Over the past decades, Morocco has been committed to enhancing its appeal as an arbitration-friendly jurisdiction. Significant reforms have been introduced to its arbitration regime by Law No. 95-17 on Arbitration and Conventional Mediation ("Law No. 95-17" or "New Law"). An unofficial translation of Law No. 95-17 may be found here. New concepts, such as the authority of the judge of annulment to fine parties for abusive annulment claims and the use of online dispute resolution mechanisms, were introduced to strengthen Morrocco's reliability as a venue for international arbitration.
The New Law governs arbitration proceedings initiated as of the date of its entry into force, while arbitration proceedings that commenced before that date remain governed by the provisions of the Code of Civil Procedure ("CCP") enacted by the Dahir (Moroccan King's decree), related to Act No. 1-74-447 of 28 September 1974.1
This note focuses exclusively on the provisions of Law No. 95-17.
Arbitration Agreement for International Arbitration in Morocco
Pursuant to Article 2 of Law No. 95-17, an arbitration agreement is a commitment by the parties to use arbitration in order to settle an existing or potential dispute arising from a specific legal relationship, whether contractual or not.2
For an arbitration agreement to be valid under Law No. 95-17, it shall be made in writing3 and define the nature of the dispute that will be subject to international arbitration.4 It shall also include information necessary to identify the parties, their addresses, their places of origin and their email addresses.5
Moreover, the law expressly stipulates that an arbitration agreement shall not be considered valid if it provides for the appointment of an arbitrator who refuses or is unable to execute the mission unless the parties agree to replace that arbitrator.6
Number of Arbitrators
The New Law allows parties to freely choose the number of arbitrators to compose the arbitral tribunal.7 However, if the parties disagree on the number of arbitrators to be appointed, the arbitral tribunal shall be composed of three arbitrators.8
Law No. 95-17 also imposes certain conditions on the nomination of arbitrators. Appointed arbitrators must be natural persons with full capacity, possessing the required minimum scientific skills and experience to carry out their mission. Additionally, they shall be prohibited from serving as arbitrators if a final decision has been issued against them for:
- Conduct contrary to honour, probity or morality;
- Dismissal from an official position due to a disciplinary sanction;
- Application of a pecuniary sanction under Section VII of Book 5 of the Moroccan Code of Commerce; or
- Deprivation of commercial or civil rights.9
Jurisdiction of Arbitral Tribunal in International Arbitration in Morocco
Article 32 of Law No. 95-17 sets out the widely accepted principle of kompetenz-kompetenz, according to which the arbitral tribunal has the exclusive authority to rule on its own jurisdiction.10
The doctrine of separability is also recognized in Article 8 of Law No. 95-17, which provides that an arbitration clause is considered independent from the contract in which it is embedded. 11
Arbitral Award in International Arbitration in Morocco
According to the New Law, the final award shall be made in writing, either in paper or electronic form, and must include the following information:
- The date and place where the final award was rendered;
- Details about the appointed arbitrators, including their names, nationalities, professional capacities, addresses, and email addresses;
- Information about the parties involved, including their full names, addresses and names of their representatives;
- If one of the parties is a legal entity, whether private or public, its name, legal form, and registered or administrative office;
- A summary of the factual background, the claims and defences of the parties, the evidence presented, and the issues resolved.12
The final award must further include the reasons upon which it is based13 and determine the arbitrators' fees, the costs of arbitration, and their allocation.14
Challenging an Arbitral Award
An international arbitration award rendered in Morocco can be appealed in the following circumstances unless the parties agree otherwise:
- If the final award was rendered despite the absence of an arbitration agreement in the contract, or if the arbitration agreement is null;
- If the final award was rendered after the expiration of the time frame provided for arbitration;
- In case of an irregularity in the composition of the arbitral tribunal;
- If the arbitral tribunal fails to fulfil the mission entrusted to it;
- If the arbitral tribunal violates the rights of defence; or
- If the recognition or enforcement of the award is contrary to international or national public policy. 15
Moreover, unless agreed otherwise, the arbitral award can also be subject to annulment for the same reasons stated above, and additionally:16
- If the Arbitral Tribunal has ruled without complying with its mandate, or on matters outside the scope of the arbitration or has declared that it lacks jurisdiction over the dispute despite having jurisdiction;
- If the final award does not comply with Articles 50, 51 and 52 of Law No. 95-17;
- If the final award does not comply with the agreed-upon procedures between the parties or fails to apply a mutually agreed-upon law relevant to the subject matter of the dispute.17
Pursuant to Article 65 of Law No. 95-17, the annulment decision can be appealed before the Supreme Court in accordance with the provisions of the CCP.18
Recognizing and Enforcing an Arbitral Award in Morocco
Since Morocco is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, arbitral awards can be enforced once an exequatur decree from the president of the competent court is obtained.19
The exequatur is automatically granted by the competent court (1) in case the deadline for annulment of the award has passed and (2) provided that the award does not contravene Moroccan or international public policy rules.20
A request for exequatur shall be submitted through emergency proceedings on a contradictory basis and takes, on average, three to four months.21 However, for the exequatur of foreign awards, the New Law provides that the parties shall present an Arabic-certified translation of the arbitration agreement, the final award and all supporting documents.22
Arbitration Costs
The CCP does not explicitly address the question of costs in international arbitration in Morocco.
However, Article 124 of the CCP establishes a general principle applicable to international arbitration, whereby litigation costs incurred before state courts are typically borne by the unsuccessful party. This principle aligns with standard practice in international commercial arbitration, where costs follow the event, meaning the losing party is responsible for covering the winning party's arbitration fees. (Further details can be found in the note on Who Pays the Costs of International Arbitration?).
Arbitration Institutions in Morocco
There are multiple arbitration institutions based in Morocco, with two prominent ones having significant international exposure:
- The Moroccan International Chamber of Commerce, the Moroccan counterpart of the International Chamber of Commerce (ICC); and
- Casablanca Finance City, established as a financial and free trade zone by an act of parliament, which hosts an arbitration institution known as the International Centre for Mediation and Arbitration (CIMAC).23
Investment Arbitration in Morocco
Morocco is a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) (see ICSID List of Contacting States). From 1967 to 2024, Morocco was a defendant in at least nine cases introduced by foreign investors, with six cases concluded and three cases pending.
Conclusion
Law No. 95-17 reflects Morocco's commitment to fostering an arbitration-friendly environment that aligns with international standards. By enhancing the efficiency, flexibility, and enforceability of arbitral proceedings, Morocco aims to attract foreign investment and position itself as a key player in international arbitration. The new legislation not only simplifies the arbitration process but also reinforces Morocco's status as an arbitration hub for investors in Africa.
Footnotes
1. A. Bougrine, C. Lemétais d'Ormesson and F. Gagnerot, Morocco, Global Arbitration Review, 2023.
2. Law No. 95-17, Article 2.
3. Law No. 95-17, Article 3.
4. Law No. 95-17, Article 5.
5. Law No. 95-17, Article 5.
6. Law No. 95-17, Article 5.
7. A. Kettani, International Arbitration Laws and Regulations Morocco 2023-2024, ICLG, 2023.
8. Law No. 95-17, Article 20.
9. Law No. 95-17, Article 11.
10. Law No. 95-17, Article 32.
11. Law No. 95-17, Article 8.
12. Law No. 95-17, Article 51.
13. Law No. 95-17, Article 51
14. Law No. 95-17, Article 52.
15. Law No. 95-17, Article 80.
16. Law No. 95-17, Article 62.
17. Law No. 95-17, Article 62.
18. Law No. 95-17, Article 65.
19. Law No. 95-17, Articles 67 and 77.
20. Law No. 95-17, Article 79; A. Bougrine, C. Lemétais d'Ormesson and F. Gagnerot, Morocco, Global Arbitration Review, 2023.
21. Law No. 95-17, Article 67.
22. Law No. 95-17, Article 78.
23. A. Bougrine, C. Lemétais d'Ormesson and F. Gagnerot, Morocco, Global Arbitration Review, 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.