HARMONIZING COOPERATIVE LAWS. REALITY! NECESSARY? TRAP!; [ARMONIZAR LOS DERECHOS COOPERATIVOS. ¡REALIDAD! ¿NECESIDAD? ¡TRAMPA!]
HARMONIZING COOPERATIVE LAWS. REALITY! NECESSARY? TRAP!; [ARMONIZAR LOS DERECHOS COOPERATIVOS. ¡REALIDAD! ¿NECESIDAD? ¡TRAMPA!]
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Author:
Henrÿ, Hagen
Keywords:
cooperative law; cooperative principles; Harmonization of laws; Promotion of Cooperatives Recommendation No. 193 of the International Labor Organization
Publication year:
2021
After having underlined at the beginning the polysemy of the word “harmonization” in the context of the approximation of laws, the article pursues two objectives: The first is to present cases of regional harmonizations of cooperative laws. The second is to demonstrate that the 2002 Promotion of Cooperatives Recommendation (No. 193) of the International Labor Organization, despite a somewhat unclear wording to the contrary in several of its paragraphs, suggests that the cooperative laws should not be unified, but rather that the cooperative principles, as enshrined in the 1995 International Cooperative Alliance Statement on the cooperative identity, be translated into legal rules and praxes. The article recognizes that its objectives make for its rather limited scientific value. It excludes more than it includes. Firstly, it does not consider intra-national harmonizations, of which there is a growing number, given the dissatisfaction with either the multitude of sectoral cooperative laws in a country (examples were, are or might be France, Greece, Japan, Kazakhstan, South Korea) or the multitude of cooperative laws due to the constitutional order of a country (examples were or are Australia, Canada, Russian Federation, Spain, United States of America). The article also disregards harmonizations of cooperative laws effectuated by the harmonization of other laws than that of the laws on cooperatives, such as for example, tax laws, accounting standards, competition law. The article does not deal with the different motivations behind the harmonizations, which are mostly political or economic, nor does it consider cases of unintended harmonizations, such as the isomorphization of all enterprise forms by law. Secondly, the article does not differentiate between the modes and grades of harmonization. Indeed, the word “harmonization” covers such different issues as the unification of laws resulting in uniform laws and the informal coordination of cooperative law-making, as well as everything in between. As for its first objective, the article classifies regional cooperative laws into those which are directly applicable in several countries; those which require transforming into national law before they may be applied; those which regulate cross-border cooperatives, but do not regulate all necessary matters, and which are either directly applicable or require transformation into national law; and regional laws which are currently being elaborated. The article mentions for the first category the 2010 Uniform cooperative act of OHADA, the Organization for the harmonization in Africa of business law and the 2014 East African Community (uniform) Cooperative Societies Bill. The first one applies directly since 2011 in the 17 Member states of OHADA, the second one is not yet in force. In the second category we find the 1997 Model law on cooperatives and their unions of the Commonwealth of Independent States (CIS) and the 2008 Ley marco para las cooperativas de América Latina, the Framework Law for cooperatives in Latin America. The first one is not a binding law, but the CIS suggests to its Member states to follow this model. The second one is also a model law. However, it was adopted by a non-governmental organization, the regional organization for the Americas of the ICA. Its legal value stems from the fact that the Parlatino, the Latin American Parliament, endorsed its content with insignificant changes. In the third category we find the European Union Council Regulation (EC) No. 1435/2003 on the Statute for a European Cooperative Society (SCE) and the 2009 Estatuto de las cooperativas del Mercosur. These texts regulate cross-border cooperatives. As they are incomplete, the national laws applicable to cooperatives in the country where they are registered apply in addition. The EU Regulation came into force in 2006; the Estatuto Mercosur will come into force once transformed by all Member states of Mercosur into national law. As far as the fourth category is concerned, the African Union is elaborating a model cooperative law for its Member states and the Pacific Island countries are contemplating the harmonization of their cooperative laws. The effects of these harmonizations are mixed. Besides the usual diversification through implementation, all of them have their specific outcomes. The most far-reaching concern the two African uniform laws. In many instances the OHADA Uniform act is not even known in the countries concerned; some of the Member states of the EAC, whilst not ratifying and/ or transforming the 2014 Uniform act, engage in national cooperative law making and do not wait for the outcome of the initiative of the AU to have a model cooperative law for its Member states. As concerns the EU Regulation, it produced harmonizing effects on some cooperative laws of EU Member states despite the explicit aim of the EU Commission to not harmonize the national laws. Whatever the effects are in terms of harmonization, intended or unintended, all of the mentioned harmonizations refer in one way or the other to the cooperative principles. The question is whether there is a farther-reaching legal obligation to translate the cooperative principles into legal rules and praxes. The second part of the article deals with this question. It starts by summarizing and categorizing the different ways of how a growing number of regional and national cooperative laws refer to the cooperative principles. This categorization is to help find answers to the question of what the effects of these references are. Without discussing this point any further the article takes these references as a point of fact to then deal with the question of whether Paragraph 10. of the ILO R. 193 creates a legal obligation to translate the cooperative principles into legal rules and praxes. The Paragraph states that the Member states [of the ILO] should “adopt specific legislation and regulations on cooperatives, which are guided by the cooperative values and principles…”. The article summarily presents arguments in favor of such an obligation and then discusses its content. It does so by interpreting the wording of Paragraph 10 as compared to that of Paragraph 18. Paragraph 18 states that “International cooperation should be facilitated through “developing … common regional and international guidelines and legislation”. At first sight, Paragraph 10 contradicts Paragraph 18. But it must be read in conjunction with the legal concept of sustainable development. This concept requires diversity. The translation of principles into legal rules and praxes is more likely to maintain diversity than “common legislation”. While the consensus on this is growing, the conclusion raises a number of additional questions. For example: To whose cooperative principles does the ILO R. 193 refer to, to those of the ICA, to its own or to more general ones? How to translate these principles into law?. © 2021, CIRIEC. All rights reserved.