Mediation and Arbitration Law in Morocco

The Kingdom of Morocco has consistently worked to modernise its legal framework to encourage investment and provide efficient mechanisms for dispute resolution. Central to this evolution is the promotion of Alternative Dispute Resolution (ADR) methods, specifically arbitration and conventional mediation. These mechanisms offer parties a way to resolve conflicts outside the traditional court system, providing benefits such as confidentiality, speed, and technical expertise.

In Morocco, the constitutional framework establishes the nation as a democratic and social constitutional monarchy (as noted in the Decree determining the date of the constitutional referendum). Within this stable legal environment, the Moroccan legislature has enacted specific laws to govern how private and commercial parties can settle their differences. The primary legal pillars for these processes are found in the Code of Civil Procedure and Law No. 95.17, which specifically addresses arbitration and conventional mediation.

The Legal Framework for Arbitration

Arbitration in Morocco is a formal process where parties agree to submit their dispute to an impartial third party, known as an arbitrator or an arbitral tribunal, whose decision is binding. Under Law No. 95.17, which executes the provisions related to arbitration and conventional mediation, the law distinguishes between domestic and international arbitration.

According to Article 138 of the Code of Civil Procedure and the subsequent Law 95.17, the arbitration agreement is the cornerstone of the process. This agreement can take two forms:

1. The Arbitration Clause: An agreement included in a contract before any dispute arises, stating that future disputes will be settled via arbitration.
2. The Submission Agreement: An agreement entered into after a dispute has already occurred.

One of the most significant aspects of Moroccan law is the autonomy it grants to the parties. Law No. 95.17 specifies that parties have the freedom to determine the procedure to be followed during the arbitration, either directly or by reference to a specific set of arbitration rules. If the parties fail to agree on a procedure, the arbitral tribunal has the authority to determine the necessary measures, either automatically or by referring to an established arbitration law or system.

Competent Judicial Authorities

While arbitration is a private process, the Moroccan judiciary plays a supportive and supervisory role. Law No. 95.17 identifies the specific judicial officers responsible for overseeing arbitration matters:

• Domestic Arbitration: The President of the Commercial Court generally holds jurisdiction over matters relating to the arbitral award when the arbitration takes place within the Kingdom of Morocco.
• International Arbitration: If the arbitration is conducted abroad but the parties have agreed to apply Moroccan arbitration law, the President of the Commercial Court of Casablanca is designated as the competent authority to handle related legal applications.

This structure ensures that there is a clear legal path for the recognition and enforcement of awards, as well as judicial assistance for the appointment of arbitrators or the taking of evidence when necessary.

Conventional Mediation in Morocco

Conventional mediation is a voluntary process where a neutral third party, the mediator, helps the parties reach an amicable settlement. Unlike an arbitrator, a mediator does not impose a decision but facilitates communication and negotiation.

The Moroccan legal system encourages mediation as a way to preserve business relationships and reduce the caseload of the national courts. The transition toward these ADR methods is supported by various governmental sectors. For example, the Ministry of Foreign Affairs, African Cooperation and Moroccan Expatriates plays a role in monitoring and processing issues related to international law and justice, ensuring that Morocco's practices align with international standards.

The Ministry also manages the legal framework and practical practices governing diplomatic and consular relations, which includes maintaining archives and databases for diplomatic representations. This administrative rigour reflects the broader Moroccan commitment to legal transparency and the proper archiving of official documents, as governed by the Law relating to Archives (Archives du Maroc).

Practical Applications and Institutional Support

The use of arbitration and mediation is particularly prevalent in commercial contracts, international trade, and construction. Large-scale projects in Morocco often include arbitration clauses to provide international investors with the certainty that disputes will be handled by experts in the field.

Furthermore, Moroccan law ensures that the rights of all citizens, including Moroccans residing abroad, are protected. As referenced in the decrees relating to the Economic, Social, and Environmental Council, the representation and interests of the Moroccan diaspora are a constitutional priority (Article 19 of the Constitution), and this extends to their ability to access fair dispute resolution mechanisms.

For a successful arbitration or mediation in Morocco, parties should:

• Ensure the arbitration agreement is in writing.
• Clearly define the language and seat of the arbitration.
• Specify the applicable law (e.g., Law 95.17).
• Select mediators or arbitrators with specific expertise in the subject matter of the dispute.

Conclusion

Morocco's commitment to arbitration and mediation as primary tools for dispute resolution is a testament to its modern legal aspirations. By integrating these mechanisms into the Code of Civil Procedure and enacting dedicated legislation like Law No. 95.17, the Kingdom provides a robust, flexible, and reliable environment for both domestic and international parties. Whether through the facilitation of a mediator or the binding decision of an arbitrator, these paths offer a sophisticated alternative to traditional litigation, backed by the support of the Moroccan judicial system.

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