Morocco
1. Are freezing orders (or their equivalent referred to below) available in civil legal proceedings in this jurisdiction and what is their effect?
Yes. The respondent is prohibited from dealing with the assets referred to in the freezing order until a specified time (for example, judgment or payment) or further order of the Court.
2. Are other interim orders commonly made in conjunction with a freezing (or equivalent) order?
No.
3. Briefly what is the relevant legal test?
(i) The applicant has a good arguable case in the underlying substantive claim or prospective claim;
(ii) the respondent has assets, which may be in Morocco or abroad;
(iii) there is a real risk of unjustified dissipation (for example, for the purposes of frustrating or impeding the satisfaction of a judgment or award); and
(iv) it is just and convenient to grant the freezing order.
4. Briefly what is the process for obtaining a freezing (or equivalent) order?
The applicant makes an application to the Court, in particular setting out in an affidavit the reasons for the application and the basis on which the relevant test is met. An application can be made on or without notice to the respondent. Where it is made without notice, the respondent can challenge the order assuming it is made.
5. Does the applicant have to provide any form of security or commit to compensation if its claim is ultimately unsuccessful and any freezing (or equivalent) order granted causes loss and damage to the respondent?
No. The Court does not request any kind of security or commitment. However, in case the third party is suffering from a loss and damage for an unfair freezing, it is allowed to request for damages before the Court.
6. Can it be sought against third parties?
Yes, a third party may be made a party to a freezing order where there is good reason to suppose that its assets are in fact the assets of the defendant or will be available to the defendant to meet a judgment or arbitral award. Equally a third party which is not a party to the freezing order (for example, a financial institution holding the defendant’s assets) which is notified of it is still required to ensure that it does not knowingly assist the respondent in breaching the terms of the freezing order. In order for notification to take place, the beneficiary of the freezing order will have to notify the third party by bailiff in order to freeze the asset.
7. What assets are covered by a freezing (or equivalent) order?
Any tangible or intangible assets in Morocco or abroad provided they are not perishable.
8. Can a freezing (or equivalent) order be made in support of substantive proceedings abroad?
Yes.
9. Can a freezing (or equivalent) order be made in support of arbitration proceedings or awards?
Yes.
10. At what stage of proceedings can a freezing (or equivalent) order be sought?
At any stage, including prior to commencing the claim (although the Court will expect the applicant to issue its claim promptly) or following judgment to assist with enforcement.
11. Are there typically any exceptions to the general prohibition on the respondent’s use of assets subject to a freezing (or equivalent) order?
Yes. The order may provide that the respondent can continue to use a real estate asset, although its sale will be prohibited.
12. What happens after a freezing (or equivalent) order is granted?
The applicant will typically notify third parties (such as banks) of the freezing order when they might hold the respondent’s assets. Assuming the original order was obtained without notice, the respondent may challenge the order by filing proceedings before the Court.
13. Who pays the costs of the application for a freezing (or equivalent) order?
The applicant. Although these costs are recoverable as part of the proceedings, they are limited to the Court’s costs (not attorney’s fees or bailiff fees for instance).
14. What protections are there typically in a freezing (or equivalent) order for third parties to such orders?
The order does not generally provide for third parties’ protection.
If the freezing order relates to the goodwill of the defendant, specific mention is made on the commercial register in Morocco in order to show the existence of the freezing order.
15. What are the consequences of breach of a freezing (or equivalent) order?
A respondent who breaches a freezing order may be held in contempt of Court and may be imprisoned, fined or have their assets seized. A third party may only be in contempt of Court where they knowingly help or permit the respondent to breach the terms of the order.
16. Does a third party notified of (but not a party to) a freezing (or equivalent) order owe a duty of care to the applicant (meaning it can be liable to the applicant for non-compliance)?
No.
17. Can a freezing (or equivalent) order be enforced abroad?
Yes, in principle, although subject to the laws of the relevant jurisdiction.
18. Can freezing (or equivalent) orders from overseas jurisdictions be enforced in this jurisdiction?
Yes. Specific proceedings (exequatur) may be made in Morocco in order to recognize the foreign freezing order.
Contacts
Fatima-Zahra Fassi-Fihri Partner BFF Law Firm Casablanca, Morocco fatima-zahra@bfflawfirm.com www.bfflawfirm.com Bouchra Belouchi Partner BFF Law Firm Casablanca, Morocco bouchra@bfflawfirm.com www.bfflawfirm.com
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