“Other countries, other customs”. This also applies to judicial proceedings in Morocco, which are similar to those in Europe according to the law, but in practice have some differences. In court and on the high seas, one is also in the hands of Allah in Morocco.
An overview of court rules, costs, the course and duration of proceedings, representation, admissible evidence and enforcement in Morocco.
1. What courts do exist in Morocco?
The Moroccan court system is based on the French one. It is divided into ordinary jurisdiction, special jurisdiction and exceptional jurisdiction.
a. The first instance of jurisdiction in Morocco
(1) Ordinary jurisdiction
The first instance of ordinary jurisdiction in Morocco is the so-called “Court of First Instance” (Tribunal de Première Instance), consisting of different chambers such as the Civil Chamber, the Family Chamber or the Criminal Chamber. The court usually consists of three professional judges, but in certain cases a single judge may decide.
The municipal and district courts (juridictions de proximité) also act in misdemeanor and civil disputes with an amount in dispute of less than MAD 5,000 (about EUR 500), with the exception of disputes in personal status law, real estate law, social law and eviction law. They were introduced in 1974 to relieve the courts of first instance and reformed in 2011. The decision is made by a professional judge, against whose decision no appeal is allowed, but within narrow limits an application to set aside the judgment is permitted. This application must be filed with the Tribunal de Première Instance.
(2) Special jurisdiction in administrative and commercial matters
In Morocco as well, special courts have jurisdiction in administrative and commercial matters.
In commercial matters, i.e. lawsuits between merchants in connection with a commercial transaction, the Commercial Court (Tribunal de Commerce) decides. The respective chamber consists of three professional judges. The president of the Moroccan Commercial Court also supervises compliance with commercial register formalities. In practice, however, the proceedings are often conducted by a single judge.
The Administrative Court (Tribunal Administratif) decides in administrative cases. The respective chamber usually consists of three professional judges. The Moroccan administrative courts are responsible for disputes over administrative contracts, electoral disputes and claims for damages in connection with administrative actions.
(3) Exceptional jurisdiction
The so-called “High Court” (Haute Cour), which was responsible for prosecuting crimes committed by members of the government, was dissolved in 2011. The ordinary courts now have jurisdiction for these proceedings in Morocco.
Thus, the exceptional jurisdiction now only includes the Military Court (Cour de Justice Militaire), which has jurisdiction over crimes committed by military personnel and those that threaten national security. The Court is composed of professional and military judges and applies the Military Justice Act.
b. The second instance of jurisdiction in Morocco.
(1) Ordinary jurisdiction
The second instance of ordinary jurisdiction in Morocco is the Court of Appeal (Cour d’Appel). It is divided into different chambers, each consisting of three or five professional judges.
(2) Special jurisdiction
The Court of Appeal for Commerce (Cour d’Appel de Commerce) is the court of second instance in commercial cases, and the Administrative Court of Appeal (Cour d’Appel Administrative) in administrative cases. Both are divided into different chambers, each composed of three or five professional judges.
c. The Moroccan Court of Cassation
The Court of Cassation (formerly Cour Suprême, since 2011 Cour de Cassation) is the court of last resort for both ordinary jurisdiction and special and exceptional jurisdiction. It is divided into different chambers.
2. What costs do I have to expect when conducting legal proceedings in Morocco?
a. Court fees in Morocco
Taking legal action in Morocco is free of charge only in certain cases, such as in labor or family law. Otherwise, court fees in Morocco generally amount to 1% of the amount in dispute (so-called taxe judiciaire). In addition, individual fees may be incurred, for example, when a procedural act is performed (e.g., when the lawsuit is served) or when an expert opinion is ordered.
The court decision determines which party prevails. In principle, the losing party thus bears all court fees. However, there is an exception if the court expressly makes a different decision on costs and apportions the burden of costs differently. In practice, this often happens, so that the prevailing party usually also bears part of the court fees.
b. Attorney fees in Morocco
In Moroccan court proceedings, on the other hand, each party must always bear its own attorney’s fees, regardless of the outcome of the proceedings. Fees are not regulated by law, so legal fees in Morocco can vary. They depend either on the amount in dispute (percentage or basic fee + contingency fee) or on the time spent. It should be borne in mind that court proceedings involve numerous appointments for the lawyer, during which pleadings are exchanged and appointments are rescheduled.
In practice, the distribution of the cost burden of court costs and attorney’s fees makes the enforcement of small claims (under EUR 10,000) hardly seem proportionate, especially outside of metropolitan areas. The risks are too high, and the possibilities of procrastination and difficulties in enforcement are too diverse.
In any case, the litigants need patience. Conversely, it is also true in Morocco that an avoided lawsuit is usually the best lawsuit, provided that an out-of-court settlement can be reached in a court of law.
3. What is the procedure for first-instance legal proceedings in civil matters in Morocco?
With the exception of labor and family law, no attempt to reach an amicable settlement is required before an effective lawsuit can be filed. While a single attempt is sufficient in labor law, amicable settlement in family law must fail three times (!) before a lawsuit may be filed.
If legal action is taken, the plaintiff must first submit two copies of the complaint to the court. The court then serves the complaint on the opposing party.
The rest of the procedure, however, differs significantly from what which we are familiar with in European countries and makes it clear why court proceedings in Morocco are so time-consuming. Unless it is a criminal case or an injunction, there are no oral hearings before the courts. The judge, therefore, does not inquire about any settlement options in any oral hearing before the court. Lawyers must appear in person at court to submit pleadings and must be summoned for this purpose. Due to traffic conditions or also for appointments in the provinces, this means a sometimes considerable expenditure of time, with costs for the client that should not be underestimated.
However, digitalization has also reached the Moroccan judiciary. For some time now, it has been possible to submit pleadings by e-mail, at least in some courts, such as in Marrakech. This raises hopes that digital litigation will soon be possible in all Moroccan courts, which could shorten proceedings and save costs.
However, even digitalization will not eliminate the disadvantages of purely written proceedings. What could often be clarified in oral proceedings in a conversation between the parties and the judge gets lost in the labyrinth of pleadings, expert opinions and counter-opinions. Orality, on the other hand, requires other skills in the organs of justice that lie outside the familiar spectrum of written procedures. If the Moroccan legislature wanted to make judicial proceedings more efficient, it would also have to orient judicial training accordingly.
Just as before authorities, communication in Moroccan courts is in Arabic, both orally and in writing. Written pleadings in French are not accepted, except in divorce cases where one of the spouses is a foreigner. However, exceptions are often made for other documents in French.
4. What are the deadlines for court proceedings in Morocco?
Rigid deadlines, such as appeal deadlines, must be met and cannot be extended. The time limit for appeal in Morocco varies between 10 and 30 days, depending on the area of law. In criminal cases it starts from the date of pronouncement, in civil and administrative law from the date of service of the judgment.
However, all other time limits set by the court may be extended.
5. Do I need a lawyer in Morocco and is he authorized to represent me in all Moroccan courts?
Except for the first instance in family and labor law, representation by a lawyer is mandatory in Moroccan courts.
Any lawyer admitted in Morocco is entitled to appear before all courts in the country (with the exception of the Cour de Cassation, for which a 15-year admission is required).
It is not necessary and quite unusual to present a written power of attorney to the Moroccan courts. Rather, it is presumed that a lawyer, by virtue of his rules of professional conduct, will only act for a client if he has actually been instructed to do so. Paradoxically and ironically, problems in the client relationship tend to arise when a lawyer, contrary to the described custom, demands a written power of attorney from the client. Unfortunately, it can sometimes be observed how some lawyers develop a “life of their own” on the basis of such a power of attorney, litigating “in the name of the client” without the client ever being informed about these proceedings and their outcome. The termination of such mandates then regularly proves to be difficult or even impossible, since the takeover by another lawyer is only possible after the explicit release of the mandate holder and not all bar associations exercise their supervisory and disciplinary duties as one might actually expect from a self-governing body.
6. What evidence is admissible in Moroccan courts?
Similar as in the UK, evidence in Morocco may be adduced through expert witnesses, visual inspection, examination of parties, documentary evidence and examination of witnesses.
With regard to documentary evidence, it should be noted that in Morocco, in some cases, only authenticated documents are admissible. For most countries, the simplified so-called apostille procedure applies in relation to Morocco.
7. How long should I expect the proceedings in civil cases of first instance in Morocco to take?
In civil cases of first instance, the duration of proceedings in Morocco is usually 8-12 months. In appellate cases, the duration of proceedings can be up to 8 months. The duration of the proceedings depends largely on whether a comprehensive evaluation of evidence has to take place and whether deadlines are met.
8. What is the procedure for enforcing judgments in Morocco?
Except in special proceedings, the court does not serve the judgment on the losing party. Rather, service is the responsibility of the prevailing party, who uses a bailiff (Huissier de Justice). Only when the judgment is served it does become legally binding and the time limit for appeal begins to run. Even if an appeal is lodged, the judgment is in many cases provisionally enforceable.
9. Is it possible to take the dispute to arbitration?
In principle, it is possible to insert an arbitration clause in any type of contract so that in the event of a dispute, an arbitration court will decide on the matter. See our article Arbitration in the Middle East and North Africa. Is it possible?
