Women Adoul in Morocco! 37% of the successful candidates are Women

Women-Adoul

Women Adoul in Morocco! The Not So Modern Legal Dilemma

 

“The Adoul examination entry for the year 2018 results were unveiled July 21st 2018, 299 women candidates were retained which makes up 37% of the 800 successful candidates” .

Behind this seemingly anodyne announcement hides one of the most controversial and bold decisions of King Mohammed VI of Morocco, decision made on 22ndJanuary 2018 in his religious capacity as the commander of the believers to allow women to exercise the Adoul profession reserved until then to men.

The decision and the journey to reach it opened an old age debate surrounding the ability of women to be competent witnesses and plunged the country in a jurisprudential crisis that brought to the forefront some glaring contradictions and discrepancies.

Even if the profession of Adoul in Morocco borrowed its name from the Koran, but it is in essence a legal profession. Adoul can perform several tasks including:

·       drawing contracts including contracts of marriage and divorce settlements;

·       certification;

·       wills; and

·        inheritance.

So why was the profession of Adoul off limit for women in Morocco knowing that women can take office as judges, notaries, lawyers and expert witnesses?

It is surprising to learn that what stood as a hurdle on the way of women and the Adoul profession is simply the testimony component. Testimony (shahada) is an attestation with regard to a right of a party against a third.

The only verse of the Koran that evokes the gender of a witness and was interpreted by some as equating the testimony of two women to that of one man, is the verse of debt, which occurs in Koran in verse 2:282.

There has never been a unanimous opinion as to the religious stance on the value of women’s testimony. Some scholars categorised the verse as recommendation or merely instructional and without legal import. Others opined that the recording of debts, witnessing, and all other matters dealt with in the verse may be categorised as obligatory.

The debate surrounding the numerical value of witnesses testimony, including the probative value of women’s, is not unique to Morocco or to the Muslim world.

The rules surrounding testimony were a natural reflection of the fixed popular probative notions of each period of time, notions that saw the value of a witness increased, decreased or neutralised depending on the social ranking, slavery, freedom status or gender.

The legal life went through a multitude of stages including the divine, the formal, and the intellectual stages, the transition from one stage to the other did not occur abruptly and immediately. Now this principle of evidence is largely acknowledged to be unsound and deleterious, nonetheless a form of history worth examining.

What I noted is that what is on trial is not the testimony per se, but women themselves. This is the common denominator of all the topics involving women rights in Morocco. Stripped from the dogma, Adoul is a legal profession established by law, classified as auxiliary to the court. A profession that men and women could exercise if they have the right qualifications and training.

Link to the original Article.

Author:

 Ihsane founder of Sterling Stamp

Ihsane Elidrissi Elhassani

Founder and Principal Sollicitor at Sterling Stamp London

For any further inquiries, contact us on : i.elidrissi@sterlingstamp.com

Check our latest Article about: Construction Work in the UK and the payments’ provisions under the the UK Legislative framework.

Women In Law Middle East

Women in law Middle East

Q: Why Law?

A: I know it sounds cliché, but at the age of 16, when I finished high school, I did not have a clue what I wanted to study at university. I loved literature, Arabic, French, and English but did not want to make it my profession. I looked around, several members of my family were already lawyers or studying law, so I followed suite. Day one of law school, I understood that it was the right choice for me. Law is the science of life. Day to day concepts that I did not understand or took for granted had their rationale in law and the evolution of legal systems. Every day since then was a light bulb moment.

Q: Take us back to your days at Law School.

A: The funny thing in my law studying career, and I call it a career for reason, it spanned over 2 decades: my teens, early twenties, and mid-twenties. Three different countries and three different legal systems. I did my Licence or undergrad in Morocco. The first year was a shock to the system. Everything was different from high school. Sea of people attending the classes, different method of teaching, attendance not compulsory, sheer volume of syllabuses to go through and the most frightening thing of all the high rate of failure in the first year. There is a tacit numerus clausus at Moroccan Universities between years; out of 3,000 first year students, 200 passed into the second year. On graduation I went to Belgium to do a master’s degree, a new country, a new culture, a new legal system, and an invaluable life experience. Then followed work life and the decision to move to the UK to qualify as a solicitor, a new legal system, a new language, and a new culture. Law has shaped my career and provided me with the opportunity to gain a deeper understanding of other languages and cultures.

Q: You have established your own boutique law firm in London. What was your motive behind that, and how did your track record as a legal manager helped you in founding your own firm?

A: The motive behind establishing my own law firm is a desire to create something, something that has my fingerprint. Working in house and for law firms was necessary in order for me to gain the perspective and skills needed to run my own legal firm.

Q: Given you have been trained on legislative drafting, what legislation do you wish to update or draft?

A: There are so many laws that need updating in all fields. The closest to my heart are human rights law, especially women’s rights in our region of the world. Morocco has done some amazing things to improve women’s rights, in particular amendments to the family code. There are still changes to be made to bridge the gap between the sexes, in both directions.

Q: Since the beginning of your practice to date, what are the main changes in the legal industry that you have noticed?

A: I started my law career 20 years ago. The most notable change is that women have access nowadays to higher executive positions in the legal field. I see more women head of legal and partners than before.

Q: Since you are a trilingual legal practitioner, and your law firm bridges Europe to the MENA region, we are interested in learning about international transaction agreements you handle. As such, which governing law and forum are the most popular to be used, and what are other patterns you notice, dealing internationally. 

 A: English law and the UK are still the most used legal system and forum. I would love to see North African and Middle Eastern countries taking the lead as international legal hubs.

Q: Can you explain the process of qualification you went through?

A: To qualify as a solicitor in England and Wales, I had to have my international qualifications verified by the Law Society, a process called certification of good standing. I then completed an undergraduate law degree in one year, in English; a course called the Graduate Diploma in Law [GDL]. I then undertook twelve months professional skills training; a course called the Legal Practice Course [LPC]. Finally, I deployed these skills under the supervision of a senior lawyer, a period of training known as a training contract. To create a legal firm and receive a license to practice law, I applied and received authorisation from the legal regulator in the UK; the Solicitors Regulation Authority [SRA]. I also applied to the SRA to be recognised as the practice manager. The method of qualifying as a lawyer in England and Wales is changing, the GDL and LPC are being compounded into one national exam known as the Solicitor’s Qualification Exam. We are already speaking with several international lawyers and law students to help with them with this process.

Q: What are your top tips for women aspiring to establish their own law firms?

A: Just do it.

Partenariat Public-Privé? Notre Expert vous parle de son importance

Private Public Partnerships

Partenariat Public-Privé? Notre Expert vous parle de son importance

 

Qu’est-ce qu’un Partenariat Public-Privé (PPP)?

Un contrat de longue durée entre une partie privée et une agence gouvernementale pour fournir un bien ou un service public dans lequel la partie privée prend des parts de risque et de gestion importantes. Les responsabilités du secteur privé peuvent inclure entre autres le financement, la conception, la construction, l’exploitation, la gestion et l’entretien du projet.

Avantages et inconvénients des PPP

Certes les coûts de développement, appel d’offres et fonctionnement des projets PPP peuvent s’avérer plus élevés que les processus de passation des marchés publics traditionnels. Cependant, les PPP offrent plusieurs avantages tels que : 

  • Le contournement des contraintes budgétaires du secteur public en faisant appel aux ressources financières du secteur privé ;
  • L’utilisation de la technologie, l’efficacité opérationnelle et l’innovation du secteur privé pour délivrer des meilleurs services publics ;
  • L’exécution des projets dans les délais prescrits ;
  • La certitude budgétaire en fixant les coûts actuels et futurs des projets d’infrastructure ;
  • Le développement des capacités du secteur privé local en utilisant des joint-ventures avec des entreprises internationales ;
  • Le transfert des compétences du secteur privé (en particulier étranger) au secteur public ;
  • La diversification de l’économie ; et
  • L’optimisation des ressources à long terme grâce à un transfert de risque approprié vers le secteur privé.

Facteurs clés de réussite des PPP

Il est primordial d’adopter un cadre juridique PPP adéquat. Ceci permet non seulement d’identifier des projets réussis mais aussi d’encadrer ces projets de manière efficace et transparente, tout en s’assurant que les objectifs du développement sont atteints et que les investisseurs sont satisfaits.

Cependant, un cadre Juridique PPP n’opère pas en silo !

L’adoption de lois PPP n’est pas un remède miracle en soi. Afin de donner de la crédibilité à leurs cadres juridiques PPP, les gouvernements doivent prendre des mesures claires et concrètes qui vont servir de catalyseur pour le développement de projets de qualité tels que :

  • Une formation pointue du personnel ;
  • Le développement des outils nécessaires pour faciliter les transactions et la rédaction des contrats types ;
  • Le choix de projets rentables économiquement et socialement pour attirer les investisseurs ;
  • Une définition claire des rôles et des responsabilités des parties prenantes tel que les institutions publiques, pouvoirs adjudicateurs et unités PPP ; et
  • Le choix de partenaires habilités à réaliser les services et les projets voulus.

Auteur :

Ihsane founder of Sterling Stamp

Ihsane Elidrissi Elhassani

Fondatrice du Cabinet Sterling Stamp à Londres

Ihsane a été à la tête du département juridique du centre financier du Qatar (‘QFC’) où elle dirigea le service de rédaction législative et représenta le QFC dans de nombreuses affaires et contentieux nationaux et internationaux. Elle a aussi accompagné le gouvernement du Qatar dans l’établissement d’un cadre juridique PPP.

Vous pensez à rédiger ou améliorer vos lois, procédures et politiques PPP ? contactez-nous i.elidrissi@sterlingstamp.com

Check our latest Article about: Construction Work in the UK and the payments’ provisions under the the UK Legislative framework.

Starting construction works in the UK? Get familiar with the payments’ provisions under UK legislative framework!

Payments

Starting construction works in the UK? Get familiar with the payments’ provisions under UK legislative framework!

Lord Denning: ‘There must be a cash flow in the building trade.

It is the very lifeblood of the enterprise’[1].

This article summarises the payment provisions under Part II of the Housing Grants, Construction and Regeneration Act 1996 (‘Act‘), as amended by the Local Democracy, Economic Development and Construction Act 2009 (‘LDEDC’).

For the past 22 years, the overall impact of the Act on the construction industry has been remarkable. As Sir Jackson highlighted ‘The payment regime and adjudication regime which that legislation introduced now play a critical role in the functioning of the construction industry… Overall the payment regime and the adjudication regime have been successful’[2].

The Act applies to most construction contracts, although some contracts such as the ones with residential occupier or where the works relate to mineral extraction or power generation are excluded.

In a construction contract, one party usually undertakes to carry out a defined work (referred in the Act as (‘Payee’)) while the other party undertakes to make payment (referred to as (‘Payer’)). Whilst the Act gives the parties to a construction contract the freedom to agree the sum to be paid, when to be paid, and any procedure to facilitate payment, it introduces changes of some importance to the construction industry.

  1. It imposes a statutory set of contractual provisions which in default take effect as implied terms of the contract concerned.

Section 114 states that where a construction contract does not comply with the requirements of the Act in relation to adjudication and payment, the Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649), as amended in respect of construction contracts entered into after 1 October 2011 statutory scheme (‘Scheme’) will apply.

  1. It gives an entitlement to stage payments.

A party to construction contract which is more, or agreed to be estimated at more, than 45 days is entitled, by virtue of section 109 of the Act, to payment by instalments, stage payments or other periodic payments for any work under the contract. The parties are free to agree the amounts of the payments and the intervals or the circumstances in which they become due.

  1. It makes provision for the date when payments under a construction contract became due.

Section 110 of the Act states that a construction contract (1) shall provide an adequate mechanism for determining what and when payments become due; and (2) and shall provide for a final date for payment in relation to any sum which becomes due.

  1. It deals with the need to give various notices during the project life cycle with the aim of proactively highlighting any payment’s issue and allowing early measures to deal with them effectively.

Section 110A to section 111 state that the contract must provide for a notice, which specifies the amount due and the basis of the calculation, to be given by either party (or by the Payer’s representative) to the other. The notice should be clear and unambiguous that it is  a payment notice.

If the Payer, or its representative, fails to provide the notice then the Payee is entitled to submit its notice instead. In which case the final payment date will be pushed back by the amount of time taken by the Payee to submit its own notice.

In the absence of an agreement as to the time of the notice submission, the Scheme will apply and the notice shall be given within five days of the payment due date.

The Act allows the Payer to correct the calculated amount in the payment notice by issuing a pay less notice. The pay less notice should set out the sums deemed due, should clarify the basis of calculation and should be submitted within the agreed period of time. In the absence of an agreement, the Scheme will apply and the pay less notice should be submitted seven days before the final payment date.

  1. It provides a right to suspend performance for non-payment.

Section 112 of the Act entitles the Payee to suspend performance if the Payer fails to pay the sum due.

  1. It prohibits conditional payment provisions.

Section 113 prohibits conditional payment on the performance of another contracts, such as the commonly known “Pay when Paid” clauses.

Whilst the HGRCA benefits praised by Sir Jackson are undeniable, many in the industry still argue that poor payment practices are increasingly impacting the construction industry. The rate of insolvency is still peaking, and the number of payments’ litigations is increasing.

The construction industry is in need, now more than ever, of a legislative intervention to further improve the payments practices.

I have called upon my decade’s long international experience in the construction field and highlighted several improvements that I shared with you in the article: Proposed Reforms for Payment Provisions under HGCRA

.

[1] Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] A.C 689

[2] S & T (UK) v Grove Developments [2018] EWCA Civ. 2448

Author:

Construction Solicitor

Hamza Sekkar

Partner & Director of Legal Engineering

 If you have any queries, please contact me on h.sekkar@sterlingstamp.com

Interested in Public Private Partnerships Check our article about: Public-Private Partnerships