حوكمة الشركات بين القانون و اللائحة

Abstract EN

Interest has been growing in recent years in the concept of corporate governance in many emerging and advanced economies.

In spite of the newness of the topic, particularly in a legal context, most countries have begun to pass laws to regulate the rules of governance and good management out of their conviction that it has become the antidote to corruption, ensuring the integrity of financial transactions and setting the boundaries between private rights and public interests.

The legislative interest is varied across different countries of the world, even though it was actually the result of a long period of time in which international organizations called for action in the area of corporate governance, and adopting it as a set of standards for dealing with states or accepting them as members.

In fact, the legal regulation of corporate governance must expand to encompass economic laws in general, such as the corporations law, investment law, bankruptcy law, and the stock exchange law.

However, most countries, especially Arab countries, persist in compiling the principles related to corporate governance in an autonomous legal system that usually takes one of two forms of legislation, laws or regulations.

Anyone with even the least bit of knowledge of the basics of law will surely be aware of the distinction between laws and regulations, and the scope of each one, so this, of course, will not be the subject of the article.

What we would like to discuss concerns the relationship between governance as an autonomous legal system in the form of a regulation or a legislation to regulate commercial transactions, which naturally contain many clauses on the principles and practices of good management and governance.

This article consists of a set of observations that deal with the legal structure of corporate governance regulations in a few Arab countries.

These observations concentrate on two issues: The first issue is the question of how compulsory is the application of the rules of governance if they are in the form of a regulation, especially considering that most regulations covered in the study explicitly state that their rules are meant as guidance and are not obligatory.

The second issue is how necessary it is to set out the rules of governance in an autonomous legal system if we take into consideration that they do not encompass new rules that cover any inadequacy or shortcoming permeating the law, and the fact that they often repeat clauses that already exist in existing commercial laws.

This has clearly bewildered the companies subject to the provisions of these laws.

We conclude that governance regulations in some Arab countries do not add sufficient rules to help in reaching the goals of good management, because their legal structure was deficient and incomplete.

Thus, they have neither added what was needed, nor retained the originally existing situation.