Morocco

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INTRODUCTION

Morocco's legal system is based on the Constitution of 1 July 2011 and its laws and implementing regulations.

 

LITIGATION

1. What is the structure of the legal profession?

The profession of lawyer (avocat) is governed by Law No 1-93-162 of 10 September 1993 enacted by Dahir of the Moroccan King relating to the organisation of the legal profession, as amended by Law No 28-08 of 20 October 2008 enacted by Dahir No 1-8-101.

In order to practise as a lawyer in Morocco, a candidate must satisfy certain conditions, notably:

• have Moroccan nationality (subject to judicial agreements)
• be over 21 years of age
• hold a law degree (licence en droit) or any other equivalent foreign qualification
• have successfully passed the Bar examination
• be registered with the Moroccan Bar

The profession is organised by the Bar Association (Conseil de l'Ordre), which ensures that the rules governing the profession are observed and pursues any related disciplinary actions.

Lawyers registered with the Moroccan Bar may appear before any court and give legal opinions. They may practise independently or with a firm.

There is no distinction between solicitors (avocat conseil) and barristers (avocat plaidant).

Foreign lawyers may appear before Moroccan courts for a specific case, either under an international agreement between Morocco and the country of origin, or with the prior approval of the Minister of Justice (Ministre de la Justice) having jurisdiction over the relevant court.

However, it is not permitted for a lawyer registered with a foreign Bar to be simultaneously registered with the Moroccan Bar. Removal from the foreign Bar should be completed before claiming registration before the Moroccan Bar.

2. What is the structure of the court system?

The Moroccan court system comprises ordinary and specialised courts.

The ordinary courts are divided into three levels:

• the Courts of First Instance:
• the Proximity Courts (jurisdictions de proximité) for minor cases and
• the Courts of First Instance (Tribunaux de première instance) which hear all matters except those for which Municipal and District Courts are competent, and which hear appeals against the decisions of the Municipal and District Courts
• the Courts of Appeal (Cours d'appel) which hear appeals against decisions from the Court of First Instance
• the Court of Cassation (Cour de cassation), which is the highest court, ruling only on the legal issues at stake in the case and not on the facts

There are also specialist courts such as Administrative Courts, Commercial Courts, Administrative Courts of Appeal and Commercial Courts of Appeal.

3. What are the time limits for bringing civil claims?

The time limit for bringing a civil claim is, as a matter of general principle, 15 years from the beginning of the obligation. However, shorter time limits may exist in relation to specific matters or in relation to commercial law or tort claims:

• the time limit for commercial claims and/or tort claims is reduced to five years
• claims based on letters of exchange or cheques should be filed within three years
• insurance and/or lease claims should be filed within two years
• product liability claims concerning defective and hidden aspects should be filed within 30 days or one year depending on the nature of defects and assets.

The parties can neither waive a time limit, nor extend it beyond 15 years.

4. Are communications between a lawyer and his client privileged (ie protected from disclosure to a court/tribunal and opposing parties)?

All lawyers are required to comply with the principle of confidentiality.

This is a public order rule which should be strictly observed for both advice and litigation.

Communications between lawyers are also confidential, unless they reach an agreement through their communications or one of the lawyers authorises the other to disclose a communication.

A breach of the principle of confidentiality is subject to disciplinary measures and compensation in case of substantial damage.

5. How are civil proceedings commenced, and what is the typical procedure which is then followed?

Proceedings are brought before the Courts of First Instance either by a writ signed by the claimant or its representative or by a declaration from the claimant in person where minutes are taken by a court-appointed clerk. In most cases, the proceedings are brought by virtue of a writ signed by a lawyer. A copy is served on the defendant by a bailiff.

The time frame for scheduling the first court hearing is a minimum of five days from the service of the petition if the defendant is domiciled in the place where the Court of First Instance has its seat or in a bordering locality, or 15 days if the defendant is domiciled elsewhere in Morocco.

If the defendant is domiciled abroad, this timeframe is extended to:

• two months if the defendant is domiciled in Algeria, Tunisia or in Europe
• three months if the defendant is domiciled in another African country, in Asia or in America and
• four months if the defendant is domiciled in Oceania

In an emergency procedure (procédure en référé), there is no minimum legal time frame.

In respect of hearings, postponements are generally of three to four weeks.

There are no mandatory "mediation or conciliation" procedures which should be followed, except for divorce procedures.

6. What is the extent of pre-trial exchange of evidence, and how is evidence presented at trial?

Documents

Evidence is submitted to the court with the writ and submissions. There are no time frames for producing evidence, but it may only be presented at first instance and before the Court of Appeal and the other party must be able to reply to such evidence presented. No new evidence may be presented in the case of an appeal to the Supreme Court.

Evidence must be in writing such as contracts, invoices, acknowledgments of debts, bills of delivery, written statements of witnesses, etc.

There exists no equivalent to the English law obligation of "disclosure" and the judge has no power to force the production of evidence by a party.

Experts

If a court issues a preliminary judgment ordering expert evidence, the nominated expert must invite the parties to attend a meeting with their lawyers in order to present his/her technical arguments, for example accounting, balance sheets and books. Such a procedure is contradictory. A report is made and filed by the expert and the parties can reply and present arguments for or against the report in submissions filed before the court.

7. To what extent are the parties able to control the procedure and the timetable? How quick is the process?

The parties have no control over the procedure or the timetable insofar as the court selects the hearing dates. Parties can only seek extensions of time, which are subject to the court's sole discretion. The speed of the proceedings depends on various factors relating to the subject matter of the dispute and the workload of the judge presiding over the case.

The average time taken to obtain a judicial decision is six to nine months.

8. What interim remedies are available to preserve the parties' interests pending judgment?

Judges have power to freeze a party's assets pending judgment where there is prima facie evidence of a good arguable case against the owner of the assets and a credible risk that they may be dissipated to defeat a judgment.

Where appropriate, the court may also, upon demand of the claimant, grant injunctions or make other prohibitory or mandatory orders in order to preserve the status quo until the trial.

Interim orders may also be made (if appropriate, without notice to the defendant(s)) permitting a party to trace the flow of funds through financial institutions, or to enter a defendant's premises to search for and seize evidence.

The courts also have jurisdiction to order that, in criminal cases, a defendant or a debtor under a judgment be prohibited from leaving Morocco.

9.What means of enforcement are available?

A declaratory judgment or a judgment creating a new legal relationship does not need enforcement. Only judgments making mandatory or prohibitory orders require enforcement.

Decisions only become enforceable when, once they can no longer be suspended by an appeal, they become final, unless provisional enforcement is automatic or has been ordered. The judge cannot suspend the execution of the judgment.

Enforcement measures available under Moroccan law include, but are not limited to:

• an auction sale of assets to satisfy the judgment
• issuing an order for an examination of the debtor (or a corporate debtor's directors) to disclose all assets (the failure of which will result in criminal sanctions)

A judicial decision can be enforced within 30 years of its issuance.

For judgments making prohibitory or other mandatory orders, there are few practical means of enforcement in the case of non-compliance. The only means of enforcement is through sanctions. There is no contempt of court in Morocco, so the court indirectly compels the judgment debtor by way of a monetary penalty. For example, the court can impose a penalty payment from the judgment debtor to the judgment creditor for each day that a judgment order is not honoured.

10. Does the court have power to order costs? Are foreign claimants required to provide security for costs?

The unsuccessful party bears judicial costs (fees paid to the court upon the filing of a claim, bailiff costs, expert costs, appeal costs, etc) and tax.

However, each party covers its own lawyer fees.

No security for costs can be ordered.

11. On what grounds can the parties appeal, and what restrictions apply? Is there a right of further appeal? To what extent is enforcement suspended pending an appeal?

Judgments and orders may be appealed within 30 days from the date on which the judgment is served on the unsuccessful party before the Court of First Instance or the Court of Appeal (for decisions handed down by a Court of First Instance). This time frame may be reduced to 15 days for interim orders and for the judgements rendered by the Commercial Courts or extended to 90 days for parties not residing in Morocco.

The appeal in principle suspends the enforcement of the decision.  Excluding those decisions that automatically benefit from immediate enforcement and notwithstanding appeals or applications to annul, the court must order immediate enforcement, when requested to do so, in all cases involving an official instrument, an acknowledged obligation, or a previous decision against a party by way of a res judicata decision.

Parties may also appeal to the Supreme Court within 30 days of the notification of the appeal decision. The Supreme Court rules on legal issues, not on the facts, and may decide to allow an appeal (known as a pourvoi) (in which case it quashes the appealed decision and invites the parties to revert to the lower court) or to dismiss it.

12. To what extent can domestic and/or foreign State entities claim immunity from civil proceedings?

Moroccan State entities are not entitled to immunity from proceedings or from the enforcement of a decision save within the scope of administrative acts ordered by the King of Morocco, or of matters regarding Government relations with Parliament or with foreign States. Other administrative acts may be submitted to the Moroccan Administrative Courts. If the acts are purely civil in nature, they may be submitted to the ordinary courts. However, assets of administrative bodies cannot be seized for enforcement purposes.

Foreign State entities may only claim immunity under diplomatic immunity rules applicable to diplomats of foreign States, subject to the principle of reciprocity.

13. What procedures exist for recognition and enforcement of foreign judgments?

It is possible to enforce a foreign judgment in Morocco by leave of the local Court of First Instance, at the place of residence of the defendant or, where applicable, the place of enforcement. However, this court will not give leave to enforce the judgment unless:

• it was made by a competent court in the relevant jurisdiction
• the judgment is enforceable under the law in which the judgment was rendered and is final
• the parties have been properly represented and duly notified and
• the decision is not contrary to Moroccan public policy

The justification on grounds of public policy is more political than economic.

Exequatur is ordered when the conditions mentioned above are fulfilled.

 

ARBITRATION

14. Is the arbitration law based on the UNCITRAL Model Law? If yes, are there any key modifications? If no, what form does the arbitration law take?

The governing law on arbitration is Law No 08-05 enacted by Dahir No 1-07-169 of 30 November 2007. This law repealed and replaced chapter VIII of title V of the Moroccan Code of Civil Procedure relating to arbitration and is extensively based on the UNCITRAL Model Law of 1985, as amended in 2006. Arbitration is generally accepted and used in Morocco.

15. What are the main national arbitration institutions?

Morocco has four main arbitral institutions:

• the Cour marocaine d'arbitrage près CCI Casablanca
• the Maritime Arbitration Chamber of Morocco
• the Rabat International Mediation and Arbitration Centre
• theCour atlantique d'arbitrage international

16. Are there any restrictions on who may represent the parties to an arbitration?

There is no restriction as regards international arbitration outside Morocco.

In domestic arbitration, parties are not entitled to instruct a foreign counsel, as the counsel should have his/her residency within the relevant Court of Appeal in Morocco.

17. What are the formal requirements for an enforceable arbitration agreement?

The arbitration agreement must be in writing, and either be a notarised (acte authentique) or privately signed (sous seing privé) document, or be contained in the minutes to a declaration made to the arbitral tribunal.

Morocco recognises the principle of autonomy of the arbitration clause, ie, the arbitration clause remains valid even if the validity of the contract, where such clause is included, is challenged.

18. Will the courts stay litigation if there is a valid arbitration clause covering the dispute? Does the approach differ in this regard if the seat of arbitration is inside or outside of the jurisdiction?

If a dispute that has already been submitted for arbitration under an arbitration agreement is subsequently brought before a court, the latter must, if requested to do so by the defendant before a ruling has been made on the merits, hold the proceedings to be inadmissible until the completion of the arbitration or the termination of the arbitration agreement.

If the request for arbitration has not been submitted, the court must also declare the proceedings to be inadmissible (at the request of the defendant) unless the arbitration agreement is manifestly invalid.

19. If the arbitration agreement and any relevant rules are silent, how many arbitrators will be appointed, and who is the appointing authority?

In domestic arbitration, if no agreement has been made between the parties regarding the number of arbitrators, three arbitrators will be appointed: one by each party and the third by the first two arbitrators. If one of the parties fails to appoint an arbitrator within 15 days of receiving notice to do so from the other party, or if the two arbitrators appointed by the parties cannot agree on the third within 15 days of the appointment of the second arbitrator, the presiding judge of the local court with jurisdiction will make the appointment at the request of one of the parties.

In international arbitration, in the event of difficulties in the appointment of the arbitral tribunal, and unless provided otherwise in the arbitration agreement or the applicable arbitration rules, either of the parties may:

• if the seat of arbitration is in Morocco, apply to the presiding judge of the court that will in the future need to declare the award enforceable
• if the seat of arbitration is abroad, under Moroccan civil procedure rules, apply to the presiding judge of the Commercial Court in Rabat

20. What rights are there to challenge the appointment of an arbitrator?

Arbitrators may be dismissed with unanimous consent from all the parties or challenged by one of the parties for a reason that occurs or that is discovered after his/her appointment and that falls under one of the following categories:

• the arbitrator has definitively been convicted of a dishonourable or dishonest act, or an act contrary to acceptable standards of behaviour or that deprives him/her of the capacity to operate a commercial activity or any of his/her civil rights
• the arbitrator or his/her spouse, parent or child has a direct or indirect personal interest in the dispute
• the arbitrator or his/her spouse is related to or associated with one of the parties (up to and including first cousins)
• proceedings are pending or have been completed in the last two years between one of the parties and the arbitrator or his/her spouse, parent or child
• the arbitrator is the creditor or debtor of one of the parties
• the arbitrator has previously made submissions or observations or given a witness statement on the dispute
• the arbitrator has acted as the legal representative of one of the parties
• the arbitrator or his/her spouse, parent or child must answer to one of the parties or his/her spouse, parent or child or vice versa
• the arbitrator and one of the parties are commonly known to be friends or enemies

21. Does the domestic law contain substantive requirements for the procedure to be followed?

The domestic law provides that the arbitral tribunal establishes the procedural rules for the arbitration that it deems appropriate and is not bound to follow the rules established by the courts, unless the parties have stipulated otherwise in the arbitration agreement.

22. On what grounds can the court intervene in arbitrations seated inside the jurisdiction?

The court can intervene in the processes of appointing arbitrators and challenges thereto and in relation to conservatory measures ordered either by an arbitral tribunal or requested by a party directly.

23. On what grounds can the court intervene in arbitrations seated outside the jurisdiction?

Please see question 22 above.

24. Do arbitrators have powers to grant interim or conservatory relief?

Unless the parties have agreed otherwise, the arbitral tribunal may order any interim or conservatory measures that it deems necessary at the request of a party and within the scope of its instructions.

If the party in question fails to comply, the arbitral tribunal may request assistance from the relevant court. The court will then apply its own law.

The arbitral tribunal or the court may order the requesting party to provide appropriate securities in return for granting interim or conservatory measures.

The arbitral tribunal may grant provisional or protective measures such as seizure of movable assets (company assets, tangible property, shares), seizure of immovable assets, and garnishment (bank accounts, including those in the hands of a third party).

The law allows the arbitral tribunal to take such measures except if agreed otherwise by the parties.

25. When and in what form must the award be delivered?

If the arbitration agreement or the applicable arbitration rules do not set a time frame for handing down the award, the arbitrators will have six months to make a decision from the date on which the last arbitrator accepts his/her appointment.

The award must be handed down in writing, signed by the arbitrator(s) and must include a brief summary of the parties' claims and arguments. It must provide reasons for the decision and include the following information:

• the name, nationality, and address of the arbitrators
• the date
• the seat of arbitration the name of the parties and their addresses and the company name of any legal entities and the address of their registered offices and if applicable, the name of the lawyers or persons who represented or assisted the parties
• the arbitration's fees and expenses and how they should be shared between the parties

26. Can a successful party recover its costs?

The unsuccessful party will bear the costs. In practice, the amounts recovered will depend on the arbitrators' decision.

27. On what grounds can an award from an arbitration seated in the jurisdiction be appealed to the court?

In domestic arbitration, arbitral awards may be appealed by way of an application for annulment which may be brought by the parties to the arbitration or by third parties (who deem the award to be harmful or potentially harmful to their interests) on the following grounds:

• the arbitral tribunal has ruled without an arbitration agreement or under a void agreement, or after the expiry of the time period provided under the arbitration agreement
• the arbitral tribunal was irregularly constituted or the sole arbitrator irregularly appointed
• the arbitral tribunal has ruled without complying with the mission which had been granted
• the arbitral award does not give reasons (except if the parties agreed this)
• when the rights of the defence have not been respected
• recognition or enforcement is contrary to international or national public policy
• the arbitral award was not rendered in accordance with the agreement of parties on procedural formalities or on the law applicable to the dispute

In international arbitration matters, applications to set aside awards handed down in Morocco may be brought under the same grounds save for the fourth and the seventh grounds.

28. Can a foreign arbitration award be appealed in the local courts? If so, on what grounds?

A foreign arbitration award could be subject to setting aside proceedings provided that the award was rendered in Morocco and the arbitration was subject to Moroccan civil procedure rules.

29.What procedures exist for enforcement of: (i) awards rendered in arbitrations sea ted outside of the jurisdiction and (ii) domestic awards

In international arbitration, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) has been in force in Morocco since 7 June 1959. Morocco was the second signatory country of the Convention. It is possible to enforce a foreign arbitral award in Morocco by leave of the Moroccan courts.  However, the courts will not grant leave to enforce the award unless:

• it was made by a competent court in the relevant jurisdiction
• the award is enforceable under the law in which judgment was rendered
• the parties have been properly represented
• the decision is not contrary to Moroccan public policy

In domestic arbitration, the enforcement of an arbitral awards may only be undertaken by way of an exequatur order (order for enforcement) from the presiding judge of the court under whose jurisdiction the award was handed down. For this purpose, an official copy of the award together with a copy of the arbitration agreement and a translation, if applicable, into Arabic must be registered with the court clerk within seven days of the award being handed down.

30. Are foreign awards readily enforceable in practice?

The courts will not review arbitral awards except for in the circumstances mentioned in question 29 above.

 

ALTERNATIVE DISPUTE RESOLUTION

31. Are the parties to litigation or arbitration required to consider or submit to any alternative dispute resolution before or during proceedings?

Mediation is used in parallel to arbitration and litigation. In a bid to prevent or to resolve disputes, the parties may agree to appoint a mediator to facilitate the conclusion of a settlement (articles 327-55 of the Code of Civil Procedure). However, parties are generally not required by law to consider or submit to alternative dispute resolution before or during proceedings. Mandatory "mediation or conciliation" procedures should be followed in divorce cases though.

 

REFORMS

32. Are there likely to be any significant procedural reforms in the near future?

To the best of our knowledge, there are currently some plans to introduce any reforms of civil and commercial procedure in the near future, which shall be discussed in the Parliament in the next session.

The most recent reform was Law No 08-05 enacted by Dahir No 1-07-169 of 30 November 2007 relating to arbitration and contractual mediation, which repealed and replaced chapter VIII of title V of the Code of Civil Procedure relating to arbitration.

 

Contributor:

Rachid Benzakour

Avocat

Benzakour Law Firm

Casablanca,Morocco

Tel: + 212 661 09 05 79

URL: http:// www.cbllawfirm.com