Responses to Maladministration, à la française: la Cour de justice and Christine Lagarde

Francophile readers of this blog will no doubt enjoy JP blog, a new blawg operating under the auspices of Jus Politicum. Those of you, Francophile or otherwise, who are interested in official responses to maladministration will find a great deal of interest in two recent posts by Professor Olivier Beaud on the recent decision of the Cour de justice de la République regarding Christine Lagarde, the managing director of the International Monetary Fund.

The underlying events occurred in 2008, when Lagarde, then the French Finance Minister, referred to an arbitration panel a dispute between Crédit lyonnais and Bernard Tapie (best known to some of us as the flamboyant chairman of Marseille when the club won the Champions League in 1993). To everyone’s surprise, the outcome of the arbitration was a huge award in favour of Tapie. Lagarde decided not to seek a review of the award, which was later set aside because of the close links between one of the arbitrators and Tapie’s lawyer.

At issue before the Cour de justice was Lagarde’s (mis)handling of the matter, in particular her decisions to refer it to arbitration in the first place and to not seek review subsequently. As Professor Beaud’s close analysis reveals, it is probably too strong to state (as the New York Times did) that Lagarde was “convicted of negligence”. It turns out that the Cour de justice is a unique institution, neither a criminal nor an administrative tribunal, but a strange “baroque” hybrid created by President Mitterand to judge ministers for official actions otherwise immune from legal scrutiny. Moreover, in imposing a legal sanction for what in Lagarde’s case amounted to political maladministration, it had to engage in “bricolage”, alighting on a little-known negligence provision to conclude that the former Finance Minister had been at fault in failing to seek a review of the arbitration award (though not in submitting the matter to arbitration in the first place). Even then, no penalty was imposed, in view of the important responsibilities that Lagarde was discharging in the midst of the Credit Crunch.

In his second post, Professor Beaud notes another curious aspect of the Tapie affair: the relative silence of the participants on the role that President Sarkozy played. In Professor Beaud’s view, it beggars belief that the President was not centrally involved in the key decisions, yet Lagarde and her entourage stuck consistently to the line that the President played no role at all.

Taken together, Beaud’s posts provide context which might help in understanding why the IMF has decided to stand by Christine Lagarde: the “negligence” for which she was found responsible is better described as maladministration, no sanction was imposed, and she may have been acting on orders from above in any event. More generally, Beaud’s posts elegantly describe a fascinating institutional arrangement designed to hold high officials to account.

This content has been updated on December 28, 2016 at 00:46.