Tunisia's Commercial Companies Code, which came into effect in 2000, has been in force for 25 years. The code was designed to address the shortcomings of the country's commercial code and provide a more comprehensive framework for businesses. However, despite its intentions, the code has been criticized for its complexities and ambiguities. Professor Oualid Gadhoum from the University of Sfax's Faculty of Law notes that the code has not brought about a revolution in company law, but rather a rehashing of French law with some modifications.
The code introduced several new concepts, including the Limited Liability Company (SUARL), the Management Board (SA à directoire), and Economic Interest Groupings (groupement d'intérêt économique). However, it has been argued that the code has not gone far enough in modernizing company law in Tunisia. Certain provisions, such as those related to the nature of the company and social capital, have been criticized for being outdated. Furthermore, the code has been amended several times since its enactment, with new laws being introduced to regulate specific aspects of business operations.
One of the main criticisms of the code is its lack of clarity and precision. Several provisions have been deemed ambiguous and open to multiple interpretations. For instance, the titles of two chapters on the constitution of the Public Limited Company (SA) have been found to be identical, leading to confusion. Additionally, certain articles have been omitted or incorrectly referenced, further complicating the code's application.
The code's translation from Arabic to French has also been criticized for its inaccuracies. In some instances, the French version has been found to be at odds with the Arabic version, which is the authentic version. This has led to calls for greater alignment between the two versions to avoid confusion. Moreover, certain terminology used in the code has been deemed inappropriate or outdated.
The concept of "security juridique" or legal certainty has been highlighted as a crucial aspect of company law. It is argued that the code should prioritize clarity and predictability to provide businesses with a stable and secure environment in which to operate. The French Conseil d'État has emphasized the importance of legal certainty as a foundation of the rule of law.
To address these concerns, Professor Gadhoum and others have called for a comprehensive review of the code to modernize and clarify its provisions. This would involve revising ambiguous and outdated provisions, as well as ensuring greater consistency and coherence throughout the code. The goal is to create a more business-friendly environment that is conducive to economic growth and development.
The review of the Commercial Companies Code is seen as an opportunity to bring Tunisian company law up to date with international standards and best practices. It is hoped that the revised code will provide greater clarity and certainty for businesses, investors, and other stakeholders, ultimately contributing to the country's economic development.
Key points
- The Commercial Companies Code has been criticized for its ambiguities and outdated provisions.
- The code's lack of clarity has led to multiple interpretations and confusion.
- A comprehensive review of the code is needed to modernize and clarify its provisions.
