Chronique de droit coopératif

in Semaine Juridique Entreprises et Affaires (2013), (51), 1703

Pour un droit des sociétés coopératives et mutualistes en OHADA. Contribution à l'élaboration d'un droit de l'économie sociale et solidaire

Doctoral thesis (2013)

Legislation plays a very important role in the economic and social development. This is why the Law must be constantly adjusted to suit the particular circumstances of its recipients. This statement ... [more ▼]

Legislation plays a very important role in the economic and social development. This is why the Law must be constantly adjusted to suit the particular circumstances of its recipients. This statement applies to all branches of law, including the law of social and solidarity economy organizations. For a long time, they have been neglected. But in recent years, due to their contribution to the fight against the problems faced by Africa (unemployment, poverty, financial and social exclusion, etc.), these organizations are increasingly considered by legislators. There were legislations applicable to cooperatives in all States Parties to the OHADA Treaty, both before and after the independences. Similarly, in some countries, in the 1990s, the first laws governing mutual societies were adopted. However, these frameworks were generally described as inadequate or insufficient. That was precisely why OHADA decided to integrate cooperatives and mutual societies in its legislative agenda. Its task was to modernize the cooperative law and to fill legislative gaps in mutual society's law. The project was launched in 2001. But between 2004 and 2007, a lively discussion took place and led to the exclusion of mutual society from the OHADA legislation. Therefore, on 15th December 2010, was adopted a OHADA Uniform Act on cooperatives law only. Following the rejection of mutual societies by OHADA, the UEMOA continued its draft law on the same subject, which was adopted in 2009. The objective of this research is to criticize the withdrawal of mutual societies from the OHADA legislation and to plead for a reintroduction of a uniform act on cooperatives and mutual societies. At the time, the OHADA had relied on three main reasons to oust mutual societies: the difficulty to build rules applicable to two legal forms of organization in a single text, the fact that mutual societies are not part of business law that OHADA is supposed to harmonize and the initiation of a legislation on mutual societies in the UEMOA zone at the same period. Throughout the first part of this research, we show that cooperatives and mutual societies share a broad consensus, which is sufficient to demonstrate that they can be treated together under a unique law. In the second part, we note that mutual societies can take the legal form of society, which integrates them in the OHADA law. Also, because of the symbolic supremacy of the OHADA over the UEMOA, we explain how the OHADA legislator could consult his counterpart from the UEMOA in the perspective to avoid duplicative legislations. Once the establishment of this framework, we discussed the process of building such a uniform act. We found that the context is difficult because of the failure of previous experiences, and the need to build a suitable law. Despite this difficult environment, rules can be explored. The appropriate way is to first set the common provisions and then the particular ones, knowing that all of them may help to pave the way for a law of social and solidarity economy. [less ▲]

The OHADA cooperative regulation

in Cracogna, Dante; Fici, Antonio; Hagen, Henrÿ (Eds.) International Handbook of Cooperative Law (2013)

Chronique de droit coopératif

in La Semaine Juridique - Entreprise et Affaires (2011), (8), 17-17