Amendments to the Law on Conciliati

On 8 February 2017, amendments were issued to the Law on Conciliation Committees for Disputes Involving Public Legal Persons.[1] The new law alters the system governing conciliations in disputes between private natural and legal persons (e.g. corporations) on the one hand and state administrative bodies on the other, as well as disputes between the state and its employees. The decision brought on important changes including: (1) changing the term used to describe the Committees’ findings from “recommendations” to “substantiated decisions”, (2) expediting procedures by increasing the number of committees and shortening the period they must reach a decision in, and (3) amending the selection process for committee heads. Legal disputes between private sector entities – whether they were individuals, companies, or other institutions – and state administrative entities falls within the judicial purview of administrative courts. These courts are considered a standalone judicial system that functions in parallel to the normal civil and criminal court system. Accordingly, and without prejudice to the jurisdiction of the administrative courts, the importance of such alternative dispute resolution process lies in its attempt to offer a swift and relatively congenial path for settling disputes prior to resorting to the administrative courts. Accordingly, the conciliation committees do not aim to replace the administrative court system, but rather act as an antecedent step.

Law No. 7 for the Year 2000

Among these alternative dispute resolution (“ADR”) mechanisms, Law No. 7 for the year 2000[2] establishing Conciliation Committees (“Committees”) for some disputes was enacted with the purpose of swiftly administering justice without needing to resort to standard litigation procedures and the financial burdens that it entails. The Committees specialize in resolving civil, commercial, and administrative disputes arising between ministries, governorates, public bodies, and other public legal persons and the employees working therein as well as between those public entities and private legal persons. Exempted from these committees’ jurisdiction, however, are the following:

1. Disputes where the Defense Ministry or the Ministry of Military Production or any of their affiliated bodies are party.
2. Disputes related to real estate rights.
3. Disputes that are governed by separate processes in other laws.

Generally, however, if a case is filed to the competent administrative court prior to submitting a conciliation request and without allowing for the allotted time during which the Committee is allowed to issue its recommendation, the administrative court cannot accept the case. An exemption is given to issues that qualify for expedited court hearings. In addition, the Committees can choose to refuse applications that are associated with certain occupational matters. It is relevant to point out that in 2004, the constitutionality of the article establishing the aforementioned rule on the necessity of seeking out the Conciliation Committees prior to proceeding to court was challenged. The Supreme Constitutional Court, however, affirmed the constitutionality of that rule. Nonetheless, despite the court’s decision, practice has demonstrated the difficulty in enforcing the Committees’ non-binding recommendations. With that context, parliament approved the bill amending the relevant law in November 2016. However, since this law is considered a supplementary legislation to the constitution, insofar as it pertains to the right to litigation, it requires the approval of two-thirds of members of parliament. Accordingly, since quorum was not established in that session, the final decision was postponed till the beginning of 2017.

The New Amendments

The decision brought on important changes including: (1) Changing the terminology used to describe the Committees’ findings from “recommendations” to “substantiated decisions”, (2) expediting procedures by increasing the number of committees and shortening the period they must reach a decision in, and (3) amending the selection process for committee heads.

1. Nature of the Decision

The new amendment describes the Committees’ findings as “decisions” instead of “recommendations”. Nonetheless, it also maintained the need for a Committee’s decision to be ratified by the competent authority and approved by the other party in the dispute if the decision was to acquire the authority of an executive order. Accordingly, the impact of that amendment is unclear.

2. Expediting Procedures and Increasing Committees

As to expediting procedures, the new amendment shortened the time allotted for the Committee to a maximum of 30 days, instead of 60, within which it is required to issue a decision in the dispute. The amendment also increased the number of Conciliation Committees by requiring the Minister of Justice to specify the Committees’ locations “in every ministry, governorate, general authority, and other public legal persons”. This is a detail that was absent from previous phrasing as the article had settled for requiring the minister to specify locations without specifying the general bearings of those locations.

3. Amending the System for Selecting Committee’s Heads

Lastly, the amendment altered the procedures for selecting the heads of the Conciliation Committees as it allowed for the committee heads to be selected from among incumbent members of the judiciary. This, prior to the amendment, was restricted to cases of necessity. Accordingly, the “necessity” clause has been omitted and another was added requiring the approval of the Supreme Judicial Council or special councils or other supreme judicial entities, as the case may be. The law also omitted the clause requiring the Supreme Council for Judicial Entities’ approval when selecting as heads of the committees’ former members of the judiciary.

Conclusion

Overall, the amendments seek to actualize the intended role of the Conciliation Committees. By expediting its procedures, the amendments are thereby increasing the committees’ proficiency and limiting the circumstances that require resorting to the administrative courts. Yet these amendments may not achieve the desired effect because its decisions – regardless of how they are labelled – still in many cases require the ratification of the competent authority and the approval of the other party in order for it to be effective. Moreover, allowing for incumbent judges to head the Conciliation Committees could result in a conflict between their roles in these committees and their judicial positions.   [1] Law No. 6/2017 amending Law No. 7/2000 establishing conciliation committees for disputes involving public legal persons, Official Gazette, Issue No. 5 (bis) (d), 8 February 2017. [2] Law No. 7/2000 establishing conciliation committees for disputes involving public legal persons, Official Gazette, Issue No. 13 (bis), 4 April 2000.