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The concept of 'agency', sometimes confused with the one of 'Regulator', designates a way of deconcentrating the State. Away from a Jacobin outlook, states have indeed gradually devolved their sovereign responsibilities to other institutions, which are often geographically distant from the state's political capital city. These agencies are a form of technical decentralization because they are in charge of operational tasks and specific expertise, e.g., as regards employment, environment or health issues. This model, which is very common in Scandinavian countries, is often associated with federal outlooks, like in the United States. It is still fairly remote to the French model that remains to this day built on the idea of a centralized state. So far, France has only developed a few agencies (e.g., France Trésor, tasked with managing France's government debt and cash positions, or the Regional Health Agencies).

In a different perspective, although the two notions are homonyms, the American financial theory developed the notion of 'agency' to describe the relationship between the corporate officer (the agent) and the shareholder (the principal), who empowers the first to act on his behalf to serve his interest. Information asymmetry and conflict of interest mark this relationship, which explains that this theory helped developing multiple safeguards, conveyed by the Financial Regulation.

This conference is managed by Professor Julien Chaisse.

It is organized by the Centre for Financial Regulation and Economic Development, Faculty of Law – The Chinese University of Hong Kong.

 

Read the program.

 

This conference aims to better understand the legal mechanisms for international regulatory mechanisms of water, especially in view of climate change, to articulate the role of states and private investment contracts, to understand the legal nature of water as a "resource" but also as "human right" especially in view of the determination of its price, and to mesure the legal consequences of globalization on the matter.

Full reference: Frison-Roche, M.-A., Judge between Platform and Regulator: current example of Uber case in U.K., Newsletter MAFR - Law, Compliance, Regulation, 29th of September 2020

Read by freely subscribing the other news of the Newsletter MAFR - Law, Compliance, Regulation

 

Summary of the news:

On 22nd of September 2017, Transport of London (TFL), London Transport Regulator, refused to renew the licence, granted on 31st of May 2012 for 5 years, authorizing Uber to transport people because of criminal offenses committed by Uber's drivers. On 26th of June 2018, The Westminster Court prolonged Uber's licence for 15 months under the condition that the platform prevent the reproachable behaviors of its drivers. After these 15 months, the TFL refused once again to prolonge Uber's licence because of the persistence of aggressions against passengers. Uber, once again, contest this decision before the Westminster Court. 

In a decision of 28th of September 2020, the Court observes that during the 15 months, the platform implemented many measures to prevent aggressions, that the level of maturity of these measures has improved over time and that the number of offenses was reduced over the period (passing from 55 in 2018 to 4 in 2020). The Court estimated the the implementation of this actions is sufficient to grant a new licence to Uber. 

We can learn three lessons from this decision: 

1. The Compliance obligation is not a result obligation but a mean obligation, which means that it is not reasonable to expect from a crucial operator (Uber, for instance) that it prevent every cases of agression but that it is salient to judge it on the effort it deploys to try to be closer to this ideal situation. Moreover, the crucial operator must be proactive, that is going away from the figure of passive subject of Law who apply measures enacted by the regulator in terms of fighting against aggressions to be an actor of the research of the best way to fight abusive behaviors, internalizing this "monumental goal. 
2. The judge appreciates the violation committed by those whose the firm is responsible "in context", that is evaluates the concrete situation in a reasonable way. 
3. It is the judge who decides in last resort and like the crucial operator, it must be reasonable. 

 

Read to go further:

• Frison-Roche, M.-A., Firm, Regulator and Judge: thinking Compliance through these three characters, 2018
• The report of the Assemblée nationale (French Parliament chamber) on the question 

Complete reference: COURET, Alain and al, Droit financier  (Financial law,), Précis Dalloz, 2nd ed, Dalloz, Paris, 2012, 1270 p.

 

This book is written in French.

Read the coverback.

Read the table of contents.

 

 

The British want to be first in the upcoming digital economy. 

That is why a draft 'Digital Economy' bill has been introduced.

This crucial text, that has been prepared by the Department for Culture, Media and Sports, contains six parts.   

Read the European Regulation.

 

This Regulation is taken in application of the Council Regulation (EU) of the 15th October 2013 conferring specific tasks on the European Central Bank concerning policies relatif to the prudential supervision of credit institutions.

 

 

 

Set against the backdropt of the recurring waves of financial scandal and crisis, this book examines the struggles of securities enforcements agencies tot police the financial markets. Against allegations of regulatory failures, the author goes "inside the black box of enforcement"". Through interviews and academic researches, he considers the question of enforcement as a distinctly kwonnledge-based-enterprises (with their lawyers, their technological influence, etc.). The findng is the necessary to put the enforcement in the center of the financial marker Regulation.

Explaining Compliance. Business Responses to Regulation

On 2 March 2018, Koen Lenaerts came to an amphitheater at the University Panthéon-Assas (Paris 2) to inaugurate the series of conferences organized by the Journal of Regulation & Compliance (JoRC), a cycle that has the general title: Pour une Europe de la Compliance (For the Europe of Compliance). The School of Public Affairs of Sciences Po, the Department of Economics of Sciences Po, the Ecole doctorale de droit privé  (Doctoral School of Private Law) at the Université Panthéon-Assas- Paris 2 (Panthéon-Assas University - Paris 2) and the School of Law of the University Panthéon-Sorbonne (Paris I), are associated with this cycle. Many personalities will take the floor. They will give contributions for the book that will be published in the Régulations & Compliance Series edited by Marie-Anne Frison-Roche at Éditions Dalloz.

After an admirable lecture offered by Koen Lenaerts, Antoine Garaponfootnote-94, secrétaire générale de l'Institut des Hautes Études pour la Justice (Secretary General of the Institute of Higher Studies for Justice), reacted perfectly in "premier discutant", stressing as everyone his great interest in listening to the demonstration made by the President of the Court of Justice.

He felt that it was hardly possible to speak of "Compliance Law"!footnote-91, because it is above all a Law that ceases to be "prescriptive" to become "relational" ", companies organizing themselves to put goals that are reached in relation with the public authorities. Companies thus develop a "systemic Law" that develops on its own, with alert mechanisms put in place directly by companies that care before the continuity of their economic activities. The notion of third parties disappears, a sort of "direct government" takes the place of the "indirect government" represented by the "third party", the companies having integrated this third party into their own organization, which upsets their relation to time and puts in place a "metajuridic" system.

Antoine Garapon then asks the question of how such a "conversion" could take place, that is to say, this transition of control systeme from the Ex Post mode to the Ex Ante, resulting in companies internalize the task of effective rules!footnote-92. He believes that on the one hand, the system that advocates it has the "market power to impose it and, on the other hand, those who demand it in this system make a" vision of the world "explicit. Antoine Garapon adds the need for a "moral ambition".

However, Antoine Garapon pointed out the United States have met these three conditions.

In his discussion, Antoine Garapon, on the other hand, felt that Europe did not bring them together and that Europe "starts with a handicap", because it does not consider worlwide, because it has no vision of the world, because it has not operated on moral integration.

He insisted that the Court of Justice can carry these three conditions, especially with regard to personal data. Because this is about the digital that Europe has a market power. It is about personal data that the Court of Justice is the place where Europe is both a market and values!footnote-93.

This is why the Court of Justice of the European Union does have a central role for this construction.

______

 

These very constructed, very instructive remarks of Antoine Garapon, thanks to him, perfectly showed, in mirror of the conference of the President of the Court of Justice, the stake: the future.

Beyond the disputatio around the definitions, it is indeed the question of whether or not Europe will build its own compliance mechanisms.

By finding a vocabulary of its own. Not only in French, because the Law is made of words, but also with new words, which leave us "translated-glued" and which will carry European ambitions, as it was the case for the "right to be forgotten" ", very often quoted in the discussion.

Of course, this presupposes "power". But we must already pretend. And the Law has always claimed to pretend. It is in this that it is an Order. This is probably why President Koen Lenaerts insisted on the "juridicization" of compliance, as does the hand of Law that arises on an object.

 

 

http://www.echr.coe.int/