Securitis- ation 2013
GLOBAL LEGAL GROUP
QUESTIONS FOR
THE INTERNATIONAL COMPARATIVE LEGAL GUIDE TO:
QUESTIONS
1 Receivables Contracts
1.1 Formalities. In order to create an enforceable debt obligation of the obligor to the seller, (a) is it necessary that the sales of goods or services are evidenced by a formal receivables contract; (b) are invoices alone sufficient; and (c) can a receivable “contract” be deemed to exist as a result of the behaviour of the parties?
In order to create an enforceable debt obligation of the obligor to the seller, it is necessary that the sales of goods or services are evidenced by a written receivable contract.
According to Court practice, invoices alone would not be sufficient. They should be sustained/ confirmed by a formal contract and/or acknowledgement of debt, purchase order(s) and bills of delivery.
In commercial matters, a written document is necessary to be contractually enforceable.
However in certain cases and circumstances, a contract may be implied between parties based on a course of conduct or dealings where the obligations arising from the alleged implied contract are sufficiently certain to be contractually enforceable.
1.2 Consumer Protections. Do Morocco’s laws (a) limit rates of interest on consumer credit, loans or other kinds of receivables; (b) provide a statutory right to interest on late payments; (c) permit consumers to cancel receivables for a specified period of time; or (d) provide other noteworthy rights to consumers with respect to receivables owing by them?
A loan granted to a consumer shall not carry an interest rate higher than a specified interest rate (taux d’usure).
As regards interest on late payments, the Moroccan Civil Code provides a statutory right to interest on late payment at a minimum interest rate fixed by Governmental Decree on an annual basis.
Under certain circumstances and conditions, the consumer may obtain the right to cancell a debt.
1.3 Government Receivables. Where the receivables contract has been entered into with the government or a government agency, are there different requirements and laws that apply to the sale or collection of those receivables?
Moroccan law authorises the sale of receivables to a debtor which is a public body, including the Government or a Government Agency.
It is worth noting that the provisions relating to the sale of receivables shall be combined with the specific rules applicable to such public entities.
The sale of receivables must be notified to the public accountant ( comptable public) of the public entity to which the receivable contract refers, and must be accompanied with the single original ( exemplaire unique) of the receivable contract, where such a contract is a public procurement.
2 Choice of Law – Receivables Contracts
2.1 No Law Specified. If the seller and the obligor do not specify a choice of law in their receivables contract, what are the main principles in Morocco that will determine the governing law of the contract?
When the parties do not specify a choice of law, the receivables contract shall be governed by Moroccan law, if the seller and the obligor are located in Morocco or if the defendant is located in Morocco, in case of dispute and a claim filed before Court.
There is also a principle for the law of the country with which it is “most closely connected. It is presumed that the receivables contract is “most closely connected” with the country where the party effecting the performance is concluded.
2.2 Base Case. If the seller and the obligor are both resident in Morocco, and the transactions giving rise to the receivables and the payment of the receivables take place in Morocco, and the seller and the obligor choose the law of Morocco to govern the receivables contract, is there any reason why a court in Morocco would not give effect to their choice of law?
No, there should be no reason.
2.3 Freedom to Choose Foreign Law of Non-Resident Seller or Obligor. If the seller is resident in Morocco but the obligor is not, or if the obligor is resident in Morocco but the seller is not, and the seller and the obligor choose the foreign law of the obligor/seller to govern their receivables contract, will a court in Morocco give effect to the choice of foreign law? Are there any limitations to the recognition of foreign law (such as public policy or mandatory principles of law) that would typically apply in commercial relationships such as that between the seller and the obligor under the receivables contract?
The parties are free to choose the law of their contract provided that the choice does not conflict with mandatory rules or public policy.
However, questions of enforcement against the obligor of the receivables should be governed by the law of the Jurisdiction in which the obligor is located.
2.4 CISG. Is the United Nations Convention on the International Sale of Goods in effect in Morocco?
Morocco has not ratified the United Nations Convention on the International Sale of Goods.
3 Choice of Law – Receivables Purchase Agreement
3.1 Base Case. Does Morocco’s law generally require the sale of receivables to be governed by the same law as the law governing the receivables themselves? If so, does that general rule apply irrespective of which law governs the receivables (i.e., Morocco’s laws or foreign laws)?
Moroccan law does not require expressly the sale of receivables to be governed by the same law governing the receivables themselves.
The law applicable to the sale of receivables can be freely chosen by the seller and the purchaser of the receivables.
3.2 Example 1: If (a) the seller and the obligor are located in Morocco, (b) the receivable is governed by the law of Morocco, (c) the seller sells the receivable to a purchaser located in a third country, (d) the seller and the purchaser choose the law of Morocco to govern the receivables purchase agreement, and (e) the sale complies with the requirements of Morocco, will a court in Morocco recognise that sale as being effective against the seller, the obligor and other third parties (such as creditors or insolvency administrators of the seller and the obligor)?
Yes, it should.
3.3 Example 2: Assuming that the facts are the same as Example 1, but either the obligor or the purchaser or both are located outside Morocco, will a court in Morocco recognise that sale as being effective against the seller and other third parties (such as creditors or insolvency administrators of the seller), or must the foreign law requirements of the obligor’s country or the purchaser’s country (or both) be taken into account?
Yes, it would.
3.4 Example 3: If (a) the seller is located in Morocco but the obligor is located in another country, (b) the receivable is governed by the law of the obligor’s country, (c) the seller sells the receivable to a purchaser located in a third country, (d) the seller and the purchaser choose the law of the obligor’s country to govern the receivables purchase agreement, and (e) the sale complies with the requirements of the obligor’s country, will a court in Morocco recognise that sale as being effective against the seller and other third parties (such as creditors or insolvency administrators of the seller) without the need to comply with Moroccan’s own sale requirements?
Yes, it should unless the chosen law conflicts with certain mandatory rules in Morocco.
3.5 Example 4: If (a) the obligor is located in Morocco but the seller is located in another country, (b) the receivable is governed by the law of the seller’s country, (c) the seller and the purchaser choose the law of the seller’s country to govern the receivables purchase agreement, and (d) the sale complies with the requirements of the seller’s country, will a court in Morocco recognise that sale as being effective against the obligor and other third parties (such as creditors or insolvency administrators of the obligor) without the need to comply with Moroccan’s own sale requirements?
It should as above.
However, enforcement against the obligor of the receivables would be subject to exequatur procedure and governed by the law of the Jurisdiction in which the obligor is located and his assets.
3.6 Example 5: If (a) the seller is located in Morocco (irrespective of the obligor’s location), (b) the receivable is governed by the law of Morocco, (c) the seller sells the receivable to a purchaser located in a third country, (d) the seller and the purchaser choose the law of the purchaser's country to govern the receivables purchase agreement, and (e) the sale complies with the requirements of the purchaser’s country, will a court in Morocco recognise that sale as being effective against the seller and other third parties (such as creditors or insolvency administrators of the seller, any obligor located in Morocco and any third party creditor or insolvency administrator of any such obligor)?
Tes, it should.
4 Asset Sales
4.1 Sale Methods Generally. In Morocco what are the customary methods for a seller to sell receivables to a purchaser? What is the customary terminology – is it called a sale, transfer, assignment or something else?
Certain conditions must be complied with in respect of a sale of receivables:
(a) the receivables must exist now or in the future;
(b) the receivables must belong to the seller; and
(c) the receivables must be identified and individualised or be capable of being identified and individualised.
(d) the receivables must not be disputed, unless the obligor gave his consent.
The sale of the receivables must take the form of:
(i) an assignment under the common regime of the Moroccan Civil Code. The sale is valid between the seller and the purchaser but enforceable against third parties, subject to either the debtor being notified of the sale or the acceptance of the sale by the debtor in a deed executed before a public notary (acte authentique).
(ii) an assignment by way of subrogation. Under this method, a third party (the subroge) pays the initial creditor (the subrogeant) and takes over the initial creditor’s rights against the debtor. The subrogation must be express and must occur at the time of the payment. As from the date of the subrogation, which shall coincide with the delivery of a formal receipt by the initial creditor to the third party ( quittance subrogative), the transfer of the initial creditor’s rights against the debtor to the third party shall be effective.
(iii) an assignment under the Moroccan Securitisation Law. The assignment of the receivables is performed by way of a single transfer document ( bordereau) exchanged between the seller and the purchaser. The assignment is effective between the parties and enforceable against third parties as from the date affixed on such transfer document without any further formalities.
Under this method, are allowed the sale of future receivables.
Receivables that can be sold are receivables including mortgage guarantees, receivables of banks, of insurance companies, of public companies, of public affiliate companies and of companies receiving licences to render public services.
The purchaser must be a Fonds de Placement Collectif en Titrisation (FPCT), which is a co-ownership entity without legal personality jointly created by a management company and a custodian.
Among the advantages in using this method, related security interests in connection with the purchased receivables are automatically transferred to the FPCT without any further formalities.
The terminology varies; transfer, sale or assignment are all frequently used.
From a legal perspective, these are equal.
4.2 Perfection Generally. What formalities are required generally for perfecting a sale of receivables? Are there any additional or other formalities required for the sale of receivables to be perfected against any subsequent good faith purchasers for value of the same receivables from the seller?
In order for a sale of receivables to be perfected against third parties, the formalities required under the various methods of assignment described in question 4.1 must be complied with.
4.3 Perfection for Promissory Notes, etc. What additional or different requirements for sale and perfection apply to sales of promissory notes, mortgage loans, consumer loans or marketable debt securities?
Promissory notes are transferred by way of endorsement.
The endorsement transfers the underlying debt to the new holder of such promissory notes.
Marketable debt securities are transferred by way of a transfer order.
Mortgage loans and consumer loans are transferred in accordance to question 4.1 without the debtor’s consent depending on the method of assignment.
If the sale of the instruments referred to above is performed under the provisions of the Moroccan Securitisation Law to a FPCT, there are no formalities required in order to transfer the mortgage or other security interests securing the loans.
4.4 Obligor Notification or Consent. Must the seller or the purchaser notify obligors of the sale of receivables in order for the sale to be effective against the obligors and/or creditors of the seller? Must the seller or the purchaser obtain the obligors’ consent to the sale of receivables in order for the sale to be an effective sale against the obligors? Does the answer to this question vary if (a) the receivables contract does not prohibit assignment but does not expressly permit assignment; or (b) the receivables contract expressly prohibits assignment? Whether or not notice is required to perfect a sale, are there any benefits to giving notice – such as cutting off obligor set-off rights and other obligor defences?
Whether or not the notification and/or the consent of the debtors is required for a sale to be enforceable against the debtors will depend on the method of the assignment.
Under the common regime of the Moroccan Civil Code, a sale will be enforceable against the debtor upon a notification being served on him by registered letter or through a bailiff.
Under the Securitisation Law, the sale will be enforceable against the debtor as from the date of the sale without any requirement to notify him.
In all situations, notification of the assignment to the debtor freezes the right of set-off, of the debtor against the purchaser.
In the absence of any provision of the receivables contract expressly prohibiting assignment, the receivables may be freely assigned even without the consent of the debtor, except in respect of receivables for which Moroccan law prohibits the assignment.
The parties may still contractually limit the assignability of the receivables arising from the receivables contract.
4.5 Notice Mechanics. If notice is to be delivered to obligors, whether at the time of sale or later, are there any requirements regarding the form the notice must take or how it must be delivered? Is there any time limit beyond which notice is ineffective – for example, can a notice of sale be delivered after the sale, and can notice be delivered after insolvency proceedings against the obligor or the seller have commenced? Does the notice apply only to specific receivables or can it apply to any and all (including future) receivables? Are there any other limitations or considerations?
Notice must be in writing and detailed enough to make it clear which receivables have been sold.
A notice could be adressed after reorganisation proceedings against the obligor or the seller have commenced (with for the latest the consent of the receiver).
4.6 Restrictions on Assignment; Liability to Obligor. Are restrictions in receivables contracts prohibiting sale or assignment generally enforceable in Morocco? Are there exceptions to this rule (e.g., for contracts between commercial entities)? If Morocco recognises prohibitions on sale or assignment and the seller nevertheless sells receivables to the purchaser, will either the seller or the purchaser be liable to the obligor for breach of contract or on any other basis?
Restrictions on assignment or transfers of receivables should be enforceable.
If a contract is silent on the question of assignment, such contract and the receivables arising thereunder would be freely assignable.
4.7 Identification. Must the sale document specifically identify each of the receivables to be sold? If so, what specific information is required (e.g., obligor name, invoice number, invoice date, payment date, etc.)? Do the receivables being sold have to share objective characteristics? Alternatively, if the seller sells all of its receivables to the purchaser, is this sufficient identification of receivables? Finally, if the seller sells all of its receivables other than receivables owing by one or more specifically identified obligors, is this sufficient identification of receivables?
The sale document must describe the receivables and their details.
4.8 Respect for Intent of Parties; Economic Effects on Sale. If the parties denominate their transaction as a sale and state their intent that it be a sale will this automatically be respected or will a court enquire into the economic characteristics of the transaction? If the latter, what economic characteristics of a sale, if any, might prevent the sale from being perfected? Among other things, to what extent may the seller retain (a) credit risk; (b) interest rate risk; (c) control of collections of receivables; or (d) a right of repurchase/redemption without jeopardising perfection?
A transaction expressed to be a sale could be recharacterised and requalified by Court if the documents do not reflect the intentions of the parties and if the terms of the transaction documents are not consistent with a sale.
The notion of economic characteristics of the transaction is not really seeked. Court will look at the content of the transaction and examine whether it creates rights and obligations characterising a sale.
4.9 Continuous Sales of Receivables. Can the seller agree in an enforceable manner (at least prior to its insolvency) to continuous sales of receivables (i.e., sales of receivables as and when they arise)?
Yes, a seller could agree to continuous sales of receivables.
The receivables would be assigned to the purchaser as and when they come into existence.
4.10 Future Receivables. Can the seller commit in an enforceable manner to sell receivables to the purchaser that come into existence after the date of the receivables purchase agreement (e.g., “future flow” securitisation)? If so, how must the sale of future receivables be structured to be valid and enforceable? Is there a distinction between future receivables that arise prior to or after the seller’s insolvency?
An assignment for value of an identifiable receivable, which is not in existence at the time of the receivables purchase agreement but which will be ascertainable in the future, is treated as an agreement to assign which will give rise to an assignment of the receivable as soon as it comes into existence.
The seller’s reorganisation should not prevent a sale of future receivables that arise prior to or after the reorganisation (especially if authorised by the receiver).
4.11 Related Security. Must any additional formalities be fulfilled in order for the related security to be transferred concurrently with the sale of receivables? If not all related security can be enforceably transferred, what methods are customarily adopted to provide the purchaser the benefits of such related security?
Security for a receivable will typically be capable of being assigned in the same manner as the receivables themselves.
The transfer or assignment of some types of security may require additional formalities such as registration before competent authorities or payment of governmental fees.
Under the common regime, the transfer or assignment of securities would be interevene once agreed between the parties and drafted.
Under the Securitisation Law, all related security and ancillary rights will be automatically and without formality (de plein droit) transferred to the purchaser, including in respect of mortgages or other registered security interest.
Such transfer will be enforceable as from the date of the sale of the receivables.
5 Security Issues
5.1 Back-up Security. Is it customary in Morocco to take a “back-up” security interest over the seller’s ownership interest in the receivables and the related security, in the event that the sale is deemed by a court not to have been perfected?
It is not customary to create “back-up” security over a seller’s ownership interest in receivables and related security.
5.2 Seller Security. If so, what are the formalities for the seller granting a security interest in receivables and related security under the laws of Morocco, and for such security interest to be perfected?
See question 5.1
5.3 Purchaser Security. If the purchaser grants security over all of its assets (including purchased receivables) in favour of the providers of its funding, what formalities must the purchaser comply with in Morocco to grant and perfect a security interest in purchased receivables governed by the laws of Morocco and the related security?
To pledge receivables, a written agreement should be drafted and identify the pledged receivables.
For common transfers/ assisgnments, consecutive formalities should be followed before relevant competent authorities : commercial register or land registry depending on the type of securities.
5.4 Recognition. If the purchaser grants a security interest in receivables governed by the laws of Morocco, and that security interest is valid and perfected under the laws of the purchaser’s country, will it be treated as valid and perfected in Morocco or must additional steps be taken in Morocco?
It is generally agreed that a security over Moroccan assets should be governed by Moroccan law.
Accordingly, the situation described in this question is to be avoided.
5.5 Additional Formalities. What additional or different requirements apply to security interests in or connected to insurance policies, promissory notes, mortgage loans, consumer loans or marketable debt securities?
Under Moroccan law, depending on the type of assets and the legal status of the pledgor and the pledgee, additional or specific formalities might be required on a case by case basis.
5.6 Trusts. Does Morocco recognise trusts? If not, is there a mechanism whereby collections received by the seller in respect of sold receivables can be held or be deemed to be held separate and apart from the seller’s own assets until turned over to the purchaser?
Morocco has not yet ratified the 1985 International Convention relating to the law applicable to trust and their recognition.
Accordingly, trusts are generally not recognised under Moroccan law.
There is however a mechanism stated in the Moroccan Securitisation Law, allowing the seller to continue to recover flows generated by the receivables transferred, the performance of guarantees and securities, on behalf of the management company of the FPCT.
5.7 Bank Accounts. Does Morocco recognise escrow accounts? Can security be taken over a bank account located in Morocco? If so, what is the typical method? Would courts in Morocco recognise a foreign-law grant of security (for example, an English law debenture) taken over a bank account located in Morocco?
Escrow accounts could be used.
A security can be taken over a a bank account located in Morocco.
The seller may grant a security interest on the balance of a bank account ( nantissement de compte bancaire) in accordance with the principles applicable to pledges over receivables (nantissement de creances).
The law applicable to charges (suretes reelles) under Moroccan law is, as a matter of principle, the law of location (lex rei sitae) of the asset either movable or immovable.
5.8 Enforcement over Bank Accounts. If security over a bank account is possible and the secured party enforces that security, does the secured party control all cash flowing into the bank account from enforcement forward until the secured party is repaid in full, or are there limitations? If there are limitations, what are they?
The secured party would not control cash flowing into the bank account, but would only empede the debtor to use the funds.
However, the secured party would be able to take possession of the funds, once he obtains a final judicial decision ordering the bank to remit him the funds.
5.9 Use of Cash Bank Accounts. If security over a bank account is possible, can the owner of the account have access to the funds in the account prior to enforcement without affecting the security?
No.
6 Insolvency Laws
6.1 Stay of Action. If, after a sale of receivables that is otherwise perfected, the seller becomes subject to an insolvency proceeding, will Morocco’s insolvency laws automatically prohibit the purchaser from collecting, transferring or otherwise exercising ownership rights over the purchased receivables (a “stay of action”)? Does the insolvency official have the ability to stay collection and enforcement actions until he determines that the sale is perfected? Would the answer be different if the purchaser is deemed to only be a secured party rather than the owner of the receivables?
The commencement of insolvency proceedings (i.e.safeguard, reorganisation or liquidation proceedings) against the seller after the sale of receivables should not prohibit the purchaser from collecting, transferring or otherwise exercising ownership rights over the receivables,
From an insolvency law point of view, the sale is valid and enforceable against third parties as from the date of the sale document, and qualifies as a true sale by virtue of law.
The sale of receivables by way of FPCT should not be affected by the commencement of Moroccan insolvency proceedings against the seller as such principle is clearly stated in the law.
6.2 Insolvency Official’s Powers. If there is no stay of action under what circumstances, if any, does the insolvency official have the power to prohibit the purchaser’s exercise of rights (by means of injunction, stay order or other action)?
The insolvency official should not prohibit exercise of rights by the purchaser of the receivables against the seller.
6.3 Suspect Period (Clawback). Under what facts or circumstances could the insolvency official rescind or reverse transactions that took place during a "suspect" or "preference" period before the commencement of the insolvency proceeding? What are the lengths of the “suspect” or “preference” periods in Morocco for (a) transactions between unrelated parties and (b) transactions between related parties?
In the context of reorganisation or liquidation proceedings, a sale of receivables may be challenged by the receiver during a so-called “suspect” period (periode suspecte) of up to 18 months prior to the opening of insolvency proceedings if he considers that the insolvency dates back to a previous time.
6.4 Substantive Consolidation. Under what facts or circumstances, if any, could the insolvency official consolidate the assets and liabilities of the purchaser with those of the seller or its affiliates in the insolvency proceeding?
Generally, the insolvency official of the seller cannot request Court to order consolidation of the assets and liabilities of the purchaser with those of the seller or its affiliates, unless Court finds that there is anormal commingling of assets between the purchaser and the seller ( confusion de patrimoines).
In these exceptional circumstance, the insolvency proceedings could be extended to the purchaser and would affect its assets.
6.5 Effect of Proceedings on Future Receivables. If insolvency proceedings are commenced against the seller in Morocco, what effect do those proceedings have on (a) sales of receivables that would otherwise occur after the commencement of such proceedings or (b) on sales of receivables that only come into existence after the commencement of such proceedings?
If insolvency proceedings are commenced against the seller in Morocco, sales of receivables that would otherwise occur after the commencement of such proceedings or sales of receivables that only come into existence after the commencement of such proceedings should not be affected.
7 Special Rules
7.1 Securitisation Law. Is there a special securitisation law (and/or special provisions in other laws) in Morocco establishing a legal framework for securitisation transactions? If so, what are the basics?
There is a special Law establishing a legal framework for Securitisation transactions: Law n° 33-06 published in the Official Bulletin on November 20, 2008.
See the basics in question 7.2.
7.2 Securitisation Entities. Does Morocco have laws specifically providing for establishment of special purpose entities for securitisation? If so, what does the law provide as to: (a) requirements for establishment and management of such an entity; (b) legal attributes and benefits of the entity; and (c) any specific requirements as to the status of directors or shareholders?
The Moroccan Securitisation Law referts to the Fonds de Placements Collectifs en Titrisation (FPCT). The FPCT is a coownership vehicle whose exclusive purpose is the acquisition of debt receivables.
The FPCT does not have separate legal personality. It may consist of several ring-fenced ‘compartments’.
The FPCT must be constituted jointly by a management company and a custodian.
The management company is a commercial management company with a minimum capital of 1.000.000 MAD and should obtain a licence from the « Conseil Déontologique des Valeurs Mobilières » CDVM.
The custodian is a credit institution incorporated and approved by the Moroccan Government.
The management company and the custodian play an important role in the creation and the life of the FPCT, the former as manager of its business and the latter as custodian of the FPCT’s assets and as supervisor of the management company.
Moroccan legal provisions on securitisation provide that the FPCT is entitled to acquire debts secured by mortgages, debts of financial institutions, debts of insurance companies, debts of public entities and public affiliates, debts from companies receiving delegation to render public services, including existing or future receivables.
The law also provides the possibility by the FPCT to issue either shares (valeurs mobilières) or bonds « obligations » or « billets de trésorerie ».
The FPCT should obtain the opinion of the « Conseil Déontologique des Valeurs Mobilières » CDVM for its draft management regulations, when it does not recourse to public offering and for the CDVM’s agreement when there is a recourse to a public offering.
Managers should not be sentenced by a Criminal Court.
7.3 Non-Recourse Clause. Will a court in Morocco give effect to a contractual provision (even if the contract’s governing law is the law of another country) limiting the recourse of parties to available funds?
The question as to whether contractual limitations on the droit de gage general (commonly referred as to “limited recourse clause”) is subject to differing doctrinal views, but non particular jurisprudence.
7.4 Non-Petition Clause. Will a court in Morocco give effect to a contractual provision (even if the contract’s governing law is the law of another country) prohibiting the parties from: (a) taking legal action against the purchaser or another person; or (b) commencing an insolvency proceeding against the purchaser or another person?
A Court in Morocco should not give effect to a contractual provision prohibiting the parties from taking legal action against the purchaser or another person or from commencing an insolvency proceeding against the purchaser or another person.
7.5 Priority of Payments “Waterfall”. Will a court in Morocco give effect to a contractual provision (even if the contract’s governing law is the law of another country) distributing payments to parties in a certain order specified in the contract?
A Court in Morocco should not give effect to such contractual provision, as it is amatter of public policy.
7.6 Independent Director. Will a court in Morocco give effect to a contractual provision (even if the contract’s governing law is the law of another country) or a provision in a party’s organisational documents prohibiting the directors from taking specified actions (including commencing an insolvency proceeding) without the affirmative vote of an independent director?
Under Moroccan law, organisational documents and/or any other contract may prohibit directors to take certain specified actions without the vote or consultation of another director appointed as independent director.
However, such provisions should not be enforceable against third parties.
Also, a restriction or limitation on the ability of the directors to bring insolvency proceedings contained in the Articles of Association of a company or in a contract entered into by a company should be invalid as a matter of public policy or incompatible with certain statutory duties of the directors.
8 Regulatory Issues
8.1 Required Authorisations, etc. Assuming that the purchaser does no other business in Morocco, will its purchase and ownership or its collection and enforcement of receivables result in its being required to qualify to do business or to obtain any licence or its being subject to regulation as a financial institution in Morocco? Does the answer to the preceding question change if the purchaser does business with other sellers in Morocco?
A purchaser must be licenced to purchase receivables.
It makes no difference whether or not the purchaser does business with other sellers in Morocco.
8.2 Servicing. Does the seller require any licences, etc., in order to continue to enforce and collect receivables following their sale to the purchaser, including to appear before a court? Does a third party replacement servicer require any licences, etc., in order to enforce and collect sold receivables?
According to Moroccan Securitisation Law, the seller continues to be in charge of the recovery of receivables on behalf of the management company of the FPCT.
Servicing and collection activities for the benefit of third parties under Securitsation law must be notified to debtors.
8.3 Data Protection. Does Morocco have laws restricting the use or dissemination of data about or provided by obligors? If so, do these laws apply only to consumer obligors or also to enterprises?
The handling and processing of information on individuals is regulated by the Moroccan law on the Protection of Personal Data, Law n° 09-08 dated February 18, 2009.
The law only applies to individual obligors and not enterprises.
Data controllers are subject to notification requirements to the National Commission of Control of Personal Data Protection: a prior authorization in case of sensitive data or a prior notification in the absence of sensitive data.
8.4 Consumer Protection. If the obligors are consumers, will the purchaser (including a bank acting as purchaser) be required to comply with any consumer protection law of Morocco? Briefly, what is required?
If the obligors are consumers, the purchaser as an assignee should comply with the consumer protection law and mainly for certain information to provide, abusive clauses and particular commercial practices.
8.5 Currency Restrictions. Does Morocco have laws restricting the exchange of Moroccan’s currency for other currencies or the making of payments in Moroccan’s currency to persons outside the country?
A transfer from Morocco to a person outside Morocco is subject to Moroccan Exchange Control Regulations.
According to these Regulations, any transfer of money abroad should be evidenced by commercial documents to be provided to the local bank in order to proceed to the transfer.
Local banks have general authority to do so for “operations courantes”, common transactions.
Regarding a non common transaction, a specific authorization from the Moroccan Exchange Office should be granted.
There is however no restriction from a local person/entity to receive money from a foreign entity. The funds received would be converted into Moroccan Dirham according to the exchange rate of the foreign currency at the date of the transfer.
9 Taxation
9.1 Withholding Taxes. Will any part of payments on receivables by the obligors to the seller or the purchaser be subject to withholding taxes in Morocco? Does the answer depend on the nature of the receivables, whether they bear interest, their term to maturity, or where the seller or the purchaser is located?
Withholding tax treatment of Moroccan receivables depends not only on their nature but on the recipient to whom they are paid.
Broadly, payments with a Moroccan source may be paid without withholding tax to a purchaser which is resident in Morocco
Payments to a non-Moroccan resident purchaser may often be subject to withholding tax, subject to any available treaty relief pursuant to a non double tax convention.
9.2 Seller Tax Accounting. Does Morocco require that a specific accounting policy is adopted for tax purposes by the seller or purchaser in the context of a securitisation?
The Securitisation Law imposes a specific accounting policy fixed by the Administration against a FPCT and states also for the control of the CDVM.
9.3 Stamp Duty, etc. Does Morocco impose stamp duty or other documentary taxes on sales of receivables?
Stamp duty exists in Morocco and is chargeable on documents in certain circumstances.
9.4 Value Added Taxes. Does Morocco impose value added tax, sales tax or other similar taxes on sales of goods or services, on sales of receivables or on fees for collection agent services?
Moroccan Value Added Tax (“VAT”) is chargeable on supplies of goods and services which take place in Morocco.
A transfer of financial receivables would generally be treated as an exempt supply for VAT purposes.
Fees payable for collection agent services are not exempt from VAT and will usually give rise to VAT at the standard rate to the extent they are treated as taking place in Morocco.
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9.5 Purchaser Liability. If the seller is required to pay value added tax, stamp duty or other taxes upon the sale of receivables (or on the sale of goods or services that give rise to the receivables) and the seller does not pay, then will the taxing authority be able to make claims for the unpaid tax against the purchaser or against the sold receivables or collections?
Not, the taxing authority would not be able to do so, for VAT if applicable, as it is the seller duty to pay it.
Stamp duties if applicable, depending on the type of the sale of receivables, are however put on the head of the purchaser.
9.6 Doing Business. Assuming that the purchaser conducts no other business in Morocco, would the purchaser's purchase of the receivables, its appointment of the seller as its servicer and collection agent, or its enforcement of the receivables against the obligors, make it liable to tax in Morocco?
Contributor:
Rachid Benzakour
Avocat
Benzakour Law Firm
Casablanca,Morocco
Tel: + 212 661 09 05 79