elabar_abdelilah@yahoo.fr

Summary :

The board of directors of a public limited company is responsible for making important decisions for the public limited company and its shareholders. This includes risk management, including legal risks. In this article, we will examine how the board of directors can manage effectively THE risks legal In a Company anonymous. First, we will explain what legal risks are and why they are important. We we will talk of the types of risks legal to which a Company anonymous may be faced, such as non-compliance risks, contractual risks and jurisdictional risks, as well as risks through consequences, such as judicial or administrative sanctions And THE risk image And of reputation. We will explain also how The board of directors can play a key role in legal risk management. We will also discuss the legislative enshrinement of the board’s obligation to oversee legal risks. In the second part, we will discuss the need to establish a committee dedicated to legal risk management. In this part, we will explain the key steps in legal risk management, namely identification, assessment, there bet in place of measures of prevention And there management of the risks legal to the extent that the board of directors can help prevent legal risks and minimize the negative consequences that may arise from them.

Keywords :  » risks legal » ;  » right « ,  » advice of administration » ;  » specialized committees”; “risk management”.

Abstract :

Tea board of directors of a limited company is responsible for making important decisions for the company and its shareholders . This includes managing risks , including legal risks . In this article, we will discuss how the board of directors can effectively manage legal risks in a corporation. First, we will explain what legal risks are and why They are important. We will discuss tea types of legal risks that has audience company May face, such as compliance, contractual and jurisdictional risks , as well as risks through consequences , such as judicial gold administrative sanctions and image and reputation risk . We will also explain how the board of directors can play has key role in managing legal risks . We will also discuss tea legislative enshrinement of the board’s duty to monitor legal risks . In a second part, we will discuss the need to establish a committee dedicated to legal risk management. In this part, we will explain the key steps in legal risk management, namely the identification, assessment , implementation of preventive measures and management of legal risks insofar as tea board of directors can help prevent legal risks and minimize the negative consequences that May result from them .

Keywords : “ legal risks ” ; “ law ” ; “ board of directors ” ; “ specialized committees ” ; “ risk management ».

Introduction

The number of risks companies face today has not only increased, it has also become more complex. Companies must now be more proactive than ever to survive, not to mention the multitude of crises they regularly face. Of in addition, In A context brand by there judicialization growing of the business relationships, uncertainty face to developments regulatory And there complexity without stops reinforced by right, there way of which THE companies make face has of news requirements in matters of control of their legal risks and how they can protect their assets and preserve their values are real challenges (Mazars, 2011). It is in this context that legal risk management has become essential and popular in recent years due to various corporate scandals, judgments, liquidations and fines.

The terminology of “legal risk” » is used extensively without being defined. This concept is at the crossroads between risk management and the legal field. A definition has been given by Christophe Collard which seems to us to be the most suitable:  » Legal risk results from the conjunction of a legal standard and an event which may result in consequences which are by definition negative and likely to affect the value of the company and/or call into question its objectives. The event in question will consist of: either In A change of there standard driving a true uncertainty legal, either in a voluntary or involuntary transgression of this standard, by the company, its directors or its staff, then generating civil, criminal or administrative liability  » (Collard, 2008).

There question of there management of the risks legal In THE companies Moroccan And in particular, to the breast companies anonymous monists, is not become A center of study interest that for several years. This is due to the complexity of the company’s external legal environment And his multiple interactions And has her environment internal as long as as an organization. To prevent companies from suffering these risks, it is essential that they put in place a system that allows them to be managed. This is how the implementation of a management system of the risks East become, In a certain measure, a obligation legal. In effect, with the intervention of public authorities who increasingly demand that businesses, and in particular public limited companies, be aware of their risks, and that a legislative and regulatory arsenal be implemented has summer put in place in order to to demand there bet in place And THE follow up of there management And there

prevention of risks, particularly legal risks, through the dissemination of reports on the implementation of risk management procedures.

There management of the risks legal constitutes A stake major For THE companies Moroccan. In this context, he is crucial to to understand THE consequences of these risks on there performance and the sustainability of the companies. So, OUR problematic rests on there need of answer to the following questions : What are the legal constraints that weigh on Moroccan companies? ? do their consequences affect the performance, or even the sustainability of companies? How can risk management be used as a tool to improve the performance of Moroccan companies, especially during this period of crisis? In this environment, the board of directors must be aware that the courts may apply of news standards, Or interpret THE standards existing, And that there management of the Legal risk is no longer just a commercial and operational responsibility, it has also become a governance issue that falls squarely under the responsibility, first and foremost, of the board of directors. Faced with these significant challenges , but what exactly is the role of the board of directors in managing legal risks in public limited companies? ? All THE rules are they planned by there law No. 17-95 For prevent And deal with legal risks? The board of directors plays a very important role in management of the risks legal (element major In THE process of control And of supervision of the public limited company), within the framework of the missions assigned to it by law n°17-95. This is a point essential of OUR study that we born can not ignore since he place THE subject In her global regulatory context. Are there not stakeholders in the public limited company who, by virtue of their technicality, can fill there function of control And in particular that of there Legal risk management? Practice has shown that CEOs or managers easily lean towards poor governance whenever their management is not counterbalanced. by THE counterweight of control And of there monitoring of advice of administration.

The board of directors is actively involved in developing strategies, systems, and processes that will minimize the legal risks the company faces on a daily basis. Only with the board’s buy-in will legal risk management be integrated. to strategic decision-making processes the organization. The board of directors is, in our opinion, the social body best placed to be involved in the management of legal risks, he possessed has this effect, THE features organizational adequate For play A

role in monitoring and control, in particular, the management of legal risks.

After presenting our problem, we will follow a methodology based on an analytical and descriptive approach. It aims to systematically study and present the different aspects related to legal risk management, with an emphasis on the role of counsel. of administration And THE means of management. We will approach First of all THE role essential of the board of directors as a central body in the management of legal risks (1). In this section, We will examine THE risks legal commons to which THE companies are confronted (subsection 1.1) And We will analyze THE role specific of advice of administration in there management of these risks (subsection 1.2). Afterwards, We We will lean on THE concrete means of legal risk management (section 2). We will explore the role of specialized committees, in particular the risk committee, in the proactive management of legal risks (subsection 2.1). We will also discuss the establishment of a legal risk management system risks legal, Who will include identification, the assessment And THE treatment of the risks (subsection 2.2). This methodology We will allow to examine in detail THE different dimensions of legal risks that Moroccan companies face, as well as the strategies and tools that can be put in place to manage these risks and improve business performance.

1.     THE advice of administration: A organ central in matter of management of the legal risks

1. THE risks legal commons heavy on THE companies

One of the difficulties of the subject is defining legal risk. Several approaches are possible.

1.1.1.     THE risks legal by the causes

According to a causal approach, legal risk essentially covers the following two risks, potentially generating legal proceedings and the incurring of liability, whether civil, disciplinary or criminal, for the company, its directors, managers and employees:

THE risk legal non- compliance

THE risk legal, as to has him, East multiple. He can to act of there breach of a ruler in force, but also the risk that a new standard will disrupt the legal framework of the activities of the company. THE factors of the risks legal are varied according to THE companies. In France, a definition has Already summer data by the Order French of 3 november 2014 relative At control internal of companies of sector of there bank, Thus THE risk legal East THE risk of All dispute with consideration, resulting from any imprecision, gap or insufficiency likely to be attributable to the company in its operations. The texts in question are the texts of a legislative nature, (these are the laws and provisions in particular of the law on public limited companies, of code of trade, of there law banking, of there law enacting of the measures of protection of the consumer,…), without forget GOOD obviously THE texts, In there hierarchy of the laws, are of a higher nature, such as provisions resulting from international treaties ratified by parliament or texts adopted at the international level as long as they impact domestic law. This also concerns regulatory texts (decrees, orders, circulars, etc.), to which should be added the professional and ethical standards currently evolving in Morocco.

THE risk contractual

THE companies conclude frequently of the agreements with of the entrepreneurs Or of the sellers, but sometimes the risks inherent in these agreements can be realized. Although a contractor can provide A service important For there Company, if THE CONTRACT is not not correctly locked, the latter could be exposed to considerable risks and financial losses. The definition of contractual risk generally boils down to two things:

• THE risk of to undergo losses due to the fact that the buyer born respects not the terms of the contract, including if the buyer is unable to pay the contract price;
• THE risk of to undergo of the losses in reason of there bad performance Or execution by THE seller of the operation which is the subject of the contract, generally, it consists of an obligation to facere (do).

Furthermore, contractual risk is defined in the French Decree of November 3, 2014 relating to the control internal of the companies of sector of there bank below THE qualifier of risk

 » legal » (« THE risk of All dispute with a counterpart, resulting of all imprecision,

deficiency or inadequacy that may be attributable to the company in its operations »). This risk is in fact inherent in any contract concluded by the company with one or more parties, due to the principle established by article 230 of the Dahir of Obligations and Contracts (DOC) according to which  » Validly formed contractual obligations are binding on those who THE have do, And born can be revoked that of their consent mutual Or In THE cases provided for by law ”.

THE risk jurisdictional

This risk category is not covered by the regulations but deserves to be studied since it is a risk that is part of our reality, the judicial environment. is not without consequences on the life of companies, this is due to the solutions given by the different courts, which differ according to the type of jurisdiction (court of first ^instance , Court of Appeal, Court of Cassation), the nature of the dispute (social, commercial, civil dispute, etc.), the territorial jurisdiction of the courts…,this is accentuated any further if there Company East established In A country outside the Kingdom of Morocco (different judicial system, different applicable law, etc.). This is the case, for example, of some courts social in matter of procedure of dismissal Who can to show more concern for the interests of employees than those of companies, which leads to a level pupil of uncertainty, East SO of nature has to aggravate THE risk legal to which there Company is faced with. The policy of choosing the most appropriate jurisdictions for a company is an important element that will determine the course of a dispute and consequently, the level of risk to which the Company exposes itself, it is thus, of the choice between to carry THE dispute before an arbitral court or before a jurisdictional court (problems of speed, language, translation, quality of judges, etc.). The stability of case law, the objectivity of the courts and the absence of corruption of the auxiliaries of there justice, there complexity Or there speed of the procedures, all these elements must be analyzed thoroughly Before All socket of decision because that they can determine the outcome of a dispute.

1.1.2.     THE risks legal by the consequences

• THE risk of sanctions judicial or criminal

There The first of the judicial sanctions is obviously the civil penalty or commercial which translates by there conviction has of the damages in reason of non-compliance of a obligation

contractual for example. These damages can be particularly high even if, in Morocco, today their objective remains simply compensatory and has no punitive purpose. Although presenting a financial risk in principle lower, criminal sanctions as to has them present A other risk more consequent And more severe Who carry attack on the image of there Company and of its social leaders. The criminal conviction pronounced by the competent courts results from the commission of an intentional or unintentional offense by THE leaders social Or THE attendants of the Company, this condemnation can go as far as imposing prison sentences or custodial sentences on company directors. Moreover, the mere fact of being the subject of criminal proceedings is in itself extremely traumatic for the individuals concerned, particularly this is the case for THE leaders social And attendants of a Company, And see even harmful For there company that can SO itself find struck of a prohibition of proceed has some operations with administrations or public entities.

THE risk image and reputation

Legal risk is one of the risks whose occurrence can impact reputation and image. of a Company. He in East Thus of risk judicial, element of risk legal, Who has a major media dimension, and which can cause great harm to the company’s reputation and its image among its audiences. The legal risks linked to image and reputation are multiple: they are linked to legal acts, contracts, the health and safety of employees, relations with customers and suppliers, all areas where the company’s liability can be called into question.

In addition to the legal risks associated with the rules laid down by positive law (commercial law, labor law, law of obligations and contracts, etc.), there are regulatory and ethical risks. The company may face a changing and complex environment, increasingly demanding stakeholders, and control and regulatory authorities with quasi-jurisdictional powers. (Advice of there competition, there High Authority of Audiovisual, There National Commission for the Control of Personal Data Protection (CNDP), the National Agency of Regulations of the Telecommunications, etc.). These parts stakeholders can, has through sanctions made public, harm the image and reputation of the company, by effect ball  of snow, that will be able to to touch the appearance financial of there Company notably, her turnover .​

1.2.  THE role of advice of administration In there management of the risks legal

1. Adaptation of advice of administration has there management of the risks legal

The control function, of which legal risk management is only one variation, is the subject of much discussion in studies devoted to the board of directors as an administrative body. Indeed, being the backbone of a public limited company, through its strategic position at the organizational level, the board of directors stands out as the important actor in legal risk management. Moreover, proponents of agency theory consider the board of directors to be  » the apex of the internal control system of the company » (Le Joly, 1998). Indeed, due to its organizational position, it comes into play between the shareholders, whose control is most often exercised downstream at the level of general meetings, and the managers, whose management is daily (head down), suffering from a lack of objectivity and independence.

As the legal representatives of shareholders and their agent, the board of directors normally has the necessary skills to analyze, identify and evaluate legal risks. This is a considerable advantage that further motivates the role that the board must play in risk control and management. In a democratic perspective that characterizes THE companies anonymous, THE advice of administration itself positions At more high top of the organizational hierarchy, thus surpassing the managers who themselves are appointed by the board. All of these arguments confirm the hierarchical and organizational superiority of the board of directors in terms of the legal risk management system, an element of the company’s internal control. Although the general meeting of shareholders is an emanation of the administrative and management bodies, and by its very nature exercises there monitoring of there management social, This postulate can be abandoned quickly (Ripert, 1943) in favor of a real and practical approach which is that of legal risk management carried out by the board of directors.

That being said , some work by researchers (Le Cannu , 1995) in the field of corporate governance , and which advocate the need to strengthen the role of the board of directors in legal risk management, tend in most cases to confirm the different principles set out in the preceding paragraphs, namely, the evolution of the power of control of a control-domination has A control-surveillance materialized by the organ

administration or management. The Moroccan legislator has not remained indifferent to this movement, Who place THE advice of administration as a rock  angular In THE internal control in particular, in the management of legal risks, this is how law 17-95 relating to public limited companies establishes for the first time the role of the board of directors in matters of control and supervision at the level of the public limited company.

1.2.2.     Consecration legislative of the obligation of advice in matter of legal risk monitoring

There monitoring of the risks East the whole of the policies And means put in artwork by THE board of directors to identify, assess, limit and control risks related to the company’s activities anonymous. THE advice given the impulse has there approach of mastery of the risks legal and follows the bet implemented, by verifying that THE level of risks taken by the company is in line with its development strategy, profitability and risk-taking policy (IFA & AMRAE, 2009). The board of directors’ responsibility for risk monitoring stems mainly from the legal obligations provided for by legislation, regulations, THE circulars of the authorities of control Moroccan specific has each industry and standards and practices. We will address each of these points below.

The Board of Directors of a public limited company cannot be indifferent to legal risks and their prevention and treatment. This involvement of the Board of Directors in matters of management of the risks legal East in reality planned by there law No. 17-95 has across THE role assigned to it to carry out the controls and verifications it deems appropriate. It allows it to to pull some teachings. So, according to the article 69 of there law No. 17-95 relative to public limited companies:  » The council of administration determines the directions of the company’s activity and day before has their bet in artwork. Below reserve of the powers expressly attributed to shareholders’ meetings and within the limits of the corporate purpose, it deals with any question concerning the proper functioning of the company and regulates by its deliberations the matters which concern it.

The board of directors carries out the controls and verifications it deems appropriate . » At least two teachings can be deducted of role assigned to board of directors to carry out the checks and verifications it deems appropriate:

• THE advice of administration East tenuous of to make sure that there walk of there Company register In respect of there legislation And of there regulation y related. That implied that THE advice must

to watch THE risks legal And THE measures adopted For THE master, SO he East challenged by there compliance, And observe himself THE rules of there governance, since he East tenuous to demand compliance within the public limited company that he administers.

• enable the establishment of a system dedicated to the management of legal risks and compliance and provide the human and material resources required for the implementation of a compliance approach.

It seems obvious, in fact, that the ultimate responsibility for managing legal risks rests with THE board of directors and not on there general management. The changes introduced e to there law No. 17-95 relative to companies anonymous have permit of redefine THE extensions And THE role of the board of directors by focusing on the monitoring and control function in particular, there management of the risks legal. He it is about of a innovation legislative in favor of the monist public limited company and its administrative body. It should be noted, however, that despite the silence of Law 17-95, the board of directors was naturally invested with the power of supervision and control. Some authors see this as a  » natural mission » of the board of directors even if it is not provided for by a legal provision ( Caussain & Bermond , 2002). Indeed, the fact of administering a company, supposes decision – making , the implementation of strategies and ensuring their implementation, thus, the management of legal risks is closely linked to the administration function.

It is important to emphasize that Article 69 supplemented by the new Article 74 bis of Law 20-05 specifies that  » Each director receives all the information necessary to carry out his mission and may request from the chairman all the documents and information he considers useful. « . It is thus probably not by chance that paragraph 2 of article 74 bis also regulates the right to information that the law reserves for all directors, and for the respect of which the general manager and the chairman are required to transmit to the said directors all the documents and information necessary to carry out their mission. It is understood, in fact, that the delivery and examination of documents and information deemed useful by the board can facilitate the implementation of the power of control or supervision, in particular, the management of legal risks. This obligation to set up a legal risk management system by the board of directors is particularly accentuated at the level of companies whose shares are traded on the main market of the stock exchange. Thus, article 106 bis of the law 17-95 modified And completed in virtue of 1st article of there law No. 20-19 required of the companies

listed on the stock exchange to create an audit committee which is responsible for managing risks related to the company. This is also the case for companies making a public appeal for savings, including THE report of management of the advice of administration Or of board of directors must come out THE risks inherent in investments; indicate and analyze the risks and events, known to the management or administration of the company, and which are likely to exert a favorable influence Or unfavorable on its situation financial. This committee East notably charge to monitor the effectiveness of internal control and risk management systems, particularly legal ones, and to report in a report attached to that of the board of directors or the supervisory board on the internal control and risk management procedures implemented .

Independently of there law 17-95 relative to companies anonymous Who does not bring none additional precision regarding the risk management system, the regulations specific to sectors of activities financiers, notably THE sector banking, imposed there bet in place of a risk control system. Indeed, Directive No. 29/G/2007 of the Governor of Bank Al-Maghrib relating to the operational risk management system resulting from the recommendations issued by the committee of Basel ¹ , constitutes a reference for there implementation by credit institutions of an operational risk management system through the identification of potential sources of such risks and ensuring their measurement, monitoring, control and mitigation.

There directive of the governor of Bank Al-Maghrib attributes there monitoring of the risks legal matters to the board of directors, the latter approves the implementation of the risk management system operational. HAS this effect, THE advice of administration will have to define of manner clear and precise THE directions And principles of device of management of the risks in front be put in established by the management body, namely the general management, and approves the related policies developed by the latter. Thus, according to the directive of the governor of Bank Al-Maghrib, the system of management legal risks takes in count them elements following :  » THE acceptable level, by the establishment, of such risks, in specifying THE policies of their management And the priority given to their implementation, as well as the conditions under which the management of these risks can be possibly entrusted has a entity external has the establishment.

¹ The Basel Committee on Banking Supervision ( BCBS) is a forum where banking supervision issues are discussed regularly (four times a year). It is hosted by the Bank for International Settlements in Basel.

The system also includes policies defining the methodology for identifying, evaluating, monitoring and controlling and/or mitigating risks .

By elsewhere, according to always there even directive, THE advice of administration day before, regularly, to the evaluation of the system put in place to ensure the proper management of operational risks that originate from external developments. The board of directors may entrust a specialized committee (risk committee) with the responsibility of implementing the operational risk management system of the credit institution, which will be dealt with in the second part of our article. Thus, Circular No. 5/W/2018 of the Wali of Bank Al-Maghrib setting out the conditions and operating procedures of the committee charge of follow up of process identification And of management of the risks has :

 » The administrative body of the credit institution establishes within itself a committee responsible for monitoring the risk identification and management process, hereinafter referred to as the “risk committee”, in sight of assist him in matters of strategy, of management and monitoring of the risks to which the establishment is exposed .

Furthermore, Article 7 of Circular No. 4/W/2014 of the Wali of Bank Al-Maghrib relating to the internal control of credit institutions provides that  » The administrative body is responsible of approval And there monitoring of system of control internal. In This framework, it must in particular:

• define THE strategic directions of the establishment and THE degree of aversion to risks ;
• approve the strategy And politics in matters of risks ;
• ensure that internal capital is adequate to the degree of risk aversion and the risk profile of the institution;
• to make sure of there bet in place of a structure organizational appropriate And human and material resources necessary for the implementation of the internal control system;
• …». Others requirements legal in matter of risk exist, For illustration, THE obligations in the insurance sector.

At level of sector insurance And of reinsurance, In THE frame of reinforcement of prudential system provided for by Law 17-99 on the code insurance, as amended and completed, and In THE aim to bring THE companies insurance And of reinsurance has master any further the legal risks they incur, article 239-2 of the insurance code provides for the establishment by these companies of a system of control internal having For object identification,

assessment , management and monitoring. In addition, and for the reliability of the legal risk management system, insurance and reinsurance companies must have an internal audit structure reporting directly to the board of directors whose mission is notably of check efficiency of system of control internal. This structure establishes at least one times per in a report on his activity and the submits to the company’s auditors.

By elsewhere, there circular of there Direction of the insurance And of there foresight social (DAPS), No. DAPS/EA/08/11 of August 26, 2008, relating to the internal control of insurance and reinsurance companies, defines internal control as  » all the measures which, under the responsibility of there direction general Or of advice of board of directors of the company insurance, must ensure with a insurance reasonable a awareness sufficient of the risks, as well as their control, with a view to protecting heritage ”. The same circular also defines in its article 35, the legal risk as “ the risk of disputes arising that may incur the liability of the insurance and reinsurance company due to inaccuracies, gaps or inadequacies in contracts and other legal documents binding it to third parties. « . The Insurance and Social Security Supervisory Authority (ACAPS), formerly the DAPS, insists that risk measurement, control and monitoring systems must ensure that the risks incurred by the insurance and reinsurance company, in particular legal risks, are correctly assessed And mastered. In effect, according to the article 36 of there circular of there Direction insurance And of there foresight social (DAPS) No. DAPS/EA/08/11 of 26 august 2008 relative at the control internal of the companies insurance And of reinsurance, THE advice of administration must ensure that  » the legal risk control system must ensure that contracts and other legal documents binding the insurance and reinsurance company are drawn up and concluded in compliance with the legal and regulatory provisions in force and are subject to strict control in order to address any inadequacies, inaccuracies or gaps. « 

That being said , by redefining the role of the board of directors in the public limited company, law 17-95 relating to public limited companies, gave the function of risk control and monitoring legal a real importance, he would be SO logic And judicious of to identify, In there

part (2), the means made available to the board of directors to carry out their role of legal risk management.

2.     THE means of there management of the legal risks

THE advice of administration has of two types of instruments of control And of monitoring of legal risks of the public limited company. First, the law offers the possibility for the council of administration of create of the committees techniques specialized In there management of the legal risks (2.1), Or of give back there management of the risks A point specific And periodic of the agenda of an existing committee, such as the audit committee. As for the second instrument, the use of which East imposed by the provisions legislative and regulatory, and Who is relative has the implementation of a device of legal risk management (2.2), component central in internal control, or even communicate on the status of this system.

2.1.  THE committees specialized : risk committee

• Importance of the specialized committees

Considered to be “an essential spring of the control of the board of directors » (Gavalda, 1997), legal risk management within the framework of specialized or risk committees, allow has there assignment of monitoring allocated At advice of administration, to acquire two important qualities : independence and professionalism. To this end, if the main legal risks of the public limited company are often discussed at the board of directors level, of many advice continue of delegate there monitoring and THE control of the management of the risks legal has of the committees specialized, This Who East conforms rules of good governance set out by the Moroccan Code of Good Corporate Governance Practices (Confederation General of the Companies of Morocco Or CGEM, 2008) Who demand that THE audit committee discusses of evaluation and policies of risk management. In recent years, the percentage of advice of administration having of a committee of the risks distinct has increased. According to a survey ² conducted by the General Confederation of Moroccan Enterprises (CGEM), approximately 50% of the companies anonymous questioned have declared to have A committee.

² This study on there governance business At Morocco has summer initiated by there foundation CGEM For the company, with the support of  » Center for International Private Enterprise » (CIPE). She has For object devalue THE context legal and institutional as well as the practice of governance in companies in relation to the texts in force and international standards and codes, in particular in relation to the revised OECD principles.

specialist created within the board of directors to assist this body in conducting business.

It is also noted in a study ( Kerraous & Bakkali, 2021) carried out on the evaluation of risk management practices in Moroccan companies, that for more than half of the respondents (54%), risk appetite is set by risk committees or boards of directors given the major challenges of legal risk management. As previously stated in this article, public limited companies are required to have a dedicated risk management committee. However, the relevance of a dedicated risk committee will depend on the company’s sector of activity and the nature of its structure and organizational scheme. If the board of directors retains the primary function of monitoring legal risks, the latter must provide for a periodic review of risk management outside the scope of its role in risk management.

However, regarding information on legal risks, we note that the council of administration stay addicted of the information that THE leaders their provide, and of this fact, the leaders often constitute the alone source information from the council. However, in order to be able to control And manage THE risks, Again should we that information must be judged relevant and objective. This problematic of objectivity And of relevance find its source In THE do that it is the managers who control all the information that the board of directors receives. To overcome this problem,  » to set up a source of information competing with that of management through people specifically responsible for carrying out this control, this is precisely the case for specialized committees  » (Sylvestre, 2003). In there practical, we notes that THE committees fill fully their role of legal risk management, as control and monitoring instruments serving the board of directors (Moroccan Institute of Directors “IMA”, 2014).

He East important of emphasize that, All committee charge of there monitoring of the risks must organize sessions attended by key risk management officials. He will be appropriate that THE Or THE committees loaded of there monitoring of the risks legal meet at behind closed doors, alone or with other independent directors, for discuss of the culture of the risks legal At breast of there Company, of there function of monitoring of the risks of the board and the main risks facing the company. However, it should be remembered that THE committees born take none decision notably, on THE questions relatives has

the appetite for legal risks, it is, according to law 17-95 relating to public limited companies, only a simple force of recommendations and opinions.

The strong potential of the committees that we have just mentioned in the preceding paragraphs in particular, that of a tool of good governance in the service of the organization of the role of the board of directors and its effectiveness ( Lebègue , 2013), leads us to criticize the timid intervention of the Moroccan legislator in the institutionalization and organization of specialized committees, by simply regulating them (Article 106 bis of law 17-95 relating to companies anonymous) uniquely In THE companies listed In there sotck exchange  of values, knowing that these committees are widely used in large Moroccan public limited companies ³ .

2.1.2.     Regulation of the specialized committees

Aware of the importance of committees as an instrument serving the board of directors and controlling governance in public limited companies, the Moroccan legislator, Thus that THE authorities of control of sector banking And insurance, have introduced a number of provisions which tend towards the institutionalization of committees in the organization of public limited companies.

Indeed, until the adoption of law 78-12 amending and supplementing law 17-95 relating to companies anonymous, it was the article 51 of there law 17-95 relative to companies anonymous Who dealt with the question of specialized committees and the possibility of their creation:  » The board of directors may set up within itself, and with the assistance, if it deems it necessary, of third parties, shareholders or not, technical committees responsible for studying the questions that it submits to them For notice. He East rendered account to sessions of advice of the activity of these committees And opinions or recommendations formulated. « , this article is satisfied of to set down THE principle of there legality of the committees by giving the board of directors complete latitude to determine the areas of intervention, composition and powers of the committees. As a result, Article 51 remained general in its wording and did not make it possible to make the establishment of committees a mandatory practice. The only imperative that was laid down by Article 51 concerns « the obligation of discretion » done  has the counter of the people participant to meetings of the committees specialized.

³ The report op. cit from the IMA shows that 87% of the companies anonymous having participated in the survey have of a committee audit. HAS note that this investigation has summer performed with of 45 companies representative 44% of total of the Moroccan SAs making a public appeal to savings, credit institutions and insurance and reinsurance companies.

On the other hand , with article 106 bis of law 17-95 modified and supplemented by law n° 78-12, companies listed on the stock exchange were required to have an audit committee. Who East charge of there management of the risks related has there Company. It is Thus that he has that :

 » For the companies whose shares are listed has the side of the stock market values, an audit committee acting below there responsibility, according to THE case, of advice of administration Or of supervisory board, must be created. […] « . Furthermore, Article 106 bis also defines the areas of intervention and competence of the committees; this is a legal requirement which sets the scope of intervention of the committees, and not a choice left to the board of directors.

At this stage, we note that the scope of Article 106a is too narrow since it only concerns public limited companies listed on the stock exchange, so what about other public limited companies which are also vulnerable to legal risks? ? Hypothetically, public limited companies making a public appeal for savings are the most exposed to legal risks due to the opening of their share capital to the public and the complexity of the stock market legislation regulating this type of operation, hence the interest in putting in place, by This gender of companies anonymous, of committees specialized Before even that there Law 78-12 did not establish the mandatory nature of these committees. However, even public limited companies that do not make a public appeal for savings are just as exposed to legal risks. that those listed in sotck exchange  And particularly, THE companies anonymous of which THE sector of activity is purely financial, it concerns banking establishments and insurance companies And of reinsurance Who are controlled by of the authorities government (the Authority of Control of the Insurance And of there Foresight Social (ACAPS) And Bank Al-Maghrib (BAM)) established by there strength of there law And invested of wide SKILLS in matter of regulation And supervision of the sectors subject to it and in particular, the preparation and publication of circulars through which they set out the rules and procedures in addition to the draft decrees and orders that they propose to the government.

It should also be noted that it was appropriate for the Moroccan legislator to provide for more restrictive legal provisions concerning committees, an instrument of extreme importance, particularly in terms of good governance, insofar as it allows for the strengthening of the supervisory role allocated to the board of directors and particularly at the level of management of risks legal. He East has note that, THE character lapidary of law 17-95 concerning there

question of the committees specialized East in counter-current by report has there regulation specific to the banking and insurance sector and to the requirements set by the Moroccan authorities for the control of credit institutions and insurance and reinsurance companies which establish said committees as a major tool and instrument for the management of legal risks and control.

This need to set up committees specializing in legal risk management has led THE authorities of control of the establishments of credit And of the companies insurance And reinsurance to institutionalize committees, in particular those relating to risks as instruments in the service of the board of directors. This institutionalization has summer carried out through the publication, by the banking and insurance market control authorities, of circulars regulating the various committees in charge of legal risks. Indeed, concerning the banking sector, law n° 103-12 relating to credit institutions and organizations assimilated In her article 77 required of the establishments of credit, In THE conditions set by the circulars of the wali of Bank Al-Maghrib, to equip themselves with an appropriate internal control system aimed at identifying, measuring and monitoring all the risks they incur notably, legal And of put in place of the devices of management of these risks. To this end, according to law no. 103-12, “ credit institutions are required to establish:

• an audit committee responsible for monitoring and evaluating the implementation of internal control systems and;
• A committee charge of follow up of process identification And of management of the risks […] ».

These committees must be the emanation of advice of administration And include A Or several directors or independent members. The conditions and operating procedures of these committees are set by the circulars of the wali of Bank Al-Maghrib. Thus, according to the Directive No. 29/G/2007 of governor of Bank Al-Maghrib relative At device of management of risks operational, THE advice of administration will be able to entrust has A committee there charge of the implementation of the credit institution’s legal risk management system. Furthermore, in the absence of legal provisions regulating the roles, composition, functioning of risk committees and the methods of managing legal risks, the circular of the wali of Bank Al-Maghrib No. 5/W/2018, comes to set the conditions and methods of operation of the committee responsible for monitoring the identification and management process of the risks. In This sense, THE circulars ⁴ of the authorities of control of sector banking.

⁴ Advice of state – 8th And 3rd subsections reunited – 13 January 2010, No. 321416, Legifrance .

and insurance have a regulatory character, their provisions establish, in the silence of the texts, a new rule or interpret an already existing rule. This observation leads us to clarify that there circular No. 4/W/2014 of Wali of Bank Al-Maghrib relative At control internal regulations of credit institutions and Directive No. 29/G/2007 of the Governor of Bank Al-Maghrib relating to the operational risk management system come to fill the regulatory gap concerning the legal risk management system, in this sense, they set THE rules in front be observed by THE establishments of credit For there management of the legal risks , and constitute a benchmark of sound practices for the implementation by credit institutions of a legal risk management system (2.2) and to enable them to identify the potential sources of such risks and to ensure their measurement, monitoring, control and mitigation.

2.2.  There bet in place of a device of management of the risks legal

Legal risk management is the implementation of systems for identifying, prioritizing and treating risks at the activity level by management managers, of the large functions and the whole of the collaborators. THE management of each entity makes sure of the application of there policy of the company in matter of mastery of the risks related to the activity for which he is responsible and ensures that exposure to these risks is consistent with the risk management policy defined by the board of directors  » (IFA & AMRAE, 2009). The board cannot and should not be involved in the day-to-day management of legal risks. Rather, directors must, as part of their legal risk oversight role, ensure that the risk management processes designed and implemented by executives and risk managers are aligned with the board’s strategy. And work as foreseen, And that THE measures necessary are sockets to foster a culture of risk-informed decision-making throughout the organization.

Through its supervisory role, the board of directors can make it clear to the company’s management and employees that legal risk management is not an obstacle to doing business or a mere complement to the company’s overall compliance program, but that it is an integral part of the company’s strategy, culture and value creation process. Our purpose in this article is not to detail the methodology of legal risk management; we simply wish to summarize its main stages.

2.2.1.     Identification of the legal risks

Identification of the risks legal to which there Company anonymous can be exposed constitutes the first step in a legal risk management system ( Assairh & al, 2020). Identifying legal risk requires knowledge of the company’s organization. Indeed, knowledge of a company’s organization makes it possible to determine the legal areas Or of right Who are easily impacted by THE risks legal, such by example: tax law, when the company has consolidated accounts or is considering a merger and acquisition or merger with absorption; social law, depending on the size of the number of the employees And of their representation And of their benefits social And their seniority ; THE right of the companies, according to there shape legal of there Company anonymous, has advice of directors or management board and supervisory board, if it is a group of companies constituted as a holding company And subsidiaries. A other postman intervenes, the one of the opening At walk of the capital, if it is of a Company side in sotck exchange  Or of a Company closed with of the securities No negotiable. Indeed, there realization of a risk legal East often linked has the organization of a Company, he in is thus the structure of the company (board of directors or management board and supervisory board), the location (national, regional or international), the relationships within a group of companies (holding company, parent company, subsidiaries, branches), openness to the capital market (shares listed or not on the stock exchange). All these elements mentioned are likely to make the decision-making process or intra-company communication more difficult and less rapid. Directors must therefore be aware of the organization of the company they manage in order to better assess the vulnerability of the company to legal risks and consequently, better evaluate and treat them. Thus, awareness of the organization of a company and the sources of risks that concern it makes it possible to draw up a map of legal risks, which is a conceptualized tool and can be defined as a way of representing and prioritizing the risks of an organization and a mechanism and means of prevention allowing the success of the risk management process ( Berkchi , 2021).

2.2.2.     Assessment legal risks

THE risk being identified, he agrees of evaluate it for appreciate its gravity in holding account possible variations depending on the evolution of the legal context (new law, new case law, new standards…) Or of evolution of context economic (modification of the

behavior of the consumers, modification of the forces on THE walk…). The assessment uses the notion of measurement, this is how Gérard Cornu in his legal vocabulary (Cornu, 1987) there notion devaluation Who consists in a  » Operation consistent has calculate And to state a value based on specific data and criteria, that is to say to seek and encrypt This that is worth in money A GOOD Or A advantage (assessment of a heritage, assessment of a profit) or the amount of money that represents a loss (assessment of damage).  » According to there definition of the assessment aforementioned, there notion of measure East THE process of risk comparison estimated with the criteria of risk data for determine the importance of a risk. (International Organization for Standardization “ISO”, 2009).

Furthermore, risk assessment helps in decision making regarding acceptance and treatment of risk. The assessment of risk legal must be  » balanced « , that’s to say that she must take in consideration THE aspects negatives as THE aspects positive of the consequences of the realization and treatment of legal risk. Indeed, legal risk management involves of the costs that he must them even THE appreciate For decide if he is not more interesting for the company of  » take the risk » (Knight & Pretty , 1999) than to manage it, except when the realization of the risk is of a nature to be unbearable due to its consequence (financial stakes by example) Or of its frequency (risk recurrent by example). In right commercial, by example, a breakup brutal of the relationships commercial can to drive the author of there termination to compensate the victim (the co-contractor), but this compensation may be lower compared to the profit obtained from the immediate establishment of relations with a better partner.

Legal risks can be classified, at the end of the assessment, according to the degree of severity and the consequences of their occurrence for the company. The correlation of the assessment criteria makes it possible to draw up a table of legal risks in which three areas of assessment emerge (acceptable risks, risks to be monitored, unacceptable risks).

2.2.3.     Treatment of the risks legal

Two methods of dealing with legal risks, cumulative or not, are possible, the first aims to prevent the legal risk that the company does not wish to run even before its birth, THE second, has transfer THE risk legal impossible Or inappropriate has prevent, or his imputation of his burden to others.

There prevention of the risks legal

The company Or there Company can seek has prevent of the event postman of the risks legal through internal regulation: standardization (what must be done) and procedures (how to do it) ⁵ , taking into account the legal risk environment and their evolution.

The internal regulations are the best known of these internal standards, particularly those relating to disciplinary measures, hygiene, and employee safety. The regulations occupy a central place in personnel management and legal risks related to the activity. The prevention of legal risks can also be carried out by other internal standards, rules which, endowed with particular effectiveness, would operate automatically and immediately, without the intermediary of sanctions, such as the code  » ethics  » Or  » of good professional conduct « , code of good conduct, code of conduct, internal contractualization, etc. There scope legal of the standards internal East Thus variable (Neau-Leduc, 1998), ranging from simple rules Who state of the principles generals Or those Who prescribe directly a course of action, to accessory rules, which lay down sanctions. Internal standardization aims has frame THE actions of the operational At breast of there Company in specifying This that they can or cannot do in situations that have been identified as generating legal risks, whether in the context of external relations between companies and its competitors (for example, “compliance” rules), or in relations between the company and its customers (for example, “consumer” charter « ), or in the context of intra-company relations between the various services or departments (Levesque- Glasson , 2000). Standardization is expressed has across THE principles, rules, And of the recommendations, in function of there nature And of the gravity of risk legal has prevent but Also by of the procedures And of the actions promoting the application of these legal risk prevention instruments.

The imputation of risk legal

In the hypothesis Or the mechanisms prevention of the event factor of risk prove to be exhausted Or impossible, he East possible And Sometimes desirable to impute there charge that constitutes.

⁵ At sense wide, there standardization understand all regulation having vocation has govern THE operators economic and their activity. In this respect, we distinguish between standardization external to the company (international rules, laws, collective agreements, etc.) and standardization internal to the company (collective company agreements, internal regulations, customs, etc.).

For there Company there realization of the event postman of risk legal has A third party Who will assume it in THE frame of a CONTRACT insurance specifically adapted. In effect, THE appeal has A insurer is the ultimate AVERAGE in order to of manage THE risks residual. In so much that AVERAGE of transfer of risk, the purpose of insurance is to cover the financial consequences of risk in general, whether legal or otherwise. Insurance can cover companies whose company is the author, these are the consequences of the company’s civil liability for which She answers And can TO DO the object of a insurance responsibility civil. Insurance will be particularly necessary in the case of specific liability regimes which impose on the company the obligation, regardless of any fault, to repair the damage caused or the harm resulting from its activity. This is the case, for example, of liability insurance for of the products defective of which THE appeal East necessary, In THE measure Or, THE manufacturer, may be liable for the defect even if the product was manufactured in compliance with the rules of art Or of standards existing Or that he has do the object of a authorisation administrative (Article 106-8 of the Dahir of Obligations and Contracts).

Conclusion

This article puts in evidence the importance of advice of administration In there management of the legal risks At breast of the companies. It underlines THE risks legal common, examine THE role specialized committees and presents the different stages of legal risk management. The results of this research provide of the perspectives precious For companies in order to to better manage and mitigate legal risks, which can have a significant impact on their compliance legal, their reputation And their success overall. However, he East important of note that this research has some limitations, such as the lack of specific case studies or the absence of in-depth analysis of differences between business sectors. Future research could be focus on these aspects in order of provide of the information more detailed and contextualized on the management of legal risks in different organizational contexts.

Bibliography Works specialized

• Assairh . L & al. (2020).  » There Management Of the Risks Operational In THE Institutions Microfinance : Frame Theoretical « , Review International of the Sciences of Management  » Volume 3: Number 2 » pp: 653–667.
• Berkchi . S. (2021). « State , Management of the risks And Development » , Review International from the Researcher “Volume 2: Number 4” pp: 121 – 141.
• Bermond de Vaulx, JM (1970). « The use of the concept of control by the board of directors or the management board in public limited companies”, JCP CI, 88496, p. 689
• Caussain , JJ (2002).  » There direction And THE advice of administration of there Company anonymous », Litec.
• Collard, C. (2008). « THE risk legal does it exist ? – Contribution has there definition of legal risk. » Business Law Notebooks, no. 1, Jan.-Feb.
• Horned, G. (1987). Vocabulary legal : Association Henry Captivating, 1st ed., Paris : PUF.
• Gavalda, C. (1997). “General introduction on democracy and transparency in corporate governance”, LPA, no. 55.
• IFA, AMRAE, PricewaterhouseCoopers & Landwell . (2009). Study on the Role of the Administrator in Risk Management (p. 22).
• Moroccan Institute of Directors (IMA). (April 2014). Report on the practices of audit committees and the internal audit function in issuers making public appeals to savings, banks and insurance companies.
• Kerraous , EM & Bakkali, J. (2021). Exploratory study of a sample of 39 large And averages companies of Casablanca And Rabat, initiated by The Mehdi KERRAOUS and Jihane BAKKALI teachers researchers has the University Abdelmalek Essaadi has Tetouan, on the evaluation of risk management practices in Moroccan companies. Journal of Integrated Studies in Economics , Law, Technical Sciences & Communication, Vol 1, n°1.
• Knight, R. F. and Pretty , D. J. (1999). “ Corporate catastrophe, stock returns , and trading volume.” Corporate Reputation Review , 2(4), pp. 363-378.
• Lebègue , D. (2013). The urgent need for the Board to rely on risk management functions. Internal Audit and Control Review, [Interview].

• THE Cannu , P. (1995).  » Legitimacy of power And efficiency of control In THE companies by shares”, Joly Sociétés Bulletin, no. 7-8, p. 637.
• Le Joly, K. (1998). « The board of directors, controller or strategist ? », in Rethinking Strategy, Foundations and Perspectives, Vuibert, Paris.
• Levesque- Glasson , C. (2000). Internal contracting within the company: contribution to the study of contractual normativity, Montpellier thesis.
• Mazars and Opinion Way . (2011). conducted a study titled « Better control of risks » legal : practices And trends ». Available at : http://www.ie-ihedn.org/wp- content/uploads/2018/02/Mazars-Better-control-of-legal-risks-Practices-and-trends.pdf
• Neau-Leduc, Ph. (1998). The regulation of right private, Litec, Library of right of the company.
• Organization International of Standardization  » ISO « . (2009). ISO Guide 73: Risk Management – Vocabulary.
• Ripert, G. (1943).  » Aspects legal of capitalism modern « , LGDJ, Paris.
• Sylvester, S (Nov. 2003).  » THE control internal « , LPA, No. 228, p. 87.
• Tea 2010 Business Risk Ernst & Young report (2010). THE Top 10 of the risks For companies, Synthesis.