Contract

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law - ► Full Reference: M.-A. Frison-Roche, "La loi, la compliance, le contrat et le juge : places et alliances" ("Regulations, Compliance, Contracts, and Judges: places and alliances"), Chronique of Compliance Law, D. 2023, pp. 906-908. - 📝read the article (in French) - ► English summary of this article: Compliance Law brings together the forces of regulations, contracts, and judges' decisions to achieve monumental goals so that in the future human beings will not be crushed by systems but will instead benefit from them. In this teleological and systemic branch of Law, legislators, regulators, companies, stakeholders, and judges must find their place. This can lead to bonds of obedience, a vision of 'conformity'. But conformity is only a tool of compliance, whose vigilance is the advanced point of this new branch of Law in which the alliance makes it possible to find solutions, the contract being then a usual mode of elaborating means under the control of the judge. - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - 📚read the other articles published in this chronique of Compliance Law published in the Recueil Dalloz -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Face aux clauses de Compliance : le Juge (colloque du 7 avril 2023)" ("Facing Compliance clauses: the Judge (symposium of 7 April 2023)"), Newsletter MAFR – Law, Compliance, Regulation, 4 April 2023. - 📧Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation - Compliance Law is starting to be known; mainly through two blocks: Firstly the spectacular sanctions by which it made as its entry in Europe by the "BNPP sanction" of 2014. 🔴M.-A. Frison-Roche, 📝Le Droit de la Compliance, 2016 Secondly, the accumulation of tools, legal and non-legal, with which companies have equipped themselves: plans to detect and prevent breaches, internal investigations, mapping, ad hoc training, etc. 🔴M.-A. Frison-Roche (dir), 📘Compliance Tools, 2021   But what is the "compliance obligation" in the name of which these fearful and heavy sanctions are pronounced and these new and multiple tools are put in place? We do not have a very clear idea. That is why the Journal of Regulation & Compliance (JoRC) and its partner universities have chosen to focus on the topic of the Compliance Obligation in a series of symposiums held in 2023. 🔴JoRC, 🏗️L'obligation de compliance, 2023   It could be said that the company is "obliged" by Compliance because it is obliged by the Law, as Compliance would only mean obeying "regulations" (a term used to describe everything that is obligatory, from the Constitution to ethical charters, etc.). The English vocabulary "comply with" suggests this, as does the Chinese practice of Compliance. The difference would then only be the fact that the company shows its "stakeholders" that it does in fact respect all these texts that commit it.   But the practice and the jurist remember that what is sometimes considered as the heart of the Law, since Roman Law, is Obligations Law, having as its object Contract Law and Tort Law.   Yet, in practice, companies have put contracts concerning compliance everywhere, and they are relatively little studied. 🔴M.-A. Frison-Roche, 📝Contrat de compliance, clauses de compliance, 2023 These may be entire contracts whose very purpose is to entrust another with the task of fulfilling all or part of the compliance obligation incumbent on the company, with regard to personal data. These may be clauses inserted in contracts with another purpose, for instance sales contracts in a value chain, where the company stipulates that the other company will also ensure compliance obligations for itself or for the other company, e.g. detect and prevent corruption, be vigilant, etc. Contract Law has already taken on compliance in practice, especially in long-term economic transactions with an international dimension. The judge has always been present in Obligation Law.   How is the triangle articulated: Judge – Compliance – Obligation?   The Judge has been present from the outset in the development of the Compliance Obligation through criminal liability, administrative liability and the obligation for the company to become a judge of itself, particularly through internal investigations. 🔴M.-A. Frison-Roche (dir.), 📘Compliance Jurisdictionalisation, 2023   The Judge is also present through Obligation Law stricto sensu, first of all through liability, which is transformed under the effect of the compliance system, which operates more in the logic of "accountability" and generates legal mechanisms of "ex ante liability". 🔴M.-A. Frison-Roche, 📝La responsabilité Ex Ante, pilier du Droit de la Compliance, 2022   In contractual matters, the Judge will intervene, in particular with regard to the stipulations which, in the contracts which form the architecture of the value chains, ensure the efficacy (and no longer only the effectiveness) of the duty of vigilance. The Judge will then intervene under the French law of 2017, known as the "Vigilance Law", 🔴M.-A. Frison-Roche, 🚧Vigilance, Buts Monumentaux de la Compliance et "Société vigilante", 2023 but also, because the Judge is the "judge of the contract", he will intervene as such.   To identify the Obligation of Compliance,  🔴M.-A. Frison-Roche (dir.), 📘Compliance Obligation, 2024 it is therefore necessary to analyse the way in which the Judge apprehends or should in the future apprehend contracts and compliance clauses.   That's why, in the above-mentioned cycle of symposiums, a symposium is being held on 7 April 2023. It is co-organised by the Journal of Regulation & Compliance (JoRC) and the Law Faculty of Perpignan, and has been designed under the scientific direction of Walid Chaiehloudj and Marie-Anne Frison-Roche. 🧮Le juge face aux clauses et aux contrats de compliance (The Judge facing clauses and contrats of compliance) -

► Full Reference: Autorité de la concurrence (French Competition Authority), Décision relative à la prise de contrôle exclusif de la société McKesson Europe par le groupe Phoenix (Decision on the acquisition of sole control of McKesson Europe by the Phoenix Group), 30 September 2022, n° 22-DCC-186. - 🏛️read the decision (in French) -

► Full Reference: Frison-Roche, M.-A., Duty of Vigilance, Whistleblowing and International Competitiveness, Working Paper, September 2021. -   🎤 this Working Paper is the basis for a conference , in the colloquium Effectiveness of Compliance and International Competitiveness, co-organised  by the Journal of Regulation & Compliance (JoRC) and the Center for Law and Economics of the Panthéon-Assas University (Paris II),   November 4, 2021 - 📝this Working Paper is also the basis for an article. This article is to be published ⤵ in its French version in the book 📕Les buts monumentaux de la Compliance, in the series 📚Régulations & Compliance  in its English version in the book 📘Compliance Monumental Goals, in the series la collection 📚Compliance & Regulation - ► Working Paper Summary: The "Compliance Tools" are very diverse. If it has been chosen to study more particularly among these the obligation of vigilance and the whistleblower, these rather than others and to study them together, it is because they present in the perspective of the specific topic chosen, namely "international competitiveness", and for companies, and for economic zones considered, and for legal system inseparable from them, a uniqueness: these are mechanisms which release Information.  By order of the law, the company will not only stop ignoring what it covered with the handkerchief that Tartuffe held out to it or that a conception of Company Law legitimately allowed it to ignore. This article does not examine if this revolution made by Compliance Law expresses in the legal system is on the one hand legitimate and on the other hand effective: the article measures what is happening at the regard to "international competitiveness". Compliance Law is therefore be examined here through its instruments, and not in relation to its normativity. In fact, its instruments are intended to provide Information and to make this information available, in its presentation, in its intelligibility and in the hands of those who are able to use Information in perspective of the Compliance Monumental Goals, achieving them.  Regarding this central notion of Information, international competitiveness will be more particularly concerned because Compliance Law will oblige the company itself to seek out, then expose to everyone's eyes, in particular its competitors, its weaknesses, its projects, its alliances, its flaws. This does not pose a problem if its competitors themselves are often subject to this new branch of Law, which goes far beyond transparency, which is already a new mechanism because a company is not a transparent organization and Competition Law that governs ordinary businesses never required this. But if they are not subject to this incredibly special branch of Law that is Compliance Law, then there is a distortion of competitiveness by the very fact of the Law. It is possible to pretend that the markets like virtue, that they give it credit because they are themselves based on the idea of "promise", which is ultimately based on a moral concept, but this provision of Information to others, while others remain opaque, is a major problem of competitiveness, which the legal requirement of "loyal commercial practices" only very partially considers. Therefore, it is necessary to first examine what is the economic and financial power of the information captured by the company on itself thank to Compliance Law making available to all but firstly to the compagny itself through the whistblowing mechanism, organised by the laws, differently in the US and Europe (I). Compliance Law also obliges companies to be accountable not only for what they do but also for what others do for them. Through the obligation of Vigilance, objective Ex Ante obligation and duty, the company obtains a power of Information on others which could well resolve what is often presented as the dispute aporetic of the extraterritoriality of Compliance Law, thus making accountable companies hitherto protected by their "preserved" legal system and thereby affected by the effectiveness of Compliance Law (II). - read below the developments

Full reference: Luguri, J. and Strahilevitz, L. J., Shining a Light on Dark Patterns, Journal of Legal Analysis, Vol. 13, Issue 1, 2021, 67p.  Sciences Po's students can read this article via Sciences Po's Drive in the folder MAFR – Regulation & Compliance. 

Experience shows that in the digital the legal technique of consent is not protective enough.   If only because a simplest technology neutralizes the link that should exist between the "consent" of the user and the "free will" of the latter: the consent of the user only protects the latter to the extent that this one can in Law and in fact to say "no.     I. THE EXPERIENCE    For example I found on my Facebook New an access to an unknown web site which puts online an article on "the rights of trees" … I go. In accordance with the European Regulation (GDPR) transposed into French legal system, the site informs that there is possibility for the user to accept or refuse the use of their personal data for the benefit of "partners". If they continue reading, the user is supposed to accept everything, but they can click to "customize". I click: there I find two options: "accept everything" or "reject everything". But the "reject all" option is disabled. It is only possible to click on the "accept all" option.   It is also possible, because the law obliges, to consult the list of the partners of this website: I click and find a list of unknown companies, with foreign denominations, which without doubt once will collect my personal data (and those of my contacts) , having their own head office outside the European Union. It is stated in a text, which can not be copied, that these "partners" can use my data without my consent and for purposes that they do not have to inform me. But, again, these things I can "refuse everything". Here again the "reject all" mention exists but the fonctionality is not active, while the mention "accept all" is an active fonctionality.   As I can not refuse (since it's disabled), and as 99% of Internet users have never clicked on the first two buttons, all their data has been fed into the data market that allows the targeting of products that spill out in the digital space, to their detriment and that of their contact. While believing to read a free article on the "right of the trees". At the end, I do not read this article, since I did not click on the only active buttons: "accept everything".   In more than 50% of cases, the "reject all" or "customize" options are only images but are not active. And data absorption is also about contacts. In exchange for a whimsical article about trees and their rights, or creams to be always young, or celebrities who change spouses, or about so-called tests to find what king or queen you should be if the all recognized all your merits, etc. Proposed on the digital news feed by unknown sites; in partnership with foreign companies that you will never reach. And mass-viewed by Internet users who are also told that "consent" is the proven solution for effective protection …. While these are just panels hastily built by new Potemkins …   II. WHAT TO DO ?    1. Not be satisfied with "consent" from the moment that it is a mechanism that may not be the expression of a free will: how could it be if the option "to refuse" is not active?   2. The link between will and consent must therefore be "presumed" only in a simple presumption and in a non-irrefutable way, because we must refuse to live in a dehumanized society, operating on "mechanical consents", to which the digital does not lead necessarily.   3. Entrust by the Compliance Law to the "crucial digital operators" (in the case of Facebook thanks to which these proposals for free reading are made on the thread of news of the Net surfers) the care to verify in Ex Ante the effectiveness of the link between Will and Consent: Here and concretely the possibility for the user to read while refusing the capture of all its data (for the benefit of operators who do not even have the concrete obligation to give the information of the use that will be made of these personal data).   -

Full reference: M. Fabre-Magnan, "La responsabilité du fait du cocontractant. Une figure juridique pour la RSE", in Liber amicorum en hommage à Pierre Rodière. Droit social international et européen en mouvement, Coll. Mélanges, Lextenso – LGDJ, 2019, pp. 79-90. - 🦉This article is available in full text for those enrolled in Professor Marie-Anne Frison-Roche's courses. -

Full reference: Fabre-Magnan, M., Les fausses promesses des entreprises: RSE et droit commun des contrats, in Etudes en la mémoire de Philippe Neau-Leduc. Le juriste dans la cité, Coll. Mélanges, Lextenso – LGDJ, 2018, pp. 451-458 Sciences Po's students can read this article via Sciences Po's Drive in the folder MAFR – Régulation & Compliance