Articles scientifiques

Supping with the Devil? Indicators and the rise of managerial rationality in law


International Journal of Law in Context

décembre 2017, vol. 13, n°4, pp.465-484

Départements : Droit et fiscalité

Managerial devices are rapidly developing as a means for driving the legal performance of organisations, including those of states and corporations. This paper explores the managerial rationality underpinning global legal indicators, and the constraints they convey on institutional behaviour. In particular, it argues that indicators are better understood as part of a system of management control and distributed governance, which is steadily eroding state-centred forms of authority, including state law. In this context, legitimacy and reactivity are contingent to their cycle of production and implementation, which is fourfold: data-collecting, benchmarking, auditing and allocating incentives. Each process is meant to generate respectively subjectification, self-knowledge by comparison, accountability and stimulus for action. Indicators with higher degrees of legitimacy become entrenched in institutional practices and legal decision-making processes. The paper concludes that regulatory spaces where indicators unfold need critical and political scrutiny to expose their pernicious effects, undesirable uses and inevitable misuses

Thinking Justice Outside the Dock: A Critical Assessment of the Reform of the EU's Court System


Common Market Law Review

février 2017, vol. 54, n°1, pp.129-176

Départements : Droit et fiscalité, GREGHEC (CNRS)

The 2015 reform of the EU’s court system will go down in history as the most radical transformation of the EU judicial architecture since the establishment of the General Court in 1989. It entails not only the doubling of the number of General Court judges but also the dissolution of the Civil Service Tribunal. This article offers a critical assessment of these two major, structural changes, by focusing on both the process by which they were adopted and its overall merits. After providing a detailed examination of its tortuous legislative history and highlighting its unique underlying procedural feature – with the Court itself initiating the reform process -, this article identifies and systematises the major reform’s shortcomings. It criticises both the diagnosis underpinning the reform and the cure administered. It concludes by presenting this reform process as a missed opportunity to address, in a more holistic manner, the pressing non-docket related challenges faced by the EU judicial system and, in particular, to reform a governance structure which is no longer fit for purpose considering the massive transformation of the EU judicial branch since the CJ was first established in 1951

A Comparative Overview of EU and US Legislative and Regulatory Systems: Implications for Domestic Governance & the Transatlantic Trade and Investment Partnership


Columbia Journal of European Law

hiver 2016, vol. 22, n°1

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : TTIP, Regulatory Cooperation, Convergence, Divergence, Mutual Recognition, Equivalence, MRA, US-EU, race to the bottom, direct effect, implementation

The aim of this report is to inform the EU-US Transatlantic Trade and Investment negotiations on enhanced regulatory coherence and cooperation, by providing negotiators, stakeholders and the public with a comparative overview of the US and EU legislative and regulatory processes in their current form, highlighting differences and similarities

Are Criminal Sanctions Always Appropriate in Business Law? The French Example of Combining Civil and Criminal Law


Journal of Business Law

2016, vol. 7, pp.607-623

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Commercial law; Corporate liability; Criminal liability; France; Offences; Penalties; White collar crime

Developments in business law have shown a general trend towards autonomy or indeed particularism.French commercial law is not homogeneous in substance, although several laws have been combined and the codification has been unified.1France’s Commercial Code comprises a number of different branches that each claims their own particularism.This codification is an administrative resource. It provides a formal presentation of a discipline, without interfering with its content. In some instances the codification improves the accessibility of information, but the major divisions of commercial law remain, and this does not contribute to overall coherence.The criminal sanctions applicable in business law fall into the scope of a specific criminal law. The groupings have been so artificial that is it sometimes very difficult for these disciplines to display their particularism. For example, different criminal laws have developed in such diverse areas as criminal labour law, criminal consumer law, criminal planning and environment law, criminal tax law which completes criminal company law, and criminal business law which is a counterpart to (and sometimes difficult to distinguish from) criminal economic law.These different branches show up boundaries that are often vague, and relative specificities.3 They are best justified on the level of criminal sociology, since they concern clearly identified actors in the various activities involving exposure to certain risks. General or special classifications have had to be found for those risks.These disciplines have the merit of imposing a constructed coherence on the study of criminal offence classifications relating to the major sectors of economic and corporate activity, in order to secure and moralise those activities.Criminal business law occupies a prominent position owing to the company law logic, to which it claims to be a response, but also owing to the difficulty of clearly determining its legal purpose. Its scope varies depending on the author, and the sociological than a legal reality. It is easier to understand that the aim of criminal sanctions is to bring morality into the world of business when they have a repressive dimension or are imposed by the court to ensure compliance. In this perspective they act as a sword of Damocles, and are more effective than court orders or injunctions, which remain civil law sanctions that have few consequences for the individual, and more importantly can be covered by insurance.Criminal law as applied to business is simply a reflection of the complexity of social relations and the difficulty, not to say impossibility, of finding a dividing line between the human, social and economic activities. The economic activity criterion is doubtless the most relevant. Criminal business law acts as a combined law.After an analysis of the appropriateness or otherwise of the decriminalisation of business law, we study its most typical criminal sanctions.

At Long Last, Italy Moves to Comply With European Human Rights Imperative to Recognize Same-Sex Partners


Lesbian/Gay Law Notes

juin 2016, vol. 6/2016, pp.226-228

Départements : Droit et fiscalité, GREGHEC (CNRS)