THE AUTHORS:
Reda Lafrouji, junior Partner at Lafrouji Avocats
Salma Hakari, Associate specialized in Finance with a focus on Energy & Infrastructures
Hamza El Hassani, Associate at Mokhtari Avocats
The New Arbitration Law Applicable in Morocco
In Morocco, arbitration was introduced in 1913 in the Code of Obligations and Contracts. Later and after 1961, in 1974, it was added in the Code of Civil Procedure. In 2007, the law No. 08-05 repealing and replacing Chapter VIII of Title V of the Code of Civil Procedure was published and substantially improved the previous texts by introducing in particular international arbitration in articles 327-39 of the Code of Civil Procedure.
Recently, the Dahir No.1-22-34 of May 24, 2022 promulgated the law No. 95-17 relating to arbitration and conventional mediation in the Moroccan Official Gazette (the “Law”).
New Provisions of the Law
The Law, composed of one hundred and five (105) articles, is divided into three titles, the first dealing with arbitration, the second with conventional mediation and the last with various and transitional provisions.
This Law which constituted a real code of arbitration brought many new provisions of which:
- the generalization of the use of electronic processes in terms of signature and notification;
- in the event of a difference in votes between the arbitrators, the chairman’s vote shall prevail, subject to the recording of the opposing vote in separate minutes;
- the award shall have the same effect as if it had been signed by all the arbitrators, if one of the arbitrators is unable or unwilling to sign it, provided that this is stated;
- the decision to fix the fees may be appealed before the president of the competent court within fifteen (15) days from the date of receipt of the decision;
- the order issued by the president concerning the appeal against the decision to fix the fees is not subject to appeal;
- the mediation agreement may be entered into during the course of the proceedings by the authorized party and must be brought to the attention of the competent court within a period not exceeding seven (7) days of the conclusion of the agreement.
Regarding the choice not to submit the arbitrator to the control of a judicial party and to fix the list of arbitrators by a regulatory text as provided for in Article 12 of the Law, still leaves the possibility to the parties and to the President of the court, as the case may be, to designate one or more arbitrators outside the list.
Moreover, in the case of plurality of claimants or respondent, in particular in the case where the parties of the same clan do not agree on the appointment of a single arbitrator and where each party of the clan in question appoints a separate arbitrator, the third paragraph of Article 23 of Law provides a suitable solution by allowing the President of the competent court to appoint a single arbitrator at the request of one of the parties, if the members of the clan in question fail to reach agreement within 15 days of the request.
There is also a new possibility of holding meetings and hearings remotely which is provided by Article 33 of the Law which provides an option for arbitrators who are unable to attend in-person hearings to hold virtual meetings/hearings if the parties agree.
On the same subject, the new Law provides in Article 35 for the possibility allowed to the parties to the dispute to file their statement of claim and reply electronically. Additionally, Article 51 of the Law provides for the possibility of rendering arbitral awards electronically as well.
Importance of the New Provisions of the Law
The Law aims to bring a certain flexibility as regards the internal or international arbitration, on the conditions of validity of the arbitration agreement or on the conditions of recourse to arbitration in administrative matter.
This Law, as we have seen above, is aware of the technological advances, and the Covid-19 crisis is a factor in this. Indeed, certain stages of the procedure were sometimes carried out by electronic way.
However, the judicial court retains its power and competence for the exequatur, in matters of challenge of the arbitrators, or to rule on the heads of claim omitted by the arbitral tribunal. At the same time, the law establishes the jurisdiction of the administrative court when one of the parties is a person of public law. Indeed, on the arbitral award concerning a dispute to which a person of public law is party, falls to the president of the administrative court of first instance in whose jurisdiction the award will be executed, or to the president of the administrative court of first instance of Rabat, when the arbitral award concerns the whole national territory.
It is certain that this Law is fundamental for the development of arbitration in Morocco and for the choice of Morocco as a place of arbitration. The promotion of Moroccan law in arbitration at national, African and international level is a matter understood by Moroccan legislators. Taking into consideration that in Morocco arbitration, both ad-hoc and institutional, has experienced a remarkable growth.
Mediation
Concerning mediation, the advances are also important, making the mediation process more flexible. In particular, the mediators must meet a certain number of qualities, such as independence, impartiality, integrity and loyalty.
the mediation process becomes more flexible thanks to this new Law, in particular as regards the conditions for the establishment of the mediation agreement or the conditions for its conduct, which are more precise thanks to the Law.
Finally, at the end of the mediation process, the transaction remains, which can be the subject to the exequatur procedure, the court having from now on to rule within a maximum delay of 7 days.
We can conclude that Moroccan law has adapted to international practice through provisions that are compatible with international conventions on the subject and similar to existing provisions in foreign laws. This law thus makes it possible to attract parties to mediation and arbitration centers in Morocco.
Interim Measures in Arbitration under Moroccan Law
The Position of Moroccan Legislation on Interim Measures in Arbitration
Pursuant to Article 19 of the Law, each party may request from judicial courts to grant interim relief. In fact, the provisions of the Law provides that “[t]he arbitration agreement shall not prevent a party from having recourse to the ‘juge des référés’, either before the beginning of the arbitration proceedings or during its course, to request the granting of any provisional or conservatory measure in accordance with the provisions laid down in the Code of Civil Procedure, and their withdrawal shall be carried out in accordance with the same provisions”.
Hence, each party can resort to Moroccan national courts requesting interim relief as long as the criteria for interim relief are met. However, Moroccan law does not give an exhaustive list of criteria on which a party should rely upon in order to have its interim relief granted.
However, a party could rely on the criteria set by the Chartered Institute of Arbitrators’ Professional Practice Guideline on Applications for Interim Measures such as (i) demonstrating serious or irreparable harm, (ii) demonstrating a showing of urgency, (iii) demonstrating prima facie case on the merits and (iv) a prima facie establishment of the Arbitral Tribunal’s jurisdiction and power to grant the requested relief.
Even though not explicitly provided by Moroccan law, these criteria and particularly criteria (i) and (ii) remain the general standard under Moroccan law. In fact, several case laws have shown that a party has to establish the existence of irreparable harm and the urgency of requesting interim relief.
The Position of Moroccan Courts on Interim Measures in Arbitration
In a case, the Commercial Court of Appeal of Marrakech considered that even in the presence of an arbitration clause, the co-contractor may, during the term of the contract, have recourse to the juge des référés in order to put an end to the prejudice it suffers as a result of the refusal of its contractor to grant access to the premises subject to the contract containing the arbitration agreement. (See, CAC Marrakech decision n°609, dated 19/05/2009, file n°285/2/2009).
Similarly, the Commercial Court of Appeal of Casablanca was called to rule on the admissibility of an application for interim relief by which a contractor requested its co-contractor to leave the construction site in order to allow the contractor to hire another company to finalize the work. The contract binding these parties provided for an arbitration clause and the co-contractor refusing to withdraw from the construction site filed a claim for damages on the merits. The Court considered that the party filing a claim for damages on the merits was sufficient evidence to conclude that the contract had been terminated. Therefore, the recourse to the juge des référés in accordance with the provisions of Article 327-1 of the Moroccan Code of Civil Procedure (now Article 19 of the Law), was admissible and more particularly the party requesting to the juge des référés a protective measure tending to order the withdrawal of its co-contractor from the construction site was legitimate and satisfied the criterion of urgency insofar as this measure made possible the suspension of the damages suffered by the contractor. (See, CAC Casablanca decision n°2013/5564, dated 17/12/2013, File n° 4/2013/1442)
The Moroccan practice goes in line with the general practice in international arbitration since arbitrators must satisfy themselves that irreparable harm would be caused to the claimant and that the measures are urgent; arbitrators also have to be convinced of the likelihood of success of claimant’s position on the merits.
It is worth mentioning that a party may not resort to the juge des référés to request the suspension of the arbitration proceedings. In fact, the Commercial Court of Appeal of Casablanca has considered that requests to suspend an arbitration procedure do not constitute a temporary and conservatory measure within the framework of Article 19. Hence, granting to arbitral tribunals broad powers over the conduct of the proceedings and rationale of suspending the proceedings which will be assessed on a case-by-case basis. (See, CAC Casablanca decision n°2353, dated 16/05/2022, file n°2021/8225/5126)
ABOUT THE AUTHORS:
Reda Lafrouji is a junior Partner at Lafrouji Avocats. He is a Moroccan qualified lawyer and member of the Casablanca Bar. He advises clients in international arbitration and commercial related matters in a wide range of sectors. You can contact Reda at r.lafrouji(at)lafroujiavocats(dot)com
Salma Hakari is an Associate specialized in Finance with a focus on Energy & Infrastructures. She is passionate about energy transition, climate and arbitration, and advises national and international client and promotes arbitration when suitable for her client. She is a co-founder of Morocco VYAP, first VYAP in Africa.
Hamza El Hassani is an Associate at Mokhtari Avocats in Casablanca. He acquired a practical knowledge and competencies in international arbitration, M&A/Corporate, Projects and Project Finance during his various internship in international law firms such as Allen & Overy. He has coached several Vismoot teams.
