Articles in The Journal of Regulation & Compliance « JoRC »

► Full Reference: A. Bruneau, "L'entreprise juge d'elle-même : la fonction compliance dans la banque" ("The company judge of itself: the compliance function inside the bank"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 115-131.  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published     - ► Summary of the article (done by the author): First of all, it should be remembered that the compliance function was born within finance, and that by being structured, it has evolved to support the transition from regulatory law to compliance law. Through these changes, compliance has gone from an ex-post controlling function to an ex-ante binding function. The LIBOR crisis imperfectly illustrates the primacy of this transition. The evolution of this role is illustrated by concrete examples Firstly, the management of reputational risk is a fundamental part of the company as prosecutor and judge of itself. Reputational risk is a significant element for a financial institution, because it can have negative consequences on its capitalization, or even culminate in a systemic crisis. Avoiding a large-scale financial crisis is also part of the monumental goals of compliance. In order to avoid complex and inopportune scenarios, compliance law intervenes as early as possible and identifies issues that may impact reputation. The regulations require the implementation of certain ex ante mechanisms. The French law known as "Sapin 2" requires the implementation of tools that concern all companies (and not just banks). Indeed, beyond the risk of reputation, it is essential to consider the risk of corruption. Consideration of reputational risk may justify refusing to execute certain transactions. From this perspective, compliance must assess the potential consequences of entering into a relationship with a new client upstream, sometimes to decline the provision of services. The compliance function therefore unilaterally judges the relationship with a view to managing the company reputational risk. Secondly, the internal sanction mechanism established by compliance law is also discussed in this article, in particular the internal sanctions adopted by compliance in a financial institution. Compliance can act as a prosecutor via management committees set up within the business lines. In addition, compliance can determine and apply sanctions against employees. In this way, there is a dual role of prosecutor and judge for the compliance function within the framework of an extraordinary mechanism of ordinary law. Finally, the analysis deals with the case of the "judge-judged": following a decision by the bank, the regulator may take an even stricter position by believing that the bank is applying its guidelines incorrectly. Thus, the compliance law, which takes hold within the banking enterprise, finds itself under the judgment of its own regulator. The company finds itself judged and comes to be a prosecutor and judge of itself, but also of its clients. -

► Full reference: M.-A. Frison-Roche, "Ajuster par la nature des choses le Droit processuel au Droit de la Compliance" ("Adjusting by the nature of things General Procedural Law to Compliance Law"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 251-262.  - 📝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, La juridictionnalisation de la Compliance, in which this article is published - ► The principal elements of this articles had been presented during the scientific manifestation held on September 23, 2021, at Dauphine University in Paris, coorganised by the Journal of Regulation & Compliance (JoRC) and the Institute Droit Dauphine.  In the book this article is placed in the chapter II about the General Procedural Law in the Compliance Law.   - ► Summary of the article (done by the Journal of Regulation & Compliance): Procedural law is an invention, essentially due to professor Motulsky, going well beyond the gain that one always has in comparing types of procedures with each other. As he asserted, there is Natural Law in General Procedural Law, in that as soon as there is the Rule of Law Principle there cannot be, whatever the "procedure", even the "process" such and such way of doing things: for example, to decide, to seize the one who decides, to listen before deciding, to contest the one who has decided. General Procedural Law therefore depends on the nature of things. However, Compliance Law organizes things in a new way. Therefore, both the simple and iron principles of General Procedural Law creep in where we do not expect them at first sight, because there is no judge, this character around whom ordinary procedures fit together. The principles of General Procedural Law are essential in companies. Even if the regulations do not breathe a word about it, it is up to the Judges, in particular the Supreme Courts, to recognize this nature of things because on this effect of nature that  General Procedural Law is built: when compliance mechanisms oblige companies to strike, General Procedural law must oblige, even in the silence of the texts, to arm those who can be hit, even stand up against devices that would set aside too much these defenses that are easily considered contrary to efficiency (I). But because it is a question of making room for this nature of the things of which the Rule of Law Principle entrusts the custody to the Judge and the Lawyer, the General Procedural Law must also adjust itself to what the extraordinary new branch of Law Compliance Law is. Indeed, Compliance Law is extraordinary in that it expresses the political pretention to act now so that the future will not be catastrophic, by detecting and preventing the realization of systemic risks, or even that it is better, by building effective equality or real concern for others. Because it is the Monumental Goals that defines this new branch of Law, a disputed systemic issue, possibly disputed by several parties before a judge, the procedural principles used by the court must be broadened considerably: they must then include civil society and the future (II). General Procedural Law thus naturally acquires an even more place than in the classic branches of Law since on the one hand it imposes itself outside of trials, particularly in companies and on the other before the courts it involves people who had hardly any place to speak and thinks themselves, especially the systems entering the "causes" of Compliance now debated before the Judge. -

► Full Reference: S. Scemla and D. Paillot, "La difficile appréhension des droits de la défense par les autorités de contrôle en matière de compliance" ("The supervisory authorities face difficulties to apprehend the rights of the defence in Compliance matters"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 241-249. - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the authors): Since 2016, French companies subject to the provisions of the so-called “Sapin 2” Law must implement eight stringent anti-corruption measures, such as a risk mapping, a whistleblowing procedure or a third-party due diligence procedure. To ensure their compliance with these obligations, the Sapin 2 law created the Agence française anticorruption – AFA (French Anti-Corruption Agency), which had been assigned three missions: firstly, to help any person prevent and detect corruption; secondly, to control the quality and effectiveness of the anti-corruption programs deployed by the companies; and thirdly, to sanction any breaches, through its Sanctions Committee. As pointed out by the French Conseil d’État, the powers devolved to the administrations have multiplied and became stratified. While the Conseil d'État suggests to improve both the conduct and the effectiveness of administrative controls by harmonising their practices and simplifying their prerogatives, it is urgent to remedy the numerous procedural failures that undermine the rights of defence. In fact, the AFA exercises various powers when undertaking its controls. Some of these powers are not provided for by the Law, and most of them infringe fundamental rights and freedoms among which the adversarial principle and the freedom not to self-incriminate. For instance, the AFA does not necessarily draft minutes of the interviews it conducts, thus depriving the interviewee of the possibility to challenge the statements reported by the AFA to the Sanctions Committee. From a more structural point of view, the scope of the AFA's mission is extremely broad. The Law allows the AFA to request the communication of "any professional document or any useful information", without defining the notion of usefulness. Also, the AFA considers that the entity cannot benefit from the legal privilege that would cover their documents, and considers that an entity who voluntarily hands over a document, without expressing any reserves, waives its right to the benefit of its legal privilege. Apart from the severe consequences that could arise if another proceedings was to be initiated by a foreign authority, the concept of "voluntary handover" does not faithfully reflect the reality. Indeed, the controlled entities only cooperate under the threat of being prosecuted on the basis of an obstruction to the control, which compels them to communicate documents even when facing the risk of contributing to their own incrimination. These many procedural deficiencies encountered during AFA controls must therefore be reformed, as recommended by the Conseil d’État, so as to require the authorities to take into account the rights of the defence. -

► Full Reference: E. Wennerström, "Quelques réflexions sur la Compliance et la Cour européenne des droits de l'homme" ("Some Reflections on Compliance and the European Court of Human Rights"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 479-489. - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The development of the European Court of Human Rights case law, contributing to European integration, has incorporated the substantial concept of ​​"compliance" which goes beyond the idea of ​​legality with respect to which companies remain passive, and promotes legal orders as systems in interaction with another.  The author develops the spirit and scope of Protocol 15 by which both the principle of subsidiarity and the margins of appreciation the signatory States are organized, mechanisms governed by the principle of proportionality. Subsidiarity means that the States are in the best position to design the most adequate application of the Convention, the close links between the States allowing its effective application. In addition, the new opinion procedure which allows a national court to have during a case the non-binding opinion of the ECHR ensures better compliance with the objectives of the Convention. The case-law of the Court takes up this substantial requirement through its doctrine, in particular identified in the Bosphorus case, by stressing that the accession of a State to the European Union presumes its compliance when implementing EU law with the obligations arising from the ECHR, even if this presumption can be refuted if the protection is manifestly lacking, which was admitted in several cases, in particular concerning the right to an impartial tribunal in matters of economic regulation. The different legal orders are thus articulated.  The author concludes that the European Court of Human Rights, like the Court of Justice of the Union, contributes to the construction of Compliance Law in Europe, from an Ex Ante perspective favoring opinions rather than Ex Post sanctions and creating, in particular through the Bosphorus doctrine, elements of security and confidence for European integration around common values. -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Conforter le rôle du Juge et de l'Avocat pour imposer la Compliance comme caractéristique de l'État de Droit" ("Reinforce the Judge and the Attorney to impose Compliance Law as a characteristic of the Rule of Law"), in M.-A. Frison-Roche (dir.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 29-55.  - ► This article is the introduction of the book.   - 📝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, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): One can understand that the compliance mechanisms are presented with hostility because they seem designed to keep the judge away, whereas there is no Rule of Law without a judge. Solid arguments present compliance techniques as converging towards the uselessness of the judge (I). Certainly, we come across magistrates, and of all kinds, and powerful ones, but that would be a sign of imperfection: its ex-ante logic has been deployed in all its effectiveness, the judge would no longer be required… And the lawyer would disappear so with him… This perspective of a world without a judge, without a lawyer and ultimately without Law, where algorithms could organize through multiple processes in Ex Ante the obedience of everyone, the "conformity" of all our behaviors with all the regulatory mass that is applicable to us, supposes that this new branch of Law would be defined as the concentration of processes which gives full effectiveness to all the rules, regardless of their content. But supposing that this engineer's dream is even achievable, it is not possible in a democratic and free world to do without judges and lawyers. Therefore, it is imperative to recognize their contributions to Compliance Law, related and invaluable contributions (II). First of all, because a pure Ex Ante never existed and even in the time of the Chinese legists, people were still needed to interpret the regulations because a legal order must always be interpreted Ex Post by who must in any case answer the questions posed by the subjects of law, as soon as the political system admits to attributing to them the right to make claims before the Judge. Secondly the Attorney, whose office, although articulated with the Judge's office, is distinct from the latter, both more restricted and broader since he must appear in all cases where the judicial figure puts himself in square, outside the courts. However, Compliance Law has multiplied this since not only, extending Regulatory Law, it entrusts numerous powers to the administrative authorities, but it also transforms companies into judges, in respect of which the attorneys must deal with. Even more so, Compliance Law only takes its sense from its Monumental Goals. It is in this that this branch of the Law preserves the freedom of human beings, in the digital space where the techniques of compliance protect them from the power of companies by the way that the Compliance Law forces these companies to use their power to protect people. However, firstly, it is the Judges who, in their diversity, impose as a reference the protection of human beings, either as a limit to the power of compliance tools or as their very purpose. Secondly, the Attorney, again distinguishing himself from the Judge, if necessary, reminds us that all the parties whose interests are involved must be taken into consideration. In an ever more flexible, soft, and dialogical Law, everyone presenting himself as the "advocate" of such and such a monumental goal: the Attorney is legitimate to be the first to occupy this place. -

► Full Reference: B. Silliman, "Secret professionnel et coopération : les leçons de procédure tirées de l’expérience américaine pour une application universelle" ("Privilege and cooperation, procedural lessons learned from the U.S for global application"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 231-234.   - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► English summary of the article (done by the Journal of Regulation & Compliance): The French legal system is evolving, organizing interaction between lawyers with regulators and prosecutors, especially in investigations about corruption or corporate misconduct, adopting U.S. negotiated resolutions such as the Convention judiciaire d'intérêt public, which encourages "collaboration" between them.  The author describes the evolution of the U.S. DOJ doctrine and askes French to be inspired by the U.S. procedural experience, U.S. where this mechanism came from. Indeed, the DOJ released memoranda about what the "collaboration" means. At the end (2006 Memorandum), the DOJ has considered that the legal privilege must remain intact when the information is not only factual to maintain trust between prosecutors, regulators, and lawyers. French authorities do not follow this way. The author regrets it and thinks they should adopt the same reasoning as the American authority on the secret professionnel of the avocat, especially when he intervenes in the company internal investigation. - 🦉This article is available in full text for those registered for Professor Marie-Anne Frison-Roche's courses

► Full Reference: F. Raynaud, "Le juge administratif et la compliance" ("The Administrative Judge and the Compliance Law"), ​in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 473-478. - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done par the Journal of Regulation & Compliance): The author studies the close relationship between Compliance Law and Soft Law, such as the Administrative Judge has made room for it in his case law. This was particularly the case with the judgments of the Conseil d'État (French Council of State) in 2016, relating to legal topic of Regulatory Law, which is extended by Compliance Law. This concern to internalize in companies what the public authorities want had also been taken into consideration by the Conseil d'État by small touches from 2010 and has continually expanded. This is particularly the case when the document issued is "de nature à produire des effets notables, notamment de nature économique, ou ont pour objet d'influer de manière significative sur les comportements des personnes auxquelles ils s'adressent" ("likely to produce significant effects, in particular of an economic nature, or are intended to significantly influence the behavior of the people to whom they are addressed"), which is related to compliance issues directly. This new concept adopted by the Conseil d'État has led it to review and control numerous "positions", "recommendations", "guidelines", etc., adopted by multiple authorities, to protect the persons on whom these acts have a "notable effect", the Conseil sometimes not hesitating to censor the issuing body. In Banking compliance, the Soft Law, more specifically issued by the European Banking Authority, gave the Administrative Judge the opportunity to adjust his control with that exercised by the Court of Justice seized by a preliminary question. Thus, "Par sa jurisprudence sur la justiciabilité des actes de droit de souple, le Conseil d’État s’affirme donc comme un acteur de la compliance en permettant aux entités visées par ces actes et soumises à leur égard à une obligation de compliance de saisir le juge administratif d’un recours en annulation contre ces actes, afin qu’ils puissent être soumis à un contrôle de légalité et, le cas échéant, annulés" ("Through its case law on the justiciability of Soft Law acts, the Conseil d'État therefore asserts itself as a compliance actor by allowing the entities covered by these acts and subject to a compliance obligation in their regard to seize the administrative judge of an action for annulment against these acts, so that these acts can be subjected to a control of legality and, if necessary, annulled"). But must the administrative judge be seized. It can be the case in new fields, for example in climate matters, as he we in the Grande Synthe case. By its decision, "Le Conseil d’État va ainsi au bout de la logique du dispositif mis en place par le législateur et par le pouvoir réglementaire pour mettre en œuvre les accords de Paris, lesquels reposent sur une forme de compliance à l’échelle mondiale, chaque Etat signataire s’engageant, en quelque sorte, à faire le nécessaire pour atteindre un objectif commun à une date donnée, à charge pour chacun de s’organiser pour l’atteindre. En l’absence d’un juge international capable de vérifier le respect de ces engagements, le juge national apparait le plus naturel pour accepter de vérifier, lorsqu’il est saisi d’un litige en ce sens, que ces engagements ne restent pas lettre morte. " ("The Conseil d'État thus goes to the end of the logic of the system put in place by the legislator and by the administrative power to implement the Paris Agreements, which are based on a form of compliance at the worldwide scale, each signatory State undertaking, in a way, to do what is necessary to achieve a common goal by a given date, it being up to each to organize itself to achieve it. to verify compliance with these commitments, the national judge seems the most natural to accept to verify, when seized of a dispute in this sense, that these commitments do not remain a dead letter".). Through this general movement,  "La compliance est devenue un nouveau mode de régulation d’un nombre croissant d’activités. " ("Compliance has become a new way of regulating a growing number of activities."). -

► Full Reference: M.-A. Frison-Roche, "Le juge, l'obligation de compliance et l'entreprise. Le système probatoire de la Compliance" ("The judge, the compliance obligation, and the company. The Compliance probationary system"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p 409-442. - 📝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, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): the article aims to identify the link that must be established between the company in its relationship with the compliance obligations it assumes and the judges to whom it is accountable in this respect: this link is established by evidence. The evidentiary system of proof has yet to be constructed, and it is the purpose of this long study to lay the groundwork.  To this end, the article begins with a description of what is designated here as the "probatory square" in a "probatory system" that is superimposed on the system of rules of substantive legal system. This is all the more important because Compliance seems to be in frontal collision in its very principles with the general principles of the evidentiary system, in particular because it seems that the company would have to prove the existence of the Law or that it would have to bear in a definitive way the burden of proving the absence of violation, which seems to be contrary not only to the presumption of innocence but also to the principle of the freedom of action and of undertaking. In order to re-articulate Compliance Law, the obligations of compliance which legitimately weigh on the company, it is necessary to return to the probatory system specific to Compliance, so that it remains within the Rule of Law. This presupposes the adoption of a substantial definition of Compliance, which is not only compliance with the rules, which is only a minimal dimension, but implies that Compliance Law should be defined by the Monumental Goals on which the public authorities and the companies are in substantial alliance. The evidentiary system of principle makes play between its four summits that are the burden of proof, the objects of proof this evidentiary square of principle, between the burden of proof, the means of proof and their admissibility. Compliance Law does not fall outside this evidential square, thus marking its full membership of the Rule of Law In order to lay the foundations of the evidential system specific to Compliance Law, the first part of the article identifies the objects of proof which are specific to it, by distinguishing between the structural devices, on the one hand, and the expected behaviours, on the other. The first involves proving that the structures required to achieve the Monumental Goals of Compliance have actually been put in place. The object of proof is then the effectiveness of this implementation, which presents the effectiveness of the system. As far as behavioral obligations are concerned, the object of proof is the efforts made by the company to obtain them, the principle of proportionality governing the establishment of this proof, while the systemic efficiency of the whole reinforces the evidential system. However, the wisdom of evidence lies in the fact that, even though the principle remains that of freedom of evidence, the company must establish the effectiveness, efficiency, and effectiveness of the whole, independently of the burden of proof. The second part of the article concerns those who bear the burden of proof in Compliance Law. The latter places the burden of proof on the company in principle, in view of its legal obligations. This burden comes from the legal origin of the obligations, which blocks the "round of the burden of proof". But in the interference of the different vertices of the evidentiary square, the question becomes more delicate when it comes to determining the contours of the compliance obligations that the company must perform. Moreover, the burden of proof may itself be the subject of proof, just as the company's performance of its legal obligations may also be the subject of contracts, which brings us back to the evidentiary system ordinarily applicable to contractual obligations. The situation is different when it comes to a "compliance contract" or when it comes to one or more compliance stipulations, concepts that are still not very well developed in Contract Law.  Furthermore, as all branches of Law belong to a legal system governed by the Rule of Law, other branches of law interfere and modify the methods and solutions of proof. This is the case when the fact, which is the object of proof, can give rise to a sanction, the Law of repression imposing its own solutions in the matter of the burden of proof.  In the third part of the article, the relevant means of proof in Compliance Law are examined, used in that Compliance Law is above all a branch of Law whose object is on the one hand information and on the other hand the Future. Open questions remain, such as whether companies could be forced by the Judge to build technologies to invent new means of proof. To show that they are indeed achieving the Monumental Goals they are charged with.  In the fourth part, the vital character of the pre-constitution of evidence is shown, which is the reflection of the Ex-Ante nature of Compliance Law: evidence must be pre-constituted to avoid the very prospect of having to use it, by finding all the means to establish the effectiveness, efficiency and even the effectiveness of the various Compliance Tools.  If companies do all this methodically, the Compliance evidence system will be established, in harmony with the general evidence system, Compliance Law and the Rule of Law. - 🌐 follow Marie-Anne Frison-Roche sur LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law 

► Full Reference: F. Ancel, "Le principe processuel de compliance, un nouveau principe directeur du procès ?" (The procedural principle of compliance, a new trial leading principle?), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, pp. 225-230.  - 📕read a general presentation of the book, La juridictionnalisation de la compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): Through this article, the author formulates a proposal: elevating the principle of compliance to the rank of leading principle of the trial. To support this, the author firstly emphasizes the convergence of the aims of compliance and the purpose of the trial. Indeed, emphasizing that Compliance Law does not oust either the State or the judge, as soon as compliance means that the person must keep their commitments and that the trial is also based on this principle that the parties must conform to the principles and to their own "speech", compliance thus becomes a trial leading principle. In a second part of the article, the author illustrates his point in a very concrete way. First, the protocols of procedure which are drawn up by the courts and the bars are commitments which should justify a form of constraint which, if it should not have the same form and nature as that of the law, must all the same even have consequences when a party fails to do so. Secondly, relying on French case law which sanctions a party which had accepted the principle of an arbitration and then systematically hinders its implementation, the author suggests that under the principle of compliance can be grouped the notions for the instant scattered of loyalty, consistency (estoppel) and efficiency. Thus, this "open practice" echoing the "open way" of a procedural principle of compliance brings out this one. -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Lignes de force de l'ouvrage La juridictionnalisation de la Compliance" ("Main lines of the book La juridictionnalisation de la compliance"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 1-28.  - ► This article constitutes the first part of the Introduction of the book; its access is free⤵️  - 📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): This free access article ⤵️explains firstly the general purpose of the book and secondly how the book is structured in 4 parts. Then, thirdly and following the table of contents, this article takes up in a few lines each of the contributions. This is how the "main lines" of the book La juridictionnalisation de la compliance ("The Juridictionnalisation of Compliance") become even clearer - 🔓read this article in full text (in French) ⤵️

► Full Reference: F. Ancel, "Compliance Law, a new guiding principle for the Trial?", 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 Journal of Regulation & Compliance): Through this article, the author formulates a proposal: elevating the principle of compliance to the rank of leading principle of the trial. To support this, the author firstly emphasizes the convergence of the aims of compliance and the purpose of the trial. Indeed, emphasizing that Compliance Law does not oust either the State or the judge, as soon as compliance means that the person must keep their commitments and that the trial is also based on this principle that the parties must conform to the principles and to their own "speech", compliance thus becomes a trial leading principle. In a second part of the article, the author illustrates his point in a very concrete way. First, the protocols of procedure which are drawn up by the courts and the bars are commitments which should justify a form of constraint which, if it should not have the same form and nature as that of the law, must all the same even have consequences when a party fails to do so. Secondly, relying on French case law which sanctions a party which had accepted the principle of an arbitration and then systematically hinders its implementation, the author suggests that under the principle of compliance can be grouped the notions for the instant scattered of loyalty, consistency (estoppel) and efficiency. Thus, this "open practice" echoing the "open way" of a procedural principle of compliance brings out this one. - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche's courses -

► Full Reference: F.-X. Train, "Arbitration and parallel proceedings exercised in Compliance Procedure", in M.-A. Frison-Roche (ed.), Compliance Jurisdictionalisation, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be 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. - ► Article Summary:  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. - 📘 read the general presentation of the book, Compliance Jurisdictionalisation, in which this article is published -

🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law  - ► Full Reference: M.-A. Frison-Roche, "Place et rôle des entreprises dans la création et l'effectivité du Droit de la Compliance en cas de crise" ("Place and rôle of Companies in the Creation and Effectiveness of Compliance Law in Crisis"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 339-352. - 📝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 Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): This article has a very topic: the place of private Companies, regarding the chapter's issue: "the ordeal of a crisis". The crisis constitutes a "test" it brings evidence. Let us take it as such. Indeed, during the health crisis, Companies have helped the Public Authorities to resist the shock, to endure and to get out of the Crisis. They did so by force, but they also took initiatives in this direction. From this too, we must learn lessons for the next crisis that will come. It is possible that this has already started in the form of another global and systemic crisis: the environmental crisis. In view of what we have been able to observe and the evolution of the Law, of the standards adopted by the Authorities but also by the new case law, what can we expect from Companies in the face of this next Crisis, willingly and strength? -

► Full reference: André, Ch., Souveraineté étatique, souveraineté populaire : quel contrat social pour la compliance ? (" State sovereignty, popular sovereignty: what social contract for compliance? "), in Frison-Roche, M.-A. (ed.), Les buts monumentaux de la Compliance, series "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, to be published. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Author): The “Compliance Monumental Goals” serve as vectors for “common” social values: the proposal is simple, but it seems both familiar and strange to a criminal lawyer. Familiar, because even if compliance transcends the borders of academic disciplines, it shares with criminal law a logic sanctioning attacks on social interests. Strange, because Monumental Goals convey social values by sweeping away all the learned discussions that have been going on since Beccaria about the foundations and axiological functions of punishment. Indeed, the social values promoted by Monumental Goals are “common” in every sense of the word. First, they are shared and internalized by the largest enterprises in the Western world, without the need for an international treaty on protected values. The question of sovereignty is overshadowed. Second, they are common in that they are commonplace, ordinary, approved of by most Western consumer-citizens: probity, equality, respect for the environment, who would not be in favour of respecting them? Hence it is in companies’ interest to communicate and diffuse, urbi and orbi, how they respect these Monumental Goals. The question of citizens’ consensus on values is sidestepped, as they are supposed to be derived from the obvious (even if the goals could be achieved by different means, or even contradict each other). Third, these values are common because they now enlist a multitude of communicants (the “compliance officer”, among others) who, more or less gracefully – the meticulous liturgy of compliance can put off some officiants and incite buffoonery – seek to spread the cult of these values at all levels of business. Since these values are respected, they are necessarily respectable: businesses become moralized by the multitude who respect them. Existence precedes essence, and the values conveyed contribute to the businesses’ raison d’être, beyond the pursuit of profit. The question of effectiveness vanishes, since these values are already there, regularly monitored, both internally and by public authorities. Sovereignty, citizenship, effectiveness: the logic of Compliance supplants the academic debates of criminal lawyers with practical solutions. Perhaps this is how the goals are “monumental”: vast, global, overwhelming. Compliance may not be the best of all worlds, but it is most certainly another world. -

► Full Reference: A.-V. Le Fur, "Intérêt et raison d’être de l’entreprise : quelle articulation avec les buts monumentaux de la compliance ?" ("Interest and “raison d’être” of the company: how do they fit with the Compliance Monumental Goals?"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, p. 55-67. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Author): Companies would have a soul. The legislator thinks so, since the French law called "loi Pacte"  of 22 May 2019 obliges managers to act in the Corporate Interest and allows companies to formulate themselves a « raison d'être ». Compliance Law does the same, relying on companies to save the world from corruption, slavery, terrorism and global warming, thus achieving Monumental goals. At first glance, the contours of Corporate Interest and « raison d’être » of the company are not far removed from the notion of Compliance Monumental Goals. This is not surprising, since the objective that presided over their introduction into the French Civil Code is the same as that underlying Compliance Law : to rethink the place of the company in the global Society, by affirming long-term values or concerns. This is a reason to use these corporate law concepts in the context of an X-ray of the concept of Monumental Goals. However, a comparative approach is disappointing. The divergences between corporate notions and compliance lead to the conclusion that company law is not intended to impose anything other than a corporate public order. Notions that are more philosophical than legal, Corporate Interest and « raison d'être » are assigned functions that limit their scope. The imperative nature of corporate rules, and this is a consequence of the above, cannot be compared with that of compliance: uncertain, it is also relative when compared with the "violence" of compliance rules. The impact of the notions of Interest and « raison d'être » remains thus mainly internal to the company. According to a second approach, it cannot be ruled out that Corporate Interest and « raison d'être » allow for a better understanding of higher and universal values by Company Law. Corporate Interest may incorporate Compliance Monumental Goals while the « raison d'être » may constitute a perspective for the realization of these goals. The stakes are high : when the interest of the company, as a legal person and autonomous economic agent, joins the Monumental Goals, the means of achieving the latter are multiplied by internalizing them in all companies, not just the largest ones. However, despite all good intentions, a company is only governable if the compass does not become an elusive and indecisive vane; in other words, if legal certainty is respected. This is why a legal ordering of the concepts is necessary, which ultimately leads to a suggestion of their domain, content and scope.  -

  - ► Full Reference: M.-A. Frison-Roche, "Définition du principe de proportionnalité et définition du Droit de la Compliance" ("Definition of the Proportionality principle and definition of Compliance Law"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 245-271. - 📝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 Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The use of Proportionality always limiting powers is only justified when it is about sanctions, but sanctions are only one tool among others in Compliance Law, intended moreover to have little place in this Ex Ante branch of Law. And returning to the very nature of Compliance Law, which relies on operators, private or public, because they are powerful, then using proportionality to limite powers is detrimental to Compliance Law.  However, nothing requires that. Compliance Law is not an exception that should be limited. On the contrary, it is a branch of Law which carries the greatest principles, aimed at protecting human beings and whose Normativity lies in its "Monumental Goals": detecting and preventing future major systemic crisis (financial, health and climate ones). However, literally the principle of Proportionality is: "no more powers than necessary, as many powers as necessary". The second part of the sentence is independent of the first: this must be used. Politics having fixed these Monumental Goals, the entity, in particular the company, must have, even tacitly, "all the necessary powers" to achieve them. For example, the power of vigilance, the power of audit, the power over third parties. Because they are necessary to fulfill the obligations that these "crucial operators" must perform as they are "in a position" to do so. So instead of limiting the powers, the Principe of Proportionality comes to support the powers, to legitimize them and to increase them, so that we have a chance that our future is not catastrophic, perhaps better. In this respect, Compliance Law, in its rich Definition, will itself have enriched the Principle of Proportionality. - 🌐follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐subscribe to the Newsletter MAFR Regulation, Compliance, Law

► Full Reference: B. Petit, "Les buts monumentaux du droit (européen) des relations de travail : un système mouvant aux équilibres à consolider" ("The Monumental Goals of (European) Labour Law: a changing system with balances to be consolidated"), in M.-A. Frison-Roche (ed), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 135-156. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Author): Labor Law has been built on the pursuit of "monumental goals", many of which are now enshrined in international, european and national standards (social justice, the right to work, gender equality, the fight against discrimination, the fight against harassment, health and hygiene, etc.). The first step will be to shed light on the organization and articulation of these monumental goals, as reflected in positive international and european labor law. We then realize that from a "cardinal monumental goal" – the guarantee of the dignity of the person at work – there are distinct categories of "secondary monumental goals", depending on whether they develop a concern relating to the quality of work, its economic and financial sustainability, or the guarantee at work of civil and political rights recognized upstream to every person. On this diversity of monumental goals, forces emanating from the concerned actors (companies, trade unions, and States) are exerted and promote certain goals rather than others; one vision of labor relationships rather than others. We observe that the different categories of "monumental goals" thus highlighted are driven by different rationalities, sometimes contradictory to each other, which requires the establishment of permanent balances, allowed by a serious reflection on the cardinal monumental goal of guaranteeing the dignity of the person at work. Unfortunately, in practice, this essential approach escapes the normative actors of labour relations law. The result is "conflicts" of monumental goals that manifest themselves in particular during social dialogue, at the time of collective bargaining and the functioning of employee representative bodies. It will therefore be necessary, in a second step, to question the way in which these conflicts can be arbitrated, bearing in mind that international and European social law is plural (ILO, Council of Europe, European Union) and that the coordination links between the legal systems concerned are fluid. -

 ► Full Reference: R. Bismuth, "Compliance et souveraineté : relations ambigües" ("Compliance and sovereignty: ambiguous relationships"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 439-452. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Author): At first glance, the notion of Sovereignty is difficult to combine with Compliance. Indeed, Sovereignty is part of Public International Law in a logic of essentially territorial distribution of competences, while Compliance has developed and disseminated in companies with tools and methods which largely ignore borders. A closer look reveals more fundamentally three types of ambiguous interactions between the two. Compliance can first of all be understood as a tool allowing States, by relying on companies, to circumvent the obstacles and limits posed by a Sovereignty conceived in territorial terms and therefore to extend it. Such an approach can nevertheless lead to friction or even conflicts between Compliance and Sovereignty, the norms conveyed by the first not necessarily being in line with those imposed by the second. This is particularly true when the Compliance "Monumental Goals" are not unilaterally defined or are not intended to be. Finally, by infusing companies with instruments and methods that are reminiscent of sovereign functions, compliance can also allow us to imagine an emerging movement tending to gradually establish Corporate Sovereignty beyond that of States. -

► Full Reference: B. Bär-Bouyssière, "Les obstacles pratiques à la place effective de la proportionnalité dans la compliance" ("Practical obstacles to the effective place of proportionality in Compliance"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 199-208. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): The article is based on the undisputed assertion that Proportionality is inherent in Compliance, in particular when this takes the form of a sanction, but the author compares this assertion with its practical implementation. The author notes that in all the compliance mechanisms, in particular in Competition Compliance, companies have difficulties in practice in satisfying with their obligations in Ex Ante because the standards are very heavy, expensive and difficult to understand, as they have difficulty. in Ex Post to obtain that the authorities do not make a disproportionate use of them, and to obtain that the courts effectively protect them from that. These practical difficulties are due above all to the diversity of the standards concerned, those who create them as well as those who interpret them having to do so without excess, about what it is very difficult to obtain control. In addition, the weight of the implementation of compliance standards is not correlated with the concrete and financial ability of diverses companies to do so and the design of standards does not always integrate this correlation. Faced with this, companies then tend to do more than is necessary, in order not to incur sanctions in the doubt, and moreover because the people in charge of the effectiveness of their compliance standards have in the mind not to engage their own responsibility, which encourages them to over-apply compliance obligations, when there should be a fair and strict relationship of necessity, that is to say this desired proportionality, this additional cost being a useless excess for all. Finally, a practical difficulty is due to the violence, in itself necessary, of the sanctions, in the face of which the companies seek in Ex Post to show the disproportionate nature, but do not have very sure means of proof. This is why it is often on the ground of rhetoric and of the conviction that enterprises are placed in practice, more than on that of the mathematical calculation of proportionality. -

► Full Reference: C. Peicuti et J. Beyssade, "La féminisation des postes à responsabilité dans les entreprises comme but de la compliance. Exemple du secteur bancaire" ("The feminization of responsibility positions in companies as a Compliance Goal. Example of the banking sector"), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, 109-124. - 📕read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► Summary of the article (done by the Journal of Regulation & Compliance): If the Compliance techniques are conceived as taking their meaning by their Goal, the latter being in particular the protection and the effective promotion of human beings, to be reinforced in the future thanks to Compliance Law tools, the example of the effective promotion of efficient equality between women and men in the banking sector to exercise responsible functions is clear. strongly feminized, the image of banking sector remains masculine and in fact too few women exercise positions of responsibility, although no text is opposed to it and all rights have been allocated for this. To move from this situation to a future where equality will be effective, it is therefore in terms of regulatory mechanisms that we should think of the necessary transformation and even more of "transition" so that one day a de facto equality will be established. and appears natural to all. The bank must then structurally integrate this Goal, which corresponds to the definition of Compliance. To do this, the banking company is part of a long-term voluntary Compliance process, relying in particular on human resources and on the public authorities of the European Banking Union which, by further implementing the concept of sustainable economy, facilitated this long-term action. In this transition, each action and result must be considered in relation to this sought-after goal of effective equality: each progress must be valued not so much in relation to the past but in relation to the future. This Ex Ante perspective justifies these self-binding Compliance techniques, such as plans, commitments, quotas, stakeholder implications, and more flexible techniques such as examples given by managers, internal training and joint affirmations with the public authorities, are all used by the company to achieve this Monumental Goal of effective equality between human beings. The banking sector is all the more exemplary for this because the banking authorities themselves deploy incentives in this direction, the definition of Compliance Law as an alliance between the Authorities and the Companies therefore corresponding to such an action clearly in progress, structurally in the BPCE group. -