The distinction between "Public Law" and "Private Law" is important. In the systems of Continental Law, or still called under Roman-Germanic Law, or even called Civil Law systems, it is even around it that legal systems are built: it can be a basic distinction, a summa divisio, as it it in the Civil Law systems. In the so-called Common Law or Anglo-American systems, the distinction is less fundamental, but it remains, justifying in particular that the rules and disputes concerning the administration call for special rules and are apprehended by special tribunals.

In principle, this distinction is based on the nature of the persons whose legal situation is examined. Under"Public Law" a legal situation involving a person who is itself a public-law entity: the State, a local authority, a public undertaking, etc. That is why, for example, the contract which may be concluded will be of public law, and the judge who may be seized of it will be an administrative court. If the situation does not involve a person governed by public law, then it will be governed by "Private Law". There are a thousand exceptions, but this is the starting and basic and fondamental principle.

Two essential remarks, bearing a system of values, explaining that the systems of Civil Law and Common Law are in fact confronting each other.

The two bodies of rules and institutions are not of equal strength because one of the categories is "closed", corresponding to one criterion (the "public person"), while the other is open: Public Law is a closed category; on the contrary, Private law becomes "active" as soon as there is no public person (a "private person" who or which must define himself or itself as a "non-public person").

One can consider this articulation between Public Law and Private Law in two ways, radically opposed. It may express a mark of inferiority in disfavour of private law: we are all "ordinary" persons in "ordinary" situations with "ordinary" activities (this will be the French conception ....). On the contrary, Public Law is the mark of the State, of Public Order, of Sovereignty, of public power, of the general will, in the interstices of which individuals slip in to act and satisfy their small particular interests

On the contrary, Private Law can be considered as the expression of the "common law": people are free and do what they want, through ownership and contract. As an exception and because they have elected people to do so, the rulers (whom they control), by exception, enact norms that constrain them. But this is an exception, since repression - public law and criminal law, which has the same status in this respect - is only a tribute to the freedom of persons, since this freedom remains wholly in the form of the private enterprise on the market.

It is then measured that the articulation between Public and Private Law profoundly reflects a philosophy and a political position. If it is considered that Regulation is the underlying order by which the Sovereign allows the deployment of his subjects who also benefit from a long-term policy constructed by the autonomous and measured political will, then Public Law in Is the master, the Regulation Law expressing a renewed search for efficiency, this but only this. If we believe that Regulation is whereby economic rationality manages to protect persons and companies from risks and to compensate for market failures, a market whose liberal principle remains the ideal, then Private Law is the core, whith contract and private property as basis tools.

France and the Latin countries adhere rather to this metaphysics of values which entrusts to the Public Authorities and the State the legitimacy and the power to express the general interest by Public Law, Regulators and Constitutional Courts, expressing it on a technical form renewed by the Regulatory tools: incitations, soft law, etc. The legal systems whose history draws on British history put more trust in the person of the entrepreneur and conceive of Regulation Law as an efficient outsourcing of functions to administrations that are efficient, informed and impartial.

Certainly, in the technical daily of the Law of Regulation and following the different sectors, Public and Private Law mix up:  public companies take the form of publicly traded companies under private law or private companies will be entrusted with missions of public service, instituting them as second-level regulators as are the infrastructure network operators.

But the fundamental conception of systems (rooted in the history of the people) and practice marry. In the silence of regulations (and the more they are gossiping and the more the judge must interpret them, which amounts to a "silence"), what sense to give to the system?

To take only a few questions, frequent in practice:

•      What judge to seize? The administrative judge or the civil judge? What is the "natural judge" of the Regulatory Law?
•      What standard to apply? The contractual will? The implicit will of the legislator? What is the "natural author" of the Law of Regulation?
•      Does the silence of the text prohibit action for operators or on the contrary does silence mean their freedom to act?

The absence of a firm and shared definition of what is the Law of Regulation does not facilitate practice. Hesitations in translations from one language to another increase confusion.

For the time being, there is a tendency to refer to Public Law in the sectors where whe take precedence over public operators' monopolies, such as telecommunications, energy, railways, air and postal services, and to refer to Private Law in the sectors which have long been the subject of competition between operators, namely banking, finance and insurance.

It should be recognized that the criterion of distinction has little economic rationale. The notion of risk would be a clearer and more manageable criterion. But it would then lead to a greater challenge to the distinction between Public and Private Law. Because the Law of Regulation, impregnated with Economy and Economic Analysis of Law, has sometimes little basis of legal tradition, it put in question of this summa divisio. If this were to be the case, it would be the totality of the legal systems which would be upset, especially in its judicial organization, since the judicial civil and commercial system is so distinctly distinguished (that of "ordinary" persons, that of "common law ) and the administrative judge (the "natural judge" of the State). It is then realized that the Law of Regulation challenges the whole Law, especially in the Latin countries and the Civil Law systems.

► Référence complète : J.-Fr. Bohnert, "Les conditions de réussite de l'enquête interne dans les rapports entre le parquet national financier et l’entreprise mise en cause – l’enquête interne au soutien de la défense de l’entreprise", in M.-A. Frison-Roche et M. Boissavy (dir.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) et Dalloz, coll. "Régulations & Compliance", à paraître.

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📕consulter une présentation générale de l'ouvrage, Compliance et droits de la défense - Enquête interne, CIIP, CRPC, dans lequel cet article est publié

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► Résumé de l'article (fait par le Journal of Regulation & Compliance - JoRC) : Dans une présentation très proche des lignes directrices du Parquet national financier (PNF) de 2023 et du droit souple produit avec l'Agence française anticorruption (AFA), l'auteur expose la façon dont l'entreprise doit dans un climat de confiance et de collaboration. Il s'agit pour l'entreprise de rechercher objectivement ce qui pourrait engager sa responsabilité pénale d'une façon transparente et loyale en gardant à l'esprit la collaboration possible dans la perspective d'une CJIP avec le PNF et la valorisation que celui-ci fait des diligences de l'entreprise dans la menée d'une enquête interne, de la même façon que des attitudes contraires sont logiquement considérés comme des éléments inverses dans le calcul.

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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The procedural safeguards enjoyed by a person whose situation may be affected by a future judgment are principally the right to bring proceedings before the court, the rights of the defense and the benefit of the contradictory principle.

The legal action was for a long time considered as a "power", that is to say, a mechanism inserted in the organization of the judicial institution, since it was by this act of seizure, access by which the person enters the judicial machine, through the latter starts up.

But in particular since the work of René Cassin and Henri Motulsky, legal proceedings are considered as a subjective right, that is to say, a prerogative of any person to ask a judge to rule on the claim that the plaintiff articulates in an allegation, that is a story mixing the fact and the law in a building and on which he asks the judge to give an answer, such as the cancellation of an acte, or the award of damages, or the refusal to convict him (because the defense is also the exercise of this right of action).

The legal action is now recognized as a "right of action", the nature of which is independent of the application made to the court, a subjective procedural right which doubles the substantive subjective right (eg the right to reparation) and ensures the effectiveness of the latter but which is autonomous of it. This autonomy and this uniqueness in contrast with the variety of the sort of disputes (civil, criminal or administrative) makes the right of action a pillar of the "Procedural Law" on which a part of European and Constitutional Law are built. In fact, Constitutional Law in Europe is essentially constituted by procedural principles (rights of defense, impartiality, right of action), since the principle of non bis in idem is only an expression of the right of action. Non bis in idem is a prohibition of double judgment for the same fact which does not prohibit a double trigger of the action (and criminal, civil and administrative). This unified due process of Law has helped to diminish the once radical separation between criminal law, administrative law and even civil law, which are clearly separated from one another in the traditional construction of legal systems and which converge today in the Regulatory and Compliance Law.

Moreover, the subjective right of action is a human right and one of the most important. Indeed, it is "the right to the judge" because by its exercise the person obliges a judge to answer him, that is to say to listen to his claim (the contradictory resulting therefore from the exercise of the right of action ).

Thus the right of action appears to be the property of the person, of the litigant, of the "party". This is why the attribution by the law of the power for the Regulators to seize itself, which is understood by reason of the efficiency of the process, poses difficulty from the moment that this constitutes the regulatory body in "judge and party", since the Regulator is in criminal matters regarded as a court, and that the cumulation of the qualification of court and of the quality of party is a consubstantial infringement of the principle of impartiality. In the same way, the obligation that Compliance Law creates for operators to judge themselves obliges them to a similar duplication which poses many procedural difficulties, notably in internal investigations.

There is a classical distinction between public action, which is carried out by the public prosecutor, by which the public prosecutor calls for protection of the general interest and private action by a person or an enterprise, which seeks to satisfy its legitimate private interest. The existence of this legitimate interest is sufficient for the person to exercise his or her procedural right of action.

In the first place, the person could not claim the general interest because he or she was not an agent of the State and organizations such as associations or other non-governmental organizations pursued a collective interest, which could not be confused with the general interest. This procedural principle according to which "no one pleads by prosecutor" is today outdated. Indeed, and for the sake of efficiency, Law admits that persons act in order that the rule of law may apply to subjects who, without such action, would not be accountable. By this procedural use of the theory of incentives, because the one who acts is rewarded while and because he or she serves the general interest, concretizing the rule of law and contributing to produce a disciplinary effect on a sector and powerful operators, procedural law is transformed by the economic analysis of the law. The US mechanism of the class action was imported into France by a recent law of 2014 on "group action" (rather restrictive) but this "collective action" , on the Canadian model, continues not to be accepted in the European Union , Even if the European Commission is working to promote the mechanisms of private enforcement, participating in the same idea.

Secondly, it may happen that the law requires the person not only must have a "legitimate interest in acting" but also must have a special quality to act. This is particularly true of the various corporate officers within the operators. For the sake of efficiency, the legal system tends to distribute new "qualities to act" even though there is not necessarily an interest, for example in the new system of whistleblowers, which can act even there is no apparent interest.

Paradoxically, the notion of conflict of interest seems to be at the center of Economic Law only recently in Economic Law, in both Corporate and Public Law. This is due to the philosophy which animates these two branches of Law, very different for each, and which has changed in each.

In fact, and in the first place in Public Law, in the Continental legal systems and especially in French legal tradition, on the side of the State, the one who serves it, by a sort of natural effect,, makes the general interest incarnated by the State pass before its personal interest. There is an opposition of interests, namely the personal interest of this public official who would like to work less and earn more, and the common interest of the population, who would like to pay less taxes and for example benefit trains that always arrive on time and the general interest which would be for example the construction of a European rail network.

But this conflict would be resolved "naturally" because the public official, having "a sense of the general interest" and being animated by the "sense of public service", sacrifices himself to serve the general interes. He stays late at his office and gets the trains on time. This theory of public service was the inheritance of royalty, a system in which the King is at the service of the People, like the aristocracy is in the "service of the King." There could therefore be no conflict of interest, neither in the administration nor in the public enterprises, nor to observe, manage or dissolve. The question does not arise ...

Let us now take the side of the companies, seen by the Company Law. In the classical conception of corporate governance, corporate officers are necessarily shareholders of the company and the profits are mandatorily distributed among all partners: the partnership agreement is a "contract of common interest". Thus, the corporate officer works in the knowledge that the fruits of his efforts will come back to him through the profits he will receive as a partner. Whatever its egoism - and even the agent must be, this mechanism produces the satisfaction of all the other partners who mechanically will also receive the profits. Selfishness is indeed the motor of the system, as in the classical theory of Market and Competition. Thus, in the corporate mechanism, there is never a conflict of interest since the corporate officer is obligatorily associated: he will always work in the interest of the partners since in this he works for himself. As Company Law posits that the loss of the company will also be incurred and suffered by all partners, he will also avoid this prospect. Again, there is no need for any control. The question of a conflict of interest between the mandatary and those who conferred this function does not structurally arise...

These two representations both proved inaccurate. They were based on quite different philosophies - the public official being supposed to have exceeded his own interest, the corporate officer being supposed to serve the common interest or the social interest by concern for his own interest - but this was by  a unique reasoning that these two representations were defeated.

Let us take the first on Public Law: the "sense of the State" is not so common in the administration and the public enterprises, that the people who work there sacrifice themselves for the social group. They are human beings like the others. Researchers in economics and finance, through this elementary reflection of suspicion, have shattered these political and legal representations. In particular, it has been observed that the institutional lifestyle of public enterprises, very close to the government and their leaders, is often not very justified, whereas it is paid by the taxpayer, that is, by the social group which they claimed to serve. Europe, by affirming in the Treaty of Rome the principle of "neutrality of the capital of enterprises", that is to say, indifference to the fact that the enterprise has as its shareholder a private person or a public person, validated this absence of exceeding of his particular interest by the servant of the State, become simple economic agent. This made it possible to reach the conclusion made for Company Law.

Disillusionment was of the same magnitude. It has been observed that the corporate officer, ordinary human being, is not devoted to the company and does not have the only benefit of the profits he will later receive as a partner. He sometimes gets very little, so he can receive very many advantages (financial, pecuniary or in kind, direct or indirect). The other shareholders see their profits decrease accordingly. They are thus in a conflict of interest. Moreover, the corporate officer was elected by the shareholders' meeting, that is to say, in practice, the majority shareholder or the "controlling" shareholder (controlling shareholder) and not by all. He may not even be associated (but a "senior officer").

The very fact that the situation is no longer qualified by lawyers, through the qualifications of classical Company Law, still borrowing from the Civil Contract Law, the qualifications coming more from financial theories, borrowing from the theory of the agency, adically changed the perspective. The assumptions have been reversed: by the same "nature effect", the conflict of interest has been disclosed as structurally existing between the manager and the minority shareholder. Since the minority shareholder does not have the de facto power to dismiss the corporate officer since he does not have the majority of the voting rights, the question does not even arise whether the manager has or has not a corporate status: the minority shareholder has only the power to sell his securities, if the management of the manager is unfavorable (right of exit) or the power to say, protest and make known. This presupposes that he is informed, which will put at the center of a new Company Law information, even transparency.

Thus, this conflict of interests finds a solution in the actual transfer of securities, beyond the legal principle of negotiability. For this reason, if the company is listed, the conflict of interest is translated dialectically into a relationship between the corporate officer and the financial market which, by its liquidity, allows the agent to be sanctioned, and also provides information, Financial market and the minority shareholder becoming identical. The manager could certainly have a "sense of social interest", a sort of equivalent of the state's sense for a civil servant, if he had an ethics, which would feed a self-regulation. Few people believe in the reality of this hypothesis. By pragmatism, it is more readily accepted that the manager will prefer his interest to that of the minority shareholder. Indeed, he can serve his personal interest rather than the interest for which a power has been given to him through the informational rent he has, and the asymmetry of information he enjoys. All the regulation will intervene to reduce this asymmetry of information and to equip the minority shareholder thanks to the regulator who defends the interests of the market against the corporate officers, if necessary through the criminal law. But the belief in managerial volunteerism has recently taken on a new dimension with corporate social responsability, the social responsibility of the company where managers express their concern for others.

The identification of conflicts of interests, their prevention and their management are transforming Financial Regulatory Law and then the Common Law of Regulation, because today it is no longer believed a priori that people exceed their personal interest to serve the interest of others. It is perhaps to regain trust and even sympathy that companies have invested in social responsibility. The latter is elaborated by rules which are at first very flexible but which can also express a concern for the general interest. In this, it can meet Compliance Law and express on behalf of the companies a concern for the general interest, if the companies provide proof of this concern.

To take an example of a conflict of interest that resulted in substantial legal changes, the potentially dangerous situation of credit rating agencies has been pointed out when they are both paid by banks, advising them and designing products, While being the source of the ratings, the main indices from which the investments are made. Banks being the first financial intermediaries, these conflicts of interest are therefore systematically dangerous. That is why in Europe ESMA exercises control over these rating agencies.

The identification of conflicts of interest, which most often involves changing the way we look at a situation - which seemed normal until the point of view changes - the moral and legal perspective being different, Trust one has in this person or another one modifying this look, is today what moves the most in Regulation Law.
This is true of Public and Corporate Law, which are extended by the Regulation Law, here itself transformed by Compliance Law, notably by the launchers of alerts. But this is also true that all political institutions and elected officials.

For a rule emerges: the more central the notion of conflict of interest becomes, the more it must be realized that Trust is no longer given a priori, either to a person, to a function, to a mechanism, to a system. Trust is no longer given only a posteriori in procedures that burden the action, where one must give to see continuously that one has deserved this trust.

Complete reference : Archives de Philosophie du Droit (APD), Le procès, tome 39, ed. Sirey, 1995, 545 p. 

Read the forth of cover.

Read the table of contents.

Read the summaries of the articles in English. 

See the presentation of other volumes of Archives de Philosophie du Droit.

The procedural guarantees enjoyed by a person whose situation may be affected by a forthcoming judgment are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

The rights of the defense have constitutional value and constitute human rights, benefiting everyone, including legal persons. The mission of positive Law is to give effect to them in good time, that is to say from the moment of the investigation or custody, which is manifested for example by the right to the assistance of a lawyer or the right to remain silent or the right to lie. Thus the rights of the defense are not intended to help the manifestation of the truth, do not help the judge or the effectiveness of repression - which is what the principle of adversarial law does - they are pure rights, subjective for the benefit of people, including even especially people who may be perfectly guilty, and seriously guilty.

The rights of the defense are therefore an anthology of prerogatives which are offered to the person implicated or likely to be or likely to be affected. It does not matter if it possibly affects the efficiency. These are human rights. This is why their most natural holder is the person prosecuted in criminal proceedings or facing a system of repression. This is why the triggering of the power of a tribunal or a judge offers them in a consubstantial way to the one who is by this sole fact - and legitimately - threatened by this legitimate violence (one of the definitions of the State ).

The rights of the defense therefore begin even before the trial because the "useful time" begins from the investigation phase, from the searches, even from the controls, and continues on the occasion of appeals against the decision adversely affecting the decision. The legal action being a means of being a party, that is to say of making arguments in its favor, and therefore of defending its case, shows that the plaintiff in the proceedings also holds legal defense rights since he is not only plaintiff in the proceedings but he also plaintiff and defendant to the allegations which are exchanged during the procedure: he alleged to the allegation of his opponent is not correct.

They take many forms and do not need to be expressly provided for in texts, since they are principled and constitutionally benefit from a broad interpretation (ad favorem interpretation). This is the right to be a party (for example the right of intervention, the right of action - which some distinguish from the rights of the defense - the right to be questioned, such as the right to be brought into question (or examination), right to be assisted by a lawyer, right to remain silent, right not to incriminate oneself, right of access to the file, right to intervene in the debate (the rights of the defense thus crossing the adversarial principle), right to appeal, etc.

It is essential to qualify an organ as a tribunal because this triggers for the benefit of the person concerned the procedural guarantees, including the rights of the defense, which on the basis of Article 6 of the European Convention on Human Rights man was made about the Regulators yet formally organized in Independent Administrative Authorities (AAI). This contributed to the general movement of jurisdictionalization of Regulation.

► Full reference : M.-A. Frison-Roche, Scientific coprdination and co-hosting of the colloquia series Compliance and Contract, organised on the initiative of the Journal of Regulation & Compliance (JoRC) and its academic partners

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► The Symposium Series in a nutshell : As a direct continuation of the previous symposium series co-organised by the Journal of Regulation & Compliance and its partner universities on "Compliance Obligation", which served as the basis for the publication of the book 📘Compliance Obligation,  The series, some elements of which began in 2024 and others are already present in this book, explored in depth the specific theme of the links between compliance law and contracts. Indeed, compliance law is often analysed as the construction of laws and regulations to achieve "📘 Monumental Goals " of a political nature desired by States and public authorities, to the achievement of which systemic economic operations contribute through 📘Compliance Tools that are now well documented. Contracts are still relatively little studied, or even developed, in compliance systems that are often perceived through the orders issued, the technologies put in place and the 📘sanctions to be avoided or endured. On the contrary, the future of compliance law, particularly in its European conception, which places human beings at the centre of concerns for the sustainability of systems and the use of contracts, is the new conception that we must adopt. Contracts then appear to be both the means by which the subject company fulfils its legal obligations, forges relationships with other actors and deploys the necessary innovations. Contract law is both used and renewed as a result. The series of symposiums will examine various aspects of this general issue. It will result in the publication of a 📘book Compliance and Contrat.

► Presentation of symposiums in development : 

• 30 January 2026🧮THE "CONTRACT OF COMPLIANCE" : read the presentation

• March 2026🧮COMPLIANCE AND COMMON CONTRACT LAW : read the presentation

• March 2026: COMPLIANCE AND SOCIAL CONTRACT: read the presentation

• 24 April 2026🧮COMPLIANCE: CLAUSE BY CLAUSE: read the presentation

• 29 May 2026🧮THE JUDGE CONFRONTED WITH CONTRACTS OF COMPLIANCE AND COMPLIANCE CLAUSES: read the presentation

• May 2026: COMPLIANCE AND CONTRACTUAL LIABILITY: read the presentation

• June 2026🧮COMPLIANCE, VALUE CHAINS AND CONTRACT: read the presentation

• June 2026🧮GOVERNANCE AND CONTRACTUALISATION OF ETHICAL REQUIREMENTS: read the presentation

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The procedural guarantees from which the person benefits are mainly the right of action, the rights of defense and the benefit of the adversarial principle.

While the rights of the defense are subjective rights which are advantages given to the person at risk of having his situation affected by the decision that the body which is formally or functionally legally qualified as a "tribunal", may take, the adversarial principle is rather a principle of organization of the procedure, from which the person can benefit.

This principle, as the term indicates, is - as are the rights of the defense - of such a nature as to generate all the technical mechanisms which serve it, including in the silence of the texts, imply a broad interpretation of these.

The adversarial principle implies that the debate between all the arguments, in particular all the possible interpretations, is possible. It is exceptionally and justified, for example because of urgency or a justified requirement of secrecy (professional secrecy, secrecy of private life, industrial secrecy, defense secrecy, etc.) that the adversarial mechanism is ruled out. , sometimes only for a time (technique of deferred litigation by the admission of the procedure on request).

This participation in the debate must be fully possible for the debater, in particular access to the file, knowledge of the existence of the instance, the intelligibility of the terms of the debate, not only the facts, but also the language (translator, lawyer , intelligibility of the subject), but still discussion on the applicable legal rules). So when the court automatically comes under the rules of Law, it must submit them to adversarial debate before possibly applying them.

The application of the adversarial principle often crosses the rights of the defense, but in that it is linked to the notion of debate, it develops all the more as the procedure is of the adversarial type.

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► Full Reference: M.-A. Frison-Roche, Arbitration consideration of Compliance Obligation for a sustainable Arbitration Place", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, forthcoming.

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📝read the article

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of this article: The first part of this study assesses the evolving relationship between Arbitration Law and Compliance Law, which depends on the very definition of the Compliance Obligation (I). Indeed, these relations have been negative for as long as Compliance has been seen solely in terms of "conformity", i.e. obeying the rules or being punished. These relationships are undergoing a metamorphosis, because the Compliance Obligation refers to a positive and dynamic definition, anchored in the Monumental Goals that companies anchor in the contracts that structure their value chains.

Based on this development, the second part of the study aims to establish the techniques of Arbitration and the office of the arbitrator to increase the systemic efficiency of the Compliance Obligation, thereby strengthening the attractiveness of the Place (II). First and foremost, it is a question of culture: the culture of Compliance must permeate the world of Arbitration, and vice versa. To achieve this, it is advisable to take advantage of the fact that in Compliance Law the distinction between Public and Private Law is less significant, while the concern for the long term of contractually forged structural relationships is essential.

To encourage such a movement to deploy the Compliance Obligation, promoting the strengthening of a Sustainable Arbitration Place (III), the first tool is the contract. Since contracts structure value chains and enable companies to fulfill their legal Compliance Obligation but also to add their own will to it, stipulations or offers relating to Arbitration should be included in them. In addition, the adoption of non-binding texts can set out a guiding principle to ensure that concern for the Monumental Goals is appropriate in order the Compliance Obligation to be taken into account by Arbitrators.

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► Full Reference: M.-A. Frison-Roche, "General Procedural Law, prototype of the Compliance Obligation", in M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, forthcoming.

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📝read the article

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🚧read the bilingual Working Paper on the basis this article has been written, with more developments, technical references and hyperlinks

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📘read a general presentation of the book, Compliance Obligation, in which this article is published

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► Summary of this article: At first glance, General Procedural Law seems to be the area the least concerned by the Compliance Obligation, because if the person is obliged by it, mainly large companies, it is precisely, thanks to this Ex Ante, in order to never to have to deal with proceedings, these path that leads to the Judge, that Ex Post figure that in return for the weight of the compliance obligation they have been promised they will never see: any prospect of proceedings would be seeming to signify the very failure of the Compliance Obligation (I).

But not only are the legal rules attached to the Procedure necessary because the Judge is involved, and increasingly so, in compliance mechanisms, but they are also rules of General Procedural Law and not a juxtaposition of civil procedure, criminal procedure, administrative procedure, etc., because the Compliance Obligation itself is not confined either to civil procedure or to criminal procedure, to administrative procedure, etc., which in practice gives primacy to what brings them all together: General Procedural Law (II).

In addition to what might be called the "negative" presence of General Procedural Law, there is also a positive reason, because General Procedural Law is the prototype for "Systemic Compliance Litigation", and in particular for the most advanced aspect of this, namely the duty of vigilance (III). In particular, it governs the actions that can be brought before the Courts (IV), and the principles around which proceedings are conducted, with an increased opposition between the adversarial principle, which marries the Compliance Obligation, since both reflect the principle of Information, and the rights of the defence, which do not necessarily serve them, a clash that will pose a procedural difficulty in principle (V).

Finally, and this "prototype" status is even more justified, because Compliance Law has given companies jurisdiction over the way in which they implement their legal Compliance Obligations, it is by respecting and relying on the principles of General Procedural Law that this must be done, in particular through not only sanctions but also internal investigations (VI).

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► Full Reference: M.-A. Frison-Roche (ed.), Compliance Obligation, Journal of Regulation & Compliance (JoRC) and Bruylant, "Compliance & Regulation" Serie, 2026, to be published

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📕In parallel, a book in French L'Obligation de compliance, is published in the collection "Régulations & Compliance" co-published by the Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz. 

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📚This book is inserted in this series created by Marie-Anne Frison-Roche for developing Compliance Law.

 read the presentations of the other books of this Compliance Series:

• further books:

🕴️M.A. Frison-Roche (ed.), 📘Compliance Evidential System, 2027

🕴️M.A. Frison-Roche (ed.), 📘Compliance and Contract, 2027

• previous books:

​🕴️M.A. Frison-Roche (ed), 📘Compliance Juridictionnalisation, 2023

🕴️M.A. Frison-Roche (ed), 📘Compliance Monumental Goals, 2022

🕴️M.-A. Frison-Roche (ed.), 📘Compliance Tools, 2021

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► go to the general presentation of this 📚Series ​Compliance & Regulation, conceived, founded et managed by Marie-Anne Frison-Roche, co-published par the Journal of Regulation & Compliance (JoRC) and Bruylant. 

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🧮the book follows the cycle of colloquia organised by the Journal of Regulation & Compliance (JoRC) and its Universities partners.

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► general presentation of the book: Compliance is sometimes presented as something that cannot be avoided, which is tantamount to seeing it as the legal obligation par excellence, Criminal Law being its most appropriate mode of expression. However, this is not so evident. Moreover, it is becoming difficult to find a unity to the set of compliance tools, encompassing what refers to a moral representation of the world, or even to the cultures specific to each company, Compliance Law only having to produce incentives or translate this ethical movement. The obligation of compliance is therefore difficult to define.

This difficulty to define affecting the obligation of compliance reflects the uncertainty that still affects Compliance Law in which this obligation develops. Indeed, if we were to limit this branch of law to the obligation to "be conform" with the applicable regulations, the obligation would then be located more in these "regulations", the classical branches of Law which are Contract Law and Tort Law organising "Obligations" paradoxically remaining distant from it. In practice, however, it is on the one hand Liability actions that give life to legal requirements, while companies make themselves responsible through commitments, often unilateral, while contracts multiply, the articulation between legal requirements and corporate and contractual organisations ultimately creating a new way of "governing" not only companies but also what is external to them, so that the Monumental Goals, that Compliance Law substantially aims at, are achieved. 

The various Compliance Tools illustrate this spectrum of the Compliance Obligation which varies in its intensity and takes many forms, either as an extension of the classic legal instruments, as in the field of information, or in a more novel way through specific instruments, such as whistleblowing or vigilance. The contract, in that it is by nature an Ex-Ante instrument and not very constrained by borders, can then appear as a natural instrument in the compliance system, as is the Judge who is the guarantor of the proper execution of Contract and Tort laws. The relationship between companies, stakeholders and political authorities is thus renewed.

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🏗️general construction of the book

The book opens with a substantial Introduction, putting the different sort of obligations of compliance in legal categories for showing that companies must build structures of compliance (obligation of result) and act to contribute with states and stakeholders to reach Monumental Goals (obligation of means). 

The first part is devoted to the definition of the Compliance Obligation. 

The second part presents the articulation of Compliance obligation with the other branchs of Law, because the specific obligation is built by Compliance Law, as new substantial branch of Law but also by many other branchs of Law.

The third part develops the pratical means established to obtained the Compliance Obligation to be effective, efficace and efficient.

The fourth part takes the Obligation  of Vigilance as an illustration of all these considerations and the discussion about the future of this sparehead fo the Compliance Obligation . 

The fifth part refers to the place and the role of the judges, natural characters for any obligation. 

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TABLE OF CONTENTS 

ANCHORING THE SO DIVERSE COMPLIANCE OBLIGATIONS IN THEIR NATURE, REGIMES AND FORCE TO BRING OUT THE VERY UNITY OF THE COMPLIANCE OBLIGATION, MAKING IT COMPREHENSIBLE AND PRACTICABLE 

🔹 Compliance Obligation: building a compliance structure that produces credible results withe regard to the Monumentals Goals targeted by the Legislator, by 🕴️Marie-Anne Frison-Roche

TITLE I.

IDENTIFYING THE COMPLIANCE OBLIGATION

CHAPTER I: NATURE OF THE COMPLIANCE OBLIGATION

Section 1 🔹 Will, Heart and Calculation, the three marks surrounding the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 2 🔹 Debt, as the basis of the compliance obligation, by 🕴️Bruno Deffains

Section 3 🔹 Compliance Obligation and Human Rights, by 🕴️Jean-Baptiste Racine

Section 4 🔹 Compliance Obligation and changes in Sovereignty and Citizenship, by 🕴️René Sève

Section 5 🔹 The definition of the Compliance Obligation in Cybersecurity, by 🕴️Michel Séjean

CHAPTER II: SPACES OF THE COMPLIANCE OBLIGATION

Section 1 🔹 Industrial Entities and Compliance Obligation, by 🕴️Etienne Maclouf

Section 2 🔹 Compliance, Value Chains and Service Economy, by 🕴️Lucien Rapp

Section 3 🔹 Compliance and conflict of laws. International Law of Vigilance-Conformity, based on applications in Europe, by 🕴️Louis d'Avout 

TITLE II.

ARTICULATING THE COMPLIANCE OBLIGATION WITH OTHER BRANCHES OF LAW

Section 1 🔹 Tax Law and Compliance Obligation, by 🕴️Daniel Gutmann

Section 2 🔹 General Procedural Law, prototype of the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

Section 3 🔹 Corporate and Financial Markets Law facing the Compliance Obligation, by 🕴️Anne-Valérie Le Fur

Section 4 🔹 Transformation of Governance and Vigilance Obligation, by 🕴️Véronique Magnier

Section 5 🔹 The Relation between Tort Law and Compliance Obligation, by 🕴️Jean-Sébastien Borghetti

Section 6 🔹 Environmental and Climate Compliance, by 🕴️Marta Torre-Schaub

Section 7 🔹 Competition Law and Compliance Law, by 🕴️Jean-Christophe Roda

Section 8 🔹 The Compliance Obligation in Global Law, by 🕴️Benoît Frydman & 🕴️Alice Briegleb

Section 9 🔹 Environmental an Climatic Dimensions of the Compliance Obligation, by 🕴️Marta Torre-Schaub

Section 10 🔹 Judge of Insolvency Law and Compliance Obligations, by 🕴️Jean-Baptiste Barbièri

TITLE III.

COMPLIANCE: GIVE AND TAKE THE MEANS TO OBLIGE

CHAPTER I: COMPLIANCE OBLIGATION: THE CONVERGENCE OF SOURCES

Section 1 🔹 Compliance Obligation upon Obligation works, by 🕴️Marie-Anne Frison-Roche

Section 2 🔹 Conformity technologies to meet Compliance Law requirements. Some examples in Digital Law, by 🕴️Emmanuel Netter

Section 3 🔹 Legal Constraint and Company Strategies in Compliance matters, by 🕴️Jean-Philippe Denis & 🕴️Nathalie Fabbe-Coste

Section 4 🔹 Opposition and convergence of American and European legal systems in Compliance Rules and Systems, by 🕴️Raphaël Gauvain & 🕴️Blanche Balian

Section 5 🔹 In Compliance Law, the legal consequences for Entreprises of their Commitments and Undertakings, by 🕴️Marie-Anne Frison-Roche

CHAPTER II: INTERNATIONAL ARBITRATION IN SUPPORT OF THE COMPLIANCE OBLIGATION

Section 1 🔹 How International Arbitration can reinforce the Compliance Obligation, by  🕴️Laurent Aynès

Section 2 🔹 Arbitration consideration of Compliance Obligation for a Sustainable Arbitration Place, by 🕴️Marie-Anne Frison-Roche

Section 3 🔹 The Arbitral Tribunal's Award in Kind, in support of the Compliance Obligation, by 🕴️Eduardo Silva Romero

Section 4 🔹 The use of International Arbitration to reinforce the Compliance Obligation: the example of the construction sector, by 🕴️Christophe Lapp 

Section 5 🔹 The Arbitrator, Judge, Supervisor, Support, by 🕴️Jean-Baptiste Racine

TITLE IV.

VIGILANCE, SPEARHEAD OF THE COMPLIANCE OBLIGATION

Section 1 🔹 Vigilance Obligation, Spearheard and Total Share of the Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

CHAPTER I: INTENSITIES OF THE VIGILANCE OBLIGATION, SPEARHEAD OF THE COMPLIANCE SYSTEM

Section 2 🔹 Intensity of the Vigilance Obligation by Sectors: the case of Financial Operators, by 🕴️Anne-Claire Rouaud

Section 3 🔹 Intensity of the Vigilance Obligation by Sectors: the case of Digital Operators, by 🕴️Grégoire Loiseau

Section 4 🔹 Intensity of the Vigilance Obligation by Sectors: the case of Energy Operators, by 🕴️Marie Lamoureux

CHAPTER II: GENERAL EVOLUTION OF THE VIGILANCE OBLIGATION

Section 1 🔹 Rethinking the Concept of Civil Liability in the light of the Duty of Vigilance, Spearhead of Compliance, by 🕴️Mustapha Mekki

Section 2 🔹 Contracts and clauses, implementation and modalities of the Vigilance Obligation, by 🕴️Gilles J. Martin

Section 3 🔹 Proof that Vigilance has been properly carried out with regard to the Compliance Evidence System, by 🕴️Jean-Christophe Roda

Section 4 🔹 Compliance, Vigilance and Civil Liability: put in order and keep the Reason, by 🕴️Marie-Anne Frison-Roche

Title V.

THE JUDGE AND THE COMPLIANCE OBLIGATION

Section 1 🔹 Present and Future Challenges of Articulating Principles of Civil and Commercial Procedure with the Logic of Compliance, by 🕴️Thibault Goujon-Bethan

Section 2 🔹 The Judge required for an Effective Compliance Obligation, by 🕴️Marie-Anne Frison-Roche

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CONCLUSION

THE COMPLIANCE OBLIGATION: A BURDEN BORNE BY SYSTEMIC COMPANIES GIVING LIFE TO COMPLIANCE LAW  

(conclusion and key points of the books, free access)

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► Full reference : M.-A. Frison-Roche, Saisir les principes du Droit de la Compliance à travers l'actualité (Understanding the principles of compliance law through current current legal cases and events), Jean Moulin  - Lyon 3 University Law Faculty, 10 December 2025.

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► Methodological presentation of this 4-hour MasterClass : It is difficult to teach a branch of law that is still being developed, to find a way to open its doors, because if by explaining its principles ex abrupto, the risk exists of remaining at the door, even though the aim is to open it. This door is all the more blocked by the accumulation of multiple regulatory corpus, which are now perceived as being linked to Compliance Law: GDPR, Sapin 2, Vigilance, Nis2, Dora, FCPA, etc.; These are highly technical and complicated, and tend to be studied in silos, with little connection between them and little articulation with the traditional branches of Law. Therefore, the principles that form the backbone of Compliance Law as an autonomous branch of Law are all the less apparent, even though they would make these "compliance blocks" more intelligible and manageable. However, setting out these principles, which shed light not only on the current positive law but also on how it will evolve, seems "theoretical".

In order to open the door to this new branch of Law, which already occupies a significant place in practice and is set to expand, so that it can be handled by lawyers who understand its spirit and is not entirely dominated by those from other disciplines who will master its tools (risk mapping, assessment, internal investigation, etc.), most often through algorithms and platforms (compliance by design), it is relevant to start with a few cases, a few decisions, a few texts, and a few comments, to gauge what they reveal.

Because the principles are already there. They are gradually emerging. The challenge is that they often emerge quickly, in a manner that is sufficiently consistent with other branches of Law, and that the legal aspect takes precedence. That is what is at stake today.

Each hour is devoted to a different case, based on a document of a different legal genre.

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🌐read a post on LinkedIn (in French)

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⛏️Find out more  :

🕴🏻M.-A. Frison-Roche, 📝Compliance Law, 2016

🕴🏻M.-A. Frison-Roche, 📝Monumental Goals, the beating heart of Compliance Law, 2023

🕴🏻M.-A. Frison-Roche, 📝In Compliance Law, the legal consequences for Entreprises of their commitments and undertakings, 2025

🕴🏻M.-A. Frison-Roche, 📝Compliance Law and Systemic Litigation, 2025

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► Référence complète : Y. Kerbrat, "L’avis consultatif de la Cour internationale de justice du 23 juillet 2025 sur les obligations des États en matière de changement climatique", Clunet, 2025, n°4, 

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche.

► Référence complète : É. Schmit et A. Peter, "Introduction", in Justices manifestes , Clio - Thémis, n°29, 2025.

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📝lire l'article

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📗Consulter l'ensemble de la publication

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► Résumé de l'article : Les auteurs présentent le sujet même de ce dossier : montrer la place de l'écrit dans les procédures comme mode spécifique de rituels qui eux-aussi rendent la justice "manifeste".  Présentation par les auteurs : "

"Ce dossier se situe au croisement de deux manières d’aborder et d’écrire l’histoire de la justice : celle, d’une part, qui s’intéresse aux manifestations rituelles du processus judiciaire ; et celle, d’autre part, qui traite des enjeux et des pouvoirs de l’écrit dans l’action de la justice. En repartant de la métaphore théâtrale, c’est-à-dire en envisageant la scène judiciaire comme cadre spatio-temporel du déploiement du rituel, il s’agit d’en étudier précisément les modalités d’enregistrement, pour mieux comprendre comment l’écrit participe du caractère manifeste des justices médiévales et modernes – dans leur diversité. À l’intersection entre rituel et écrit judiciaires, il y a bien sûr la procédure, entendue à la fois comme la succession des étapes conduisant à l’exécution d’une décision de justice, et comme l’ensemble des règles qui encadrent chacune de ces étapes. Faire l’histoire des modalités d’enregistrement du rituel judiciaire implique dès lors d’expliciter à la fois les rapports entre rituel et procédure, et entre procédure et écrit. Les contributions qui suivent témoignent de l’intérêt, pour les historiennes et historiens de la justice, d’articuler ces deux approches, chacune ayant fait l’objet d’une historiographie féconde.".

C'est la quatrième partie de l'article qui est plus particulièrement consacré au rôle des "écrits judiciaires", évoquant le gouvernement par l'écrit, le réseau des écritures, les écritures judiciaires grises, etc.

Le contenu des 5 articles composant le dossier est présenté ainsi : "Voilà quelques-unes des questions auxquelles les cinq articles de ce dossier apportent de précieux éléments de réponse, à partir de contextes documentaires, temporels, géographiques et juridictionnels bien différents. À partir d’une série de 70 arrêts criminels rendus au parlement de Paris au xive siècle, Isabelle D’Artagnan analyse la façon dont l’enregistrement façonne la jurisprudence de la cour quant à l’usage de deux peines infamantes, l’amende honorable et le pilori. En étudiant au plus près les modalités de l’enregistrement, elle montre combien celui-ci est en lui-même performatif : il constitue non seulement une première satisfaction pour les parties, mais oriente aussi l’action future des juges. Rudi Beaulant interroge quant à lui le rôle des écritures judiciaires comme outil de gouvernement urbain, dans un contexte de partage du pouvoir judiciaire entre ville et prince à Dijon à la fin du Moyen Âge. La multiplication et la répartition des informations enregistrées montrent que les écritures judiciaires constituent à la fois un instrument d’administration et de légitimation pour les officiers urbains, tout autant qu’elles participent de la construction de la mémoire judiciaire de la ville. Dominique Adrien s’intéresse, dans la Bavière de la fin du xve siècle, à une charte rédigée à la demande des parties qui s’opposent devant le tribunal urbain de Kempten, et dont il donne l’édition et la traduction. À partir de cette charte qui permet, dans un contexte juridictionnel concurrentiel, de consolider les droits de la plaignante mais aussi la décision du tribunal, l’auteur analyse les modalités spécifiques de l’enregistrement du procès, et notamment la place importante accordée aux témoignages oraux. Dans sa contribution, Rémi Demoen piste dans les comptes municipaux d’Amboise, Chinon et Loches au second xvie siècle les traces indirectes du rituel spécifique du jugement des comptes, dans le contexte documentaire particulièrement lacunaire de la Chambre des comptes. Il apparaît que l’écrit, davantage qu’une simple trace du rituel, joue un rôle central dans le processus même de vérification des comptes. Enfin, Mathias Boussemart consacre son article aux bandeaux gravés qui ornementent un grand nombre d’impressions judiciaires au xviiie siècle. S’il s’intéresse aux scènes judiciaires que ces bandeaux représentent, il montre surtout comment ces bandeaux, qui participent de l’ultime phase du rituel judiciaire – l’impression sur papier de décisions jugées remarquables – contribuent à la diffusion, à grande échelle, de petites scénettes judiciaires. Toutes attentives aux mécanismes d’enregistrement à l’œuvre, ces contributions affinent, dans la diversité des cas étudiés, notre compréhension des rituels judiciaires.".

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► Full Reference: M.-A. Frison-Roche,  « L'invention du "droit à l'enfant". Les conséquences de la pratique contractuelle comme source d'engendrement de l'enfant (The invention of the "right to a child". The consequences of the contractual practice as a source of childbearing)", in Special Issue Nouvelles filiations (New Filiations), AJ Famille, Lefebvre Dalloz, Nov. 2025, pp.568-571. 

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📗read the table of content of the special issue in which this article is published (in French)

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📝read this article (in French)

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🚧Read the underlying bilingual working document, which includes additional technical developments, technical references and hyperlinks.

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► English summary of this article: Every legal system is built on concepts that form its pillars. Filiation is one such concept. A cas-law solution, presented as pragmatic and casuistic, can overturn this concept. Whether one agrees with it or not, it must first be acknowledged and assessed.

Through a series of rulings on surrogacy, notably a ruling by its First Civil Chamber granting exequatur to a judgment recognising the filiation established by surrogacy between a child and persons with no biological link to the child and without recourse to adoption, the French Cour de Cassation has introduced the possibility of creating parentage by contract. This not only changes the concept of filiation but also changes the very structure of the French legal system, which is based on the distinction between persons and things. One may agree or disagree with this, but it must be said.

Since the judge gives force to such a contract establishing filiation, with the foreign judge simply recognising it and the French judge ensuring only that the contract is balanced, the prospect opens up of a society in which individuals will be able to contractually create institutions at their disposal, within the private normative space of the contract, with the State's only function being to give effect to their right to legal recognition of their unique "project". Parentage is only a first example.

Thus constructed on what was "inconceivable", i.e. a "right to a child", thanks to the contractual power to which the State should lend its force a posteriori, the judge makes parentage resulting .the judge technically declares a parentage arising from a contract to be "admissible". Is opening a society in institutions were contractually governed. 

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🌐Follow Marie-Anne Frison-Roche on LinkedIn

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► Full reference : M.-A. Frison-Roche,  ""Ordonner la Compliance : pourquoi le faire et comment le faire ? (Organising Compliance: why do it and how to do it?)", interview Focus on... conducted for Dalloz Actu Étudiants, 13 November 2025

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► read the interview : 💬 Read the interview (in French)

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🌐read the interview presentation on LinkedIn (in French)

🌐read the interview presentation through the MAFR Newsletter Law, Compliance, Regulation, (in English)

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► presentation  of the interview by Dalloz Actu-Étudiants  : Compliance can be defined as a new branch of law that mobilises major economic players and their stakeholders to ensure that the large systems in which we live do not collapse, but remain solid and sustainable. Sanctions, contracts, ethical principles, court decisions and corporate cultures all converge to achieve this. The ambition is great, some contest it, many want to escape it. It is still difficult to define compliance, which seems to be going in all directions. Who? What? Why? How?

These are all questions addressed by Marie-Anne Frison-Roche, professor of law and editor-in-chief of the Journal of Regulation & Compliance (JoRC), together with the contributors to the collective works in the Régulations & Compliance series under her scientific direction. Compliance (JoRC), together with the contributors to the collective works in the "Regulations & Compliance" collection under her scientific direction, sheds light on with her imaginative power combined with her legal precision.

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Q.Why do the fundamental objectives of compliance unify all legal compliance techniques?

Summary of MAFR's response: because all these regulatory frameworks, which large companies are required to enforce effectively and which appear disparate, creating as many specific requirements as there are regulatory compliance blocks, find their unity when we consider the following reality: whatever the body of regulations in question (Sapin 2, Vigilance, Nis2, Dora, IAA, etc.), the aim is always to identify and prevent systemic risks so that these systems do not collapse.

Q. How can we define the obligation of compliance?

Summary of MAFR response: the company concerned is therefore obliged to put in place "compliance structures", such as mapping, plans, alert structures and programmes (obligation of result), but of course, and this is the key point, to achieve this goal, namely to ensure that the system in question (banking, financial, climate, digital, algorithmic, etc.) does not collapse. This is an obligation of means. This is the exact, simple definition that unifies all the regulations of the Compliance Obligation for which subject companies are responsible.

Q. What conflicts arise around the source of compliance standards and their implementation? 

Summary of MAFR's response: It must remain a matter of law. However, many argue that because it is only a matter of "compliance" and "ticking all the boxes", algorithms (which do not think or know anything) will do this, eliminating the need for lawyers and the law. This must be avoided. Furthermore, given the immense ambition of safeguarding systems, political and public authorities, businesses and stakeholders must join forces. They must not fight to bring each other down.

Q. What are the complexities of compliance law? 

Summary of MAFR's response: I would not say "complexity", because although the regulations are complicated, compliance law is fairly simple and unified around its monumental goals of safeguarding systems, ensuring their future sustainability and protecting the people involved in them. However, it is a new branch of law that is still poorly understood and therefore sometimes poorly mastered. It therefore needs to be organised.

Q. What is your proposal for ordering it? 

Summary of MAFR's response: Teaching more about compliance law will facilitate its organisation. The courts, to which all regulations converge through litigation, will participate in this organisation, which is necessary to ensure that regulations do not remain in silos and do not contradict each other when they have the same purpose, which constitutes their legal normativity. This new branch of law must also be articulated with all other branches of law. This is notably what the recently published book, L'obligation de compliance (The Obligation of Compliance), does.

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► Référence complète : B. Mathieu, « Contraintes et liberté du juge constitutionnel dans l'exercice de son travail d'interprétation », in Cahiers de droit constitutionnel, Les méthodes d'interprétation nov. 2025.

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► Résumé de l'article : S'appuyant sur les décisions du Conseil constitutionnel, l'auteur montre que celui-ci ne se contraint que peu lorsqu'il s'agit de contrôler les normes constitutionnelles, notamment parce qu'il choisit les contours du bloc de constitutionnalité, mais qu'il se limite davantage lorsqu'il contrôle les normes législatives, respectant davantage la séparation des pouvoirs (puisqu'il est lui-même une juridiction). 

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📝Lire l'article

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► Référence complète : M. Cirotteau, Le pouvoir administratif des personnes privées, préf. Th. Perroud, Éd. Panthéon-Assas, coll. "Nouvelle recherche", 2025, 768 p.

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► Résumé de l'ouvrage (fait par l'éditeur) : "Le pouvoir administratif des personnes privées n’est pas une « monstruosité » du droit administratif, mais une notion originale qui désigne la capacité des personnes morales de droit privé à prendre des actes juridiques.

Ce pouvoir se traduit par la détention de fonctions de police administrative spéciale, par des personnes privées, qui s’exerce sur les opérateurs économiques. Par opposition avec la théorie normativiste qui associe l’acte juridique à la volonté, plusieurs exemples sélectionnés dans le droit positif permettent de penser ce phénomène en s’appuyant sur la théorie du pouvoir.

L’auteure applique un régime, qui s’inspire des principes irriguant le droit administratif, au pouvoir administratif des personnes privées, et questionne son encadrement par les méthodes du contentieux administratif. Elle propose finalement d’introduire une logique concurrentielle dans les secteurs où ce pouvoir fait irruption et perturbe le fonctionnement des marchés. Ce faisant, Marie Cirotteau nous invite à repenser les conditions qui ont construit le savoir juridique, et propose des réponses inédites face aux défis posés par l’accroissement du pouvoir de certaines grandes entreprises aujourd’hui.".

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►Full Reference: M.A. Frison-Roche, "Droit de la compliance et Contentieux systémique" (Compliance Law and Systemic Litigation), in Chroniques Droit de la Compliance (Compliance Law Chronicles), Recueil Dalloz, 6 November 2025 

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🚧read the bilingual Working Paper on which this article is based, with additional developments, technical references and hyperlinks

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►read the English presentation of the previous chronicles:

• "Compliance and conformity: Distinguish them in order to articulate them", 2024
• "Regulations, Compliance, Contracts, and Judges: places and alliances", 2023
• "Contract of compliance, stipulations fo compliance", 2022
• "The Adventure of the Compliance", 2020
• "Compliance and Legal Personality", 2019
• "TLegal Theory of Risk Mapping", 2019

►read the English presentation of the whole chroniques

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►English summary of this article: Legal systems have changed, and Compliance Law, in its uniqueness, reflects this change and plays a powerful role in it. Through new sets of compliance rules, particularly at European level, in areas such as data protection (GDPR), anti-money laundering (AMLA), climate balance protection (CS3D) and banking and financial system sustainability (Banking Union), techniques (always the same) have been developed and imposed on large companies, which must implement them: alerts, mapping, assessment, sanctions, etc. These new regulatory frameworks only make sense in relation to their ‘Monumental Goals’: to detect systemic risks Ex Ante and prevent crises so that the systems in question do not collapse, but ‘sustain". All the legal instruments in the corpus are normatively rooted in these Monumental Goals, which are the core that unifies Compliance Law (I).

Judges are the guardians (II) of this new and highly ambiguous normative framework, which relies on the practical ability of companies to do just that. They ensure that the technical provisions are applied teleologically in each of these compliance blocks, and that the regulatory frameworks are mutually supportive, for it is always the same systemic goal that all compliance regulations serve: to ensure that systems (banking, financial, climate, digital, energy, etc.) do not collapse, that they are sustainable, and that present and future human beings are not crushed by them but, on the contrary, benefit from them. This unity is still little perceived, as regulations pulverize this profound unity of compliance law in the myriad of changing provisions. Entrusting the "regulatory mass" to algorithms increases this pulverization, making the whole increasingly incomprehensible and therefore impossible to handle.  Acknowledging the judge's rightful place, i.e. at the heart of the matter, will enable us to master this new branch of law. But it's not the judge's job alone to restore clarity to a whole covered in the dust of his own technicality.

The systemic object of Compliance Law is transferred to Litigation. Indeed, the Litigation that emerges from the new Compliance Law is also fundamentally new, by transitivity. Indeed, the aim of Compliance Law is to make systems sustainable (or sustainable, or resilient, the vocabulary varies). The result is litigation which is itself "systemic litigation" (III), most often initiated by an organization against a systemic operator. The place and role of each are transformed (IV).

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► Full reference : M.-A. Frison-Roche, The invention of the 'right to a child'. The consequences of contractual practice as a source of filiation, working document, Sept. 2024 - Oct. 2025.

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🎤This working document forms the basis of a presentation entitled, "Le "droit à l'enfant" est-il concevable, pourquoi et avec quelles conséquences" (Is the 'right to a child' conceivable, why and with what consequences", in Les nouvelles filiations. Diifférentes perspectives (New parentage. Different perspectives." held at the Paris Court of Appeal on 12 September 2024.

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📝Revised, this working document forms the basis of the article published in the dossier "Les nouvelles filiations. Regards croisés" (New parentage. Different perspectives), Act. jur. Dalloz Droit de la famille (in French).

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► Summary of this working document  :  Every legal system is built on concepts that form its pillars. Filiation is one such concept. A cas-law solution, presented as pragmatic and casuistic, can overturn this concept. Whether one agrees with it or not, it must first be acknowledged and assessed. Through a series of rulings on surrogacy, notably a ruling by its First Civil Chamber granting exequatur to a judgment recognising the filiation established by surrogacy between a child and persons with no biological link to the child and without recourse to adoption, the French Cour de Cassation has introduced the possibility of creating parentage by contract. This not only changes the concept of filiation but also changes the very structure of the French legal system, which is based on the distinction between persons and things. One may agree or disagree with this, but it must be said. Since the judge gives force to such a contract establishing filiation, with the foreign judge simply recognising it and the French judge ensuring only that the contract is balanced, the prospect opens up of a society in which individuals will be able to contractually create institutions at their disposal, within the private normative space of the contract, with the State's only function being to give effect to their right to legal recognition of their unique "project". Parentage is only a first example. Thus constructed on what was "inconceivable", i.e. a "right to a child", thanks to the contractual power to which the State should lend its force a posteriori, the judge makes parentage resulting from a contract technically "admissible" and opens up a contractually governed society.

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🔓read the working document below⤵️

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► Full reference : M.-A. Frison-Roche, "De l'obligation de compliance à l'obligation de vigilance : le rôle du juge (From the obligation of compliance to the obligation of vigilance: the role of the judge)", in Round table De la compliance au devoir de vigilance. Une nouvelle responsabilité des entreprises (From Compliance to the Vigilance duty. A new responsibility for businesses," Lettre des juristes d'affaires, Oct. 2025.

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📝read the article reproducing the entire discussion (in French)

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► Summary of my contribution:  In this debate, the terms of which have been reproduced in the journal, I was asked to explain how the legal system had evolved, first by establishing Compliance Law, built on systemic ambitions to prevent sectoral disasters (banking, finance, energy), ambitions that constitute "Monumental Negative Goals", and then evolving on the one hand "Monumental Positive Goals", namely the protection of human beings involved willingly or unwillingly in these systems, on the other hand, outside even sectors with clearly defined boundaries, such as environmental or digital ambitions. The duty of vigilance extends this regulatory law and gives concrete form to the "compliance obligation" to which companies are subject. It is important to maintain a sense of proportion in the conception of the responsibility attached to it so as not to lose everything. Companies are bound by the goals but must remain free in their choice of means, and in particular be encouraged to use contractual techniques. This measure is entrusted to the judge because, due to the Compliance Jurisdictionalisation, it is at the heart of this new branch of Law, which is developing independently of fluctuations in the regulations.

During the discussion, I was asked for my opinion on the ruling handed down by the Paris Court of Appeal on 17 June 2025, known as La Poste case. I pointed out that the comments had often focused only on the developments regarding risk mapping, whereas this ruling first establishes the principle that the vigilance plan is the work of the company's decision-making bodies and is not co-constructed, as consultation is a process of discussion and taking in consideration, which is not the same thing, with the judge himself pointing out that they must not interfere in management.

In the discussion, I emphasised that if we were to highlight the essence of what would be a "new responsibility", it would primarily concern a new probative dimension that the company must implement in Ex Ante. The implementation of the CSRD, even if it has been excessively standardised, is in line with this, and this probative culture must be developed.

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⛏️Further reading on the subject :

🕴️M.-A. Frison-Roche (ed.), 📘Compliance Obligation, 2026

🕴️M.-A. Frison-Roche, 📝Vigilance, the front line and integral part of the compliance obligation, 2025

🕴️M.-A. Frison-Roche, 📝Compliance, Vigilance and Civil Liability: put in Order and keep the sense of Reason, 2025

🕴️M.-A. Frison-Roche (ed.), 📘Compliance Jurisdictionalisation, 2024

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► Article summary : The 

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► Référence complète : C.S. Sunstein, Imperfect Oracle: What AI Can and Cannot Do,  Université of Penn Press, 2025, 208 p.

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► Résumé de l'ouvrage (fait par l'éditeur") : 'Imperfect Oracle is about the promise and limits of artificial intelligence. The promise is that in important ways AI is better than we are at making judgments. Its limits are evidenced by the fact that AI cannot always make accurate predictions—not today, not tomorrow, and not the day after, either.

Natural intelligence is a marvel, but human beings blunder because we are biased. We are biased in the sense that our judgments tend to go systematically wrong in predictable ways, like a scale that always shows people as heavier than they are, or like an archer who always misses the target to the right. Biases can lead us to buy products that do us no good or to make foolish investments. They can lead us to run unreasonable risks, and to refuse to run reasonable risks. They can shorten our lives. They can make us miserable.

Biases present one kind of problem; noise is another. People are noisy not in the sense that we are loud, though we might be, but in the sense that our judgments show unwanted variability. On Monday, we might make a very different judgment from the judgment we make on Friday. When we are sad, we might make a different judgment from the one we would make when we are happy. Bias and noise can produce exceedingly serious mistakes.

AI promises to avoid both bias and noise. For institutions that want to avoid mistakes it is now a great boon. AI will also help investors who want to make money and consumers who don’t want to buy products that they will end up hating. Still, the world is full of surprises, and AI cannot spoil those surprises because some of the most important forms of knowledge involve an appreciation of what we cannot know and why we cannot know it. Life would be a lot less fun if we could predict everything."

► Référence complète : Speech of HE Judge Iwasawa Yuji, President of the International Court of Justice, before the Sixth Committee of the United Nations General Assembly, 15 octobre 2025

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📝Lire la prise de parole (en anglais)

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► Résumé de la prise de parole : L

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► Full reference: M.-A. Frison-Roche, "Adéquation et inadéquation de la sanction comme outil de régulation financière et sa transformation par la Compliance" (Adequacy and inadequacy of sanctions as a tool of Financial Regulation and its transformation through Compliance)", contribution to the round-table discussion on"Quel rôle pour la sanction dans la régulation ? (What role for sanctions in Regulatory System)", Annual conference of the Commission des sanctions (Enforcement Committee) of the Autorité des marchés financiers - AMF (French Financial Markets Authority), Paris,  14 October 2025.

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► see the general programme of this manifestation (in French)

The event comprises two round tables. The theme of the first round table is: La preuve des abus de marché entre l’AMF et le juge pénal : vers une convergence ? (Proof of market abuse between the AMF and the criminal courts: towards convergence?)

🪑🪑🪑AutresOther participants in this 2nd round table, moderated by Sophie Schiller, member of the Enforcement Committe on the topic: Quel rôle pour la sanction dans la régulation ? (What role for sanctions in Regulatory System?)

🕴🏻Sébastien Raspiller, Secretary General of the AMF

🕴🏻Martine Samuelian, Partner, Jeantet Law Firm

🕴🏻Vincent Villette, Secretary General of the CNIL (French Personal Data Regulatory Body)

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► Summary of this intervention : In the round-table discussion on the role of sanctions, a number of contributions will be made, depending on the nature of the discussion itself. They will be brief in nature and will be aimed at an audience with a good knowledge of financial regulation.

It is the occasion for me to insist on 2 things, the first naturely and probably for ever attached to the role of sanctions in all Regulatory Systems, the secund very new. The first is the indissociability between Criminal Law and Sanction, even if sanctions is defined as a regulatory tools. The secund is the conception and the use of sanctions through Compliance Law.

Therefore, in the first idea, my first intervention, aimed more at establishing the subject and describing the Intangible, is on the very idea that sanctions have a role to play in financial regulation. By its very nature. But this does not make it any less difficult. It is not obvious, because if penalties are seen as a 'regulatory tool', then it is the regulatory perspective that predominates and 'colours' the tool that is the penalty. Regulation, of which the texts on the basis which sanctions are issued are only one tool and which is not the set of applicable rules, Regulation which is an apparatus of institutions, rules and decisions aimed at establishing the equilibrium of a sector and maintaining this equilibrium, which is by nature unstable, over time, which the sector could not do by its own efforts alone (Regulatory Law, which is Ex Ante Law, thus distinguishing itself from Competition Law, which is Ex Post Law).

From the perspective of Financial Regulatory System, as in other sectoral regulatory systems, and in the general Regulatory Law, sanctions are a tool (and a tool like any other, simply more powerful than the others.

This is the pragmatic perspective adopted by the State and the Regulatory body itself, which will use it in conjunction with other tools, such as an Information, Education and Incentive mechanism. Moreover, it shall use sanction as informative tool, as educational tool, as incentive tool.

However, the principle of the autonomy of Criminal Law, and the European concept of "Criminal Matters" mean that the sanction can be seen in terms of the autonomous criteria of the seriousness of the act imputed and the sanction imposed on the legal person. In this respect, the penalty is inseparable from the way in which it is imposed (Criminal Law is constitutionally inseparable from Criminal Procedure).

In this respect, the sanction is not a tool coloured by the overall objective served by the Financial Markets Regulatory Body: the sustainability of the financial system. The Enforcement Committee is not the AMF's "armed wing"; it is a "court", as the Oury ruling reminded us.

Therefore, the question is and I would like to ask it directly to the Enforcement Committed: Can you be both?

  As they say, could you be both carp and rabbit? Depending on whether you are viewed from one angle or another, you will be seen as the body that makes financial markets effective (a tool among the tools) or as the body that punishes misconduct (a court among the courts).

It is possible, and in practice it is often true.

But if we are honest, we will admit that regulation feeds on information and that the procedure before a criminal court is built on secrecy and the weapons of those who, innocent or guilty, are at risk because they are, or will be, prosecuted.

We've never got out of this difficulty. We always try to strike a balance between the fact that it is in itself a repressive sanction for a person who will suffer and the fact that it is also a systemic tool: there is a 'balance' between the search for systemic benefit (which reduces the protection of individuals for the benefit of the system) and the concern for the people involved (which reduces the present and future protection of the system). The balance goes more or less in one direction. It is often public opinion, the place, the legislator and, even above all,  the civil appeal judge (vertical dialogue) and those in dialogue, between the regulator and the criminal judge (horizontal dialogue) which cause the scales of diverse technical solutions.

It is also the way in which the Enforcement Committee, in defining itself as the armed wing of the AMF (carp) or as a repressive court (rabbit), chooses in its procedural behaviour the role of sanctions in Financial Regulatory System, more or less instrumentalised (carp) or jurisdictionalised (rabbit).

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The second point, if there is to be one, concerns the development of the role of sanctions in Financial Regulatory System .

On the basis of these fundamentals, an evolution in the role of sanctions in financial regulatory system (an evolution that can be observed in all sectoral regulatory systems) consists of internalising sanctions (in their conception by the texts, their elaboration by the Sanctions Committees, their application) in the economic operators sanctioned, in the economic sectors concerned, in the opinion concerned (the figure of Peelmanian circles of the audiences applying).

This internalisation transforms Regulatory mission of the administrative body (which deals with market structures) into Rupervision (which deals directly with market operators) since the sanction penetrates the operator, the operator adopting commitments. This concept corresponds to the new branch of Law known as Compliance Law. 

Compliance Law uses sanctions as an "incentive like any other", and (we must be careful on this point), because it is systemic in nature, the concern for the system being internalised in the operator, it is relatively insensitive to procedural rights. With the emphasis on information, it is the principle of adversarial debate (which provides information) rather than the rights of the defence that is valued. The cooperation of the person being prosecuted is highly valued, and non-cooperation becomes incomprehensible.

The internalisation of sanctions by operators has led to two major changes. Firstly, these economic operators themselves must sanction, detect and prevent market abuse. The number of special obligations of vigilance is increasing. The obligation of vigilance of operators themselves is becoming a pillar of Regulation, transformed in Supervision.

 The other development is the liberalisation of regulatory system in relation to territory, thank to Compliance Law. As operators are less dependent on borders than are regulators and authors of legal texts (but soft law is spreading, including repression), market abuses can be apprehended in several jurisdictions at the same time, notably through global compliance programmes.

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► Full Reference: Fr. Ancel, "Devoir de vigilance et litiges commerciaux : une compétence à partager ?" (Duty of Vigilance  and commercial disputes: a jurisdictional competence shared ?), in M.-A. Frison-Roche (dir.), L'Obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, coll. "Régulations & Compliance", 2025, 727-740.

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📕read the general presentation of the book, L'Obligation de Compliance, in which this contribution is published

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► English summary of this contribution (done by the Journal of Regulation & Compliance - JoRC) : The author considers the procedural issues raised by the duty of vigilance as the "cutting edge" of Compliance Law.  After recalling the obligations imposed by the French 2017 law  so-called "Vigilance Law" with regard to the Vigilance Plan, he emphasises the 2 types of action instituted by the law to ensure compliance with the duty of vigilance: the preventive action to put an end to the unlawful act, initiated after the formal notice has been served, and the civil liability action that can be brought under the conditions of general tort law, once the damage has occurred.

It is the French 2021 law so-called "Confidence Law" that has targeted the Paris Judicial Court of First Instance, in a jurisdiction that can be described as 'special' rather than exclusive. The author looks in detail at the disputes that this law both puts an end to and yet triggers in its turn, going back over the case law of the French Cour de cassation, which referred to the very nature of the Vigilance Plan and the subject matter of the dispute. It is therefore clear that the dispute may concern only the validity of the plan, in which case the Paris Court of first instance has jurisdiction, or it may concern a dispute, for example, between the company that drew up the plan and one of its partners, in which case jurisdiction is shared.

The article details all the procedural situations involving disputes in which the Vigilance Plan is more or less at the centre, which more or less implies either a lack of jurisdiction, or a stay of proceedings, or knowledge of the entire dispute by a court other than the Paris Court àf first instance, with the author proposing methods each time to develop case law so that the Duty of Vigilance does not emerge fragmented, at the same time as other jurisdictions, for example the commercial courts, will be dealing with the duty of vigilance insofar as it interferes with actions relating to commercial companies, the Plan having a direct link with the management of these companies, with the new definition of the corporate purpose of companies and with the exercise of the power of management of companies. According to the author, this "judicial syncretism", expressed in the case law of the Cour de cassation, is part of Compliance Law, which goes beyond the distinction between the traditional branches of law.

To give concrete form to this general view, the author states that when the subject of the action is the legality or validity of the plan, it therefore falls within the jurisdiction specially conferred by law on the Paris Court of First Instance. However, when the plan is only mentioned in an ancillary manner, and/or the duty of vigilance is mentioned in another capacity, the natural jurisdiction of the case law remains, for example if the nullity of a contractual stipulation is alleged. It is possible that this type of dispute is more frequent and more important than actions based primarily on the illegality of the Vigilance Plan. This contractual dispute could also arise from the fact that the company contractually imposes compliance with its own Vigilance Obligation on its employees and partners as part of the "adapted actions".

Judges, for example commercial judges, are then justified in interpreting and applying Vigilance  obligations in the spirit of the law, particularly with regard to the aims pursued. It will be important for a common approach to emerge.

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