Articles in The Journal of Regulation & Compliance « JoRC »

► Full Reference : N. Guillaume, "Cartographie des risques de compliance. Premiers aperçus des enjeux, des limites et des bonnes pratiques" ("Compliance risk mapping. First insights of challenges, limits and good practices"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, p. 63-70. - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The author gives an overview of what is risk mapping for a company, not only an obligation in certain cases, such as corruption, but also and beyond an excellent tool to design and control its strategy. He shows that this is due to the fact that legislation now incorporates the risk-based approach, companies having to use these maps, sometimes demanding to put them at the service of an overall strategy, even if their handling may lead to initiating responsibility of the company and its managers. The author emphasizes that the maps are very diverse because their objectives are themselves different, their users also being different (which implies different insights into the same risks). The author therefore identifies principles common to all maps, which always assess risks according to their probability of occurrence and the severity of their consequences if they materialize. It is also necessary to apprehend the "gross risk", seized in the absolute, and the "net risk" which integrates the company itself in this apprehension of the probability and the gravity, then release an acceptable level of risks for the company. On these common principles are superimposed specificities relating to the various risks, the author taking more particularly the risk of corruption, since Compliance Law gives it a great place. The mapping that is specific to the specific risk then becomes finer to be relevant, while the criteria used here will be abandoned in another mapping. The way of proceeding becomes common again, involving the commitment of the company's management bodies, internal surveys and interviews, benchmarks. If the company thus deploys the art of risk mapping, then they cease to be only a requirement of Law to which the company must comply in order to be a central tool in the overall risk prevention system and strategy design, feeding codes of conduct, design of training and supervision, to finally deploy in the company a "risk culture", which is essential. -

► Full Reference: M.-A. Frison-Roche, "Dresser des cartographies des risques comme obligation et le paradoxe des "risques de conformité"" ("Drawing up risk maps as an obligation and the paradoxe of the "compliance risks""), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 53-62. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): There are few synthetic or theoretical studies on Risk Mapping even though it is in fact the Compliance central tool, perhaps because it is more a management tool than a legal one. Risk Mapping is often described but does not receive any other legal qualifications than being a "modality", suffering in this respect from an evil which affects the whole of Compliance, still little understood by Law, attention often so focused on the Ex Post (sanctions) while Compliance is by nature in the Ex Ante. Going from disarray to incomprehension, everyone can note the existence of "compliance risks" among the mapped risks, because if as so many affirm that it would be necessary to speak only of simple conformity as obedience, demonstrated in Ex Ante, to Law, how a sub-set of a tool would therefore have the same object as the set of Law that this tool serves … This aporia can only be resolved if Compliance Law is defined substantially by its "monumental goals" which exceed obedience to regulations. Consequently, Law taking up Risk Mapping, this mechanism may first appear as an ancillary obligation to the main obligation consisting in achieving "monumental goals". The ancillary obligation to draw up the maps is an obligation of result, while the main obligation to achieve the monumental goals is an obligation of means. These cartographies being very diverse and being only occasionally targeted by specific laws, it can also constitute only a legal fact or, through the play of various charters, a unilateral legal commitment. But it isnbecoming the basis of an autonomous legal obligation incumbent on enterprises in position to know certain risks, obligation referring to the existence of a subjective right tof knowing and measuring them ("right to be worried") which the third parties who are going to run them would hold, thus allowing them to choose to run them, or not.   -

► Full Reference: L. Benzoni and B. Deffains, "Approche économique des outils de la Compliance: finalité, mesure, effectivité de la Compliance "subie" et "choisie"" ("Economic approach of Compliance Tools: purpose, measurement, efficiency of Compliance "undergone" and "chose""), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 39-50. - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published.  - ► Summary of the article (done by the Journal of Regulation & Compliance): Authors refer to economic analysis of Law general works to say that firms can have an interest in showing by anticipation that they comply to Law in a long term strategy of reputation and reliability, this internalization imposed by Compliance and transformed by the Corporate Social Responsibility benefiting to the firm and its choice being related thus to rationality and not to emotion.  Thus the mechanisms of Compliance stop to be "imposed", the firm just minimizing the perspective of a future sanction, to be "chosen", the firm taking freely a responsibility, for example in the environnemental or human rights protection fields, going beyond legal requirements (what "monumental goals" corresponds to, which goes beyond the interest of partners and of the legal obligation). The investment calculus is more difficult for the second one, hardly measurable, than for the first one (probability calculus). The loi PACTE leaves room to a "chosen Compliance" but we badly measure its effectivity: we wait case law in its use of obligation Law. Moreover, if the status of "entreprise à mission" is adopted, the goal becomes statutorily binding and the governance of the firm must be modified for the internal control of means implemented. But, supposing that companies only search competitive avantages, it is only about, through this general interest service, conquering new benefits, the lucrative purpose of chosen Compliance showing the liberal character of Compliance.  The authors underline that this "chosen Compliance" implies evaluation and analysis tools different from those used for "imposed Compliance". In "imposed Compliance", it is about, taking back Gary Becker's works, considering risk aversion, the firm calculating its likelihood to be punished or not with regards to the gain obtained with the infringement (dependent on those who conceive Law to design it according to the model of incentives) and to the cost generated by the intern Compliance tools. The authors underline that the uncertainty of legal solutions, and there the importance of soft law, makes these calculus harder and that rationality of agents is not total, the perspective of being punished being rejected in itself while the respect of the rule is rather natural, the firms being so "honest" (theory of cognitive bias) and not wanting to be singled out (name and shame). Behavioral economics thus privileges "imposed Compliance", beyond cost-advantage calculus.  In the case of "chosen Compliance", it is competition economics which draws solutions, because the firm imposes to itself a constraint to get a competitive advantage of it, in that these self-imposed constraints meet societal demands, external (for example, environnement) or internal (for example, cohesion into the firm). The external gains are the positive image of the firm with regards to the reputation of its competitors. These investments lose their efficacy because all the firms adopt the same, what by the way transform these practices in common legal norms. Internal gains are measured in organizational sociology by the adhesion to the firm's project, reducing the internal inefficiency in a superior to investment profit.   -

► Full Reference: M. Galland, "Le contrôle par le régulateur de l’effectivité des instruments de Compliance mis en place par l’entreprise", in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, p. 195-208. - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The author underlines the complexity of the measure of the effectivity of compliance tools because the measure of the risks cannot be mechanical, the exercise is a cost whose the advantage does not appear immediately, the essential is in the behaviors that the firm masters with difficulty while these are results that are evaluated, because Compliance tools must be effective and produce tangible results.  To do that, the regulator intervenes in Ex Ante in order to the applicable texts are understandable by the firm and in order to the tool is working. When a noncompliance occurs, the regulator must beyond the sanction build on this measure of ineffectiveness to lead operators to improve their systems. Thus, it is in terms of "Compliance effort" that the regulator's control works, especially through the observation of an "embodied exemplarity".  -

► Full Reference: C. Granier, "L’originalité normative de la Compliance by design" ("The normative originality of Compliance by design"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, p. 267-278. - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The author develops the idea that Compliance by design represents a "normative originality", in that it aims, through a complex relationship between the obligatory and the voluntary, to ensure the effectiveness of the "primary standards" contained in the "monumental goals" set by public authorities. The normativity of Compliance by design is original because these processes are situated since the implementation of technical processes, what is referred to by the expression "by design", which reinforces the Ex Ante dimension of Compliance Law, IT embedding this normativity in the structures themselves, by a marriage between technology and Compliance. It results from that an "automatized" application of the norm, integrated in an IT program, which for example blocks the access to some data if the user has nor correctly expressed his or her consent, chain of events mechanically caused by the effect of previous events (or non-events) (as in smart-contracts), a whole functioning in total Ex Ante, outside any feared state sanction perspective, the constraint being reinstated in technical aptitude. This primacy of the technique asks the question of the interpretation of norms thus incorporated, question that the authors let opened because it could lead to machines which interpret themselves the norms.  This automatized application is presented as more "efficient", essential quality in the Compliance atmosphere since like that the norm does not depend on private actors and can benefit from their technical power. But we measure now the author of secondary technical norms inserts itself norms that should be only at the first level, the firm integrating its own practices and values, Compliance by design being related to auto regulation.  Moreover, the author shows that in the conception of the norm, in its design, the question is to designate the author of the norm's integration in the algorithm and the modalities of the integration. The author being intern to the firm, this would constitute a privatization of the norm, since the norm, even secondary, cannot be totally deprived of value's integration, Compliance overwhelming the organization of Law sources. In a situation that the author calls an "unknown", except that "jurists-coders" appear, the lawyer is disqualified by its technical inability because it is about a technological integration, the transfer of the legal toward the algorithm, by the translation in a coding and then by the integration in the IT architecture of the firm, transforming the legal rules. For example, through the choice of the severity of the mechanical sanction chosen at the secondary level to give effectivity to an interdiction educated at the primary level. The author shows thus that this effectivity control of primary level norms, effectivity control that is implemented at the second level, directly impacts primary level norms. For example, deciding to ask the authorization, or the expression of a consent, or forbidding the access, when a content has been reproved by a primary level norm which does not precise the mode of control of this reprobation that Compliance by design must associate to it. But Compliance by design being not an auto regulation, public authorities control its implementation, as did the CNIL (French Data Regulator) for Androïd. This type of control will be developed.  -

► Full Reference: M.-A. Frison-Roche, "Les droits subjectifs, outils premiers et naturels du Droit de la Compliance" ("Rights, primary and natural Compliance Tools"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 301-323. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of this article (done by the Journal of Regulation and Compliance): In the traditional conception of the architecture of the sectors regulated by Law, and in Compliance Law which extends the regulatory techniques, rights have little place. But this configuration no longer takes place; on the contrary, rights are at the center of Regulatory and Compliance systems, and will be more and more so. They are and will be the primary tools of Compliance Law because they constitute a very effective "tool" to ensure the entire functioning of a system whose goals are so difficult to achieve. Because every effort must be done to achieve these goals, the public authorities not only rely on the power of crucial operators, but also distribute prerogatives to people and organizations who, thus encouraged, activate the Compliance system and participate in the achievement of the "monumental goal". Rights can prove to be the most effective tools for actually achieving the goals set, so much so that they can be seen as "primary tools". But it is pertinent to have more pretension and to conceive rights as the most "natural" tools of Compliance Law. Indeed because all the Monumental Goals by which Compliance Law is defined can be expressed by the protection of persons, that is to say to the effectiveness of their prerogatives, by a mirror effect between rights. given as tools by Law by to persons and rights which constitute the very goal of all Compliance Law, in particular the protection of all human beings, even if they are in a situation of great weakness, rights becoming a "natural tool" of Compliance Law. We are only at the beginning of their deployment and it is undoubtedly on them that Digital space in which we now live would be regulated, so that we will not suffocated there and that it will constitute for people a civilized space. -

► Full Reference: A. Banck, "La maturité de l’utilisateur d'un outil de Compliance, premier critère du choix de l’outil adéquat" ("The maturity of the Compliance Tool’s user, first criterion of the choice of the salient tool"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, p. 209-212. - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The author insists on the practical necessity for the firm to show immediately the documents attesting of the reality of Compliance mechanisms. IT tools helps companies to do that, but the crucial point is that everyone in the firm appropriates these tools.  To obtain it, it is necessary that the Compliance officer does not necessarily choose the tool which suits him or her best and pleases him or her the most but rather suits the one who will handle it, for example commercial teams on the ground, monitoring that the tool integrates the specificity of the sector and of the firm. The adjustment of the softwares must meet a maturity of its users in the firm, which must have a "culture of compliance" to take advantage of its tools. Thus more rudimental tools can be more efficient if the culture of Compliance is still weak, sophisticated tools could be unuseful if a prior minimum basis is not reach.  The author thus shows the link to be made between the maturity of the users and the technicality of the tools, the two having to progress together. -

► Full Reference: M.-A. Frison-Roche, "Compliance et incitations: un couple à propulser " ("Compliance and incentives : a promising tandem"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 123-130. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with more developments, technical references and hypertext links - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation and Compliance): The theory of incentives targets the mechanisms which do not use directly constraint (except to present sanctions themselves as incentives) but which leads nevertheless to expected behaviors. To appreciate the links which must or must not be done between incentives and Compliance, we should proceed in two times.  First, the association appears natural between incentive mechanisms and "Compliance Law" since the later is defined in a dynamic way. Indeed, if it is defined placing its legal normativity in its "monumental goals", as the end of corruption, the detection of money laundering in order to underlying criminality disappears, or as the effective protection of environment or the concrete care of human beings, then what matters is not the means in themselves but the effective tension towards these "monumental goals". In this perspective, what was related to public policies led by States, because they are definitively not able to do it, the charge is internalized in the firms which are able to tend towards this goals: "crucial operators" because they have the geographical, technological, informational and financial means.  In this perspective, the internalization of public willingness provoking a split with the concept of State linked to a territory which deprives Politics of its constraint power, incentive mechanisms appear as the most efficient mean to reach these monumental goals. They appear as this "natural" mean both negatively and positively defined. Negatively in which they do not need in Ex Ante institutional localizable sources and sanction power in Ex Post: it is enough to substitute the interest to obligation. Positively, incentives relay through operators' strategies what was the so critical and joked form of public action: the "plan". The duration is thus injected thanks to Compliance mechanisms, as we can see it through the development of it in the care for environment ("plan climat") or through the educational mechanism, which could be conceived only in duration.   However, the opposition seems radical between Compliance Law and Incentives. And this because of three convictions often developed and that we have to overcome. First, the idea that in a general way, there would be a Law only if there is a mechanism of immediate constraint which is associated to the norm. As long as the incentive is not based on obligation, then it will be nothing… Secondly, and as if that were a kind of consolation …, Compliance would not be really Law either … We so often say that it is only about a methodology, a range of processes without sense, procedures to follow without trying to understand, process that algorithms integrate in a mechanic without end and without sense or that on the contrary, Compliance would be full of sense by Ethics and Morality, which are far from Law. While incentives talk to the human spirit which calculate, Compliance would be so a process through which machines will be connected to other machines, so an extra soul, where calculation has no place… Thirdly, solutions would be to be find in Competition Law because it can do without States, submit them and approach what is a-sectorial, especially finance and digital, the world being financialized and digitalized. The violence of Competition Law which comes in Ex Ante thanks to "Compliance sanctions" applying for example to essential infrastructures Law, by continuing to deny the salience of the duration and taking care of the "market power" would be also not compatible with a marriage with incentive mechanisms which rely on duration and power of those to which it is applied, converging towards goals, which are set by what Competition Law ignores: the project. This project which pretends to build the future is the one of politics and of companies, which use their deployed power in time to concretize it. It is without any doubt there that the future of Europe is.  To overcome this triple difficulty, it is thus necessary, in a second time, to modify our conception of Law, especially thanks to Compliance Law, in which this new branch is autonomous from Competition Law, and even sometimes opposed to it, in order to the insertion of incentive mechanisms permit to unknown or against Competition Law organizations to reach "monumental goals" which are imperative to take into consideration. For example, the taking into consideration of climate challenges or the building of a sovereign identity of the data. This is expressly set by European Commission which supervises such initiatives, supervision being what is articulated with Compliance, in a couple that go beyond Regulation, and replaces in Ex Ante Competition Law, salient branch for Ex Post. All the texts which are in the process of expressing it are based on this reformed couple: Compliance and Incentive. This couple supposes that we recognize as such the existence of companies as project carriers, project which is the creation of marketed wealth circulating on a market, which could be an industrial project specific to a geographical zone both economical and political. Regulation is deployed to go away from the notion of sector and to transform itself in supervision of crucial firms in the correspondance between the project and the action, what refers to the notion of "plan". In this, banking supervision is just the advanced bastion of all thematic, energetic, climatic and health plans, or more broadly industrial and technological that could by incentive be implemented, this conception of Compliance permitting to build zones which are not reduced to immediate market exchange. The incentive corresponds to the fact that Compliance Law relies on the power of the firm to reach its own political goals, for example fighting against disinformation in the digital space or obtaining a healthy environnement. This supposes that Compliance stops to be only conceived as a model of rules effectivity, for example of Competition Law, to be recognized as a substantial branch of Law. A branch which expresses political goals. A branch which is anchored in crucial firms whose it recognizes the autonomy with regards to markets. This makes it possible, in particular through the coupling with incentive mechanisms leading to long-term collaborative operations supervised by public authorities, not to be governed by simple Competition Law, inapt to bring projects to fruition. -

► Full Reference: M.-A. Frison-Roche, "Résoudre la contradiction entre "sanction" et "incitation" sous le feu du Droit de la Compliance" ("Resolving the contradiction between "sanction" and "incentive" under the fire of Compliance Law"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 89-98 - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with more developments, technical references and hyperlinks  - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation and Compliance): Compliance and Incentives appear at first glance to be totally opposite. For two major reasons. Firstly, because sanctions have a central place in Compliance Law and that the incentives suppose an absence of constraint on the operators. Secondly, because the incentives are linked to self-regulation and that Compliance Law assumes a strong presence of public authorities. Thus, one should choose: either Compliance or Incentives! Either the effectiveness of one or the effectiveness of the others; either the techniques of one, or the techniques of others; either the philosophy of one or the philosophy of the other. Resign oneself to the waste that such a necessary choice would imply. But to put the terms in this way amounts to thinking poorly about the situations and reducing the fields of the solutions they call for. If we take a rich definition of Compliance Law, we can on the contrary articulate Compliance and Incentives. From this perspective, sanctions can no longer become what blocks the use of incentives but, on the contrary, what constitutes them. Even more, the coupling between the Incentives and the requirements of Compliance Law must be strongly encouraged, as soon as the public authorities supervise in Ex Ante all the initiatives taken by the "crucial operators". This article deals with the first issue. Indeed, the so-called incentive theory targets mechanisms which do not directly resort to constraint. They would therefore have little place in Compliance Law. But it seems saturated with sanction procedures. We can even say that it seems to put them at the center, the public authorities presenting the number of sanctions as a sign of success, while the companies seem obsessed with their prospects, the two concerns ending in such a strange convergence that are the Convention Judiciaire d'Intérêt Public (non-prosecution agreement). The honest observer cannot help but be immediately uneasy. Indeed, it can only raise the definition of the sanction as a "constraint" triggered Ex Post, at the very heart of a Compliance Law which is presented as a set of Ex Ante mechanisms. Based on this contradiction in terms, should we give up the association and think that it would be wrong against the spirit to think of the sanction as an incentive? It is undoubtedly in this connection that one perceives most clearly the clash of two cultures, which do not communicate, while technically they apply to the same situations. Indeed, because Compliance was designed by Finance, everything is a tool for it. Therefore, the tendency to think of the sanction only as an incentive is very strong in Compliance Law, manifests itself continuously and will not stop (I). But whatever the reasons for conceiving it this way, the principles of the rule of law cannot disappear and if we do not want them to be erased, then they must be articulated (II). This is an essential game (II). This is why we can literally say that Compliance has set Criminal Law on fire by its conception, logical but closed in on itself, of sanctions as simple incentives. In order for Law to remain, however, we must hold a very firm definition of Compliance Law centered on its Monumental Goal, which is the protection of the person. -

► Full Reference: M.-A. Frison-Roche, "Décrire, concevoir et corréler les outils de la Compliance, pour en faire un usage adéquat" ("Describing, conceiving and correlating Compliance Tools, in order to use them adequately"), in M.-A. Frison-Roche (ed.), Les outils de la Compliance, coll. Régulations & Compliance, Journal of Regulation & Compliance (JoRC) and Dalloz, 2021, pp. 3-24. - 📝read the article (in French) - 📕read a general presentation of the book, Les outils de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The article is the general introduction to the book on Compliance tools. In its first part it develops the overall problematic. In its second part, it presents each of the contributions, placed in the overall construction of the work. -

► Full Reference: E. Kleiman, "The objectives of compliance confronted with the actors of arbitration", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, coll. "Compliance & Regulation", to be published.  - 📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published - ► Summary of the article (done by the Author): International arbitration, which remains the preferred method for the resolution of disputes arising from international commercial relations, has been overtaken by compliance, the manifestations of which are everywhere: arbitral institutions, arbitrators and courts exercising curial supervision of the international regularity of awards are regularly called upon to take into account rules of compliance. Compliance has undeniably got a hold on the arbitration community.  Being operators in an unregulated activity, arbitral institutions and arbitrators must generate trust; their ability to effectively self-regulate is a prerequisite for the success of arbitration and requires transparency and exemplarity.  This self-imposed compliance is nowadays consubstantial to arbitration and is illustrated in such classic fields as prevention of conflicts of interest and control of arbitrators' availability, but also in the more recent domains of parity and diversity as well as reduction of the carbon footprint.  Moreover, compliance has caught up with the ex post control of the international regularity of arbitral awards in matters involving allegations of corruption and money laundering.  There is room for debate, particularly in France, because of the porosity of the boundaries between the methods that are specific to those mandatory rules of compliance that intend to prevent the most serious offences, and the methods that are specific to the establishment of the constituent elements of such crimes before criminal courts.  This is an important issue, especially as the increasingly imperative nature of climate change and human rights regulations will extend the scope of these overlaps between compliance methods and the control of arbitral awards. Arbitration is also taking over compliance.  Arbitrators are called upon to rule on controversies arising from economic activities that are related to compliance: contracts relating to the implementation of preventive measures in the fields of anti-corruption, anti-money laundering and human rights as well as transactions relating to the reduction of the carbon footprint and climate change, etc.  Moreover, compliance is also an arbitrable matter and arbitrators must apply or take into consideration the observance or disregard of rules of compliance when adjudicating commercial or investment disputes. - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: J.-B. Racine, "Compliance and arbitration. An attempt at problematisation", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, Journal of Regulation & Compliance (JoRC) and Bruylant, coll. "Compliance & Regulation", to be published.  - 📘read a general presentation of the book, Compliance Jurisdictionalisation, in which this article is published - ► The summary below describes an article that follows an intervention in the scientific manifestation Compliance et Arbitrage, 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: Under the consideration of the "Compliance Jurisdictionalisation", 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. - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: E. Silva-Romero and R. Legru, "Quelle place pour la Compliance dans l'arbitrage d'investissement ?" ("What place for Compliance in investment arbitration?"), in M.-A. Frison-Roche (dir.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 281-293.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► The summary below describes an article that follows an intervention in the scientific manifestation Compliance et Arbitrage, 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 Journal of Regulation & Compliance): The authors emphasize the new and growing place of Compliance in International Arbitration, particularly in the requirement of respect for ethical values, since arbitrators can implement Ethics, sometimes lacking in international trade, or even must put their power only at the service of investors who respect the Rule of Law. Thus, Compliance is deployed through the classic control by the arbitrators of the legality of the investment, which applies both to the establishment of the treaty itself and to the investor. In a more recent way, the arbitrator can control about an investment project a sort of "social license to operate" of the investor, concept related to the social responsibility of the companies, appeared for the protection of the peoples indigenous. Moreover, Compliance can justify a substantial assessment by the arbitrator of the effective respect of the human rights and the environment protection via an investment treaty, the State party remaining able to act for the effectiveness of these concerns. -

► Full Reference: F.-X. Train, "Arbitrage et procédures parallèles exercées au titre de la compliance" ("Arbitration and parallel proceedings exercised in Compliance Procedure"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 355-368.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► The summary below describes the article that follows an intervention in the scientific manifestation Compliance et Arbitrage, 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 the Chapter III, devoted to: Compliance et Arbitrage international. - ► Summary of the article (done by the Journal of Regulation & Compliance): Firstly, the article insists on the principle of the autonomy of the international arbitration procedure, in relation to which parallel procedures remain watertight, whether they are criminal or done under Compliance Law. In the arbitral proceedings taking place independently, the arbitrators before whom the facts also referred to in these parallel proceedings, in particular the facts of corruption, are alleged before them as facts through their unlawful nature: it is at this title that they can and must apprehend them, using the standard of proof which is the bundle of clues. Secondly, the article highlights the limits of the autonomy of international arbitration. These may be de facto limits because in the search for evidence by arbitrators, red flags are often insufficiently consistent evidence to establish a sentence, especially since this sentence may be subject to control by the judge of its conformity to international public order, the annulment by the judge being able to be based on external elements, even after the arbitration procedure. It may then be wise for the arbitrators, who are not forced to do so, to suspend their proceedings to wait the results of the parallel proceedings initiated under Compliance Law, so that the procedures and their results could be harmonious. -

Full reference: Lagarde, P., Preface of Le tournant global en droit international privé, Muir-Watt, H., Biziková, L., Brandão de Oliveira, A., Fernández Arroyo, D. P., Ma, M. (ed.), Editions Pedone, 2020, pp. 9-14 Read Paul Lagarde's preface (in French)

Without any request, on his or her newsfeed, those who surfs on the social network built by Facebook, has found on 23 of March 2020, in the morning, the following message : « X (prénom de l'internaute), agissez maintenant pour ralentir la propagation du coronavirus (COVID-19) Retrouvez les actualités des autorités sanitaires et institutions publiques, des conseils pour ralentir la propagation du coronavirus et des ressources pour vous et vos proches dans le Centre d’information sur le coronavirus (COVID-19)" ("X (user's name), act now to slow down the spread of the Coronavirus (COVID-19). Find the health authorities and public institutions' news, advices to slow down the spread of the Coronavirus for you and your entourage in the Information Center about Coronavirus (COVID-19) »). This corresponds to the more general declaration done the same day by Kang-Xing Jin, director of Health at Facebook, who declares : "In response to the coronavirus outbreak, Facebook is supporting the global public health community’s work to keep people safe and informed. Since the World Health Organization declared the coronavirus a public health emergency in January, we’ve taken steps to make sure everyone has access to accurate information, stop misinformation and harmful content, and support global health experts, local governments, businesses and communities.". Thanks, Facebook to indicate how to do ; by the way, thanks to having invited me to do it. By the way, is it really an « invitation » ? Since the expression is « act now ». Just miss the exclamation point, and the pointed finger of Uncle Sam for « war effort ». If in Law, we can consider « invitation », it would be not to the "invitation" that in the past Bank of France did to shareholders banks to refinance a bank which risks to be soon into difficulties that we could consider, invitation from which the invited cannot really escape. No, obviously no, it is just the same message that you and me can write on our Facebook pages to tell similar things about the same purpose ! But, Facebook would be, like you and me, editor of contents ? Questions and difficulties which encourage to proceed to the legal analysis to know under which title Facebook posted such a message. The first hypothesis is that this firm has acted spontaneously, following its « Corporate Social Responsibility » (I) If it is the right qualification, with regards to the content of the message, legal consequences are important because this firm, without generalizing to others, by the expression of its care of common good, shows, by transitivity, that it is an editor. The second hypothesis starts from the observation that Facebook is a « crucial digital operator ». In this perspective, the firm is constraint to Compliance Law (II). It is the reason why, it is constraint by specific obligations, that excludes the spontaneous message emission qualification. If it is the right qualification, with regards to the content of the message, legal consequences are also important and of a totally different nature. Indeed, the qualification leads to develop the relation between the obligation to fight against fake news and malicious websites towards those of redirecting towards public websites, benefiting for the operator of a reliability presumption. Read the developments below.

The Finance Bill has proposed to the Parliament to vote an article 57 whose title is: Possibilité pour les administrations fiscales et douanières de collecter et exploiter les données rendues publiques sur les sites internet des réseaux sociaux et des opérateurs de plateformes (translation: Possibility for the tax and customs administrations to collect and exploit the data made public on the websites of social networks and platform operators). Its content is as is in the text voted on in the National Assembly as follows: "(1) I. – On an experimental basis and for a period of three years, for the purposes of investigating the offenses mentioned in b and c of 1 of article 1728, in articles 1729, 1791, 1791 ter, in 3 °, 8 ° and 10 ° of article 1810 of the general tax code, as well as articles 411, 412, 414, 414-2 and 415 of the customs code, the tax administration and the customs administration and indirect rights may, each as far as it is concerned, collect and exploit by means of computerized and automated processing using no facial recognition system, freely accessible content published on the internet by the users of the online platform operators mentioned in 2 ° of I of article L. 111-7 of the consumer code. (2) The processing operations mentioned in the first paragraph are carried out by agents specially authorized for this purpose by the tax and customs authorities.   (3) When they are likely to contribute to the detection of the offenses mentioned in the first paragraph, the data collected are kept for a maximum period of one year from their collection and are destroyed at the end of this period. However, when used within the framework of criminal, tax or customs proceedings, this data may be kept until the end of the proceedings. (4) The other data are destroyed within a maximum period of thirty days from their collection. (5) The right of access to the information collected is exercised with the assignment service of the agents authorized to carry out the processing mentioned in the second paragraph under the conditions provided for by article 42 of law n ° 78-17 of January 6, 1978 relating to data processing, the files and freedoms. (6) The right to object, provided for in article 38 of the same law, does not apply to the processing operations mentioned in the second paragraph. (7) The terms of application of this I are set by decree of the Council of State. (8) II. – The experiment provided for in I is the subject of an evaluation, the results of which are forwarded to Parliament as well as to the National Commission for Data Protection at the latest six months before its end. "   This initiative provoked many comments, rather reserved, even after the explanations given by the Minister of Budget to the National Assembly. What to think of it legally? Because the situation is quite simple, that is why it is difficult: on the one hand, the State will collect personal information without the authorization of the persons concerned, which is contrary to the very object of the law of 1978 , which results in full disapproval; on the other hand, the administration obtains the information to prosecute tax and customs offenses, which materializes the general interest itself. So what about it? Read below.