Critical infrastructure

► Full reference: M.-A. Frison-Roche, The Legal System of Internet Addressing. A Multi-Stakeholder Structure, the Pledge of its Sustainability, Journal of Regulation & Compliance (JoRC) and Lefebvre-Bruylant, “Compliance & Regulation” series, forthcoming. - 📕 This book is published in English. It is also published in French, in the “Régulations & Compliance” series: Le système juridique de l’adressage de l’Internet. Une structure multi-acteurs, gage de durabilité (The Legal System of Internet Addressing. A Multi-Stakeholder Structure, the Pledge of its Sustainability), Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, forthcoming. - ► Read the presentations of the other books in the “Compliance & Regulation” series - ► General presentation of the book: The Internet is a space based on a technical system consisting of IP addresses, all of which can reach one another. This simple technical principle is essential because it is the foundation on which the digital space rests, in that it allows anyone to enter it, move within it and reach others. It is this principle of the open Internet that made possible the construction of the digital space in which we live. This technical system of IP addresses was made easily manageable by domain names. This manageability of IP addresses made the open character of the Internet effective and enabled the expansion of a space that was global from the outset, forming the basis of the digital space. These technical elements were directly translated into the addressing system through domain names, which was built by the Law. The resulting legal system of addressing reflects this technical foundation, and no one can either deny or undo this link: indeed, the Law enables the domain name infrastructure to function effectively on a global scale and in an open manner, where everyone can reach the other. Technical architecture and legal architecture are thus inseparable. This freedom for everyone to create and circulate in the digital space is made possible by technology and guaranteed by the legal organisation of the domain name architecture. This study is structured in two parts. Its first part aims to describe the legal framework of the global domain name system. Its second part examines how to improve this system: it first examines the technical effects produced by scenarios involving changes to the legal framework of addressing, namely a high risk of capture and/or fragmentation of the domain name system by regional zone. It then aims to demonstrate that if the legal organisation of the global domain name system were significantly altered, notably through the establishment of legal addressing zones that are autonomous from one another, the technical imperative of globality remaining paramount, interconnection between the different zones would be necessary and would then be ensured by a public or private actor who could thus effectively seize control of the technical system via these proposed new legal structures of the system, thereby taking over the whole. - PROVISIONAL TABLE OF CONTENTS   In Perspective   PART ONE HOW THE GLOBAL LEGAL SYSTEM OF NAMING IS BUILT   CHAPTER I: ICANN: A LEGAL STRUCTURE OF CLASSIC HARD-LAW FORM, REQUIRED BY THE TECHNICAL INFRASTRUCTURE OF THE ADDRESSING SYSTEM, TRANSPOSED THROUGH STATUTES THAT SEPARATE THE POWER TO PROPOSE FROM THE POWER TO ADOPT IN ORDER TO ESTABLISH A “MULTI-STAKEHOLDER” SYSTEM WHOSE PURPOSE AND EFFECT ARE TO PREVENT CAPTURE CHAPTER II: THE EXERCISE BY STATES OF THEIR PREROGATIVES THROUGH NATIONAL PUBLIC LAWS: ARTICULATION BETWEEN THE TWO GEOGRAPHICAL SPACES OF HARD LAW CHAPTER III: INTERNATIONAL SPACES OF HARD AND SOFT LAW: UN, WIPO, ITU, WSIS CHAPTER IV: MIRRORING THE TECHNICAL INFRASTRUCTURE OF THE ADDRESSING SYSTEM, THE INTERMESHED GLOBAL LEGAL STRUCTURE, ARTICULATING THE SPACE OF HARD LAW AND THE SPACE OF SOFT LAW CHAPTER V: INTERNALISATION WITHIN CRUCIAL OPERATORS THROUGH COMPLIANCE TECHNIQUES LINKED TO THE OBLIGATION OF SUSTAINABILITY   PART TWO HOW TO IMPROVE THE GLOBAL LEGAL SYSTEM OF NAMING   CHAPTER I: ASSESSMENT OF THE RADICAL TECHNICAL TRANSFORMATIONS THAT PROPOSALS TO CHANGE THE LEGAL SYSTEM OF ADDRESSING COULD BRING ABOUT Section 1 ♦️ Assessment of the technical consequences of the legal proposal to transfer the current complex and specific system into an ordinary mechanism of Public International Law Section 2 ♦️ Assessment of the technical consequences of the indirect proposal to establish separate blocks of systems by zone CHAPTER II: MAINTAINING THE LEGAL SYSTEM OF ADDRESSING, GLOBAL, PROTECTED FROM CAPTURE AND ABLE TO ENSURE TECHNICAL SUSTAINABILITY? BY FOSTERING AN INCREMENTAL PROCEDURAL IMPROVEMENT TOWARDS BETTER UNDERSTANDING AND THUS BETTER ACCOUNTABILITY Section 1 ♦️ A grievance, factual but central: the legal system of domain names is hard to understand. Causes and consequences Section 2 ♦️ Making the legal system of domain names more easily understandable to the parties concerned Ex Ante Section 3 ♦️ Explaining clearly, starting from the purposes, the share of technical sustainability and the share of societal sustainability, the former firmly preserved, the latter handled as a debated project Section 4 ♦️ Enhancing soft-law instruments for their discursive, that is explanatory, scope regarding the domain name system within the global governance of the Internet Section 5 ♦️ Making the legal system of domain names understandable to the parties concerned Ex Post: thereby increasing the value of accountability   Selected Bibliographical Sources Index - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 🌐subscribe to the Video Newsletter MAFR Surplomb 🌐subscribe to the Newsletter MaFR Droit & Art

► Full Reference: M.-A. Frison-Roche, La qualification juridique du système de noms de domaine comme infrastructure et ses conséquences juridiques ("The legal status of the domain name system as an infrastructure and its legal consequence"), in M.-A. Frison-Roche et G. Loiseau (dir.), Durabilité de l'Internet : le rôle des opérateurs du système des noms de domaine (Sustainability of the Internet: the role of the operators of the domain name system. Compliance and regulation of the digital space). Compliance et régulation de l'espace numérique, 21 février 2025, organisé par le Journal of Regulation & Compliance et l'Institut de la Recherche en Droit de la Sorbonne (André Tunc – IRDJS), 12 place du Panthéon, Paris. - 🧮see the full programme of this colloquium (in French) - ► Summary of this conference:  "Domain names" are a technical reality. This technical reality has come to the fore, seeming to have been both little "thought out" and little "conceived" in Law and, perhaps because it is little coveted, Competition Law, which neutralises the concreteness of things and services in order to focus on exchange, hardly qualifies them. It is rather from the 'Competition Policy' perspective that 'domain names' are apprehended. However, Competition Policy expresses wishes and perspectives, while Competition aw must make way for the perspective of Regulatory Law inside the liberal economic system. Looking at the technicalities of the domain name system, we can proceed in 3 stages. Firstly, if a domain name is taken in isolation, it may appear as property and/or a projection of a person, and has rightly been described as such by the courts. But domain names only exist in relation to each other, the addressing system on which the Internet itself and the digital space that enables everyone to spread, reach and be reached were built. In this way, they constitute an Infrastructure in their plurality, in a uniqueness (I). The legal system must take account of this technological reality through the concept of Essential Infrastructure, which is well known in Regulatory legal perspective(I). Secondly, the legal consequences of this legal qualification of Infrastructure must be detailed (II). Regulatory Law does not necessarily imply institutions, a regulatory authority being an indication rather than a criterion. Rather, it requires specific charges, powers and controls to ensure that the Infrastructure is established and operates to fulfill, now and in the future, the function that is crucially expected of it. Because the digital space was born of the Internet, an a-sectional and a-territorial space, Compliance Law, which is an extension of Regulatory Law, outside the sectors and internalised in the crucial operators, is essential as it is appropriate without diminishing the public dimension of the organisation. Thirdly, the evidential dimension should be emphasised (III). Indeed, because we need to ensure that the Domain Names Infrastructure is always solid and reliable, so as not to risk a systemic failure of the Internet, and therefore of the digital space, we must not remain with the traditional system of burden of proof that rests on the person making the complaint. Because there is a Compliance Obligation, it is up to the crucial operators to credibly show their ability to ensure the technical sustainability of this infrastructure on which the digital space in which we live is based. It shall be different if the issue is one of non-technical Sustainability, for example that which is linked to a particular societal project, in which the operators of the domain name system are not at the origin and are required on an ad hoc basis because they are in a good position to help the Authorities or because they wish to do so. - 🌐suivre Marie-Anne Frison-Roche sur LinkedIn 🌐suivre Marie-Anne Frison-Roche sur Instagram 🌐s'abonner à la Newsletter MAFR Regulation, Compliance, Law 🌐s'abonner à la Newsletter en vidéo MAFR Surplomb

► Full Reference: Vaquieri, J.-F.,  The "Monumental Goals" perceived by the company. The example of Enedis, in Frison-Roche, M.-A. (ed.),Compliance Monumental Goals, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published. - ► Article Summary: The article aims to show how a particular company in that it is charged by the State to effectively distribute electricity to everyone in France participates in the Monumental Goals, makes them concrete and integrates them into its functioning itself. The firm Enedis, a French monopolistic State company, operator of the distribution network participates directly in these Goals under the express application of the French Energy Code.  Under the control of the Regulator, the company is responsible for the continuity of the electricity supply and responds to the challenges of energy transition, Enedis ensuring equal treatment at national and local level, Compliance thus extending Regulatory system to which this firm responds and which it internalizes. The management of personal data, energy being at the heart of the digital revolution, implies a particularly strong internal framework of Compliance. This articulation between this new Compliance in terms of personal information and this classic Compliance as a continuation of the Regulation to serve the citizen, both converging for the benefit of people, explains that Enedis has put Compliance at the heart of its commitments, particularly expressed in its code of conduct, its industrial and human project (Projet industriel et humain – PIH) and its environmental actions. The Compliance which is specific to Enedis is disseminated by it to various entities, in particular via concession contracts, giving these an original framework. This importance of Compliance for Enedis leads the company through the "Monumental Goals" which unite it to design and maintain balances between the diversity of these so that the values carried by the companies continue to decline, especially locally. -     📝 see the general presentation of the book, Compliance Monumental Goals, in which this article is published -    

► Compliance Law is essential for the future of Africa: this is also a lesson from the Juin 2021 G7 Summit in its Infrastructure Plan.  It emerges from the G7 summit which ends on June 13, 2021 in Carbis Bay in the United Kingdom, a common desire to increase infrastructures in Africa, in itself and because otherwise China will do it, and will do it differently. Compliance Law will be determinant in this common action for three reasons. First and because the issue is about infrastructures, the construction and the management of infrastructures falling more under Regulatory Law than Competition Law (📕Chevalier, J.-M., Frison-Roche, M.-A, Keppler, J.EPPLER, J.H. et Noumba, P. (ed.), Économie et droit de la régulation des infrastructures. Perspectives des pays en voie de développement, 2009). However, Compliance Law is not a simple process for the effectiveness of rules which are external to it, it is the extension in companies of Regulatory Law. Where companies must implement regulatory goals within themselves, they develop Compliance rules (➡️📝see Frison-Roche, M.A., From Regulation Law to Compliance Law, 2017.  Secondly and because the issue is about Africa, the Rule of Law is sometimes not very solid there. By internalizing Regulatory Law in companies (or even by associating Arbitration with it), Compliance Law makes it possible to get out of this dead end (➡️📝Salah, MM, Conception and Application of Compliance in Africa, in 📕 Frison-Roche, M.-A. (ed.), Compliance Tools, 2021. Thirdly and because the topic si about China, Compliance Law in its European conception has the Monumental Goal of defending individuals while in its Chinese conception it aims to obtain their obedience to the rules (➡️📝Frison-Roche, M.-A., In China, Compliance Law deploys without, and even against democracy, China seeing Compliance only as an "efficiency process"; in Europe, it deploys with and even for democracy, 2021). On construction sites and in the human management of infrastructures, this changes everything. G7 members share the first conception. They must now implement it by their companies and thanks to them, private sector being in alliance with the political authorities which just expressed. Because Compliance Law is an alliance between political authorities and crucial economic operators.   ► register to French Newsletter MaFR ComplianceTech®

► Full Reference: M.-A. Frison-Roche, "Compliance Law, an adequate legal framework for GAIA-X", in Pan-European GAIA – X Summit, The World with GAIA-X, November18, 2020. - 🧮See the general presentation of the Summit - 📈​See the slides, basis of this intervention. - ► Summary of the intervention: Europe may offer an adequate legal framework for the GAIA-X project through Compliance Law. Compliance Law is a new form for Regulatory Law, driven by "Monumental Goals", negative Monumental Goals, for instance prevention of systemic failures, and positive Monumental Goals, for instance innovation or stability. This very new branch of Law works on these Monumental Goals, which must be explicit and internalized in Crucial Enterprises. These Crucial Enterprises concretize these Goals, supervised by public Authorities.  European Compliance Law already works, for instance about Personal Data protection (case law and GDPR) or prevention banking systemic failures (Banking Union), Compliance Tools being in balance with Competition principle. European Union Law is moving from the Ex-Post Competition Law to the Ex-Ante Compliance Law, internalizing Monumental Goals in Crucial Enterprises.  There is a perfect adequacy between European Compliance Law and GAIA-X. This project built by Crucial Enterprises must be supervised by public authority, maybe a specific or the European Commission. The governance of GAIA-X must be transparent and accountable. This private organization must use it powers in respect of the proportionality principle, controlled by the public supervisory body. The legal framework is required but it is sufficient.  - 📈see the slides, basis of this intervention. - 🎥watch the video of this intervention.  -    

Full reference: Frison-Roche, M.-A., The control by regulator of the essential infrastructure manager's investment plan: example of electric network and the notion of "doctrine", Newsletter MAFR – Law, Compliance, Regulation, 24th of August 2020 Read by freely subscribing other news of the Newsletter MAFR – Law, Compliance, Regulation   Summary of the news On 31st of July 2020, the Commission de Régulation de l'Energie (CRE and French energy regulator) has examined the investment plan of the French electric network manager (RTE) as it does every year. This investment plan is an economic document but it also contains societal purposes, especially the adaptation of the electric network in order to integrate renewable energies.  The control by the CRE is not a financial control. The crucial operator (RTE) is free to decide the way it wants to manage its budget. The CRE just advices on the financial side by recommending for exemple to be more flexible in its financial strategies. The true CRE's control is about the investment plan's general orientations, the methodology of needs analysis and crucial operator's investment choices which must be aligned with those of the regulator. Such a control leads to the emergence of an "investment doctrine" from the side of the crucial operator, mixing its own choices and the regulator's guidelines. Beyond this, the elaboration of the investment plan is the result of a true co-writing between the regulator and the firm which discuss together, exchanges points of view and methods. Such a method, expressing a kind of coregulation, could be used in other sectors. 

The European Banking Union is based on supervision as much as on regulation: it concerns the operators as much as the structures of the sector, because the operators "hold" the sector. This is why the "regulator – supervisor" holds the operators by the supervision and is close to them. He meets them officially and in "soft law" relations. This is all the more necessary since the distinction between the Ex Ante and the Ex Post must be nuanced, in that its application is too rigid, in that it involves a long time (first of all the rules, then to apply them, then to notice a gap between rules and behaviors, then to repair it) is not appropriate if the system aims at the prevention of systemic crises, whose source is inside the operators. This is why the body in charge of solving the difficulties of the systemic banks for the salvation of the systeme meets the banking sector itself, to ensure that they are permanently "resolvable", so that the hypothesis of their resolution never arises. This is the challenge of this system: that it is always ready, for never be applying. - In the European Banking Union, the Single Resolution Board (SRB) is in charge of "resolve" the difficulties of European systemic banks in difficulty. It is the public body of the second pillar of the Banking Union. The first pillar is the prevention of these difficulties and the third is the guarantee of deposits. The resolution is therefore more like an Ex Post mechanism. But in this continuum through these three pillars between the Ex Ante and the Ex Post, the SRB does not wait passively – as would a traditional judge do – that the file of the troubled bank reaches it. Like a supervisor – which brings it closer to the first public in the system (Single Supervisory Board -SSB), which supervises all the banks, it is in direct contact with all the banks, and it approaches the hypothesis of a bank in trouble by a systemic perspective: it is therefore to the entire banking system that the SRB addresses itself. As such, it organizes meetings, where he is located: in Brussels. Thus, on June 18, 2019, all banks came to discuss with the Single Resolution Board to know what it wants from the banks and for the banks, in what is called a "dialogue meeting". To resolve in Ex Post the difficulties of a bank, it has to present a quality (a little known concept in Bankruptcy Law): "resolvability". How build it? Who build it ? In its very design and in its application, bank by bank. For the resolution body vis-à-vis all players in the banking and financial sector, it's clear: "Working together" is crucial in building resolvability ". In the projection that is made, it is affirmed that there can be a successful resolution only if the operator in difficulty is not deprived of access to what makes to stay it alive, that is to say the banking and financial system itself, and more specifically the "Financial Market Infrastructures", for example payment services. Does the Single Resolution Board expect spontaneous commitments from the FMIs for such a "right of access"? In this case, as the Single Resolution Board says, this right of access corresponds to "critical functions" for a bank, the resolution situation can not justify the closure of the service. By nature, these crucial operators are entities that report to regulators who oversee them. Who enforces – and immediately – this right of access? When one can think that it is everyone, it risks being nobody …. That is why the resolution body, relaying in this a concern of the Financial Stability Board, underlines that it is necessary to articulate the supervisors, regulators and "resolvers" between them. - To read this program, since it is a proposed program of work for the banking sector, four observations can be made: 1. We are moving more and more towards a general "intermaillage" (which will perhaps replace the absence of a global State, but it is an similar nature because it is always to public authorities that it refers and not to self-regulation); 2. But as there is no political authority to keep these guardians, the entities that articulate all these various public structures, with different functions, located in different countries, acting according to different temporalities, these are the companies themselves that internalize the concern that animates those who built the system: here the prevention of systemic risk. This is the definition of Compliance, which brings back to companies, here more clearly those those which manage the Market Infrastructures, the obligations of Compliance (here the management of systemic risk through the obligation of giving access). 3. Even without a  single systemic guard, there is always a recourse. That will be the judge. There are already many, there will probably be more in a system of this type, more and more complex, the articulation of disputes is sometimes called "dialogue". And it is undoubtedly "decisions of principle" that will set the principles common to all of these particular organisms. 4. We then see the emergence of Ex Ante mechanisms for the solidity of the systems, and the solidity of the players in the systems, and then the Ex Post resolution of the difficulties of the actors according to access to the solidity of the infrastructures of these systems, which ultimately depend on judges (throughout the West) facing areas where all of this depends much less on the judge: the rest of the world. -  

Full reference: Autorité de la concurrence (French Competition Authority), Decision relating to practices implemented in natural gas, electricity and energy services supply sector, Engie vs Direct Energie/UFC que choisir, 21st of March 2017, n°17-D-06 Read the decision (in French) Read the press release Read the press release of the decision of 9th of September 2014 on which this decision is based