International arbitration law and rules in Morocco

On 5 March 2020, the Moroccan Council of Government issued Bill n°95.17 relating to arbitration and conventional mediation (the “Bill”). The Bill intends to reform Moroccan arbitration law and is in the process of being adopted. To date, it has been unanimously adopted by the House of Representative,  in its 1st reading on 22 June 2021 and in 2nd reading on 25 April 2022. The next step of promulgation will be the adoption of a Dahir (i.e. a royal decree). Thus, although the Bill has been adopted, it may take some time before it enters into force.  

1.1 The main legislative provisions and legal principles governing arbitration in Morocco can be found in Articles 306 to 327-54 of the Moroccan Code of Civil Procedure, as specifically amended by Law No. 08-05 of 30 November 2007, relating to Arbitration and Conventional Mediation (The 2007 Act).

1.2 With the adoption of the 2007 Act, the Kingdom of Morocco’s intention was to provide potential national and international investors and the business community with a better legal framework in respect of arbitration in Morocco.

1.3 As a result, the provisions relating to arbitration contained in the 2007 Act provide a detailed description of the legal regimes applicable to both domestic and international arbitration, from the validity of the arbitration agreement through to the procedures to set aside or enforce an award.

1.4 The Kingdom of Morocco has also ratified the New York Convention through the Dahir (ie royal decree) No. 1-59-266 of 19 February 1960. 

Warning

The main purpose of this bill is to separate the provisions governing alternative means of dispute resolution (including arbitration and mediation) from the Moroccan Code of Civil Procedure, and to insert these special provisions into a new code, updating the existing ones.

According to the Moroccan government, the Bill aims to simplify administrative and judicial procedures in respect of investment matters, including arbitration and mediation procedures. It also aims to upgrade the Moroccan judicial system by simplifying the exequatur procedure.

The Bill’s main additions include the following: 

• defining “internal arbitration”, widening the notion of international arbitration which is characterised as arbitration whenever it “involve[s] international commercial interests and in which at least one of the parties is domiciled or has its seat abroad” (Article 70);
• recognising  electronic signatures for awards and notification of awards by electronic means (Articles 3 and 60);
• recognising the binding force of the adversarial principle in the context of exequatur procedures in national and international arbitration (Article 70);
• introducing financial penalties against parties or third parties refusing to submit original documents in their possession whereby the President of the court will be seized to decide on the matter (Article 35);
• clarifying the competent jurisdiction with regards to the exequatur procedure, providing that the President of the Commercial Court/Tribunal or the head of division of commercial matters within the first instance Tribunal will have jurisdiction over it (Article 77).

2.1.1 Moroccan law makes a fundamental distinction between domestic and international arbitration. This distinction governs the entire legal framework for arbitration in Morocco and allows international arbitration to be governed by more flexible and permissive principles than those applying to domestic arbitration, even when the seat of the arbitration is located in Morocco.

2.1.2 Consequently, the Moroccan Code of Civil Procedure is divided into two parts. Section one governs domestic arbitration and section two regulates international arbitration.

2.1.3 Section one (Articles 306–327-38) is structured as follows:

• sub-section 1: Definitions and General Rules;
• sub-section 2: The Arbitral Tribunal (constitution, proceedings and incidental pleas); and
• sub-section 3: The Arbitral Award.

2.1.4 Unlike section one, section two (Articles 327-39–327-54), is not subdivided. It is however structured as follows:

• the definition of international arbitration;
• rules governing international arbitration agreements and international arbitral proceedings;
• recognition and enforcement of arbitral awards; and
• recourse against a decision refusing the recognition or enforcement of an arbitral award (appeal) and limited recourses against arbitral awards (applications for setting aside).

2.1.5 It is important to note that, “in absence of a particular [and contrary] agreement”, most of the domestic arbitration provisions also apply to international arbitrations. 1 The Moroccan Code of Civil Procedure, art 327-43.  

2.2.1 Article 327-40 of the Moroccan Code of Civil Procedure defines international arbitration as involving “interests of international trade, and where one of the parties has its domicile or seat abroad”. In other words, an arbitration is international if it involves an economic transaction that is not limited to the borders of a single country. 

2.2.2 An arbitration is considered international when:

• the parties have, at the conclusion of the arbitration agreement, their establishments in different countries;
• the place of arbitration, or the place with which the subject matter of the dispute has the closest connection, is located outside the country in which the parties have their “place of business”;
• the parties have expressly agreed that the subject matter of the arbitration agreement is linked to more than one country.

2.2.3 An arbitration can, therefore, be “international” while having its seat in Morocco, with or without Moroccan parties. Moreover, an arbitral award resulting from international arbitration proceedings will be regarded as an international award even if it has been rendered in Morocco.

2.2.4 This means that three types of awards exist under Moroccan arbitration law:

• domestic awards rendered in Morocco and not addressing international matters;
• international awards rendered in Morocco and addressing international matters; and 
• international awards rendered abroad. 

A description of the enforcement rules applicable to these different types of awards is set out at section 10 below.

2.2.5 It is to be noted that the Moroccan Code of Civil Procedure does not explicitly define “domestic arbitration”. As a result, under Moroccan law, domestic arbitration will be an arbitration that is not “international” within the meaning of Article 327-40.

3.1.1 Article 307 of the Moroccan Code of Civil Procedure defines an arbitration agreement as “… an agreement by the parties to submit to arbitration the settlement of disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. The arbitration agreement may take the form of an arbitration contract or an arbitration clause”.

3.1.2 Under the Moroccan law applicable to domestic arbitration, the arbitrability of a matter does not depend on whether the dispute has occurred between the parties or not. There is no distinction between arbitration agreements to arbitrate future disputes – ie an arbitration clause (clause compromissoire or clause d’arbitrage) and arbitration agreements to submit existing disputes to arbitration – ie a submission agreement (compromis d’arbitrage). 

3.1.3 The same principles apply to international arbitration, as, firstly, the section of the Moroccan Code of Civil Procedure (as amended by the 2007 Act) applicable to international arbitration agreements does not contain any provisions related to the form of an international arbitration agreement and, secondly, because Morocco has ratified the New York Convention and must apply its provisions.

3.2.1 Under Moroccan arbitration law, the formal requirements of an arbitration agreement will depend on whether it is a domestic or an international arbitration. 

3.2.2 In domestic arbitrations, in order to be valid, an arbitration agreement must be made “in writing”. 

3.2.3 Indeed, Article 317 of the Moroccan Code of Civil Procedure provides, that under penalty of nullity, the arbitration clause must be stipulated in writing and unequivocally in the “original [i.e. main] agreement” or “in a document to which it refers”.

3.2.4 The same requirement holds for a submission agreement. Three options are provided by Article 313 of the Moroccan Code of Civil Procedure for a submission agreement to be considered “in writing”: 

• first, if such an agreement is set out in a notarial deed;
• second, if such an agreement is contained in any written agreement between the parties. To avoid any potential disputes on the interpretation of this second alternative, Article 313 of the Moroccan Code of Civil Procedure expressly provides that an arbitration agreement can be “contained in a document signed by the parties or in an exchange of letters or telex or telegrams or any other means of telecommunications considered as an agreement evidencing its existence, or even in an exchange of statements of claim or defence in which the existence of such agreement is alleged by one party and not denied by the other”. In a broader sense, this article also provides that “any reference in a written contract to the provisions of a model contract or an international convention, or to any other document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract”; and
• lastly, Article 313 of the Moroccan Code of Civil Procedure provides that an arbitration agreement can be made by minutes drawn before the appointed tribunal.

3.2.5 Unlike in domestic arbitrations, the Moroccan Code of Civil Procedure does not explicitly provide that an international arbitration agreement should be in written form. 

3.2.6 Nevertheless, an arbitration agreement should exist in some tangible form, as a party seeking to enforce an award must produce an original or copy of both the award and the arbitration agreement. 2 ibid, art 327-47.

3.3.1 Under Moroccan Arbitration Law, the minimum essential content of an arbitration agreement depends on whether it is a domestic or an international arbitration. 

Minimum essential content in the context of domestic arbitrations

3.3.2 Minimum essential content will differ depending on whether it is:

• an arbitration clause; or
• a submission agreement.

3.3.3 Article 317 of the Moroccan Code of Civil Procedure provides that, under the penalty of nullity, the arbitration clause must, either appoint the arbitrator(s), or set out the terms for their appointment.

3.3.4 However, Article 327-5 sets out the procedure to be followed in cases where the parties have not complied with the provisions of Article 317.

3.3.5 These provisions are unfortunately contradictory. As a result, it is conceivable that some state jurisdictions – as a result of differing judicial interpretations – would opt for the application of the sanction provided by Article 317 of the Moroccan Code of Civil Procedure, “penalty of nullity”, while others may consider that Article 327-5 contains an exception to the rule established in Article 317 and, therefore, that non-compliance with the provisions set forth in this latter article can be covered by following the procedures provided for by Article 327-5 – set out at paragraph 4.1.3 below.

3.3.6 In order to prevent any disputes that may arise from this issue, it is strongly recommended to provide for the terms of the arbitrator’s appointment in the arbitration clause.

3.3.7 Unlike the arbitration clause, Article 315 of the Moroccan Code of Civil Procedure provides that the submission agreement must not only designate the arbitral tribunal or provide for the terms of its designation, but also determine the arbitral scope (“the subject of the dispute”).

3.3.8 The same issue of conflicting provisions seen in paragraph 3.3.5 is raised by the need to designate the arbitral tribunal or to provide for the terms of its designation as set forth in Article 315 and the provisions of Article 327-5 of the Moroccan Code of Civil Procedure – see paragraph 4.1.3 below. This situation is again likely to be the source of uncertainty, and, therefore, it is strongly recommended to provide for the appointment or the terms for the appointment of arbitrator(s) within the submission agreement.

Minimum essential content in the context of international arbitrations

3.3.9 In the context of international arbitrations, Moroccan arbitration law gives the parties the opportunity to include provisions regarding the designation of arbitrators in the arbitration agreement. 

3.3.10 Indeed, Article 327-41 of the Moroccan Code of Civil Procedure provides that “the arbitration agreement may, directly or by reference to certain rules, appoint the arbitrator or the arbitrators or specify the method of their appointment as well as their substitution”.

3.3.11 However, a failure to appoint arbitrators or to specify the method of their appointment will not affect the validity of the international arbitration agreement.

Scope of arbitrability in domestic arbitration

3.4.1 The scope of arbitrability under Moroccan law is limited by the involvement of certain parties or by disputes arising out of certain matters.

Inarbitrability of a domestic dispute involving state owned entities and public institutions 

3.4.2 Subparagraph 1 of Article 310 of the Moroccan Code of Civil Procedure provides that “disputes relating to unilateral acts of the State, local authorities, or any other entities having public authority prerogatives, shall not be subject to arbitration”.

3.4.3 However, in a subsequent paragraph, Article 310 provides that: “pecuniary issues arising therefrom can be subject to arbitration, except for those relating to tax law issues”.

Arbitrability of a domestic dispute involving legal entities and natural persons

3.4.4 Article 308 of the Moroccan Code of Civil Procedure provides that: “All persons, natural or juridical, enjoying full capacity, may conclude an arbitration agreement pertaining to rights that are under their free disposal”.

3.4.5 As a result:

• legal entities may have recourse to domestic arbitration to solve an existing or future dispute related to contracts they have entered into; and 
• natural persons can enter into a domestic arbitration agreement if they have the capacity to do so and as long as they have free disposal of the rights that are subject to the dispute.

3.4.6 However, no “disputes relating to a person’s personal status, their capacity, or personal rights which are not subject to commerce” may be submitted to arbitration under Moroccan arbitration law. 3 ibid, art 309.  

3.5.1 Pursuant to Article 327-35 of the Moroccan Code of Civil Procedure, arbitral awards, even when exequatur has been granted, are not enforceable against third parties. 

3.5.2 However, it is possible for third parties to challenge an arbitral award before state courts in cases where the award 
harms their interests (Article 327-35 of the Moroccan Code of Civil Procedure).

3.6.1 Under Moroccan Arbitration Law, the arbitration clause is deemed autonomous from the main contract. 4 ibid, art 318.  

3.6.2 As a consequence, the nullity of the main contract containing the arbitration clause does not affect the validity of the arbitration clause or the competence of the arbitral tribunal.

4.1.1 Under Moroccan arbitration law, the parties are free to designate one or more arbitrators, or provide for a procedure for the appointment of arbitrators, either directly or by reference to arbitral or procedural rules. 5  ibid, art 327-2 for domestic arbitrations and art 327-41 for international proceedings

4.1.2 If the parties fail to agree on the number of arbitrators, Article 327-2 of the Moroccan Code of Civil Procedure provides that “their number shall be three”.

The courts’ assistance in the appointment process in the context of domestic arbitrations

4.1.3 Article 327-5 of the Moroccan Code of Civil Procedure sets out the procedure that must be followed when the parties do not agree upon the constitution of the arbitral tribunal in the context of domestic arbitrations.

4.1.4 Where there is to be a sole arbitrator and the parties fail to agree, the arbitrator shall be appointed by the person in charge of the administration of the arbitration – most often an arbitral institution – or, if there is no such a person, by the state judge acting in support of the arbitration (Juge d’appui). The Juge d’appui is the state judge competent to examine disputes relating to arbitrations within their territorial jurisdiction. 

4.1.5 Where the arbitral tribunal is to be composed of three members or more, each party appoints one arbitrator and the two arbitrators appointed shall agree on the appointment of the additional arbitrator. If one of the parties does not designate his arbitrator within 15 days following the receipt of a request from the other party to do so, or, if the appointed arbitrators fail to agree on the choice of additional arbitrators within 15 days following the latest appointment of one of them, the Judge d’appui shall appoint the third arbitrator upon any of the parties’ request. The chairman of the arbitral tribunal shall be the arbitrator appointed by the two co-arbitrators or by the President of the competent state court.

4.1.6 Any other dispute relating to the constitution of the arbitral tribunal shall be resolved, if the parties fail to agree, either by the person/institution – depending on the provisions of the arbitration clause or agreement – responsible for administering the arbitration or, where there is no such person, by the judge acting in support of the arbitration. 

The courts’ assistance in the appointment process in the context of international arbitrations

4.1.7 Under the section of the Moroccan Code of Civil Procedure applicable to international arbitrations, 6 ibid, art 327-41.  if the parties face difficulties in agreeing on the composition of the arbitral tribunal:

• in the event that the arbitration takes place in Morocco, the most diligent party can request the President of the competent jurisdiction to declare the award enforceable at a later stage; and
• in the event that the arbitration takes place abroad, and if the parties agree on the application of the Moroccan Code of Civil Procedure to the arbitration proceedings, the most diligent party can appeal to the President of the Commercial Court of Rabat.

4.1.8 However, Moroccan law allows the parties to an international arbitration to provide in their agreement for other ways to resolve difficulties arising from the constitution of the arbitration tribunal, without involving state courts.

4.2.1 Arbitrators are under an obligation to disclose to the parties any information that may affect their independence or impartiality. 

4.2.2 This principle is embodied in Article 327-6 of the Moroccan Code of Civil Procedure, which provides that arbitrators must disclose, in writing, any circumstances likely to raise any doubts as to their impartiality or independence.

4.2.3 More generally, Article 327-7 of the Moroccan Code of Civil Procedure provides that arbitrators must inform the parties
of any grounds that may lead to their disqualification and, cannot act without being given consent to do so.

The removal of arbitrators

4.3.1 An arbitrator may only be removed with the unanimous consent of the parties. 7 ibid, art 324.  If the parties cannot agree on the removal of an arbitrator, Article 325 of the Code of Civil Procedure provides that the issue shall be resolved by the President of the competent court. Any party can request the President to remove an arbitrator from the arbitral tribunal. 8 ibid art 327-8(2).  

4.3.2 Further, Article 327-8 of the Moroccan Code of Civil Procedure provides that, when an application for revocation of an arbitral appointment is filed, the arbitration proceedings are suspended until a judicial order is rendered on the issue, unless the arbitrator concerned agrees to withdraw.

The challenge of arbitrators

4.3.3 The law provides that an arbitrator may only be challenged by a party for a reason that emerged or was discovered after his designation. 9 ibid, art 322.  

4.3.4 Article 323 of the Moroccan Code of Civil Procedure outlines the procedure for challenging an arbitrator. The challenge should be submitted in writing to the President of the competent court within eight days from the knowledge of the constitution of the arbitral tribunal or the circumstances justifying the challenge.

4.3.5 Where a challenge request is submitted, the arbitral proceedings are suspended until a decision is rendered, unless the arbitrator concerned agrees to withdraw. 10 ibid, art 327-8.  

4.3.6 The grounds for challenging an arbitrator are provided by Moroccan arbitral law. Article 323 of the Moroccan Code of Civil Procedure sets out nine grounds upon which an arbitrator can be challenged. This refers, for example, to the situation where the arbitrator has a familial relationship or friendship with a party.

4.4.1 Article 327-6 of the Moroccan Code of Civil Procedure provides that arbitrators shall carry out their mission until the end after accepting it. In the event that an arbitrator does not fulfil his obligations, the parties can claim compensation for any resulting damage before a state jurisdiction. 

4.4.2 Furthermore, and pursuant to Article 326 of the Moroccan Code of Civil Procedure, arbitrators are bound by a confidentiality obligation in accordance with the provisions of the Moroccan Criminal Code (Code Pénal). 11 The Moroccan Criminal Code, art 445.  

5.1.1 Under Moroccan arbitration law, jurisdiction is a matter for the arbitral tribunal to decide on in the first instance under the “competence-competence” principle. 12 The Moroccan Code of Civil Procedure, art 327-9. The provisions of this article are also applicable to international arbitrations, if the arbitration is subject, upon agreement of the parties, to Moroccan Procedural Law (art 327-43).  Under this principle, the arbitral tribunal must decide, as a preliminary matter, on the validity or limits of its authority. 

5.1.2 Nevertheless, the parties can still refer the dispute to court before the arbitral tribunal has been constituted if the arbitration agreement is “manifestly void” or “manifestly not applicable”. 13 ibid, art 327.

5.1.3 The arbitral tribunal’s decision on its jurisdiction can be challenged before a national court at the end of the arbitral proceedings by either party on the grounds that the tribunal had no jurisdiction to rule on the case. 14 ibid, art 327-36 and art 327-49.  

5.2.1 The arbitral tribunal may order any interim measures that it deems appropriate. 15 ibid, art 327-1 and art 327-15. These provisions are applicable to international arbitration so long as the parties do not agree otherwise (art 327-43).  

5.2.2 However, only national courts may order judicial security as arbitrators lack the requisite powers to do so. 16 ibid  

5.2.3 In addition, national courts can also intervene prior to the initiation of arbitration proceedings, or during them, to issue an order for any provisional or interim measures. 17 ibid, art 327-1.  

A statutory opt-out system for international arbitral proceedings

6.1.1 As set out above, the Moroccan arbitration legal framework follows a binary structure. It differentiates the regime applicable to domestic arbitration from the regime applicable to international arbitrations, even where an international arbitration has its seat in Morocco. As a result, the Moroccan Code of Civil Procedure contains: 

• some procedural rules that apply only to domestic arbitrations; 18 ibid, art 306 to 327-38.
• some procedural rules that apply only to international arbitrations; 19 ibid, art 327-39 to 327-54.  and 
• some that apply both to domestic and international arbitral proceedings, in the absence of a particular agreement between the parties. 20 ibid, art 327-43.  

Party autonomy as to the procedure

6.1.2 In addition to this “opt-out” framework of procedural rules, the parties enjoy wide autonomy when determining the procedural rules that will govern their arbitration. 

6.1.3 They are free to state these rules in their arbitration agreement either directly or by reference to procedural law or existing arbitration rules. The principle of party autonomy in respect of procedural matters is expressly set out in Article 327-42 of the Moroccan Code of Civil Procedure.

6.2.1 In the context of domestic or international arbitrations, if the parties have not chosen procedural rules for their arbitration proceedings, the arbitral tribunal has the discretion to establish or determine them. 21 ibid, art 319 and art 327-42.  

6.2.2 However, Article 327-36 of the Moroccan Code of Civil Procedure provides that, notwithstanding any contrary agreement, and independent of the type of arbitration, arbitral awards may be subject to a set aside application if the parties or the arbitral tribunal do not comply with the mandatory provisions listed in Article 327-36. These provisions include, for example, the respect of public order.

6.3.1 In domestic arbitrations, the Moroccan Code of Civil Procedure provides that the parties may agree on the seat of arbitration either in the Kingdom of Morocco or abroad. If the parties fail to agree on the place of arbitration, the arbitral tribunal shall determine the seat of arbitration after taking into consideration the circumstances of the case and the residences of the parties. 22 ibid, art 327-10. However, Moroccan Law also provides that the residences of the parties should not prevent the arbitral tribunal meeting at any place it considers appropriate, in order to enable it to:

• hear the parties, witnesses or experts;
• examine documents;
• inspect merchandise or goods; or
• deliberate between its members or any other person.

6.3.2 In the context of international arbitrations, the Moroccan Code of Civil Procedure does not contain any provisions on the seat of arbitration. Like other procedural matters, the seat of arbitration will be determined by the parties, or, in the absence of an agreement between the parties, by the arbitral tribunal itself. 23 ibid, art 327-42.  

6.4.1 Moroccan law concerning domestic arbitration provides that the parties are free to choose the language of domestic arbitration proceedings. 24 ibid, art 327-13.  Unless otherwise agreed by the parties, or when the arbitral tribunal decides to choose another language, the arbitration shall be conducted in Arabic. 

6.4.2 The Moroccan Code of Civil Procedure does not contain any provision relating to the language of international arbitration proceedings. The parties are therefore free to choose any language they consider appropriate for the proceedings.

6.5.1 The format and timetable for written submissions or hearings is determined by the arbitral tribunal so as to enable each party to present its case and to address that of its opponent.

6.5.2 The parties will often submit written memoranda (mémoires) containing their arguments on the facts and the legal basis for their demands, supported by extensive documentation.

6.5.3 As with classic international arbitration practice, the parties will also attend hearings, during which the arbitrators will seek clarifications that may be required. If necessary, the arbitral tribunal will also ask for additional written submissions.

6.6.1 Moroccan law does not contain any specific provisions relating to party default in arbitration proceedings. However, Article 327-14 of the Moroccan Code of Civil Procedure provides that if one of the parties fails to appear or to produce documents, the arbitral tribunal may continue the proceedings and issue an award based on the available evidence.

6.7.1 Moroccan law provides that the arbitral tribunal shall determine the procedures of the arbitration proceedings as it deems appropriate without having to adopt the rules established for national courts; unless the parties agree otherwise in their arbitration agreement. 25 ibid, art 327-10 and art 327-40.

6.7.2 As it is a procedural issue, the burden of proof and evidence before the arbitral tribunal is a matter for the parties’ agreement.

7.1.1 The parties are free to choose the rules of law that shall be applicable to their dispute. In the absence of such a choice, the tribunal will apply the rules of law that it considers appropriate (ie the objective rules of the law it considers the most relevant to the dispute). 26 ibid, art 327-18 and art 327-44.  In any event, the arbitral tribunal is compelled to take trade customs and the terms of the contract subject to the dispute, into consideration. 27 ibid  

7.1.2 Arbitrators can act as amiable compositeur only if expressly empowered by the parties to do so. 28 ibid, art 327-18 and art 327-44.  When acting as amiable compositeur, arbitrators seek a fair resolution of the dispute without being bound by any specific system or general principles of law alone.

7.2.1 Unless the parties agree otherwise, the arbitration procedure starts the day the arbitral tribunal is constituted. 29 ibid, art 327-10, §4.  

7.2.2 The parties are free to agree on a time limit for the arbitral tribunal to deliver its award. However, Article 327-20 of the Moroccan Code of Civil Procedure provides that, in the context of domestic arbitrations, if the agreement does not determine a time limit to render the arbitral award, the arbitrator’s mandate is terminated six months from the date the last arbitrator accepts their appointment. This article provides that either the agreed time, or the legal period, may be extended for the same period by agreement between the parties, by the President of the state jurisdiction at the request of one of the parties, or by the arbitral tribunal.

7.3.1 With regard to form, Article 327-23 of the Moroccan Code of Civil Procedure explicitly provides that the arbitral award shall be made in writing. 

7.3.2 Details of the mandatory content of the award is set out in Articles 327-23, 327-24 and 327-25 of the Moroccan Code of Civil Procedure. 30 These articles apply to international arbitrations pursuant to the conditions set forth in article 327-43 of the Moroccan Code of Civil Procedure

7.3.3 According to these provisions, the award must contain/mention:

• the arbitration agreement;
• a summary of the facts;
• the parties’ claims and respective pleas;
• the documents and evidence upon which the award is issued;
• the issues that were determined by the arbitral award as well as the ruling on these issues;
• the reasons upon which the award is based; 31 Regarding the reasons, it is important to note that article 327-23 provides that the award shall state the reasons upon which it is based, unless the parties have agreed otherwise, or the law applicable to the arbitration procedure does not provide for the stating of such reasons.  
• the full names of the parties as well as their domicile or corporate headquarters;
• if applicable, the names of counsel or other persons who represented or assisted the parties;
• the names of the arbitrators who rendered the award, as well as their nationalities, titles and addresses; and
• the date and location of the award’s issuance.

7.3.4 Article 327-24 of the Moroccan Code of Civil Procedure also provides that the arbitral award shall fix the arbitrators’ fees, the arbitration costs and their allocation between the parties. This article also provides that if the parties and arbitrators cannot agree on the determination of the arbitrators’ fees, such fees shall be determined by a separate decision rendered by the arbitral tribunal. This decision is subject to an appeal before the president of the competent state court, whose decision is final.

7.3.5 Furthermore, Article 327-25 of the Moroccan Code of Civil Procedure provides that the award shall be signed by each arbitrator. In the case of several arbitrators, and if the minority refuse to sign the award, the other arbitrators must mention such refusal with an indication of the grounds for such refusal. Pursuant to this article, the award shall have the same effect as if it were signed by each of the arbitrators.

7.3.6 However, according to Article 327-34 of the Moroccan Code of Procedure only a failure of the award’s content to comply with the provisions of Article 327-36 can entail nullity of the award. 32 The Moroccan Code of Civil Procedure, art 327-25 provides that the application for setting aside can only be filed where the provisions of articles 327-23(2) (regarding the reasons upon which the arbitral award is based), 327-24 (regarding the names of the arbitrators and the date of the award) and 327-25 (regarding the signature of the award) were not complied with.  

7.3.7 Finally, with regard to the notification of the award to the parties, Article 327-27 of the Moroccan Code of Civil Procedure provides that, in domestic arbitrations, the arbitral tribunal shall deliver to each of the parties a copy of the award within seven days from its issuance. However, there is no formal requirement as to the notification of the award. 

7.4.1 From the date of its issuance, the award enjoys the res judicata effect 33 The res judicata effect means that the matters resolved by the arbitration award cannot be submitted again before any arbitral tribunal or any national court.  relating to the issues settled. 34 The Moroccan Code of Civil Procedure, art 327-26.  However, Moroccan Arbitration Law provides that where one party to the dispute is a legal public person, the award only acquires the res judicata effect by virtue of an enforcement order (exequatur decision). 35 ibid  

7.5.1 Moroccan law provides that the arbitral tribunal may interpret the award, correct clerical errors and omissions or make an additional award where it has failed to rule on a claim. 36 ibid, art 327-28. Such an application must be filed within 30 days of the notification of the award. 37 ibid  The arbitral tribunal shall submit its decision within 30 days in case of a correction or interpretation and within 60 days in case of an additional award. 38 ibid

7.5.2 However, it is important to note that the law provides that if the arbitral tribunal cannot meet again, the President of the State court within whose jurisdiction the arbitral award has been rendered, shall have the power to make the decision within a time limit of 30 days and his decision shall not be subject to an appeal. 39 ibid, art 327-29.  

7.5.3 The Moroccan Code of Civil Procedure also provides that within 30 days following the issuance of the arbitral award, the arbitral tribunal may correct ex officio any clerical, computational or typographical error, or any error of any nature whatsoever contained in the award. 40 ibid, art 327-28.

8.1.1 During the arbitration proceedings, and unless the parties agree otherwise, one of the parties can apply to the national competent court:

• to end the mission of an arbitrator; 41 ibid, art 327-3, art 327-4 and art 327-5.  or
• to extend the time limit of the arbitration proceedings. 42 ibid, art 327-20.  

8.2.1 A party to an arbitration may also seek interim measures from the competent national court during the arbitration proceedings. 43 ibid, art 327-1 and art 327-15.  

9.1.1 An arbitral award cannot be subject to appeal; it can only be subject to annulment on the grounds provided for by the Moroccan Code of Civil Procedure. 44 Articles 327-34 and 327-36 of the Moroccan Code of Civil Procedure, applicable to domestic arbitral awards, and article 327-51 of the Moroccan Code of Civil Procedure, applicable to international arbitral awards.  

Annulment of a domestic arbitral award

9.1.2 Article 327-36 of the Moroccan Code of Civil Procedure provides for the following seven grounds for domestic award annulment:

• where the award was rendered in the absence of an arbitration agreement, the arbitration agreement was null and void, or if the award was rendered after the termination of the arbitral proceedings; 45 This may be the case if the time limit for the arbitral tribunal to render its decision has expired.  
• where the arbitral tribunal was improperly constituted;
• where the arbitral tribunal did not rule in accordance with its mission, ruled on matters beyond the scope of the submission to arbitration, or did not respect the limits of the arbitration agreement; 46 However, Article 327-36 of the Moroccan Code of Civil Procedure provides that if the decisions on matters submitted to arbitration can be separated from those not submitted, only the part of the award which contains decisions on matters not submitted to arbitration may be set aside.  
• where the provisions of Articles 327-23, paragraph 2 and 327-24 concerning the names of arbitrators and the date of the award and 327-25 of the Moroccan Code of Civil Procedure were not complied with;
• where the rights of the defendant to put forward its defence were not respected;
• where the award did not comply with a rule of public policy; and
• where there was a failure to comply with procedural formalities, or the applicable law to the dispute, as agreed upon by the parties. 

Annulment of an international arbitral award

9.1.3 Article 327-51 of the Moroccan Code of Civil Procedure provides that an international arbitral award can be subject to annulment where provided for by Article 327-49 of the Moroccan Code of Civil Procedure.

9.1.4 Article 327-49 of the Moroccan Code of Civil Procedure provides for the five following grounds of annulment:

• the arbitral tribunal ruled in the absence of an arbitration agreement or after the termination of the arbitral proceedings;
• the arbitral tribunal was irregularly constituted, or the sole arbitrator irregularly appointed;
• the arbitral tribunal did not rule in accordance with its mission;
• where the rights of the defendant to put forward its defence were not respected; and
• the recognition or enforcement was contrary to national or international public policy.

9.1.5 Pursuant to Article 327-50 of the Moroccan Code of Civil Procedure, an application for annulment should be made within 15 days of notification of the award.

9.1.6 Furthermore, Article 327-53 of the Moroccan Code of Civil Procedure adds that the application for annulment is suspensive, unless the arbitral award is subject to provisional enforcement. In this latter case, this article provides that 
the authority which examines the application for annulment may suspend enforcement if it deems it is justified to do so. 

10.1.1 Article 327-31 of the Moroccan Code of Civil Procedure provides that domestic arbitral awards are subject to enforcement only by virtue of an exequatur order of the President of the jurisdiction in whose jurisdiction the award has been rendered.

10.1.2 The request for enforcement is to be filed by the first party to submit the request before the relevant jurisdiction, in compliance with the provisions of Article 327-31 of the Moroccan Code of Civil Procedure.

10.1.3 This article states that the original award, accompanied by a copy of the arbitration agreement, and a translation in Arabic, if necessary, should be deposited by one of the arbitrators or by either party within seven days of its issuance. 

10.1.4 Furthermore, it must be noted that, pursuant to Article 327-32 of the Moroccan Code of Civil Procedure, a judicial order granting the enforcement of a domestic award cannot be challenged by any means.

10.1.5 However, Article 327-33 of the Moroccan Code of Civil Procedure states that a judicial order refusing to grant enforcement can be appealed within 15 days from its notification. 

10.2.1 Article 327-46 of the Moroccan Code of Civil Procedure provides that international arbitral awards shall be recognised in Morocco if their existence is proven by the party relying thereon, and such recognition is not contrary to national or international public policy.

10.2.2 International arbitral awards are recognised and declared enforceable in Morocco by the President of the commercial jurisdiction in which they were issued, or by the President of the commercial jurisdiction of the place of performance, when the seat of arbitration is located abroad.

10.2.3 Unlike domestic arbitral awards, Article 327-48 of the Moroccan Code of Civil Procedure provides that an order granting the enforcement of an international arbitral award can be appealed under the five grounds provided for by Article 327 49 of the Moroccan Code of Civil Procedure. 47 These five grounds are listed in para 9.1.4.  

10.2.4 In fact, an international award, whether rendered in Morocco or abroad, is granted exequatur by the national courts of Morocco, if its enforcement is not manifestly contrary to international public policy.