►Full Reference: Journal of Regulation & Compliance (JoRC) and Institut de Recherche Juridique de la Sorbonne (André Tunc - IRJS) of Paris 1 Panthéon-Sorbonne University, La Vigilance, pointe avancée de l'Obligation de Compliance (Vigilance, advanced point of the Compliance Obligation), Paris 1 Panthéon-Sorbonne University, December 5, 2023, 12 place du Panthéon, salle 6.
To register for a physical presence: anouk.leguillou@mafr.fr (as places are limited, you will be asked to confirm 48 hours in advance). To register for an online presence, via Zoom: Click HERE
🧮 The event will take place at Paris 1 Panthéon-Sorbonne University, 12 place du Panthéon 75005, in Salle 6, on 5 December 2023.
____
► Présentation of the theme : The Vigilance Obligation is difficult to define because of the multiplicity of texts and cases in which it can be understood. This is particularly true of the Vigilance mechanism, which illustrates, and even emphasises, the Vigilance Obligation. Through international texts, French law and European texts that have been adopted or are in the process of being adopted, the constraints of vigilance, but also the structures and actions that companies have put in place and the actions that stakeholders have taken, Vigilance has highlighted aspects of the Compliance Obligation, and even modified it.
The revelatory effect thus produced and the movement thus unleashed, whose roots run deep and whose systemic effects are very significant, justify a greater focus on mechanisms that are interconnected, whereas they are sometimes perceived in silos, which makes it difficult to understand the whole picture. In the same way, because Vigilance is the advanced point of the Compliance Obligation, we can better distinguish and articulate what is sector-specific, in particular in banking and finance or in digital matters, and articulate them with what Vigilance has, like Compliance, of a more general nature. What's more, the intensity of Vigilance varies according to its ambitions and the position of the company subject to it, which is reflected in the variations in legal qualification, ranging from a duty to a criminally sanctioned obligation.
The different legal systems reflect these developments in their legislation, case law and the practice of companies and stakeholders in specific ways, because these different techniques express standards of behaviour and accountability, which are directly reflected in evidential requirements, concepts of responsibility and institutional translations through possible regulatory bodies.
As a result, the symposium is divided into three parts. After a general introduction on the systemic relationships between Vigilance and Compliance, the first part will focus on the variation in Vigilance Intensities, the advanced point of Compliance, the second part will look at the Tensions that Vigilance generates or exacerbates, and the third part will look at the Modalities that Vigilance uses in Compliance systems.
____
The proceedings of this colloquium will form the basis of one chapter in the books:
Through a decree of 31st of August 2020, the government created a national service, the "Pôle d'expertise de la régulation numérique" (digital regulation expertise pole). It has to furnish to State services a technical expertise in computer science, data science and algorithm processes in order to assist them in their role of control, investigation and study. The aim is to favor information sharing between researchers and State services in charge of regulating digital space.
As its acronym indicates, this pole of expertise aims to represents constance in a changing world. Moreover, more than being a national service, this organism must adopt a transversal dimension, its creation decree being signed by the Prime Minister, Minister of Economy, Minister of Culture and Minister of Digital Transition. The creation of such a pole shows the awareness of the government of the importance of technical competency in the regulation of digital space and of the necessity to centralize these expertises in one organ.
However, as the decree indicates, this pole of expertise could be consulted only by "State services", that excludes regulators which are independent from the State and which could put the pole in conflict of interest, and courts even if they are supposed to play a central role in the regulation of digital space and even if they are allowed to ask the advice of the regulator about some cases. But if regulators cannot size the pole, to whom does it benefit except the legislator and a few officials?
It would therefore have been better for this pole of expertise to be placed under the direction of regulatory and supervisory bodies, which would have enabled it to be able to be consulted both by regulators and by judges, both of whom are key players in digital regulation.
Asymmetry is a key concept of regulation. Indeed, a competitive market works well when operators are in symmetrical relationships, ie there is no structural obstacle which prevents an agent from increasing his power solely on his merits (" competition by merits "). If there is an asymmetry, for example because a sector is monopolistic and the legislator has just declared it open to competition, there is a temporary asymmetry between the installed companies, the incumbent operators and the willing companies to enter this new market, the "new entrants". Historical operators, such as in the telecommunications or energy sector, when they were opened to competition by European directives, transposed by national laws (in french Law in 1996 for telecommunications and gas, in 2000 for electricity), benefit (sometimes referred to as grandfather clause), in particular because they have all the clients or all the know-how or all the patents, and that, in fact, the competitors can not enter the market. It is then necessary to establish a regulator also a priori temporary itself to establish to forceps the competition, by an asymmetrical regulation.
Asymmetric regulation, particularly applied in Great Britain at the time of the liberalization of the aforementioned sectors, means that the regulator will systematically favor new entrants, for example by dispossessing the incumbents for their benefit to make them on the market. Today, in the telecommunications sector, competition, notably on mobiles, is established, but the regulator does not intend to leave its place to disappear and today supports "symmetric regulation" .... Instead, it acts as a specialized competition authority.
Asymmetry may not be temporary but definitive, when inequality between operators, regardless of merit, does not come from a context of liberalization but from a structural failure of the market. For example, there are transport networks, transport of passengers or goods, railways or airstrip for airplanes, data or voice communication networks, pipes where gas or electricity circulate, etc., which belong to a single operator because they constitute economically natural monopolies. Under these conditions, the competitors of the monopoly must nevertheless have fair and effective access to this service and a regulator must necessarily be established for the effectiveness of that right (see Access).
Moreover, the Nobel Prize of Joseph Stiglitz (2001) was justified by his work on the asymmetry of information on certain markets, in particular the financial markets on which companies offer securities. Through the theory of the agency, it appears that the ordinary partners or ordinary investors have less information than the managers, even though the latter have the function of making decisions that bring the most to the former. But information asymmetry offers managers an "information rent" that allows them to offer many benefits and transfer risks to others. Regulators, in particular banking and financial regulators, are needed to combat information asymmetry. Transparency is one of the procedural means to combat this asymmetry. The financial and banking crisis of 2008 showed the extent of this asymmetry and, in fact, the inability of regulators to remedy it, for example, the British government estimated in 2010 that it was the financial regulator itself that was responsible for the crisis for not having sufficiently watched over conflicts of interest. In general, the global financial crisis was often later characterized as a crisis of regulators and regulation.
The translated summaries are done by the Editors
and not by the Authors.
ENGLISH
The main theme of the eighth issue of The Journal of Regulation is that
of Neutrality in systems of economic regulation in accordance with the
conference that the Journal organized around this issue. This question
is essential for a number of reasons: on one hand, companies sometimes
demand that regulation be ‘neutral’ in the impact it has on their
economic activities. On the other hand, States have other reasons for
believing that regulation palliates market failure by using price-fixing
to restore neutrality in certain sectors of the economy that are
incapable of producing a fair market price. Still others believe that
Regulation is not neutral because it intervenes against the neutrality
of the market by imposing access to common goods, social policy
concerns, etc.
FRENCH
Le principal thème du 8° numéro du Journal of Regulation est la question de la neutralité dans les systèmes de régulation économique, telle qu’elle avait été examinée dans le colloque annuel du Journal. Cette question est essentielle pour un certains nombres de raisons. D’une part, les entreprises exigent parfois que les régulation soient "neutres" dans les activités économiques des entreprises. D’autre part, les Etats peuvent avoir d’autres raisons d’adopter des régulations que de palier des défaillances de marchés, lesquelles sont incapables de produire des prix. Les Etats restaurent alors par leurs interventions une neutralité que les marchés ne peuvent pas techniquement engendrer. D’autres croient encore que la Régulation n’est pas neutre parce qu’elle intervient précisément contre la neutralité du marché, en imposant l’accès pour tous à des biens communs, décisions politiques adoptées pour des considérations de politique sociale.
ITALIAN
Il tema principale di questo ottavo numero de The Journal of Regulation è la Neutralità nei sistemi di regolazione economica in linea con la conferenza organizzata dalla rivista relativamente a tale tema. Tale tema riveste un’importanza fondamentale per diverse ragioni: da un lato, le società talvolta richiesto che tale regolazione sia neutrale rispetto all’impatto provocato sulle loro attività economiche. Inoltre, gli Stati hanno diverse ragioni per considerare che la regolazione riduca il rischio di disfunzioni del mercato usando il potere di fissazione del prezzo garantendo così la neutralità che certi settori sono incapaci di raggiungere in quanto incapaci di stabilire un prezzo equo di mercato. Infine, altri ritengono che la Regolazione non sia neutrale in quanto interviene sulla neutralità del mercato ed impone l’accesso ai beni comuni, obiettivi di politica sociale, ecc.
ESPAGNOL
El tema principal del 8º volumen del Journal of Regulation es a cuestión de la neutralidad en los sistemas de regulación económica, tal como ha sido examinada en coloquio anual del Journal. Esta cuestión es esencial por varias razones. De una parte, las empresas a veces exigen que las regulaciones sean “neutras” en las actividades económicas de las empresas. Por otra parte, los Estados pueden tener otras razones para adoptar regulaciones , a parte de lidiar con los fallos de los mercados, los cuales son incapaces de producir precios. Los Estados restauran, a través de sus intervenciones, una neutralidad que los mercados no pueden engendrar. Algunos siguen pensando que la Regulación no es neutra porque interviene precisamente en contra de la neutralidad del mercado, al imponer el acceso universal a bienes comunes, decisiones políticas adoptadas por consideraciones de política social.
ARABIC
الموضوع الرّئيسي للطبعة الثامنة لمجلة التنظيم هو الحياد في النّواضم الاقتصادية وفقا للمؤتمر أللذي انتظم حول هذه القضية. هذا السّؤال ضروري لأسباب متعدّدة : أوّلا، الشّركات تطلب في بعض الأحيان "محايدة" اللّوائح في تأثير على أنشطتها الاقتصادية. من ناحية أخرى، فإن الدول الأخرى يعتقدون أن التّنظيم يخفّف من فشل السوق بمساعدة استخدام التسعير من أجل استعادة الحياد في القطاعات الاقتصاد غير القادرة على إنتاج سعر السوق العادل. لا يزال البعض يعتقد أن التنظيم ليس محايدا لأنّه يأتي ضدّ الحياد السوق عن طريق اشتراط الحصول على الملكية المشتركة، والمخاوف من السياسة الاجتماعية، الخ
For example, if one says what a bitcoin is, then one assigns to it the regime which corresponds to this "nature" that one has thus said;
One could say that the "token" that it constitutes corresponds to nothing of what it existed before. In this case, their creation, storage, management, sale, loan, purchase does not correspond to any particular category that pre-existed. They therefore come under what is called "the category unnamed".
It is then in a liberal system the vacuum of liberty that applies to it. In a system of liberty, it is contractual freedom, freedom which attaches to the property right, the articulation between the contract and the property being sufficient. Technology can establish such a qualification, because the risk inherent in a system of freedom is also borne by the blockchain mechanism. Indeed, by the spread of risk on the one hand, and the safety of machines on the other, there would be no need to worry, and the principle of freedom could give credence to the idea that the "token" would be a sui generis category.
But central banks and financial regulators are probably not convinced and prefer to qualify by bringing the "token" to a pre-existing category, which automatically triggers the legal regime. It is well known that the art of qualification consists in choosing from among the attainable qualifications the one which will allow the application of the regime which is the most adequate to satisfy the aim which one wishes to attain. In terms of regulation, governed entirely by goals, qualification is therefore primarily a matter of strategy.
Now, to affirm that the bitcoin is a sui generis object amounts to not regulating its emission, usages and intermediations, not to control those who make use of it. It amounts to taking away the merits of self-regulation.
This was excluded.
First of all by the Central Banks. Bitcoins and other tokens, based on the mechanical security of the blockchain, can be described as "money" when it is a matter of their acquisition to allow people to access other goods. The central bankers retained the qualification of "currency", which does not prohibit their issuance but which justifies the application of banking Regulation.
Then by the Financial Regulators. Indeed, the same tokens of securities and financial instruments can be described when they are issued by persons who issue them to raise funds, buyers bringing money not to acquire other things but in consideration of the future value of the undertaking which issued them. On July 25, 2017, the SEC therefore classified them as securities and applied all of the financial law in order to protect these investments and the capital markets.
Once again, we measure that the norm of the Regulation resides in these aims and that on the other hand its main tool is in the qualification of the various activities which are "new" only if the Regulator wants it
