (digital and climate) over which law and contract do not have the required influence, because they are too local or too unsystemic, while ex post liability is not adequate to deal with the irreparable. Responsibility therefore takes hold of the future, with the judge becoming the central figure in the world through no fault of his own. This shift in time may continue to be anchored in the past, as a result of commitments made by States or firms. But this responsibility for the future, giving rise to an obligation not to make reparation but to do something about it, may come even more directly from the mere fact that the entity in question is ‘in a position’ to act to ensure that others are protected. Pre-constituted evidence, ex ante office of the judge, duty for others, but also powers of the firm and State to bear this ex ante responsibility, pillar of Compliance Law, Law of the future, are the new rules that are being put in place. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law