Morocco: privileged place of mediation and arbitration in Africa
The Moroccan legislator has developed a new text and it is an independent document setting out the legal rules applicable to arbitration and conventional mediation. The law 95-17 relating to arbitration and conventional mediation has been published in the BO 7099 of June 13, 2022 and enters in vigor on June 14, 2022. The law comes to bring solutions to the problems decried by the investors and professionals.
This is a long-awaited law for all professionals that creates an alternative dispute resolution code, a useful tool for investors wishing to avoid long and costly legal proceedings.
With this innovative law, the Moroccan legislator wanted to harmonies the business climate with international requirements and provide an independent legal framework for Alternative Dispute Resolution. Contrary to the former law 08-05, which was part of the Code of Civil Procedure, the new law 95-17 is a separate code. This demonstrates the clear will of the Moroccan legislator to elevate the place of arbitration so that it is in line with the Royal guidelines.
This new legislation is noted for its flexibility and speed and it’s part of a political openness of Morocco in its economic relations, especially regarding the free exchange agreements, and the promotion of the country as an international place of arbitration and mediation. It would be important to review the strengths and weaknesses of this new law.
So, what are the advantages and the disadvantages of the law 95.17?
Morocco: privileged place of mediation and arbitration in Africa. Why Morocco takes now a considerable place in the world of mediation and
1. An independent law.
It’s the first law about mediation and arbitration that allows arbitration professionals to rely on a clear and predictable legal framework. It is a legal text in its own right, totally separate from the Code of Civil Procedure which, until now, has organized arbitration and conventional mediation.
2. Distant meetings and hearings & the adoption of electronic procedural exchanges. It takes into consideration the technological advances to be able to conclude the arbitration agreement, the exchange of requests and memoranda by electronic means, the possibility to make arbitration decisions by the same means, and also the holding of meetings and hearings by videoconference.
3. Arbitration professionals
The arbitrator must be an individual person with the required capacity and expertise. Arbitrators are bound by professional secrecy and in case of non-compliance; this will subject them to penal sanctions.
4. Remuneration of arbitrators
The fixing of the remuneration is included in the judgment and the decision can be contested to the president of the competent tribunal in 15 days from the date of receiving the decision.
5. Suppression of the translation of the judgment and the arbitration agreement
The translation of the arbitration judgment and the arbitration agreement is no longer required, with an extension of the filling deadline from 7 days to 15 days.
6. The international arbitration.
The law 95-17 has reduced the rules related to the qualification of international arbitration. It has reduced the restrictive geographical conditions, Article 72 of the law provides that international arbitration shall be considered as if it involves interests of international commerce and at least one of the parties has its domicile or seat abroad. As well from now on, the President of the Commercial Court of Appeal of Casablanca will hear difficulties relating to the constitution of the arbitral tribunal in international arbitration, in which the application of law 95-17 is provided for.
7. Characteristic of the mediator
Mediators must now satisfy a number of characteristics, which are independence, impartiality, integrity and loyalty. The mission of mediator may only be entrusted to a natural person who is fully capable and has not been convicted by a court of any offence contrary to honor, probity or morality, or he has been subject of a disciplinary sanction that has resulted in his dismissal, or one of the financial sanctions provided in Article VII of Book V of Law 15-95 or the deprivation of the capacity exercise trade or of one of his civil rights.
II. Clauses to improve for a better environment in mediation and arbitration
Even though Law 95-17 is the first independent law on arbitration and mediation in Morocco and has improved the legislation on these matters, we regret that some aspects have unfortunately not been treated.
1. The text of the law is silent on the expertise of arbitrators.
The law simply stipulates that the arbitrator must be a capable person with a minimum of expertise and scientific competence. It would have been preferable if the Moroccan legislator had specified and mentioned these requirements.
2. The deadline for recusal the arbitrators.
For more justice and impartiality, the recusal request must be submitted to the president of the competent Tribunal only, which was stated in the old law and has been
3. Abrogated by the new one by stipulating that the request must first be addressed to the arbitrator concerned.
4. The introduction of digitalization in the procedure.
The provisions of the law accentuate the use of the new technologies of information communication (NTIC) since they consecrate the use of the NTIC in all the phases of the arbitration or the conventional mediation until the pronouncement of the arbitral decision or the transaction.
The entry of digitalization is certainly important but it could be a risk in mediation and arbitration affairs. In fact, the affairs can be very important and it is possible that one of the documents could be divulged through cybercrime or cyber-attacks. It is then preferable to create a software well adapted to the procedures of mediationand arbitration.
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