Tools legal of resilience.

TOOLS LEGAL OF RESILIENCE LEGAL

TOOLS FOR RESILIENCE

Summary :

Resilience is the ability to adapt and bounce back from challenging events. In legal matters, there are several tools that can help strengthen an organization’s resilience. First, we’ll discuss the main legal resilience tools, such as contracts, insurance, and legal risk management. We’ll also look at the benefits of legal resilience tools, including the ability of an organization to: organization has itself prepare has TO DO face has of the events difficult, has itself protect against the risks financiers And legal, has itself restore more quickly After of the events unforeseen events and to improve its ability to withstand difficulties. Although legal resilience tools offer many advantages for businesses, they also have certain limitations, including high costs, administrative complexity, long-term commitment constraints, THE risk of dependence And THE boundaries of blanket insurance are some of the main limitations associated with the use of these tools. It is therefore important for an organization of GOOD assess THE costs And THE benefits of each tool legal Before of make a decision, as well as put in place an effective risk management strategy to minimize potential negative impacts.

Keywords : risks, right, vulnerability, resilience, advantages, limitations.

Abstract :

Resilience is the ability to adapt and bounce back from difficult events. In legal matters, there are several tools that can help build resilience in year organization. First, we will discuss tea main legal tools for resilience such as contracts, insurance and legal risk management. We will also look at the benefits of legal resilience tools, such as an organization’s ability to prepare for difficult events, protect itself from financial and legal risks, recover more quickly from unforeseen events, and improve its ability to withstand challenges. While legal resilience tools offer many benefits to businesses, they also have some limitations, including high costs, administrative complexity, long-term commitment constraints, dependency risk, and insurance coverage limitations are some of the key limitations associated with using these tools. It is therefore important for an organization to properly assess the costs and benefits of each legal tool before making has decision, more as to put in place an effective risk management strategy to minimize potential negative impacts.

Keywords : risk, law, vulnerability, resilience, benefits, limitations.

Introduction

 » THE Morocco has put in place a strategy of resilience And of struggle against THE effects of there pandemic of there Covid-19, Who itself compound of three shutters : sanitary, social And economic. This « The strategy was initiated under the leadership of HM King Mohammed VI, and thanks to this foresight, Morocco was one of the first countries to take preventive measures and impose a state of health emergency,  » the minister stressed . of Health and Social Protection, Mr. Khalid Ait Taleb, during his speech at the World Social Security Summit, organized within the framework of the World Social Security Forum (WSSF) ¹ .

The proliferation of resilience discourses can, in part, be attributed to the recent enthusiasm for strengthening the human race against the threat of climate change, as well as the emergence of « climate-resilient development » as a term technical has share whole ² . It is In This context that there resilience of the companies has become an important research topic during the COVID-19 pandemic ³ . Researchers itself are concentrates on THE strategies of resilience that THE companies can adopt to overcome the challenges posed by the crisis ⁴ , such as supply chain disruption, reduced demand, closure of production sites and the need to implement remote working practices.

There resilience East A concept Who has taken of more in more of importance In THE domain of there crisis and natural disaster management. This is a society’s ability to prepare for, respond to and has itself restore of the shocks Who can occur. In This context, THE tools Legal tools are increasingly used to strengthen the resilience of organizations, particularly businesses.

The leaders social have there responsibility of ensure that their business is able to do

¹ https://www.mapexpress.ma/actualite/societe-et-regions/maroc-adopte-strategie-resilience-lutte-contre-les-​ pandemic-effects-m-ait-taleb/.

² International agencies, governments, donor organizations and international consulting firms itself are all appropriate This term. See generally Low Emission Climate-Resilient Development Strategies: Latest Publications, UNITED NATIONS DEVELOPMENT PROGRAM, http://www.undp.org opment/ (several of the publications listed illustrate the appropriation of the term); THE GOV’T OF THE REPUBLIC OF S. AFR., NATIONAL CLIMATE EXCHANGE ANSWER WHITE PAPER (Oct. 2011),

available has the address http://rava.qsens.net/ whitepaper.pdf (beginning its articulation of the objective national of answer At change climate by THE words following : « ) ; Climate Change Resilience, ROCKEFELLER FOUNDATION, rockefellerfoundationwork/current-work/climate-changeresilience; THE ECONOMICS OF CLIMATE ADAPTATION WORKING GROUP, SHAPING CLIMATERESILIENT DEVELOPMENT : HAS FRAMEWORK FOR DECISION-MAKING (2009),

³ Tremblaya Diane-Gabrielle. Teleworking and coworking: socio-territorial issues in the wake of there pandemic of COVID-19, notes current affairs. Review Organizations & Territories, Flight. 29, No. 2, 2020, p. 159. ; Hidayat, Mr., Latief, F., Nianti, D. HAS., Bahasoan, S., & Widiawati, HAS, Factors influencing resilience of microphone small and medium entrepreneur (MSME) during COVID 19 outbreak in South Sulawesi Province Indonesia, 2020.

⁴ Doern, R., Williams, N., & Vorley, T.. Special issue on entrepreneurship and crises: business as usual? An introduction and review of the literature. Entrepreneurship & Regional Development, 31 (5–6), 2019, pp. 400–

in the face of major risks that could threaten it. These risks can take different forms, such as natural disasters, cyberattacks, acts of terrorism, regulatory or political changes, health crises, or social tensions.

There resilience of the companies East SO essential For ensure there security And THE well-being of all employees, ensure business continuity, and maintain the trust of customers, partners, and investors. Businesses that are able to adapt quickly and effectively to change and disruption are more likely to survive and thrive in the long term.

The Presidential Policy Directive (PPD) on the security and resilience of critical infrastructures given there definition general of there resilience : « THE term « resilience » designates there ability to prepare for and adapt to changing conditions, as well as to resist and recover quickly of disturbances » ⁵ . He precise Next, has title for example, that  » there resilience includes the ability to resist and recover from deliberate attacks, accidents or threats or incidents of natural origin . »

Given this general definition of resilience, the term is no longer tied to a certain area of law, but can be transposed to different areas of law, including human rights law. contracts. In this perspective, THE term « resilience » in right can be partner has the proactive law approach, which could lead to a more effective use of the term in this context.

There understanding proactive of right East a approach Who combined there thought legal with a number of legal tools that can help businesses uncover potential problems early enough to take steps to prevent the risk from arising. At the same time has this understanding proactive, THE right must be applied of manner preventive before there realization of a event generator of crises it is about of a approach of right future-oriented.

In addition to avoiding crises and other risks, proactive law seeks to use legal tools to create value, strengthen relationships, and manage risks . ⁶ Proactivity exists In there sphere legal Since A certain time but, by report has of In many other legal areas, this perspective has not been widely researched or practiced.

In this context, the law can play a key role in promoting resilience. Legal tools are numerous and varied: they help anticipate risks, prevent crises, manage emergency situations, and promote reconstruction. They can also be used to strengthen resilience by reducing the risk of damage, facilitating access to information, and establishing safety standards. This is why it is important of to wonder on there way of which THE right can contribute has to strenghten there resilience of the

⁵ https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil .

⁶ Nordic School of Proactive Law, website, 2014, http://www.proactivelaw.org/

companies.

The present work aims to analyze the legal tools that contribute to strengthening resilience. We We will be interested to different branches of right (right of the insurance, private law, business law, etc.) in particular, contractual techniques for provide a complete overview of the legal tools that can be used.

In this context, legal tools can play an important role in helping individuals and communities recover from crisis or trauma situations. Legal tools can help establish mechanisms for protection, prevention, and compensation for harm suffered. With this in mind, it is interesting to study how tools legal can to favor there resilience, And how they can be put in place effectively to help people and communities recover from crises and rebuild. This issue is crucial in a world facing major challenges such as climate change, acts of terrorism, natural disasters, pandemics And THE crises economic, And Who need of the solutions innovative For y TO DO face.

That being said, what are the legal tools that can strengthen the resilience of businesses? face to crises, to changes climatic And to others risks, And how Can these tools be used to anticipate and respond to future business challenges and strengthen business resilience to shocks and crises?

More specifically, the problem could focus on the analysis of different types of tools legal (devices legal, contracts, etc.) Who can be used For strengthen resilience. It could also examine how these tools can be applied in a practical For help THE companies has better itself prepare And has TO DO face has of the stressful events such as natural disasters, economic crises or epidemics.

In addition, one could also question the possible limits or constraints linked to the use of the tools legal of resilience, such as legal, economic or financial obstacles that may hinder their effective implementation.

1.THE tools legal of resilience : adapt And has bounce face to difficult events .

1. THE tools contract workers of resilience

Contracts are given special attention in the context of the preventive/proactive approach to law. They are not simply considered as mere documents. legal ⁷ . It is Thus that there charge of risk legal of which we born can, Or of which

⁷ Magnusson Sjöberg, Cecilia, Proactive ICT law in the Nordic Countries, in: Haapio, Helena (ed.) A Proactive Approach to Contracting and Law , Turku, 2007, p.47; Mahler, Tobias, The state of art of contractual risk management technologies , in Haapio, Helena (ed.) A Proactive Approach to Contracting and Law, Turku, 2007, p.70

If, for reasons of cost, one does not want to prevent the realization, it can be transferred to a third party’s account. The mechanisms that can be used are varied; the company can consider transferring its legal risks through legal instruments.

Starting from This reasoning, the contracts are important legal tools for there A company’s resilience because they establish clear commitments between stakeholders. Well-drafted contracts help limit legal and financial risks, define everyone’s obligations and responsibilities, and ensure proper execution of agreements.

In effect, if we itself puts of side of the one Who provides a benefit, he East Also possible of transfer a legal risk of non-performance or poor performance of agreed obligations by stipulating a limitation or exemption clause from liability, through this provision, the company reduces the financial consequences of liability arising from its contractual commitments and/or, a clause Who qualified THE bonds, of TO DO or of give, either of means of result and which has the purpose, according to the contractor, either of reducing the liability for the debtor of the obligation, or of increasing the liability for the creditor of the obligation.

On the other hand, if we put ourselves on the side of the one who is the beneficiary of a service in return for a price, a clause provident of the measures execution forced by equivalent (THE debtor pays the creditor a sum of money which corresponds to the value of the service initially promised) or in kind (the debtor is obliged to provide what he has committed to), or that which provides for penalties in the event of non-performance by one of the contracting parties of his obligation to do or give.

However, the most typical contractual resilience tool, which allows to absorb the shock of an event beyond the control of the parties in a contract, is the force majeure clause. Thus, it is possible to transfer the risk of non-performance of a contractual obligation following A event of force majeure in stipulating a clause broadly listing the cases of force majeure allowing the company, if it is the debtor of an unfulfilled obligation, to be exonerated from its unfulfilled obligations and consequently, not to pay damages ⁸ .

Indeed, force majeure is a legal concept that refers to an unforeseeable event (at the time of the conclusion of the contract), irresistible (i.e. the impossibility of avoiding the effects of this event) and its effects must be insurmountable which prevents the execution of a obligation contractual. This notion East recognized In of many systems legal throughout the world, including in Morocco where it is defined by article 269 of the Dahir of obligations and contracts. According to this definition  » Force majeure is any fact that man cannot can prevent, such that THE phenomena natural (floods, droughts, storms, fires, locusts), enemy invasion, acts of the prince, and which make the execution of the obligation impossible.

Is not point considered as strength major there cause that he was possible to avoid, if THE debtor

⁸ B. Starck, H. Roland And L. Boyer, Right civil THE bonds, Volume 2, THE CONTRACT, 6th^​ ed. Lexis Nexis/Litec, 1998, p. 28.

does not prove that he has taken all due care to protect himself against it. A cause caused by a previous fault of the debtor is also not considered to be force majeure .

In addition, according to article 268 of the Dahir of obligations and contracts  » There is no right to any damages when THE debtor justifie that non-performance Or THE delay come from from a cause which cannot be attributed to him, such as force majeure, fortuitous event or the creditor’s default .

When a situation of force majeure is recognized, it may have different effects on the contractual obligations of the parties depending on its duration and whether it is definitive or temporary.

If the impediment is temporary, the parties are simply required to suspend the performance of their bonds for the duration of the event. The force major born released not THE parts of their bonds contractual, but only of the obligation of THE execute during there duration of the impediment. On the other hand, if the impediment is permanent, force majeure may give rise to the termination of the contract automatically. In this case, the parties are released from their respective obligations, unless the non-performance results from a fault of one of them.

Finally, it is important to note that the parties may conventionally provide for the effects of force majeure in their contract, particularly with regard to notification deadlines, suspension or termination of the contract. This force majeure clause makes it possible to specify the situations Who will be able to be considered as such, Thus that THE terms and conditions of bet in implementation of this clause in the event of an exceptional event.

The Covid-19 epidemic has forced many Moroccan and international economic players has invoke there strength major in order to to escape has there non-performance total Or partial fulfillment of their contractual obligations and therefore avoid any liability in this regard. In any event, the qualification of force majeure will therefore depend on the sovereign assessment of the judges of bottom Moroccans, Who will have to examine THE facts of each species And the measures taken by the parties to deal with the coronavirus epidemic.

1.2.  THE insurance

Insurance is another essential legal tool for business resilience. It protects against financial and legal risks in the event of unforeseen events. Insurance policies can cover various risks such as property damage, loss of income, liability, and more.

When the mechanisms for preventing or transferring legal risk to a third party are ineffective, THE appeal has A insurer East the ultimate AVERAGE in order to of manage THE risks residual. In As a means of transferring risk, insurance aims to cover the financial consequences of risk in general.

In practice, companies always consider insuring the assets on their balance sheet. (fixed assets, stocks, receivables…) against some events such that the fire, but

also explosions, natural disasters, debtor insolvency, etc. These are asset insurance policies. On the liabilities side of the balance sheet, companies most often consider insuring themselves against a possible increase in their debts to third parties, resulting from material, immaterial or bodily damage for which they would be held liable: these are liability insurance policies which entail for the company the obligation, without any fault, to repair the harm caused or the damage due to its activity. This is the case, for example, of liability insurance for defective products for which recourse is necessary, In THE measure Or, THE manufacturer, can be responsible of default SO even that the product was manufactured in compliance with the rules of the art or existing standards or that it was the subject of administrative authorization ⁹ .

On the other hand, companies less often consider insuring themselves against a decrease in their results resulting from a random event that affects their ability to produce or market wealth. The insurance contract that covers this type of risk is called insurance.  » Losses operating » Who embodies perfectly THE concept of resilience. He This is a pecuniary loss insurance designed to compensate a business for losses caused by a reduction Or A stop total of the activity following has A Shame covered by there fire or machine breakdown police.

Indeed, direct risk insurance allows the damaged company to rebuild its production potential. But the reconstruction of buildings and equipment can take several month : during This that time, there production go lower, even even totally stop, and turnover will also decrease. Undoubtedly, certain expenses such as purchasing materials firsts, costs of manufacturing Or of sale, itself find also reduced Or cancelled, there are however others such as salaries, taxes, rents, loan interest, depreciation etc. which remain unchanged and which cannot be reduced or eliminated without compromising the future of the company.

The purpose of a Loss of Operation contract is therefore to compensate the company for the share of the costs fixed Who born can be absorbed by following of there reduction of figure business, of there loss of operating profit and additional costs incurred in getting the business back into operation. In short, this insurance is intended to put the business back in the financial position it would have been in had there been no loss.

First of all, it should be emphasized that the material as well as the event or hazard causing a drop of activity of the company must be insured in risk direct. He East SO clear that the contract loss operating born covers strictly that THE losses due has of the damages Who are guaranteed in the direct policy. However, it should be noted that the direct loss may not be compensated because it is less than the excess but the guarantee of the Loss of Operation insurer is acquired.

By elsewhere, it is maybe the company hires of the additional costs that are necessary And

judicious And result of measures sockets For avoid Or decrease there reduction of figure business

⁹ Article 106-8 of Dahir of the Bonds And Contracts (DOC).

Who would result Normally of sinister during there period compensation. Among these This includes costs for the transfer to less profitable equipment, the execution of work outside the company, the purchase of semi-finished products and in special cases also finished products, if as a result, for example, the market can be maintained, the purchase of external electricity in the event of failure of the company’s own power plant, the use of rental equipment or installations, etc. Costs may be incurred to reduce the loss, with the agreement of the insurer, i.e. costs for the establishment of additional teams And the execution of hours additional, Thus that there handover of emergency orders for the execution of repairs….

By elsewhere, there drop of activity East meticulously analyzed by the insurer of way has clearly identify what comes from the disaster and what results from a general trend. The goal is in fact to assess the situation that the company would have been in without the disaster.

However, the loss of business loss depends on the time factor, that is to say that it is all the more more big that exploitation East more a long time interrupted Or reduced by A loss of damage. It is therefore necessary for the insurer to limit the duration of its liability for disasters losses operating. That East got by there fixing of a period compensation. In effect, She represents the interval of time maximum during which the insurer compensates the sinister caused by the interruption of exploitation. The period compensation period begins from the time when the material damage could be detected. The compensation period is fixed in ruler general has 3, 6, 9 Or 12 month. A period compensation superior has 12 months can only be agreed in exceptional cases. The rule for calculating the compensation period, In there practical, East there duration necessary has there repair Or, in case of a total loss possible upon repair or replacement of the damaged item. The insurer naturally charges a higher insurance premium for longer compensation periods .

1.3.  There management of the risks legal :

Legal risk management is a proactive strategy that aims to identify, assess and address THE risks legal. She implied there bet in place of policies And of procedures to minimize legal risks and protect the business.

There terminology of  » risk legal » East used abundantly without For as much what born

either defined. This notion is at crossroads between there management risks and the domain legal.

A attempt of definition In THE language fluent And of vocabulary legal will be apprehended

has across the concept of business.

Risk, according to the definition of vocabulary legal ¹⁰ , expresses a harmful event whose occurrence is uncertain as to its occurrence or the date of its occurrence; refers both to the possibility of such an event in general, and to the specified event whose occurrence is envisaged.

¹⁰ Gerard Horned, Vocabulary legal : Association Henry Captivating, 1st^​ ed., Paris : PUF, 1987.

Applied to the legal field, the notion of risk is relatively recent in Morocco, but the rise in power In the company of there culture of risk has permit of theorize of way A little more scientific what the legal risk can be.

In leaning on on there terminology of  » risk management « , A author has permit to illuminate A a little better this notion, defined then as the result of the meeting – or the junction – of a standard legal And of a event has the origin of the consequences measurable ¹¹ And harmful.

For other authors ¹² , and naturally, a risk is of a legal nature if its source implies a standard legal. He must by elsewhere be carrier of uncertainty, which will carry so much on there standard herself (problems interpretation of there law), that on THE facts to which the texts must apply…

Eventually, For define THE risk legal, It is there definition data by Christopher Collard ¹³ who We appears THE better agree :  » THE risk legal results of there conjunction of a legal standard And of a event of which can result of the consequences 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 either of a change in the standard resulting in real legal uncertainty, or in a voluntary or involuntary transgression of this standard, by the company, its directors or its staff, then generating civil, criminal or administrative liability .

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 ” ¹⁴ .

There question of there management of the risks In the company is not become A center of interest studies only in recent years. This is due to the complexity of the company’s external environment and its multiple interactions (natural disasters, fortuitous events, third-party claims, etc.) and its internal environment as an organization. To prevent companies from undergo these risks, he East essential that they put in place A device which allows them to be managed.

Commercial companies cannot and should not be involved in day-to-day management risks legal. The social leaders must instead, In the frame of their role of monitoring of the risks legal, to make sure that THE process of management of the risks

¹¹ F. Verdun, There management of the risks legal, Organization, 2006.

¹² T.Malher, quoted by F.Verdun, « Defining legal risk » in Proc. of tea Conference Commercial Contracting for Strategic Advantage-Potential and Prospects: Turku University of Applied Sciences, June 2007, p.10-31.

¹³ C. Collard,  » THE risk legal does it exist ? – Contribution has there definition of risk legal « , in THE Notebooks

of right of the company, No. 1, Jan.-Feb. 2008.

¹⁴ Study on THE Role of the Administrator In there mastery of the risks, led in common, by IFA, AMRAE, PricewaterhouseCoopers and Landwell, 2009, p. 22.

designed and implemented by executives and risk managers are aligned with the board’s strategy and are operating as intended, and that the necessary actions are sockets For to favor a culture of socket of decision adapted to risks throughout the company.

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 nor a mere supplement to the company’s overall compliance program, but what do part integral of there resilience, of there strategy And of process of company value creation.

This being, a study Moroccan has watch existence of a relationship strongly significant between risk management and SME resilience ¹⁵ . This correlation has been confirmed by several researchers who have highlighted the importance of risk management for business resilience. For example, some authors have shown that companies that have active risk management are better prepared to face crises and are therefore more resilient ¹⁶ . Similarly, other authors ¹⁷ , have shown that risk management can help businesses reduce their vulnerability to risks and improve their ability to withstand disruptions.

In the whole, these works emphasize the importance of there management of the risks For there resilience of SMEs, particularly in an uncertain and constantly changing economic environment. SMEs Who are capable of manage effectively THE risks are better prepared has TO DO in the face of disruptions And are SO more resilient And better positioned For TO DO face has there competition.

2.  THE boundaries associated with the use of the tools legal of resilience

Legal resilience tools can be costly and complex to implement and maintain, particularly for small businesses. The following paragraphs should address these limitations, whether at the level of contractual resilience tools (2.2), insurance (2.3) or at the level of the risk management system (2.1).

• There management of the risks legal

Legal risk management has become a crucial element, particularly for the success of SMEs, which are often faced with limited resources and a competitive environment. difficult ¹⁸ . THE SMEs must SO be in measure to identify THE risks potentials

¹⁵ Tajer, HAS., Benyaich, S., & Rigar, S. Mr., There management of the risks And there resilience of the companies : what effects on Moroccan SMEs? Journal of Human and Social Sciences of the Academy of the Kingdom of Morocco, Vol. I, No. 1, ISSN No. 2820-7254, 2022.

¹⁶ Gatzert, N., & Martin, M. (2015). Determinants and value of enterprise risk management: empirical evidence from the literature. Risk Management and Insurance Review , 18, pp. 29–53.

¹⁷ Yang, S., Ishtiaq, M., & Anwar, M. (2018). Enterprise risk management practices and firm performance, the mediating role of competitive advantage and the moderating role of financial literacy. Journal of Risk and Financial Management , 11(3), p. 35.

¹⁸ Yang, S., Ishtiaq, M., & Anwar, M. (2018). Enterprise risk management practices and firm performance, the mediating role of competitive advantage and the moderating role of financial literacy. Journal of Risk and Financial Management , 11(3), p. 35.

to which they are confronted And of put in place of the measures For THE manage effectively.

However, the cost-benefit analysis of the bet in place of a mechanism Formal risk management is different for SMEs and large companies. SMEs may not have the resources to hire a risk manager or form a board of directors specialized in risk management. In this case, the owners of the company may be responsible for risk management and decision-making ¹⁹ .

However, even without significant resources, SMEs can put in place mechanisms of management of the risks in adopting of the approaches practices And in using of the simple tools. For example, they can implement a risk management process that involves identification of the risks, the assessment of there probability And of the impact of these risks, the implementation of measures to manage them and regular monitoring of the effectiveness of these measures.

In besides, there management of the risks can also help THE SMEs has discover of the opportunities unexploited. By identifying potential risks, SMEs can also identify opportunities for innovation and growth. Therefore, risk management can be a useful process to help SMEs remain competitive and thrive in the market ²⁰ .

• THE tools contract workers of resilience

Contractual tools can help businesses build resilience by enabling them to of TO DO face has of the situations unforeseen And of restrict THE risks associates to contracts. However, they also have certain limitations. Indeed, contracts cannot anticipate all eventualities. Unforeseen changes may occur and the parties may be faced with situations that are not covered by the contract. In these cases, the parties must find alternative solutions to deal with the situation, which means that the tools contract workers of resilience depend of there cooperation of the parts involved. If moon If one of the parties does not cooperate or fulfill its obligations, resilience may be compromised.

Financially, THE tools contract workers of resilience can be expensive has put in place. The parties must often engage of the costs For assess THE risks And THE options of resilience, which can be prohibitive for small businesses or low-value contracts. Contractual resilience tools can also be difficult to implement in practice. For example, renegotiating the terms of a contract can be time-consuming and require complex coordination between parties.

By elsewhere, THE laws And THE regulations can restrict THE stipulations contractual available to businesses in terms of resilience. For example, certain laws may limit the capacity of the companies to renegotiate THE terms of a CONTRACT in case of circumstances unforeseen

¹⁹ Watt, J. (2007). Strategic risk management for small businesses. In: Reuvid, J. (ed.). Managing business risk 2nd edition—a practical guide to protecting your business . London—Philadelphia: Kogan Page.

²⁰ Rehman, HAS. U., & Anwar, Mr. (2019). Mediating role of enterprise risk management practices between business strategy and SME performance. Small Enterprise Research , 26, pp. 207–227. https://doi.org/101,080/13215906.2019.1624385.

(natural disasters, epidemics, terrorism, etc.). It could be envisaged, in a specific or emergency context, that the Moroccan legislator adopts a law amending provisions relating to force majeure events that may cause a suspension or cessation of the company’s activity either by eliminating events or by mitigating them.

He in East Also, of there qualification of strength major Who East generally left has the assessment of trial judges in most legal systems, including including in Morocco. Courts must assess whether the particular circumstances of each case meet the legal criteria for force majeure and determine whether the affected party has fulfilled its obligation to take reasonable steps to mitigate the effects of the event on the performance of the contract.

In this assessment, the judges will take into account the factual circumstances and the provisions of the contract to assess whether the parties acted in good faith and took all possible measures to avoid negative effects on the performance of the contract. Alternative measures such as the use of alternative sources of supply, production at other sites or renegotiation of the terms of the contract will also be examined to assess the good faith of the parties.

In short, the qualification of force majeure is a complex concept and its determination will depend of the circumstances specific of each case. THE parts must be conscious that the qualification of strength major born will be not automatic And that THE judges will have THE last word on the matter.

Overall, contractual tools can help businesses build resilience, but they also have limitations. It is important to consider these limitations when implementing contractual resilience strategies and to explore other options in parallel to ensure maximum protection. Businesses must be aware of the risks and uncertainties associated with contracts and be prepared to adopt flexible resilience strategies to deal with unforeseen situations.

Apart from the limitations relating to the contractual aspect, we will address in the following paragraph another category of warranty limitations, that relating to insurance coverage.

2.1.3. Insurance​

Insurance can be used as a resilience tool, but it can also to have of the boundaries. THE insurers can exclude some events of their insurance policies, or premiums may be too high to be affordable. Indeed, it should be noted that not all insurance contracts cover the risk completely. Indeed, the insurance contract contains contractual/legal, technical, and financial warranty limitations, which should be explained in the following paragraphs.

Regarding contractual and legal limitations known as « exclusions », it is appropriate to specify that THE sense of term  » exclusion « , has summer defined by THE glossary of Code of the insurance

Moroccan ²¹ as being: « an event or state of a person not covered, being excluded from the guarantee. » This limitation of guarantee is first enacted by the notion of risk. Intentional acts cannot in any case be covered, because they remove the insurance’s character random. In effect, we born can consider a operation insurance, When the event generating the liability risk was caused intentionally and voluntarily by the insured company director; outside of any random factor.

Furthermore, as a general rule, the exclusion of warranty must satisfy several conditions defined by Article 14 of the Insurance Code  » Subject to the special provisions provided for liability insurance, the clauses of contracts setting out nullities provided for in this book, forfeitures, exclusions or cases of non-insurance are only valid if they are mentioned in very clear characters. » and by Article 17 which provides « Losses and damages caused by fortuitous events or caused by fault of the insured are has there charge of the insurer, except exclusion formal And limited contained in the contract .

He results of the provisions of the items above cities that, exclusion must be, in first place, written in characters very apparent . She must be formal , that’s to say written of way explicit and precise, and it must be free from equivocation and ambiguity. The exclusion must also be limited, in the sense that it must not empty the insurance guarantee of its substance and that its scope must be clearly defined.

For This who is exclusions financial so-called  » there franchise”, and Generally speaking, as a limitation of warranty, the excess is a share of the damage or shares of damage left has there charge of the insured Or the insurer born covers not THE damages inferior has a fixed amount or less than a certain fraction of the insured amount. The objective pursued through the establishment of this clause is to exclude from the guarantee low-value claims Who, being given their frequency, weigh down, by their accumulation, THE charges of the insurer and whose risk assessment costs would be disproportionate to the compensation due in the event of a claim. Thus, the excess mechanism was put in place by insurers for technical, financial and good management reasons of the mutual insurance company, by excluding small claims, the risk is improved and excessive increases in the premium due to significant claims are avoided, it also constitutes A element establishment of the statistics And, by consequence, of determination of the insurance premium to be paid by the insured.

In THE case normal, commonly known by there franchise simple, THE insurers born cover not damages below the deductible, on the other hand, those which exceed the limit set are fully guaranteed. In This case of figure, the insurer born accomplished not on all THE disasters a deduction equal to the amount of the excess in the event of major claims, but simply to exclude small claims.

However, some insured, in case of sinister little important, have tendency has to announce of the

²¹ Dahir No. 1-02-238 of 25 rejeb 1423 (3 october 2002) carrying promulgation of there law No. 17-99 carrying insurance code.

amount of significant damage in order to receive full insurance compensation, this practice has pushed insurers to make arrangements by sometimes providing for the absolute excess system, which is deducted regardless of the amount of damage suffered by the insured.

Finally, concerning THE limitations techniques relatives to policies of subscription of the Insurance contracts, the insurer, before covering a risk, must carry out an insurance pricing. Indeed, each insurance company has its own policy and underwriting guides and its own pricing. The main purpose of pricing is to allow the insurer to calculate premium rates, in other words, to assess the risk of realization. of a event being able to cause A sinister For the company And has him give A rate, applied to the insured capital, This rate will generate a prime insurance who goes be paid by the company subscriber. The rate is generally calculated from the frequency and intensity of the risk, this rate reflects the dangerousness of the risk.

Furthermore, concerning the ceilings or amounts of guarantee, they are either fixed by the insurer in function of there size  of there structure of there Company subscriber (small, averages Or large companies or industries), particularly for business interruption insurance, or set by the company/insured for fire and miscellaneous risk insurance. These amounts constitute THE maximum of the compensation to which East tenuous the insurer For all disasters and/or defense costs falling within the scope of the insurance contract guarantees.

HAS This stadium analysis, he results that there protection offered by THE insurance is not Never complete, which allows us to deduce that the implementation of this insurance contract requires good negotiation between the insurer and the subscribing company in order to set guarantee amounts sufficient For cover financially THE risks, this negotiation East determined taking into account the company’s activity, its financial situation… There is room for negotiation in order to make this insurance a tailor-made guarantee. Certainly, this has a cost, which is proportional to the guarantees granted by the insurer, following this reasoning, it is the very usefulness of the insurance which will be reduced and, with it, the protection offered to companies.

Conclusion

The assessment of the costs And of the benefits of each tool legal East a stage important to minimize potential negative impacts. Decision-makers must consider direct costs And indirect, as well as THE benefits expected of each tool legal Before of make a decision. Direct costs include costs associated with implementing the legal tool, while indirect costs include costs associated with potential negative impacts.