Vigilance

🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law - ► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], "Penser et manier la vigilance par ses buts monumentaux de compliance" ("Thinking and using Vigilance through its Compliance Monumental Goals"), in I.Grossi (ed.), La société vigilante, JCP E, No. 31-35, 3 August 2023, pp. 16-20. - 📙this article is the introduction of this special issue. It is linked to the concluding article of this special issue: 📝[lien a="la-vigilance-piece-dun-puzzle-europeen-2"]La vigilance, pièce d'un puzzle européen (Vigilance, a piece of the European puzzle)[/lien] - 🧮the 2 articles follow on from the introductory and concluding speeches in the colloquium [lien a="les-buts-monumentaux-de-la-vigilance-in-lentrepris"]La Société vigilante, held at the University of Aix Marseille on 24 March 2023[/lien] - 🚧read the [lien a="vigilance-buts-monumentaux-de-la-compliance-et-soc"]bilingual Working Paper which is the basis of this article[/lien], with additional developments, technical references and hyperlinks - ► Summary of the article: The concept of "Vigilance" is difficult to define. Probably because even as it is becoming a standard, it has just entered the legal systems. And what a splash it is! To understand it, it must not be isolated. Neither in the only French law attracting all the attention, all the fears, all the hopes, the so-called Loi Vigilance ("Vigilance Law"), nor in the only technical mechanisms that make Vigilance a reality. Vigilance is itself only a part of a deeper movement, of which it is the advanced point, allowing us to anticipate the evolution of the whole: Compliance Law. In this light and for not getting lost in it, because the stakes are so high that one quickly loses the measure of things, with each party lashing out at the others, so Vigilance, the key element of Compliance, requires above all alliances,  that we can first examine the entry of Vigilance into the legal system and then understand it through the Monumental Goals which give the measure of it, i.e. both the scope and the limit, each one having to act within the margins that are theirs, States, companies, stakeholders, and judges. A Will for tomorrow can then emerge today, carried by Europe. - 📝read the article (in French) -

🌐 follow Marie-Anne Frison-Roche sur LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], participation in the panel "Vigilance (due diligence)", in International Law Association (ILA), 150th Anniversary Symposium of the ILA/ADI, Paris, 19 June 2023. - 🧮See the full programme of this event -

► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], "L'esprit des Lois en matière de vigilance" ("Spirit of Law in Vigilance (Due Diligences) matters"), in Haut Conseil du Commissariat aux Comptes (H3C), Réalités et défis de la CSRD - Perspectives du devoir de vigilance, Paris, 14 June 2023. - 🎥watch the video of a part of the speech (in French) - 🧱read the description of the speeches of other speakers of this panel (in French) -   The speech took place during the third-round table devoted to the Perspectives du devoir de vigilance (Perspectives of the duty of vigilance), the first round table having been devoted to the lessons that the DPEF can provide for the CSRD, and the second to the transposition work of the CSRD. 🧮See the full programme of this annual event (in French) - ► English summary of the speech: In consideration of and in addition to what has been said, explained and even affirmed by other speakers, I have emphasised that 'vigilance" laws is not a 'regulation' like any other, but the leading edge of a very vast movement, Compliance Law, in which the 2017 French law is the driving force. For its application, the Judge, who is at the centre because of the will of the Legislator, is already taking into consideration the CS3D, the twin text of the CSRD. The texts must not be seen in isolation. If we isolate them from each other, they become almost incomprehensible, their meaning appearing uncertain, even threatening: we need to understand the spirit of these texts, which are indeed new, because they aim to provide answers to the new world we have entered. We must all rejoice in this political ambition, which is taking a legal form, and work to make it efficient: Legislators, companies, auditors, Regulators and Judges. If we do not stop at the letter, which would be to reduce Compliance to conformity, whereas Compliance Law, particularly Vigilance, is the extension of Regulation, finds its meaning in the Goals, we see that the French law of 2017, known as the "Vigilance law", which copies all the techniques of the French law known as "Sapin 2", gives goals simple to understand to the companies subject to the Legislator's will: detect and prevent environmental and human rights abuses in the value chains. The logic is therefore Ex-Ante. This Ex-Ante logic is retained by the CS3D directive. The Judge is central to it. But the responsibility which the NGOs will ask him to trigger is itself an "Ex Ante responsibility", the Compliance trials being like "accountability" trials, to ensure that companies act in accordance with the Goals set by the Legislator. This is transforming the role of the Judge, who must find effective solutions for the future. The discussion and the adversarial principle will become more important. Mediation will be encouraged. Stakeholders and the company will have to work together, and this method, which was intended by the Legislator for drawing up the vigilance plan, will be continued in the supporting legal proceedings. This will also transform the company, and the role played by those who accredit the information on the company's actions and long-term strategies: auditors therefore have a central role to play. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

🌐 flollow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], "Conclusions", in Ch. Maubernard et A. Brès (dir.), Institut de droit européen des droits de l'homme et Centre de droit de l'entreprise, Université de Montpellier, Le devoir de vigilance des entreprises : l'âge de la maturité?("The Entreprises duty of vigilance: the maturity age?") , Montpellier, May 25, 2023. The conference is held in French. - 🧮see the manifestation programme (in French) - 🌐 read the report done on LinkedIn (in French) - ► English summary of this final speech of the manifestation: It is rather difficult to draw a conclusion after listening so many contributions. For three reasons: firstly, because of their richness and extreme diversity; secondly, because of the fact that we do not know whether the duty of vigilance is under the French law of 2017 (known as the Vigilance Law) or in other national, European and international texts or beyond or below the legal rules; thirdly, because we do not know what is meant by the "maturity" of a legal concept. But in the end, since the question posed by the title itself of the colloquium is Duty of Vigilance: the age of maturity? the answer is clearly: no. But this is regrettable. It is therefore essential to explore the ways in which the duty of vigilance can mature.  If we find merit in this duty which has now entered the legal system, there are eight intersecting avenues, which must be exploited. The first path is progression through the passage of time, rediscovering what in the past was already vigilance and what in the future will be its deployment. The second way is to progress by fixing the vocabulary, because we are witnessing a great battle of words, overtly or covertly, in French or English. The third path is progression through the emergence of principles, or even a principle, rediscovered or invented. The fourth path is progression through coherence brought to the legal system(s), which at present suffer from gaps and inconsistencies, which could be remedied by methods such as centralising litigation or, more radically, ignoring borders. The fifth path is progression through the fact that it works, because vigilance techniques are those of Compliance, of which vigilance is the leading edge, and the challenge is to find solutions. The sixth path is progression through using power of the legal system not only to create new areas of relevance - starting with the notion of vigilance, but also that of the value chain - but also to impose new indifferences, namely indifference to the figure of the market (to which laws prefer the company and the value chain) and indifference to borders. The seventh path is progression through bringing perspectives closer together, in order to find solutions even when interests are opposed. This is where the two techniques of contract and mediation are very welcome. The eighth path is progression through culture, because the culture of vigilance, like the culture of compliance, must be developed within companies and supply chains, and must become common to them and their stakeholders. - 🚧read the Working Paper written just after this oral conclusion in preparation for the article to be published. -  

► Full Reference: Committee on Legal Affairs of the European Parliament, Report on the proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, 8 May 2023. - 📓read the report -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], "Pour un consommateur "vigilant" : l'éduquer. Analyse juridique" ("For a "vigilant" consumer: educate him. Legal analysis"), Newsletter MAFR - Law, Compliance, Regulation, 18 April 2023. - 📧Read by freely subscribing other news of the Newsletter MAFR - Law, Compliance, Regulation - 🔴For an efficient Compliance Law: an Ex Ante responsibility in alliance with consumer expectations  A survey confirms that consumers integrate the monumental goals that generate compliance duties and obligations on the companies that sell them products. But this does not create a duty on them to prefer these products over others: they do not feel "responsible" for them. Compliance Law is based on ex ante responsibility and shared duty. So, faced with this attitude, what can the Law do? - 📧read the article ⤵️ 

► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], "La "rationalité délibérative" et l'usage adéquat de l'impératif de vigilance" (""Deliberative rationality" and the proper use of the vigilance imperative"), Newsletter MAFR - Law, Compliance, Regulation, 6 April 2023. - 📧Read by freely subscribing other news of the Newsletter MAFR - Law, Compliance, Regulation - 🔴The deliberative public space, a model method for the implementation of the duty of vigilance In this new article of April 6, 2023 of the Newsletter MAFR - Law, Compliance, Regulation, the political philosophy construction that Habermas exposes about social networks and the method that the implementation of the duty of vigilance requires are correlated. Indeed, Habermas continues to advocate a space for discussion, contradiction, deliberation, opinion that can act with rationality. Communication and mediation are essential to ensure that the future, which is the object of vigilance, will not be a catastrophe: this monumental goal of compliance, of which Vigilance is a part, implies it. - 📧read the article ⤵️  - 🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full reference: [rubrique p="Présentation"]M.-A. Frison-Roche,[/rubrique] Vigilance, a piece of the European puzzle, Working Paper, March 2023. - 🎤This Working Paper has been done as was made the  [lien a="synthese-inla-societe-vigilante"]conclusion of the colloquiul La société vigilante ("Vigilant Company") at the Aix-Marseille University on March 24, 2023[/lien] (conference given in French)  - 📝It is also the basis of the [lien a="la-vigilance-piece-dun-puzzle-europeen-2"]article that introduces a special issue on La société vigilante[/lien] - ► Summary of this Working Paper: The contributions form a contrasted whole. It should not be concluded that some of them are correct and others false: through the reading that each one makes of the so-called French 2017 "Vigilance law," it is a vision of the world as it should be that each author proposes. Because Compliance Law, which Vigilance is a part, claims to draw the future, it is normal that each author should draw the present Law with a hand that bends in one direction or the other, following their conception of the future world. The whole contributions must be seen as a dialogue. A lively dialogue, with this French 2017 law receiving a lot of "glory" and a lot of "indignity" on both sides, from which it is necessary to emerge in order to find solutions, because it is a fundamental movement of which this law is only a gateway (I).  Whatever one thinks of it, it is all the branches of law that are used, affected, and transformed by Vigilance (II). To master this profound transformation, we must turn to Europe, to the great puzzle of texts recently adopted or in the process of being adopted in the European Union, of which Vigilance is the hallmark (III). - 🔓read the Working Paper⤵️ - 🌐 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

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐subscribe Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], "Propos introductifs : Les buts monumentaux de la vigilance" (Introductory remarks: The Monumental Goals of Vigilance), in La société vigilante ("The Vigilant Company"), Aix-Marseille University, Institut de Droit des Affaires, March 24, 2023. - This conference is done in French; read its English Summary below⤵️ 🧮see the complete program of the manifestation (in French) - ► English Summary of the conference: "Vigilance" is intriguing because, although it occurs in many branches of Law and is familiar in "banking compliance", in a form that is moreover reinforced since it is an obligation of vigilance on the part of the banker about a client whom he/she should "know", it is the "duty of vigilance" that made this notion famous. One could almost say scandalously famous because of a French law of 2017 that now bears its name, called the "Vigilance Law", whereas other laws bear the name of the minister who thought of it, which due diligence (vocabulary used for the European directive) does not erase.   The current challenge is to take the right measure of what "vigilance" is. Vigilance goes beyond the French Loi Vigilance, which is not enough to express what it is in its few dispositions. To say what it is in the legal system, to use it in practice, to propose the intellectuel legal exercice of qualification, Vigilance must be thought of in Compliance Law, of which it is both a "Tool" and the most advanced point, as shown by the European Directive, whose discussions during its elaboration show these design issues. Thus, like the whole of Compliance Law, Vigilance is understood, deployed, analysed and exercised through what underpins and gives meaning to all these constantly changing regulations, powers, and obligations, through Compliance Monumental Goals which give it stability and simplicity. This is the least that can be done in a mechanism that has the ambition to organise the "sustainability" of economic relations. But while Vigilance expresses and concretizes Compliance Monumental Goals, it must not go beyond measure. In fact, to set up structures, use tools and behave in such a way that human rights and nature are effectively and extraterritorially protected, both negatively and positively, these obligations of the company, which is the natural subject of the "duty", more generally the natural subject of Compliance Law, see its legal powers increased, these means being required for the company to fulfil its new obligations, first legal, then contractual, soon to be unilaterally formulated. Perhaps we should conceive of a "vigilant company" and not just a company that, beyond and through its economic activity, cares for others and the world, but a company that "watches over" everything and on everything would be to go beyond the measure, to make companies the "regents" of the world and the people who live in it. Faced with this perspective to be excluded, the construction of a Europe of Compliance, which does not be reduced to corruption fighting or environment protection, and draws on its humanist tradition, distinguishing itself in this respect from the American and Chinese compliance systems, is the major challenge.  Companies are not the alpha and omega, but they are one of the elements of an Alliance between the political Authorities and the population, its link, the one that allows us to escape from the limit of the territory, in what we call by this inadequate term of "extraterritoriality". It is rather a question of going beyond territories, required by the Compliance Monumental Goals of Compliance, of which Vigilance is the advanced point. - 🚧read the English Working Paper, basis of this conference: "[lien a="vigilance-buts-monumentaux-de-la-compliance-et-soc"]Vigilance, Compliance Monumental Goals, and "Vigilant Company"[/lien]" - 📈see the slides created for this conference (in French) - 📝[lien a="penser-et-manier-la-vigilance-par-ses-buts-monumen"]read the article published after this conference[/lien] -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full reference: [rubrique p="Présentation"]M.-A. Frison-Roche,[/rubrique] Thinking and using Vigilance through its Compliance Monumental Goals, Working Paper, March 2023. - 🎤 This Working Paper has been done as basis for the  [lien a="les-buts-monumentaux-de-la-vigilance-in-lentrepris"]introduction of the colloquia La société vigilante ("Vigilant Company") at the Aix-Marseille University on March 24, 2023[/lien] (conference given in French)  - 📝It is also the basis of the [lien a="penser-et-manier-la-vigilance-par-ses-buts-monumen"]article that introduces a special issue on La société vigilante[/lien] - ► Summary of the Working Paper: The concept of "Vigilance" is difficult to define. Probably because even as it is becoming a standard, it has just entered the legal systems. And what a splash it is! To understand it, it must not be isolated. Neither in the only French law attracting all the attention, all the fears, all the hopes, the so-called Loi Vigilance ("Vigilance Law"), nor in the only technical mechanisms that make Vigilance a reality. Vigilance is itself only a part of a deeper movement, of which it is the advanced point, allowing us to anticipate the evolution of the whole: Compliance Law. In this light and for not getting lost in it, because the stakes are so high that one quickly loses the measure of things, with each party lashing out at the others, so Vigilance, the key element of Compliance, requires above all alliances,  that we can first examine the entry of Vigilance into the legal system and then understand it through the Monumental Goals which give the measure of it, i.e. both the scope and the limit, each one having to act within the margins that are theirs, States, companies, stakeholders, and judges. A Will for tomorrow can then emerge today, carried by Europe. - 🔓read the Working Paper⤵️

► Full Reference: [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique], " Assessment of Whistleblowing and Vigilance Obligation with regard to International Competitiveness", in M.-A. Frison-Roche (ed.), [lien a="compliance-monumental-goals"]Compliance Monumental Goals[/lien], series "[rubrique p="Responsabilités éditoriales > Direction de la collection Compliance & Regulation, JoRC et Bruylant"]Compliance & Regulation[/rubrique]", Journal of Regulation & Compliance (JoRC) et Bruylant, 2023, pp. 401-429. - ► Article Summary: Taking up the legal tools of Compliance and confronting them with the concern that Law must have for the Competitiveness of companies, it is necessary that these legal instruments not harm it because Compliance Law, because of its immense ambitions, can only function through an alliance between political wills with great pretensions (save the planet) and the entities which are able to achieve these goals (the crucial economic operators : the political drawing on the compagnies" power, it would be contradictory for the legal instruments put in place by Law to harm the ability of companies to face global economic competition, or worse to favor international competitors acting under legal systems which do not integrate Compliance obligations.   From this principle, it is possible to assess these two legal techniques of whistleblowing and vigilance obligation: both consist in capturing Information, which gives them a strong uniqueness and fits them into the global competition for Information. Taking the whistleblowing, its first beneficiary is the company itself since the firm discovers a weakness and can therefore remedy it. Therefore, beyond the principle of protection of the whistleblower by their access to the legal statute, for instance the one conceived by the French 2016 law known as "Sapin 2", it is questionable that all the incentives are not put in place so that the holder of such information transmits it to the manager. It is not the European solution, even after the European Directive of 2019, national legal systems continuing to require the absence of financial compensation, the "heroic figure of the whistleblower and the refusal of their remuneration depriving the company of Information and improvement. First to the manager, with external transmission taking place if the latter does nothing, the internal manager is thus encouraged to act and put an end to the dysfunction, which increases the competitiveness of the company. But the French legislation has on the contrary developed the right incentive as to the person to whom the information is transmitted because by obliging to transmit first to the manager, the external transmission intervening if the internal management does nothing, the incentive is thus made to the internal manager to act and put an end to the dysfunction, this legal solution increasing the competitiveness of the company. Even more, and even if it seems counter-intuitive, the obligation of vigilance increases the competitiveness of the obliged companies. Indeed, Law by obliging them to prevent and fight against violations of human rights and the environment has tacitly given them all the necessary powers to do so, notably the power to collect Information on third-party companies, including (and even above all) those which are not subject to transparency obligations. In this respect, companies, as far as they are personally responsible, hold supervisory power over others, a power which allows to globalize Compliance Law and which, in the process, increases the Companies' own power. Therefore, the obligation of vigilance is in many respects a boon for the companies which are subject to it. The resumption of the mechanism by the next European Directive, itself indifferent to the territory, will only strengthen this global power of vigilant companies over possibly foreign companies which become its passive subjects. - 🚧 [lien a="devoir-de-vigilance-lancement-dalerte-et-competiti"]read the bilingual Working Paper, basis for this article[/lien]  - 📘​ [lien a="compliance-monumental-goals"]read the general presentation of the book, Compliance Monumental Goals, in which this article is published[/lien] - ► read the presentations of the other Marie-Anne Frison-Roche's contributions in this book:  📝[lien a="compliance-monumental-goals-beating-heart-of-compl"]Compliance Monumental Goals, beating heart of Compliance Law[/lien],  📝[lien a="proportionality-and-compliance-in-frison-roche-m-a"]Definition of Principe of Proportionality and Definition of Compliance Law[/lien], 📝 [lien a="compliance-and-role-of-companies-in-the-creation-a"]Role and Place of Companies in the Creation and Effectiveness of Compliance Law in Crisis[/lien],  -    

► Full Reference: J.-B. Racine, "Compliance et Arbitrage. Essai de problématisation" ("Compliance and Arbitration : Problematisation", in [rubrique p="Présentation"]M.-A. Frison-Roche[/rubrique] (ed.), [lien a="la-juridictionnalisation-de-la-compliance"]La juridictionnalisation de la Compliance[/lien], coll. "[rubrique p='Responsabilités éditoriales > Direction de la collection "Régulations & Compliance", JoRC & Dalloz']Régulations & Compliance[/rubrique]", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 265-279.  - 📕read a general presentation of the book, [lien a="la-juridictionnalisation-de-la-compliance"]La juridictionnalisation de la Compliance[/lien], in which this article is published - ► The summary below describes an article that follows an intervention in the scientific manifestation [lien a="compliance-et-arbitrage-in-la-juridictionnalisatio"]Compliance et Arbitrage[/lien], co-organised by the Journal of Regulation & Compliance (JoRC) and the University Panthéon-Assas (Paris II). This conference was designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, scientific co-directors, and took place in Paris II University on March 31, 2021.  In the book, the article will be published in Title II, devoted to: Compliance et Arbitrage. - ► Summary of the article (done by the author): Under the consideration of the "Compliance Juridictionalisation", it is necessary to study in the links between Compliance and Arbitration. The arbitrator is a judge, he is even the natural judge of international trade. Arbitration is therefore naturally intended to meet compliance which transforms the action of companies in an international context. However, the links between compliance and arbitration are not obvious. It is not a question of providing firm and definitive answers, but rather, and above all, of asking questions. We are at the start of reflection on this topic, which explains why there is, for the time being, little legal literature on the subject of the relationship between Compliance and Arbitration. It doesn't mean there aren't connections.  Quite simply, these relations may not have come to light, or they are in the making. We should research  the existing or potential bridges between two worlds that have long gravitated separately: Compliance on the one hand, Arbitration on the other. The central question is: is or can the arbitrator be a compliance judge, and, if so, how? In any event, the Arbitrator is thus in contact with matters requiring the methods, tools and logic of Compliance. In addition to the prevention and suppression of corruption, three examples can be given. Arbitration has been facing economic sanctions (notably embargoes) for several years. The link with Compliance is obvious, insofar as texts providing for economic sanctions are often accompanied by compliance mechanisms, as in the United States. The arbitrator is concerned as to the fate he reserves in the treatment of the dispute with the measures of economic sanctions. Competition Law is a branch that came into contact with Arbitration from the end of the 1980s. The arbitrability of this type of dispute is now established and arbitrators apply it regularly. At the same time, Compliance has also entered Competition Law, admittedly more strongly in the United States than in France. The existence, absence or insufficiency of a compliance program aimed at preventing violations of the competition rules are thus circumstances which may assist the arbitrator in the assessment of anti-competitive behavior. Environmental Law is also concerned. There is environmental Compliance, for example with regard to the French law of March 27, 2017 on the duty of vigilance. Companies are thus responsible for participating in the protection of the environment, by internalizing these concerns in their internal and external operations (in their sphere of influence). As soon as an arbitrator is in charge for settling a dispute relating to Environmental Law, the question of the relationship to Compliance, from this angle, naturally arises. It is therefore the multiple interactions between Compliance and Arbitration, actual or potential, which are thus open. -