In 2016 Tunisia continued to modernise its economic legislation. In addition to the New Investment Law, the main laws issued in that year concern a revision of banking regulations and a modernisation of the rules governing collective proceedings.
Banks & Financial Institutions
Law No. 2016-48 governing banks and financial institutions, also known as the New Banking Law, addressed regulation of banking institutions, including the need to enhance the financial solidity of banks and local financial institutions. The New Banking Law strengthened the criteria for granting a banking licence by substantially increasing the capital required, and by adding various conditions related to the quality and choice of corporate officers and of the methods of inspection and supervision.
The New Banking Law also introduced rules on Islamic finance, which is defined as any non-interest-based activities intended to finance economic projects in accordance with Islamic standards. The establishment of Islamic finance was expected by banking and finance professionals, insofar as it corresponds to the expectations of a significant minority of the population that is reluctant to use conventional models of financing.
The notion of good governance is at the heart of the New Banking Law. To this end, the law includes the following obligations for banks:
• Appointment of an independent member of the board of directors representing minority shareholders for the banks and financial institutions listed on the Tunis Stock Exchange;
• Establishment of audit and risk committees;
• Disclosure to and prior authorisation from the Banque Centrale de Tunisie for any appointment of a chairman or member of the board of directors or the supervisory board, a general manager, a deputy chief executive officer, a chairman or a member of the executive board;
• Maintaining the independence of internal audit, risk management and compliance officials; and
• Prohibition of the concurrent duties of managing director, deputy managing director or member of the executive board of a bank or financial institution with the same functions in another bank, financial institution, insurance broker, stockbroker, securities management company or investment company.
Law No. 95-34 of 1995 on the reorganisation of companies in economic difficulty was repealed and replaced by Law No. 2016-36 of 2016 on collective proceedings. The reorganisation of companies experiencing economic difficulties has been incorporated into the Tunisian Commercial Code under Articles 415-474. The contribution of this new law lies in better drafting of the applicable provisions than in a profound modification. In general, the timeframes set out in the 2016 law are better thought out, and the provisions that give rise to difficulties of interpretation have been clarified. Under the 2016 Law in the case of judicial settlement the following apply:
• The list of persons entitled to submit an application for judicial settlement has been extended to shareholders owning at least 5% of the company and the officers of the company, whatever their position;
• The period of suspension of individual proceedings during the observation period is now limited to 12 months and may be extended to joint and several guarantees and debtors of a company in question;
• Once the observation period is opened, seizures of the company’s assets will be suspended, regardless of their status;
• The halt of execution of contracts in progress that are not necessary to the activity of the company become subject to the condition that the halt not be detrimental to the co-contracting party; and
• The administrator no longer elaborates the plan, but studies the plan proposed by the firm and modifies it.