MEDIATION, ARBITRATION OR COURT: WHAT TO CHOOSE IN MOROCCO ?
After having dealt in a previous article with the different alternative methods of conflict resolution, let us now study the different means of conflict resolution. Mediation, arbitration or court: what to choose in Morocco?
Mediation, Arbitration and Conciliation
To better address this question asked by many national and international investors choosing between mediation, arbitration or recourse to the court in the event of litigation, we will address in this article the technical and legal details from which mediation benefits at the level of Moroccan law.
Spécificités de la médiation, de l’arbitrage ou du tribunal ?
Mediation is defined by the various legal or technical lexicons as an amicable and confidential method of settling conflicts and commercial disputes by which a third party (the mediator), independent, impartial, expert in the field and trained in mediation, helps the parties to find a negotiated solution to their dispute themselves.
First, mediation is considered the most successful method: it develops a Win / Win process for the satisfaction of both parties, offering them the opportunity to renew lost relationships, whether commercial or human.
The Anglo-Saxon countries (including Canada) initiated the mediation process in the 1980s, with results exceeding 85% of disputes settled and 15% to be retried.
MEDIATION = winner + winner (voluntary decision), possibility of continuation of commercial relations
ARBITRATION = winner + loser (decision imposed, not final), end of commercial relations
ARBITRATION = winner + loser (decision imposed, not final), end of commercial relations
The legal framework of mediation in Morocco
Law 08-05 of July 27, 2007, modifying the CPC civil procedure code (BO of December 6, 2007) only provided for so-called “conventional” mediation, to better respond to commercial and economic disputes.
Aucune définition précise de la médiation n’a été donné par le législateur marocain, l’article 327-55 du CPC énonçant seulement :
« Afin de prévenir ou régler un différend, les parties peuvent convenir de la désignation d’un médiateur chargé de faciliter la conclusion d’une transaction mettant fin au différend ».
The characteristics of mediation:
To better understand the question regarding: mediation, arbitration, or court to choose in Morocco, let's analyze the three fundamental criteria of mediation:
The voluntary nature of the process to resolve or prevent a dispute.
The intervention of a third party: the mediator
The conclusion of a transaction putting an end to the dispute.
As a reminder, the timeframe for commercial legal proceedings in Morocco is at least four years. Any legal process has the character of an uncertain, costly, long and complex outcome. In this context, the justice of any country gives certain confidence to national and foreign investors.
Specificities of mediation in Morocco and in third countries
The CGEM, the Moroccan collective of businesses, submits to the Moroccan government a framework law on investment demanding equity between all Moroccan and international investors, as well as legal stability:
« … Le texte évoque également de façon sommaire l’importance d’introduire des dispositions qui permettent de prévenir et régler les litiges, notamment des dispositions de médiation et d’arbitrage adéquats. »See details here.
In France, law 95-125 of February 8, 1995 provides for judicial mediation ordered by the judge, who designates a third person, with the agreement of the parties to hear them and seek with them a solution for the purposes of conciliation, his fees being at the responsibility of the parties. (Judicial mediation is opposed to conventional mediation).
En Belgique le terme médiation « désigne une procédure, qu’elle porte le nom de médiation, de conciliation ou un nom équivalent, dans laquelle les parties demandent à une tierce personne (le médiateur) de les aider à parvenir à un règlement amiable d’un litige découlant d’un rapport juridique, contractuel ou autre, le médiateur n’a pas le pouvoir d’imposer aux parties une solution au litige ».
Mediation in Morocco according to Law 08-05 is an optional process which requires the free and express consent of the persons concerned to engage in an action with the help of an independent and neutral third party. Mediation is therefore an art exercised not only by the mediator but by both parties to the dispute.
In short, mediation is an amicable mode of conflict through the intermediary of a third party: the mediator (independent, neutral and impartial), who will make it possible to re-establish the relationship between the parties and facilitate the search for a negotiated solution.
Le médiateur comparable à un « catalyseur » dans une solution chimique qui provoque une réaction par son intervention, où aucune des parties du litige ne reste passive. Le médiateur est une personne tierce indépendante, d’une compétence certaine, neutre et impartiale, qui a pour fonction : « de coordonner les échanges conflictuels entre les parties, de les aider à rétablir une communication positive et constructive, d’imaginer ensemble les meilleures solutions ».
The contractual support of the mediation agreement
Article 327-56 of the NCPC defines the following major clauses:
« Chacune des parties s’obligent à ne pas saisir le juge étatique ou arbitral tant qu’un processus de règlement alternatif des conflits à travers la médiation n’aura pas été mis en place et mené jusqu’à son terme ».
The mediation agreement is the contract by which the parties agree to appoint a mediator responsible for facilitating the conclusion of a transaction to put an end to the dispute arising or to be born.
La deuxième alinéa de cet article prévoit que la convention de la médiation est soumise aux dispositions du DOC, donc il s’agit bel et bien d’un contrat régi par le droit civil , en l’occurrence les principes contractuels énoncés par le DOC sont applicables à cette convention de médiation , d’où la force obligatoire du contrat « prévu par l’article 230 du DOC « les obligations valablement formés tiennent lieu de loi à ceux qui les en faites et ne peuvent être révoquées que de leur consentement mutuel « qui -une fois l’accord bilatéral – constitue la trame de la relation contractuelle, et traduit l’engagement réciproque des parties, leur accord a la même valeur d’une loi qui s’oppose à eux-mêmes et aux juges.
Forms of the mediation agreement
Regarding our initial question: mediation, arbitration, or court and finally, what to choose in Morocco, we have noted the two forms of agreement which are distinguished as follows:
The compromise of mediation :
Moroccan law has provided (article 327-57 of the CPC) for the parties to conclude the mediation agreement, even after the dispute has arisen. This is a conventional recourse to mediation without a prior contractual clause; such a compromise can also be reached during a proceeding already initiated by the parties before a court.
NB : under no penalty of nullity, it will be necessary to determine the subject of the dispute arising, to appoint a mediator or to fix the terms of his appointment.
The mediation clause :
Considered as a stipulation inscribed and contained in the main contract, by which each of the parties undertakes, when a conflict arises, to implement a mediation process in order to negotiate, under the aegis of a mediator , the terms of an amicable solution to their conflict.
By application of article 327-62, the mediation clause must be stipulated in the main contract or in a document to which it refers in order to appoint a mediator or fix the terms of his appointment, or by contacting a mediation center or an institution to appoint a mediator.
Thus, to better guide the taxpayer to settle his commercial disputes, and to better choose between mediation, arbitration, or court in Morocco, the Moroccan legislator has given a certain force to the mediation clause, as well as to the mediation compromise. Indeed, when a magistrate is seized of a dispute on a matter where the parties have planned to resort to mediation beforehand, the judge will have to declare the inadmissibility of this request until the mediation procedure is exhausted. However, the judge cannot raise it ex officio, the other party must note the existence of this agreement.
The conditions of validity of the mediation agreement
The conditions provided for in article 2 of the Moroccan DOC are :
the ability to oblige
the valid declaration of will relating to the essential elements of the obligation
a certain object that may form an object of obligation
a lawful obligation
Article 327-58 underlines the condition of the establishment in writing in the following three forms, either by authentic instrument, private signature or by official report.
Forms of mediation
According to article 327-67 paragraph 1 of the CPC, conventional mediation can be organized either by the parties themselves (ad hoc mediation) or by a mediation center (institutional mediation).
In this context and contrary to the provisions relating to arbitrators, the Moroccan legislator has not enacted, in detail, provisions concerning the conditions required in mediation.
The chosen mediator is bound by the obligation of professional secrecy with regard to third parties under pain of penalties under the penal code.
The mediator or mediation center must ensure that the confidentiality policy is communicated to the parties and to third parties involved in the mediation process. It is also strongly recommended that the parties sign a confidentiality agreement.
The mediator is neither an arbitrator nor a lawyer and his primary qualities are competence, impartiality, neutrality, independence, respect for public order, fairness during interviews, autonomy and confidentiality. . The other obligation which derives from the law is the non-possibility of the mediator to renounce his mission except with the agreement of the parties.
Legal guarantees of mediation
Article 327-66 of the CPC, encourages recourse to mediation and allows legal confidentiality and the non-evocation of information and findings of the mediator before the judge seized of the dispute, without the agreement of the parties. The legislator adds in the same article that the statements collected cannot be used in another instance in the event of failure of the mediation procedure. Mediation is therefore not subject to the publicity of the judicial process, which guarantees its legal confidentiality.
The mediation process
Mediation in Morocco follows a process in several stages which begins with the summoning of the parties and ends with the final decision of the outcome or non-outcome of the mediation process.
Convening of the parties
Pursuant to article 327-67 al. 2 the mediator who accepts the mission entrusted to him, notifies the parties by legal means (registered letter with acknowledgment of receipt or through a bailiff).
During the first information meeting, the mediator submits the mediation protocol and informs the parties of the following rules of the game:
Will
Sincerity
Respect
Confidentiality
Fees and costs
Suspension of legal proceedings
Information gathering
Once the mediation protocol has been signed by the 2 Parties to the dispute, the mediator in his capacity as a neutral third party, takes care to create a climate of trust to make the negotiations possible, specifies the methodology to be followed, collects information, points of agreement and disagree
Negotiations and examination of possible options
With the mediator, the parties seek possible solutions to the disputes between them, and with the agreement of the parties, the mediator can also carry out or have carried out any expertise likely to clarify the dispute (art 327-68 para. 3 of the CPC). He may also, with the agreement of the parties, carry out or have carried out any expertise likely to shed light on the dispute.
The results of “one-transaction” mediation
At the end of the procedure, if the parties reach an agreement, they conclude a mediation agreement which puts a definitive end to their dispute.
If the mediation process results in an agreement, it will be (and this is the peculiarity of Moroccan law) a transaction. The transaction is a contract which is governed by articles 1098 and following of the Dahir forming the code of obligations and contracts (DOC), which has the particularity of terminating or preventing a dispute by reciprocal concessions.
Drafting of the transaction document
After having verified the legal, fiscal, financial and personal implications of the decisions of the parties, in accordance with article 327-68 para. 4 of the CPC, the mediator offers them a draft transaction or an agreement.
The proposed settlement is the final step in any successful mediation. The transaction document must contain:
The facts of the dispute
The terms of its payment
The mediator's conclusions
Concessions from each of the parties.
The terms of agreement between the parties
The transaction document must be signed by the mediator and the parties in accordance with Article 327-68 para. 6. The transaction reached by the parties is subject, for its validity and effects, to the provisions of the Code of Obligations and Contracts.
The legality of the transaction deed
The mediation transaction also has another specificity, that of being opposable to the parties and having the force of res judicata, thus obliging the parties to implement the negotiated solution.
Even if the mediation process is voluntarist and consensual in nature, the written settlement agreement which marks the outcome is opposable to the parties and the force of res judicata. The parties can perform it voluntarily.
In the event of refusal to execute the solution voluntarily, the legislator has provided (art. 327-69 al. 2 of the CPC) that the transaction may be accompanied by an enforceable notice by the president of the territorially competent court. Unlike the transaction concluded in the general framework, mediation can give the mention of exequatur, which gives it a stronger legal value.
Failure of mediation
In the event that an agreement is not reached, the mediator delivers to the parties the non-transaction document bearing his signature. In mediation, the parties only sign the transaction if they are satisfied with the solution thus worked out. In the event of non-outcome of a transaction, the mediator delivers to the parties the non-transaction document bearing his signature (Article 327 -68 al. 7 of the CPC).
In this case, the parties may have recourse to arbitration or to state courts and free up the judicial process, since participation in mediation does not in any way infringe the right of access to justice, which is considered a another advantage of conventional mediation.
Mediation in Morocco is a broad subject which requires in-depth knowledge, both legal and procedural, in order to tend towards conflict resolution in the best conditions. Whether you are in the contract signing phase or in a conflict situation, Arpio Architects' mediators can assist you.
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Sources
* CPC: Code of Civil Procedure (approved by Dahir n ° 1-74-447 of 11 Ramadan 1394 (September 28, 1974))
** DOC: Dahir of Obligations and Contracts (promulgated by Dahir of 9 Ramadan 1331 (12 August 1913)
