Morocco
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Mediation is available under Moroccan regulation. Mediation is defined by Law 95-17 relating to arbitration and mediation published on May 2022 and provides a framework for the mediation process, (time limitation for the process, specific form to be executed in the event of successful mediation, etc).
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Taking part in mediation does not preclude recourse to arbitration or legal proceedings. If taking part in mediation has been agreed between the parties, recourse to arbitration or litigation can only take place once the mediation process has been completed. In the event of successful mediation, under Moroccan law, the parties sign a settlement agreement. This agreement, which is a named contract whose form and content are laid down by law, has the force of res judicata and may be enforced by the court (which must give its ruling within a maximum period of seven days).
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
Regarding the mediation process, a new draft law no. 2-23 on civil procedure provides that the judge may ask the parties to resolve the dispute by mediation. The parties would have the choice of accepting or refusing mediation. If an agreement is reached between the parties, it may not be appealed.
The mediation process is mandatory when the conflict is related to consumer credit. In addition, in the agriculture sector, mediation is compulsory to resolve the dispute between parties.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes. The parties can agree in advance that they will or may try one or more ADR methods to resolve any dispute that may arise and many commercial contracts will include dispute resolution clauses involving one or more of these methods.
When does ADR generally take place?
Regarding the mediation process, this should in principle takes place before the dispute is submitted to the courts or arbitration. However, if the new draft law is enacted, parties will be able to also use mediation in the midst of legal proceedings.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes. The content of the mediation is confidential.
Does the output from ADR create precedents?
No, not to date.
Who bears the costs of ADR?
The parties shall agree in writing before the mediation process, the fees, the mode of calculation of the fees, and the payment method. However, if a mediation institution has been chosen by the parties, it will be the rules of such institution which will apply.
Is your jurisdiction subject to any specific rules for cross border ADR?
No. Morocco has not signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention).
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
N/A
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