What are they talking about on “Life in Morocco”? Do they think they’re “The Secret Barrister”? No, of course not, but when you live in a country that is not your own, when you do business there, and especially when you start a family there, you have to understand how ‘your’ national law fits in with the law of your country of residence, in this case Morocco. And, believe me, it’s not easy!
The aim here is not to give you a lecture on the law, but to try and help you understand the main principles, to give you some useful reflexes and to help you understand, in a general way, what is possible.
On the other hand, if you have the slightest doubt about a particular case, don’t hesitate to consult a specialist!
Four major areas of law are involved
To summarise, there is:
- civil law, which covers all relationships between individuals, including marriage, parentage, divorce, inheritance and copyright
- commercial law, which concerns relations between companies and the regulations that apply to them
- employment law, which is fairly obvious
- criminal law, which deals with misdemeanours and felonies
I am deliberately leaving out:
- public law, because obviously a foreigner living in Morocco cannot imagine suing the Moroccan state on the basis of its own public law :)
- taxation, which is another problem and is very often the subject of bilateral agreements
international law, which tries to organise all this.
Criteria to be taken into account:
- the nationality of persons or companies; this is already complicated when a person has dual nationality
- the place where the thing, the contract, the service is provided…
- the type of contract or law
To give you an example: two British nаtіоnаlѕ living in Morocco who sign a contract for the sale of a car registered in Morocco will find it extremely difficult to get Morocco to accept that British law applies. On the other hand, two these same two British nationals living in Morocco have to go through the British consulate to get married.
In the first case, Moroccan law applies, in the second case British law, and a Moroccan judge has no jurisdiction over this.
Of course, this is the most complicated part: “determining jurisdiction“.
Each state is its own master: “sovereign”.
To take a concrete example, in Morocco, polygamy between Muslims is legal. In the UK, polygamous marriage is prohibited. Conversely, UK recognises Civil Partnership and homosexual marriage, which have no value in the eyes of the Moroccan authorities.
Each country is free to establish its оwn lаwѕ and to enforce them, even on its own territory, against foreign residents or visitors. (For example, American tourists can perfectly well be put in prison in Morocco if they are caught in what is called an 'intimate situation' with a Moroccan man or woman, even if this is rare).
State sovereignty is limited by conventions and agreements
In many areas, states are trying to harmonise their legislation or recognise the legislation of other states. This is particularly true in the areas of patents, trademarks and copyright.
With the privileged partnership agreements with Europe, Morocco has now entered a process of harmonising industrial and quality standards, which will make it easier for it to export its products.
Similarly, in tax matters, Morocco has signed an agreement with many countries an agreement to avoid double taxation, which creates exceptions to foreign or Moroccan tax laws.
These agreements can also be private
When two companies from different countries enter into a contract, it is common for a clause to determine the “place of jurisdiction”. Many companies also indicate this in their general terms and conditions of sale and try to impose it on individuals (Google, Yahoo, Twitter or Facebook impose California law), but in general this clause is illegal: an individual can therefore sue Facebook in France.
This possibility exists, to a lesser extent, for private individuals. For example, in the case of a Belgium-Moroccan marriage, it is possible to include clauses in the marriage contract referring to Belgium law, as long as it does not conflict with Moroccan law.
On the other hand, apart from a few exceptions, labour law always imposes its local ‘minimums’. (With the exception of secondment contract in Europe).
The important thing: in the event of a conflict, determine which law applies
The judge will first consider whether he or she has the right to judge, and then which law should be applied. In some cases, a Moroccan judge will have to rule by applying foreign law (or vice versa).
For example, in the case of a Swiss couple married in Switzerland but recently resident in Morocco, they do not need to return to Switzerland if they wish to divorce. However, Swiss law must be applied.
This is where there is a risk, either because the local judge will not recognise/accept the jurisdiction clause, or because he recognises it ‘per se’, but deems it inapplicable in order to comply with the law of his country.
In particular, and we will come back to this later, in all matters relating to civil law and the family code, a Moroccan judge or a foreigner judge may refuse to apply the law of the other country.
Enforcing a legal decision in another country
Finally, once the judgement has been handed down, it must be enforced.
This is called “enforcement“.
First of all, the convicted person is “notified” of the judgement, so that he or she is officially informed of the sentence. This notification is made by registered letter. There is usually a deadline for doing so. Once this deadline has passed, a bailiff or even another judge (the enforcement judge) must be called in to force the other party to do what is stipulated in the judgment.
In the case of an international judgement, there is an essential additional stage, called exequatur.
And this becomes even more complicated…. because the foreigner judge will re-examine whether the decision handed down by the Moroccan judge can be accepted by the his own state (and vice versa).
- Does the foreign court have jurisdiction? Risk, if French law provides that it has jurisdiction in all cases, and the foreign law does too.
- Was the choice of applicable law fraudulent? You can try to ‘circumvent’ the legal criteria in the same way that you circumvent tax provisions, and the foreign court can question the applicable law in this case. There is always a risk when a ruling concerns at least one person with dual nationality.
- Does the court decision contradict local law? A death sentence can never be enforced in many countries, for example.
- Was the procedure regular and sincere? Were the rights of the defence respected, was the evidence on file, etc.?
If all these conditions are met, the judge considers that the sentence should be carried out, and initiates the procedure.
Moroccan judicial cooperation agreements with foreign countries
As we can see, the exequatur is a genuine second judgment (in either direction), which is therefore costly and carries significant risks.
Bilateral judicial cooperation agreements aim to reduce these costs and delays by simplifying formalities and specifying a number of points in advance.
For example, the judicial cooperation agreement signed in 1958 between France and Morocco provided for each country to directly notify one of its nationals resident in the other country.
After the legal row between France and Morocco, which suspended all exequatur procedures, a new agreement was signed in February 2015 with a much-criticised provision: each country immediately informs the other of any complaint concerning one of its nationals; the other country may then decide to investigate the complaint itself.
In conclusion? Consult a specialist lawyer!
We will go into more detail on a number of topics, in particular everything to do with family law.
If there’s one thing to remember here, it’s :
- it’s complicated, so litigation is long and costly
- Moroccan law is not French law even if it bears similarities in many areas
- judicial cooperation is both a facility and an additional risk
- it is essential to plan as much as possible at the start of the contractual relationship, and to provide as much control as possible over the choice of legislation that will apply to it
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