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ILLINOIS STATE BAR ASSOCIATION MARCH 2021 VOL 58 NO 5 The Globe The newsletter of the Illinois State Bar Association’s Section on International & Immigration Law

Editor’s Comments Editor’s Comments 1

BY LEWIS F. MATUSZEWICH 2021 Illinois State Bar Association Annual Update on The February issue ofThe Globe law update. Their material used with the Immigration Law and Practice: included Professor Cindy G. Buys’ article webinar is included in this issue as “A A General Overview and “Supreme Court Immigration Docket General Overview and Current Outlook.” Current Outlook 2020-2021.” She had prepared this material Readers that find Cindy G. Buys, Scott 1 for the International & Immigration Law Pollock, and Tejas Shah’s material of Section Council webinar in February, interest will be able to listen to the webinar Decennial Liability in Egypt: A “2021 Immigration Law Update.” Professor through the ISBA website in the near Brief Summary Buys participated in the panel for the future. 6 webinar, which included Scott Pollock Howard L. Stovall concentrates his and Tejas Shah. Scott Pollock and Tejas law practice in advising businesses on Shah are both also former chairs of the commercial matters throughout the Arab International & Immigration Law Section Middle East. His article, “Decennial Council and have participated for several Liability in Egypt – A Brief Summary” is years in the Section’s annual immigration Continued on next page 2021 Illinois State Bar Association Annual Update on Immigration Law and Practice: A General Overview and Current Outlook

BY SCOTT D. POLLOCK & TEJAS SHAH

The Last Year and the Last Four or green-lighted restrictive policies- than useful due to the sheer number of Years courts applied the brakes on many of changes from the Executive Branch and For immigration lawyers, the year 2020 the Administration’s most far reaching the large number of lawsuits challenging saw: 1) executive branch efforts to reduce efforts, finding the actions violated the the changes. As of mid-January 2021, or end immigration to the United States, Administrative Procedure Act or were the Immigration Policy Tracking given a boost by a global pandemic causing done by officials who lacked legal authority Project had listed over 1,030 policy and U.S. consulates to close or cut back on to do so; and 3) a new president elected regulation changes initiated by the Trump visa services; visa bans, and bars to entry on promises to dismantle many of the administration over the last 4 years.1 at U.S. borders; 2) federal courts and the restrictive policies over the past 4 years. These touched on virtually every area of U.S. Supreme Court alternately stopping Detailing all the changes would be less Continued on next page The Globe ▼ MARCH 2021 / VOL 58 / NO. 5

Editor’s Comments

CONTINUED FROM PAGE 1 The Globe

This is the newsletter of the ISBA’s the seventh article by Stovall in The Globe webcast runs from 12:55 to 4:15 P.M. and Section on International & Immigration Law. Section newsletters are free since his first article, “Summary of Arab has been approved for three hours of MCLE to section members and published labor law rules and practices – Termination credit, including two hours of Professional at least four times per year. Section of Employment,” in the August 2001 issue. Responsibility, one hour of which is for membership dues are $30 per year. The Illinois State Bar Association’s E-Clips Mental Health and Substance Abuse Credit To subscribe, visit www.isba.org/ sections or call 217-525-1760. includes federal and state court cases deemed and one hour of Professionalism, Civility or to be of interest. During 2020, federal court Legal Ethics Credit. OFFICE cases appeared concerning immigration or As always, thank you to all of our authors ILLINOIS BAR CENTER 424 S. SECOND STREET international legal issues, this in spite of the and contributors.n SPRINGFIELD, IL 62701 impact of the coronavirus. PHONES: 217-525-1760 OR 800-252-8908 On April 22, 2021, there will be a live WWW.ISBA.ORG webcast entitled, Girls in Crisis, Part III: Immigration Law and Trauma- Informed Lewis F. Matuszewich EDITOR Lewis F. Matuszewich Lawyering. It will be presented by the Matuszewich & Kelly, LLP ISBA Standing Committee on Women & Telephone: (815) 459-3120 the Law and Co-sponsored by the ISBA (312) 726-8787 PUBLICATIONS MANAGER Sara Anderson International & Immigration Law Section Facsimile: (815) 459-3123  [email protected] and the Women’s Bar Association of Illinois Email: [email protected] Immigration Committee. Note that the INTERNATIONAL & IMMIGRATION LAW SECTION COUNCIL Meaghan E. Vander Schaaf, Chair 2021 Illinois State Bar Association Annual Update on Immigration Law Susan M. Goldberg, Vice-Chair Thomas E. Howard, Secretary and Practice: A General Overview and Current Outlook David W. Aubrey, Ex-Officio Jennifer L. Bennett CONTINUED FROM PAGE 1 Juliet E. Boyd Cindy G. Buys, Tomas Cabrera immigration law practice: discriminatory as the “Death to Asylum” rule; an increase Martha Delgado Michael Duhn Muslim and Africa bans, and subsequent in immigration court fees that, among Ralph E. Guderian immigrant and nonimmigrant visa bans other things, would have raised the filing Philip N. Hablutzel Patrick M. Kinnally based on health and economic related fee of an appeal by over 800% to almost a Shama K. Patari rationales; doing away with priorities for thousand dollars; and a rule that changed the Margaret Ellen Samadi interior enforcement and agency discretion; calculation of prevailing wages for H-1B and Ethel Spyratos Prof. Mark E. Wojcik erecting not only a physical wall on the PERM labor certification applications, that Nicholas Joseph Feda, Board Liaison border with Mexico, but interpretive and would eliminate employers’ ability to hire Melissa L. Burkholder, Staff Liaison Angela E. Peters, CLE Coordinator procedural barriers to legal immigration, new graduates or others into entry level jobs, Jean M. Wenger, CLE Committee Liaison including heightened evidence to overcome regardless whether there was a scarcity of U.S. Lewis F. Matuszewich, Newsletter Editor public charge inadmissibility, issuing workers. Courts issued restraining orders or decisions and rules making it harder for preliminary injunctions to temporarily block DISCLAIMER: This newsletter is for subscribers’ asylum applicants to win cases or obtain work most of these midnight rules. personal use only; redistribution is prohibited. Copyright Illinois State Bar Association. Statements authorization while their cases are pending; Remarkably, the outgoing administration or expressions of opinion appearing herein are and doing away with an H-1B lottery that also sought to hinder the incoming those of the authors and not necessarily those of the Association or Editors, and likewise the publication followed a statutory first-filed system in favor administration’s ability to enact its own of any advertisement is not to be construed as an endorsement of the product or service offered unless of a highest-paid worker standard. policies less than 2 weeks before the it is specifically stated in the ad that there is such The lame duck administration wasn’t done inauguration, when it signed unprecedented approval or endorsement. Articles are prepared as an educational service to until it was gone. It continued to publish agreements with the State of Texas, other members of ISBA. They should not be relied upon as final regulations in its last weeks and even States, and various sheriff’s offices, promising a substitute for individual legal research. The articles in this newsletter are not intended to be days before inauguration day. These included that the federal government will not alter used and may not be relied on for penalty avoidance. finalizing a sweeping rule eliminating many immigration policies without providing 6 asylum claims that was widely referred to months’ advance notice to the non-federal

2 agencies. It also signed an unprecedented administrations-remain-mexico-program. 3 individuals released on or after agreement with the union representing U.S. January 20, 2021 who have been Immigration and Customs Enforcement 2020 Election Impact convicted of an “aggravated felony,” (ICE) employees in the days before the President Biden campaigned on a as defined in the INA at the time inauguration of the new president. This too promise to undo many of the Trump of conviction, and are determined would keep the new administration from administration’s immigration policies. On to pose a threat to public safety. In ordering changes to existing policies. his first day in office he signed a number of addition, this memo specifically executive orders, proclamations, and issued rescinds the 2018 Notice to Impact of Four Years of Restrictions agency policy memoranda that address Appear Guidance which has had on Legal Immigration or reverse the previous administration’s a significant and direct impact The past four years compared to 2016 policies. He also indicated he would submit on survivor-based immigration 2 admissions rates : comprehensive legislation to Congress. The protections.The 2011 Notice to 4 • 738,000 fewer immigrants from actions include : Appear Guidance now holds. abroad (even before the pandemic, Administrative Actions immigrant visas declined by 24 Affirmative Protections percent from the last year of the Enforcement 1. Affirming DACA: The Secretary of Obama administration 1. Executive Order on the Revision Homeland Security, in consultation • 291,000 fewer refugees of Civil Immigration Enforcement with the Attorney General, shall take • 246,000 fewer adjustments of status Policies and Priorities This all actions he deems appropriate, to permanent residence executive order specifically revokes consistent with applicable law, to • 287,000 fewer nonimmigrant work the Executive Order on Interior preserve and fortify the DACA and cultural exchange visas (denial Enforcement issued by the Trump (Deferred Action for Childhood rate doubled from 7% in 2016 to Administration on January 25, 2017 Arrivals) program. almost 15% by mid-2020) and directs federal agencies to take 2. Liberian DED: Through this • The rate of Requests for Evidence actions, including issuing revised executive order, President Biden also nearly doubled guidance, to adhere to due process, reinstated Deferred Enforced • 96,000 more denials of asylum protect national and border security, Departure (DED) for Liberians (who • 698,000 fewer international students address the humanitarian challenges have a grant of DED as of January • 9 million fewer tourist and business at the southern border, ensure public 10, 2021) extending protections and traveler visas (even before the March health and safety, and safeguard the work authorizations until June 30, 2020 national emergency, visas down dignity and well-being of all families 2022. 20% from 2016 levels); and communities. Border Policies • 7 million pending applicants for 2. DHS Memo-Review of and Interim 1. Suspension of New Enrollments in immigration benefits and 1.3 million Revision to Civil Immigration the Migrant Protection Protocols pending immigration court cases, Enforcement and Removal Policies (MPP) Program. DHS announced more than double the court backlog and Procedures. Acting DHS that it would stop new enrollments in 2016 Secretary David Pekoske issued into the MPP program effective These statistics do not begin to reflect guidance to CBP, ICE, and USCIS to yesterday, January 21, 2021. This the human toll on “zero tolerance” policies review enforcement-related policies is a critical first step, but DHS has that led to the separation of more than and procedures, including detention, yet to issue further guidance for five thousand minor children from their the exercise of prosecutorial individuals currently enrolled in the parents (https://time.com/5678313/trump- discretion and policies on MPP program. But also notes that administration-family-separation-lawsuits/) interactions with state and local law nonessential COVID-related travel and the creation of refugee camps in enforcement. The guidance institutes restrictions remain in place. northern Mexico, where persons have been a100-day moratorium on certain 2. Halting Border Wall Construction: kidnapped or sexually assaulted by criminal deportations while the review is President Biden signed a organizations, as a result of the inaptly being completed with certain limited proclamation terminating former named Migrant Protection Program, more exceptions. The guidance indicates President Trump’s 2019 Executive commonly called “Remain in Mexico” by that while the policy review is being Order declaring a national which tens of thousands of persons fleeing completed, DHS’ enforcement emergency at the Southern Border. violence or poverty were returned to Mexico. priorities shall focus on those The Proclamation stops the https://www.hrw.org/news/2020/06/02/us- who pose a national security risk, allocation of funds and construction investigate-remain-mexico-program; https:// individuals apprehended on or after of the border wall at the Southern www.hrw.org/news/2020/01/29/qa-trump- November 1, 2020, and incarcerated border and calls for an assessment

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of the legality of the funding used to motions to reopen. extend the implementation date of construct the wall, and calls on the 2. Modernizing Regulatory any “midnight regulations” by at federal agencies to redirect funds Review: This executive order least 60 days, it now appears that and repurpose contracts currently instructs the Office of Management this rule would not be enacted until allocated for wall construction. and Budget (OMB) to review the on or about May 15, 2021. This rule regulatory process to provide is also likely to be challenged by Ending Muslim and African Travel Bans recommendations on how the business and University groups that On Inauguration Day, President Biden regulatory review process can previously successfully challenged issued a proclamation rescinding the travel “promote public health and safety, a similar rule that the DOL had ban on Muslim majority and African economic growth, social welfare, enacted without notice and countries, and calls on the State Department racial justice, environmental comment. to expedite the cases of those seeking a stewardship, human dignity, Ensuring a Lawful and Accurate Census waiver under the prior ban, create a process equity, and the interests of by which those visas that were denied under future generations.” In addition, This executive order rescinds prior Trump the ban may seek reconsideration, and that it instructs OMB to come up administration actions on census data that applicants for visas are not prejudiced as with suggestions to “ensure that excluded undocumented immigrants in a result of a previous visa denial due to regulatory initiatives appropriately consideration for the reapportionment of travel bans. This proclamation also calls benefit and do not inappropriately Congressional representatives. for DOS and DHS to review screening burden disadvantaged, vulnerable, or Upcoming Administrative Actions and vetting procedures for those seeking marginalized communities.” immigrant and nonimmigrant visas and The administration has planned other provide recommendations for improvement. Employment-Based Visa Changes executive actions on immigration in the It also calls on the Department of The regulatory freeze described above will upcoming weeks, including taking actions State to review of foreign government have multiple practical impacts, which are to restore U.S. asylum protections, review information-sharing practices to ensure described in greater detail below. the public charge rule, strengthen refugee accuracy and reliability, and that the agency 1. The implementation of a new rule processing and create a task force on family reviews on the use of social media identifiers that would have modified the reunification. and whether this has improved screening H-1B lottery by preferring highly- Travel Restrictions and vetting. DOS has issued an initial paid positions is now likely to be One area of potential continuity between statement on President Biden’s rescinding of postponed until after this year’s the Trump administration and the Biden the travel ban orders. H-1B lottery. While this rule is administration is the imposition of travel likely to be challenged in federal Executive Order on Advancing Racial restrictions on broad swathes of the world court as an ultra vires regulation Equity based on public health risks. Through if the administration attempts to This executive order calls on federal various presidential proclamations (9993, implement it, the prospects of 9996, 9984, 9992, 10041), the Trump agencies to redress inequities in their policies implementation in this year’s H-1B and programs that serve as barriers to equal administration last year blocked visitors from lottery now seem considerably the Schengen Region, the UK and Ireland, opportunity, including addressing access smaller. to benefits and government programs, and Iran, China, and Brazil based on COVID-19 2. The regulatory freeze should ensure concerns. Although President Trump issued increasing engagement with underserved that the “skinny” Strengthening the communities. Importantly, this Executive a Proclamation on January 18, 2021 (PP H-1B Program Rule that USCIS 10138) suspending such restrictions on Order overturned the Trump executive sought to implement will not see order prohibiting certain diversity training visitors from the Schengen Region, Ireland, the light of day. This rule would the UK, and Brazil effective January 26, 2021, on racial and gender biases and disbanding have significantly modified the the 1776 Commission. the Biden administration has made it clear requirements for establishing an that they will not be suspending these travel Regulatory Processes “employer-employee” relationship. restrictions. News reports as of January 24, 1. Regulatory Freeze: The Biden 3. The Trump administration had 2021, indicate that the Biden administration Administration issued a regulatory sought to implement a rule revising will also be imposing travel restrictions on freeze which means that rules that the methodology for calculating visitors from South Africa due to concerns have been published in the Federal prevailing wages for H-1B, PERM, about a novel coronavirus variant discovered Register but have not yet taken effect and related cases. The effective there. Additionally, the federal government will be postponed for review. This date of this rule was intended to be is now requiring all international travelers to includes recent EOIR proposed rules March 15, 2021. As a result of the the United States (including U.S. Citizens) like good cause for continuances and Biden Administration’s decision to to show that they tested negative for the

4 coronavirus in the three days preceding immediate paths to permanent legal status wait decades in some cases, making the their travel to the United States. The Biden for TPS holders, Dreamers, and farmworkers. idea that immigrants should “wait in line” Administration also has not, as of January In addition, the bill also takes efforts to meaningless. There is a humanitarian crisis 24, 2021, taken steps to eliminate PP 10014 streamline family immigration, address on the U.S.’s southern border. and 10052). backlogs, and contain specific protections for The upcoming period will likely continue immigrant survivors including tripling the to be politically contentious. There will be Further Executive Actions Issued on U visa cap. many legal battles in the courts. But with a February 2, 2021 new administration, there is new hope for Expanding on President Biden’s first Reactions to Biden Proposals and progress and reform to benefit immigrants, day actions, he issued 3 sweeping executive Outlook for Reforms refugees, asylum seekers, DREAMERs, orders aimed at considering, addressing and While many immigration practitioners and their U.S. citizen family members. modifying restrictive Trump administration have responded positively to the reforms, Immigration lawyers will continue to be on policies. These included: the State of Texas has already filed a the front lines of this important national 1. creating a task force to reunite lawsuit challenging the 100 day pause conversation about the nature of our country separated families, which include on removals, claiming it violates an and what it means to be an American.n over 600 children whose parents agreement it signed with the Department have not yet been identified; of Homeland Security in the waning days 2. addressing the situation of asylum of the Trump administration, that DHS seekers at the border, directing the must give 6 months advance notice to State Scott D. Pollock is a past chair of the ISBA’s Secretary of Homeland Security agencies that signed such agreements. Immigration and International Law Section Council. He is the founder of Scott D. Pollock & Associates, to review and decide whether to See https://www.washingtonpost. P.C., a nationally recognized general practice terminate or modify the MPP; com/national/texas-biden-lawsuit-ice- immigration law firm based in Chicago. You can review all current asylum processes; deportations/2021/01/22/4548eec2-5cea- contact him by email at [email protected] or work to improve conditions in 11eb-aaad-93988621dd28_story.html. telephone at 312-444-1940. home countries while addressing Whether the lawsuit prevails in the district Tejas N. Shah is also a past chair of the ISBA’s the root causes for displacement, court will depend on the decision of a judge Immigration and International Law Section Council. including programs to encourage appointed by former President Trump. He is a partner at Barnes and Thornburg, a national regional resettlement, and consider Senate Republicans oppose the proposed law firm. You can contact him by email attejas. [email protected] or telephone at 312-214-5619. Mr. reinstating the Obama-era Central U.S. Citizenship Act of 2021, rejecting the Shah’s podcast, Immigration Chats with Tejas and American Minors Program to allow paths to citizenship as an amnesty that will Kalpana, is available on Apple Podcasts and Spotify parents lawfully in the U.S. to reunify encourage additional unlawful immigration and covers topics such as travel bans and deferred with children coming as refugees or to the U.S. Democrats describe the proposal action.

parolees; and as a starting point for legislative discussion. 1 For more on the Immigration Policy Tracking Project, 3. address barriers to citizenship Another wild card is whether the agencies see https://immpolicytracking.org/; https://medium. to restore faith in the U.S. legal com/coformaco/immigration-policy-tracking-project- within the Department of Homeland f4bb7c67924c. immigration system. This calls for Security will willingly comply with the 2.. Figures are from Visualizing a 4-Year Assault on a Task Force on New Americans Legal Immigration: Trends Biden Must Reverse, Cato new administration’s directives. The last- Institute (December 11, 2020). to do a “top to bottom review” of minute agreement between the Trump 3. For an incisive analysis of the breadth of President restrictive Trump administration Trump’s immigration restrictions and the challenges administration and the ICE union could the Biden administration will have in forging a new policies; review and report on foreshadow strong internal resistance to agenda, see https://www.washingtonpost.com/opin- changes to the public charge rule; ions/2020/10/29/trump-immigration-daca-family- reform. separation/?arc404=true. and speed up the naturalization In the authors’ views, immigration reform 4. This list of President Biden’s First Day immigration process, making it more accessible. actions is adapted from ASSISTA, a legal support orga- is critical if the U.S. is to come to terms nization for immigrant survivors of violence. For more Legislative Proposals with a broken system. The backlogs in the information, see https://asistahelp.org/. immigration courts have grown to some President Biden has announced a 1.3 million cases, meaning that millions of comprehensive immigration bill, the U.S. immigrants and their family members are Citizenship Act of 2021 which would extend in legal limbo for many years. See https:// legal status to undocumented individuals trac.syr.edu/phptools/immigration/court_ with the ability to apply for green cards backlog/apprep_backlog.php. Backlogs in after five years if they pass criminal and the visa preference categories also deprive national security background checks and prospective immigrants of the ability to pay their taxes. This bill, sponsored by immigrate in a realistic time frame, some Senator Menendez in the Senate also creates employment based immigrants having to

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Decennial Liability in Egypt: A Brief Summary BY HOWARD L. STOVALL

Under the Egyptian Civil Code, architects responsibility of the architects to last for less than ten years). Decennial and contractors generally face strict liability and builders who are liable even liability is a special warranty which for the collapse of a building they erected, if the employer selected the site or extends the normal contractual liability of for a period of ten years from the date authorized the defective buildings. a contractor or architect, is a type of strict of delivery. This article provides brief Unsafe buildings are a public danger, responsibility, and generally applies even if background on some of the more significant and the law rightly prevents the the failure/collapse is due to a defect in the aspects of such so-called “decennial liability.” architects and builders from shifting ground itself. the responsibility from themselves to Under Article 651(2) of the Civil Code, Background on Decennial Liability their employers, who may not have decennial liability also covers defects Egyptian law has applied a decennial the technical knowledge necessary discovered in a building even though there (ten year) liability or warranty requirement to enable them to detect the defects.2 has not yet been a collapse, although not to architects and contractors for almost 150 When the ‘new’ unified Egyptian Civil every defect is covered under this provision. years, beginning with the civil code issued Code (the “Civil Code”) was enacted in Article 651(2) specifies that the defect must for the Mixed Courts in 1876 and then the 1948, the decennial liability rules were threaten the strength or safety of the building civil code issued for the National Courts in retained and expanded in Articles 651- or other permanent structure—not merely 1 1883. Decennial liability is an Egyptian 54.3 An unofficial English translation of the usefulness, efficiency or functioning of legal concept adopted from France, which these decennial warranty provisions, which the structure—in order to be covered by has provided for such a warranty since the remain the current legal rules in Egypt today, decennial liability rules.6 French civil code of 1804. appears at the end of this article. Article 651(1) of the Civil Code refers to One British judge who served on both the Decennial liability provisions appear in “buildings and other permanent structures”, Mixed Court and National Court in Egypt a section of the Civil Code applicable to a which has been interpreted to mean works described the rationale for such decennial particular type of transaction, the so-called of a fixed immovable nature, such as houses, liability as follows: “contract for work” (in Arabic, muqaawala). offices, schools, hospitals, factories, mosques, According to general principles Under such a contract for work, one of churches, bridges, dams, tunnels, railways the contractor should cease to be the contracting parties (an independent and the like. The construction must be responsible for the building he has contractor) undertakes to perform some permanent, in other words, it cannot be erected as soon as it is finished and work in consideration for remuneration from moved without being damaged. Movable handed over to the employer. But the other contracting party (an owner). In equipment and fittings are not subject to the this would be a dangerous rule to order for the decennial liability rules to apply, decennial warranty.7 apply to buildings, because defects there must be a “contract for work” and not, One influential Egyptian jurist, Dr. in construction do not appear for example, an employment contract or a Abdel-Razzaq Al-Sanhuri,8 has suggested at once, and it is only when the sales contract. In an employment contract, that any of the following causes may give rise building has “settled down,” as it is by way of contrast, the employer directs the to decennial liability: called, that one can say whether the performance of work by the employee, and (a) A defect in engineering or work has been well done or not. On in such case decennial liability rules will not construction practice, such as a deficiency in these grounds the law has imposed apply.4 foundations. a special legal responsibility on (b) A defect in the soil on which the architects and builders, and for ten Scope of Decennial Liability construction is erected, for example, if the years they are jointly and severally Under Article 651(1) of the Civil Code, soil is not solid or is soggy and the necessary 5 responsible for the destruction architects and contractors generally face measures to remedy this defect have not of the buildings erected by them. joint and several liability to the owner for been taken according to good engineering The fall of the buildings may be the partial or total collapse of a building or practice. due either to defective construction other permanent structure, for a period of (c) A defect in the materials used in or to the fact that the site selected ten years from the date of delivery (unless construction, such as bad quality supplies or was bad. This does not affect the the construction was intended by the parties a departure from specifications.9

6 Under decennial liability rules, the arises from contract, the architect and liability after that owner has acquired beneficiary of the warranty is the owner. A contractor will not be held liable for the right to invoke it. Thus, an owner’s third party does not benefit directly from damages greater than those which could unconditional acceptance of the works this warranty and generally may only sue the have normally been foreseen at the time of upon delivery, with defects either readily architect or contractor during the ten year entering the contract.10 apparent or known to the owner at that time, warranty period if the third party establishes Under Article 653 of the Civil Code, exonerates the architect and contractor from an alternate basis for liability, e.g., negligence any advance contractual agreement decennial liability for such defects. by the architect or contractor. However, a between the owner and the architect or Otherwise, the architect or contractor third party may sue the owner (or possibly contractor, whether to waive or limit the cannot rebut the presumption of fault the architect or contractor if damages occur latter’s decennial liability, is void. This is (and strict liability) except by showing that during the construction phase) pursuant to because the imposition of decennial liability the collapse or defect was due to an event Article 177 of the Civil Code, which states in is considered a matter of Egyptian public beyond its control, for example, in the case of part: policy.11 The public policy behind decennial force majeure.13 By showing that the damage A person in charge of a building, even liability has been described as follows: was due to a cause beyond their control, the if he is not its owner, is liable for damage unsafe buildings are a public danger, and architect and contractor do not contradict caused by the collapse of the building, even if Egyptian law rightly prevents an architect the strict presumption of error attributed such collapse is only partial, unless he shows or contractor from shifting responsibility to to them, but rather they remove the causal that the accident did not occur as a result of the owner, who might not have the technical relationship. negligent maintenance, or the age of, or a knowledge needed to detect the defects. However, according to Dr. Al-Sanhuri, defect in the building. Decennial liability differs from tort the Egyptian courts should not allow the The decennial warranty provisions of the liability in that the latter requires evidence presumption of architect/contractor fault to Civil Code do not generally allocate liability of a negligent act (Article 163 of the Civil be easily rebutted, such as by a contractor between the architect and contractor, but Code). In effect, Articles 651-54 of the resorting to expert testimony in an effort rather assume their joint and several liability Civil Code establish a presumption of fault to show the existence of force majeure. towards the owner. In practice, such division (strict liability) on the part of the architect Rather, the Civil Code provisions on of responsibility is usually determined by and the contractor whenever a building or decennial warranty should be interpreted a court with calculations similar to those other permanent structure collapses, or if to limit instances in which force majeure used to determine contributory negligence a defect affecting its structural stability and discharges strict fault/liability, allowing such (i.e., showing the relative negligence of each soundness is discovered. Thus, an architect exoneration only where force majeure is party). A contractor who is not at fault may or contractor would not be absolved from clearly and definitely ascertained without the claim reimbursement from another negligent the decennial liability even if it was able to need for expert opinion.14 contractor, but this has no impact on each show that it took every precaution to prevent Although the general rule is that a force contractor’s absolute liability to the owner. such defect or collapse of the building. majeure event would allow an architect or However, Article 652 of the Civil Code Similarly, an architect or contractor will not contractor to rebut the presumption of fault, states that an architect who only undertakes be able to avoid decennial liability on the the Civil Code would also allow the parties to prepare the plans for a building or other basis that the reason for the building’s defect to contractually agree that the architect structure, without supervising its execution, or collapse remains unknown. or contractor accepts liability even for a is responsible only for defects resulting from force majeure event.15 By permitting such its plans. Exoneration from Decennial contractually agreed allocation of risk, the Article 651(4) of the Civil Code Liability Civil Code in effect makes the architect or emphasizes that a main contractor’s As mentioned above, and in accordance contractor an ‘insurer’ against any damage statutory rights against its sub-contractor with Article 653 of the Civil Code, any the owner might suffer as a result offorce do not include the decennial liability rules advance agreement between the owner and majeure. contained in Article 651. Rather, a sub- the architect or contractor, whether to waive Although decennial liability remains in contractor’s liability to its main contractor or limit the latter’s decennial liability, shall be effect for a period of ten years, Article 654 of normally would be based on general contract void as contrary to Egyptian public policy. the Civil Code imposes a limitation period— principles, while sub-contractor liability Thus, the parties cannot contract in advance any claim against the architect or contractor to the owner normally would be based on to cancel the warranty, reduce the ten year under the decennial warranty must be filed general tort principles. period (unless the building is intended to no later than three years after the discovery last for less than ten years), or restrict the of a structural defect in, or after the collapse 12 Nature of Decennial Liability warranty to certain defects. of, the building or other structure. Liability under the decennial warranty is However, an owner may (explicitly or a contractual liability. Since this warranty implicitly) renounce the benefit of decennial Decennial Warranty & Soil

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Conditions: Some Examples of force majeure exonerating the contractor ten years. As mentioned above, Article 651(1) of from decennial liability.19 (2) The warranty imposed by the the Civil Code states that an architect or For example, an Egyptian court did not preceding paragraph extends to defects in contractor is liable “even if the collapse was impose decennial liability on a contractor buildings and structures that endanger the due to a defect in the ground itself”. In hired to pave a road with asphalt, when solidity and security of the building. general, soil defects will not be unexpected the asphalt subsequently subsided due to a (3) The period of ten years runs from to a prudent architect or contractor— flaw in water lines running underground. the date of delivery of the works. solidity of the soil is of obvious importance, Since the contractor proved that the (4) This Article [651] does not apply to and defects in the soil usually can be subsidence in the asphalt was traceable to the rights of action which a contractor may assessed and addressed before construction. the depression of the street resulting from have against its sub-contractors. a flaw in underground water lines, the Therefore, soil defects will not generally Article 652 be deemed an event of force majeure that Egyptian court held that such circumstance An architect who only undertakes to would exonerate the architect or contractor would constitute force majeure—because prepare the plans, without being entrusted from decennial liability. the subsidence in the road is what caused with the supervision of their execution, is On this basis, an Egyptian court the cracking of the asphalt, something that responsible only for defects resulting from imposed decennial liability on a contractor is not attributable to either the location of its plans. when a house collapsed under the pressure the ground or its (again, so-called ‘self- of an exceptionally heavy (but foreseeable) propelled’) nature. Rather, the defect in the Article 653 rainstorm, particularly as the building asphalt is attributable to water lines running Any clause tending to exclude or restrict was built low to the ground and near to underground, which burst, causing the road the warranty of the architect and the the street (and thus susceptible to the rain to collapse. Thus, the contractor was not contractor is void. washing away its foundation).16 held liable in that case.20 Article 654 In another instance, the Egyptian court * * * * ruled that the contractor was required to Decennial liability presents some Claims on the above-referenced check the soil conditions on which to build potentially significant risks to architects and warranties shall lapse after three years from and, in particular, to determine whether contractors in Egypt (and elsewhere in the the date of the collapse of the works or the there were any old foundations that might Arab Middle East). Although decennial discovery of the defect.n interfere with the newly-constructed warranty insurance is sometimes available, ones. Failing that, the contractor’s was it is usually quite expensive and most responsible for the harmful consequences contractors resort to self-insurance, relying that resulted, and he was liable for the on the fact that decennial liability claims damage that was directly imputable without are relatively uncommon.21 Nonetheless, Howard L. Stovall is a Chicago-based attorney, being able to allege, to exonerate himself such parties should carefully consider their devoting his practice exclusively to advising from liability, that the owner was aware of potential exposure—as well as methods companies on commercial matters throughout the the faulty layout of the foundations and had to mitigate their overall liability, such as Arab Middle East. A graduate of the University of authorized it.17 by contractually allocating responsibility Texas Law School (Austin, Texas), he was admitted to practice law in Illinois and has been a member of Similarly, an Egyptian court denied a between the architect and contractor(s), and the Illinois State Bar Association since 1981. He is contractor’s attempted reliance on force seeking indemnification agreements from a frequent contributor of material to The Globe. He 22 majeure to exonerate itself from liability relevant sub-contractors. may be reached at [email protected]. arising out of the subsidence of sidewalks Excerpts from Egyptian Civil Code: built alongside the Nile River. The court Decennial Liability Provisions 1. Davies, Business Law in Egypt (1984), at p. 214. attributed the subsidence to the nature of 2. H. W. Halton, An Elementary Treatise on the Egyptian the ground located alongside the river; Article 651 Civil Codes (Cairo 1911), vol. II at pp. 156-57. 3. Similar decennial liability provisions are found in other the case is also among a large group of (1) The architect and the contractor are civil codes in the Arab Middle East. See, e.g., Jordanian decisions that refer to the ‘self-propelled jointly and severally responsible for a period civil code articles 788-791; Kuwaiti civil code articles 692-697; Libyan civil code articles 650-653; Qatari civil movement’ of soil, with the court denying of ten years for the total or partial collapse code articles 711-715; and United Arab Emirates civil exoneration of the contractor by reason of of buildings or other permanent structures code articles 880-883. In some other Arab countries, the 18 strict liability period extends for only five years. See, e.g., force majeure. built by them, even if such collapse is due Bahraini civil code articles 615-620; and Lebanese code of In contrast, if the defect in the ground to a defect in the ground itself, and even obligations and contracts articles 668-669. was so concealed, undetectable and/or 4. Article 646 of the Civil Code. See also Al-Sanhuri, 7 if the owner authorized the building of Al-Waseet Fi Sharh Al-Qanoon Al-Madani [Intermediate unforeseeable by a prudent contractor using the defective structure, except in instances Treatise on the Civil Code] 108 (House of Arab Heritage all the available techniques of detection, Revival, Beirut 1964). where the contracting parties had intended 5. The term “architect” is not narrowly confined to those then the Egyptian courts have customarily that the structure was to last for less than professionals who are qualified as such. The Arabic term considered such a circumstance to be a case used in the Civil Code is “muhandis mi’mari”, which

8 is broadly interpreted to also include certain types of which is impossible to avoid despite reasonable efforts. In any construction, and it cannot exonerate himself if the “engineer”. Thus, for purposes of decennial liability under general, such force majeure events would normally excuse work carried out, such as the wall of the quay, collapsed as the Civil Code, “architect” is intended to apply to parties a party from its otherwise applicable contractual obliga- a result of subsidence.” involved in the design and/or supervision of construc- tions. See Article 165 of the Civil Code. 19, Al-Sanhuri, supra note 4, at 114 footnote (1). tion on a building, whether a licensed architect, engineer, 14. Al-Sanhuri, supra note 4, at 135: “Moreover, we 20. XIII Bulletin de Legislation et de Jurisprudence contractor or otherwise. should not make it easy to refute this presumption by egyptiennes 221 (28 March 1901), Mixed Court of Appeal, 6. See also, Alhajeri, “Defects and Events Giving Rise to resorting to expert opinion in order to show that the con- cited in Al-Sanhuri, supra note 4, at 135-36. Decennial Liability in Building and Construction Contracts tractor did not commit any technical error in inspecting the 21. Egyptian Law No. 106 (1976) required insurance for Under The Kuwaiti Civil Code” (undated), at https://www. ground’s nature and identifying the defects therein. The “true” decennial liability (owed directly to an owner by irbnet.de/daten/iconda/CIB14488.pdf . concern here is that the experts will favor those of their the architect and contractor, under Articles 651-654 of the 7. Al-Sanhuri, supra note 4, at 107-08. own profession and thus the protection intended in the text Civil Code), but amendment by Law No. 2 (1982) elimi- 8. Dr. Al-Sanhuri was probably the most important drafter would be lost. Therefore, the text is intended to limit the nated the insurance requirement for such “true” decennial of the Civil Code. In the 1950s, this same basic text was cases where force majeure is acceptable as a reason for the liability, and instead required only insurance cover for adopted – in some cases, through the support and efforts lapse of responsibility, and restricts it to cases where force liability to third parties. See also Law No. 119 (2008), of Dr. Al-Sanhuri—in Syria, Iraq, Libya and Kuwait. The majeure is definitively ascertained without the need for the current law on these issues, which similarly does not Civil Code has more recently influenced the development expert opinion.” require insurance for “true” decennial liability but only for of civil codes in other Arab countries, such as in the Arab 15. Article 217(1) of the Civil Code: “The debtor may by liability to third parties. Gulf States. agreement accept liability for unforeseen events and for 22. See, e.g., Coertse (CharlesRussellSpeechlys), “De- 9. Al-Sanhuri, supra note 4, at 113-114. cases of force majeure.” cennial liability in the Middle East: What is it and does 10. Attia, “Decennial Liability and Insurance Under 16. XV Bulletin de Legislation et de Jurisprudence egyp- insurance cover it?” (5 October 2020), at https://www. Egyptian Law”, 1 Arab Law Quarterly 504 (Part 5, No- tiennes 358 (24 June 1903), Mixed Court of Appeal, cited charlesrussellspeechlys.com/en/news-and-insights/insights/ vember 1986), at p. 512. in Al-Sanhuri, supra note 4, at 136. constuction-engineering-and-projects/2020/decennial- 11. In rare instances, the Egyptian government has ex- 17. XVII Bulletin de Legislation et de Jurisprudence liability-in-the-middle-east-what-is-it-and-does-insurance- empted contractors from decennial liability, such as in the egyptiennes 99 (26 January 1905), Mixed Court of Appeal, cover-it/ . inter-governmental agreement for the 1980s Cairo Waste- Alexandria, cited in Halton, supra note 2, at 157. water Project, but those contractors otherwise remained 18. Al-Sanhuri, supra note 4, at 136. See, also, XX Bul- subject to normal contract and tort liability rules. See, e.g., letin de Legislation et de Jurisprudence egyptiennes 111 Attia, supra note 10, at 520-22; the text of that relevant (5 March 1908), Mixed Court of Appeal, Alexandria, cited agreement was published in EGYPT – Section B, Middle in Halton, supra note 2, at 157: “With regard to building East Executive Reports (January 1980), pp. 22-23. in the bed of a river and in particular of the Nile, the 12. Davies, supra note 1, at 219. instability of the ground is not unforeseen. It is therefore 13. Force majeure is defined under Egyptian jurispru- the contractor for the construction of a wharf, which dence as a supervening (‘overpowering’) event, not guarantees its solidity, good construction and stability, to foreseeable by the parties at the time of contracting, and conduct soundings and works consolidation values before

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9 Girls in Crisis, Part III: Immigration Law and Trauma-Informed Lawyering Presented by the ISBA Standing Committee on Women & the Law Co-Sponsored by the ISBA International & Immigration Law Section and The Women’s Bar Association of Illinois Immigration Committee

Live Webcast | Thursday, April 22, 2021 | 12:55 – 4:15 p.m. 3.0 hours MCLE credit, including 2.0* hour Professional Responsibility MCLE credit in the following categories: 1.0 hour Mental Health and Substance Abuse credit | 1.0 hour Professionalism, Civility, or Legal Ethics credit

Join us for an in-depth look at how immigration laws and practices are impacting young women and girls, and how emotional, physical, and mental trauma can affect the Program Coordinators: developing brain and manifest itself in juveniles. Attorneys Jessica R. Durkin, City of Chicago Department of Law, Chicago Dina M. Ninfo, Illinois CMS Office of Legal Services, Chicago with a basic level of practice experience in criminal law, child Bridget L. Schott, Illinois Attorney General Office, Urbana law, family law, or immigration law who have an interest in learning about and assisting girls in crisis and who attend Program Moderators: this seminar will better understand: Cindy G. Buys, Southern Illinois University School of Law, Carbondale M. Colleen Kilbride, National Immigrant Justice Center, Chicago • How being held in detention can affect minors; • The types of treatment experienced by unaccompanied minors Program Speakers: in immigration detention centers; Prof. Jennifer Brobst, Southern Illinois University, Carbondale • What to look for in your traumatized minor client and how best Hon. Jennie Giambastiani (ret.), Of Counsel, Katsivalis & Anderson Law, Chicago Dr. Nicole St. Jean, Director, Kovler Child Trauma Center, Chicago to respond to it; Marie Silver, National Immigrant Justice Center, Chicago • What is being required of minors when attending court Kathleen M. Vannucci, Law Office of Robert D. Ahlgren & Associates, P.C., Chicago hearings and testifying at those hearings alone; • How to recognize the effects of trauma-based lawyering and deal with those affects in a healthy manner; and • Much more. Only $25! This program is underwritten by Tomasik, Kotin Kasserman, LLC, allowing registrants to attend this www.isba.org/cle/upcoming program for $25.