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14 December 201711 minute read

Introduction to the arbitration rules of the Casablanca International Mediation and Arbitration Centre, the CIMAC

To respond to investors' appetite for institutional arbitration, and like other international financial centres, the Casablanca Finance City (the CFC) has created its own arbitral institution: the Casablanca International Mediation and Arbitration Centre (the CIMAC).

The CIMAC is fitted with modern arbitration rules which govern the administration of the arbitral procedure. This document presents the main provisions and specificities of these rules.

As an alternative mode of dispute resolution, one often hears that arbitration is the favoured mode to litigate and ultimately resolve commercial disputes, in particular when these disputes are international.

This "private" justice is also a "tailor-made" justice. The parties have a large degree of freedom to define many aspects of the procedure: for example, they can decide whether or not the arbitration will be confidential, select the arbitrators that will rule on their dispute, choose the language of the procedure…

The parties can also decide to let the arbitral tribunal, once constituted, administer and organise all aspects of the procedure (ad hoc arbitration), or assign this task to an arbitral institution (institutional arbitration).

To respond to investors' appetite for institutional arbitration, and like other international financial centres, the Casablanca Finance City (the CFC) has created its own arbitration institution: the Casablanca International Mediation and Arbitration Centre (the CIMAC). Consistent with its ambition to become a financial centre for the region but also for the entire African continent, reinforcing the attractiveness of the CFC by the creation of an institution dedicated to the resolution of disputes of international investors was paramount.

To consolidate its legitimacy and its international character, the CIMAC's arbitration Court, the purpose of which is to supervise the administration of procedures1, is composed of prominent actors from arbitration community from Morocco, Africa, and beyond.

The CIMAC is also fitted with modern arbitration rules which govern the administration of the arbitral process (the CIMAC Rules).2

This paper presents the main provisions and specificities of the CIMAC Rules.

Standard structure and provisions

As it is usually the case for institutional arbitration rules, the CIMAC Rules adopt a chronological structure which follows the normal stages of the arbitral process.

Like most institutional rules, many of its provisions are essential for the efficient conduct of an arbitration.

It thus, in particular, provides for the modalities for the filing of a request for arbitration and the essential items that must be included in the request for arbitration (Article 5 of the CIMAC Rules), the response to arbitration (Article 6), and subsequent briefs (Article 22).

It also addresses the "usual" subjects such as the constitution of the arbitral tribunal (Article 7 and following), challenges and replacement of arbitrators (Articles 12 and 13), multiple contracts (Article 31), consolidation of proceedings (Article 32), intervention of third parties (Article 33), document production (Article 24), use of witness and expert evidence (Articles 25 and 26), and conduct of hearings (Article 27).

It should be noted, however, that the CIMAC Rules do not cover emergency arbitration. This type of process has been elaborated by other arbitral institutions to minimise the need to resort to the state court system when seeking conservatory or interim measures (which are often filed before the constitution of the arbitral tribunal). Thus, where arbitration rules provide for an "emergency arbitrator" process, the requesting party can file an application for a conservatory or interim measure directly with the institution. If it deems the request admissible, this institution will then designate, within a very short timeframe, an emergency arbitrator who will be held to a tight deadline by which an interim order must be handed down.3

An international centre but with a centre of gravity in Morocco

The choice of the seat of the arbitration has a significant impact on the arbitral process. It is the law of the seat that determines the applicable public policy procedural rules as well as the grounds of annulment of the award. The seat thus designates the national courts which will support the arbitral process (for example by granting conservatory or interim measures) and which will be competent to hear an annulment action brought against the arbitral award.

The parties are free to determine the seat of their arbitration but, in the absence of such an agreement, it will be defined by the arbitral institution (or by a state court in the case of ad hoc arbitration) taking into consideration factors such as the applicable law, neutrality, accessibility.

In this regard, Article 17 of the CIMAC Rules provides for a noteworthy feature, i.e. the concept of a default seat:4  "in the absence of an agreement between the parties, the seat of arbitration will be Casablanca in Morocco, without prejudice to any other situation that the Court could take into consideration in the determination of the most appropriate arbitration seat."5

The CIMAC Rules also provide that the hearings, meetings, and deliberations can take place in any other part of the world subject to the parties' agreement.

The recognition of fundamental principles

The CIMAC Rules also address fundamental principles of procedure relating to the conduct of proceedings.

In addition to the basic principles set out in its Article 20 (adversarial principle, efficiency), the following is expressly provided for:

  • The arbitrators' duty of independence and impartiality (Article 7.2), coupled with the obligation to sign a declaration of acceptance, independence, and impartiality
  • The celerity of the arbitration by adding a statement of availability to the declaration of independence and impartiality (Article 7.4)
  • The Court's consideration, in the appointment of each sole arbitrator or president of a tribunal, of the latter's nationality, country of residence, and any link with the countries of the parties' residence. This ensures, except in rare circumstances, that the arbitrators be of a different nationality than that of the parties, and contributes to the real or perceived neutrality of the arbitral tribunal
  • The principle of waiver of the right to object which requires that an objection "regarding the respect of any provision of the Rules, of rules decided by the tribunal, of stipulations of the arbitration agreement, and more generally of any circumstance that could give rise to an objection"6  must be raised by a party "promptly"7  after it has knowledge of the grounds of the objection (Article 30). The objective is to ensure the efficiency of the procedure
  • The competence-competence principle (Article 14), which empowers the arbitrators to decide the issue of their own jurisdiction.8  The CIMAC Rules further provide that the "objection to jurisdiction of the arbitral Tribunal is raised, at the latest, in the Response to the arbitration Request,"9  the objective being to ensure efficiency by requiring parties to raise an objection to jurisdiction in timely fashion and thus avoid dilatory strategies
  • Confidentiality as a principle. Contrary to other institutions that do not set confidentiality as a principle save an express agreement to that effect by the parties, the CIMAC Rules provide that "the arbitral procedure is confidential," unless there is a contrary imperative legal provision, and "unless the parties agree otherwise"10  (Article 44). This confidentiality is extensive as it applies not only to "exchange of information, submitted briefs and exhibits, to the hearings and to the rendered decisions,"11  but also to the very existence of the arbitration. The CIMAC Rules' guarantee of confidentiality will certainly be perceived as a significant advantage of the CIMAC Rules by economic operators who are seeking an effective shroud of confidentiality over the arbitral procedure
A focus on celerity

Although it remains a valued alternate mode of dispute resolution among the international business community, arbitration has suffered criticism as of late, in particular due to the delays of arbitral procedures which are inconsistent with the objective of celerity which is supposed to be one of the advantageous features of international arbitration.

Many international arbitral institutions have responded to this criticism by amending their rules in order to adopt an accelerated procedure, also called "fast-track arbitration."12

The CIMAC has followed suit by creating a specific rule pursuant to which parties can select an accelerated procedure "in particular where justified by an amount in dispute least than 200.000 euros or by the particular circumstances of the dispute."13

For the purpose of this accelerated procedure, the CIMAC Rules also provide for an arbitral tribunal constituted by a sole arbitrator. The delays of the procedure can thus be shortened: the respondent's response is to be submitted within 21 days after notification of the arbitration request, a procedural calendar is to be established within 15 days maximum after the constitution of the arbitral tribunal, and the award must be rendered within six months after the case is referred to the arbitral tribunal.

In keeping with the promotion of celerity of the arbitral process, the CIMAC Rules contain other features that deserve to be noted.

For example, the CIMAC Rules do not require the execution of terms of reference. This is a substantial difference with the ICC Rules which require a restatement of the parties' agreement to submit their dispute to arbitration, made in those terms of reference. The terms of reference also serve to provide a framework for the types of issues that can be submitted to the arbitral tribunal. Other practitioners, however, consider that the use of terms of reference is often counterproductive because they are time-consuming to put together. In the interest of promoting an expedient process, the CIMAC Rules chose not to impose the stipulation of terms of reference.

The CIMAC Rules also do not incorporate another specificity of the ICC Rules, namely the scrutiny review of the award by the Court before it is handed down by the Tribunal. The absence of this review, the purpose of which is to identify possible flaws that might later become a hindrance to enforcement, is certainly a time saver for the delivery of the award to the parties. It may be a trade-off, however, as the award may be more vulnerable to a subsequent annulment action.

The CIMAC has ostensibly sought to create a modern set of arbitration rules which takes into account present day trends set by both practitioners and users of arbitration. The CIMAC has thus poised itself to become a leading arbitration centre with the objective to serve international economic operators, especially in Africa. As we await the first cases to be administered under the aegis of the CIMAC, time will tell whether its rules are sufficiently tailored to the needs and challenges of arbitration in the African continent.

1 Most international arbitral institutions have a so-called "court" which administers the arbitrations governed by their rules. For the purposes of this paper, a single reference to the "Court" will be made regardless of whether the CIMAC or the ICC is concerned.
2 These rules have come into force January 1, 2017.
3 This mechanism has recently been adopted by numerous arbitration institutions such as the Arbitration Institute of Stockholm Chamber of Commerce (the "SCC") in 2010, the International Chamber of Commerce (the "ICC") in 2012 and the London Court of International Arbitration (the "LCIA") in 2014.
4 The LCIA Rules provide for a similar provision, with a default seat in London (Article 16.2 of the LCIA Rules).
5 Free translation from French: "[à] défaut d’accord entre les Parties, le siège de l’arbitrage sera Casablanca au Maroc, sous réserve de toute autre circonstance que la Cour pourra prendre en compte dans la détermination du siège d’arbitrage le plus approprié."
6 Free translation from French: "quant au respect de toute disposition du Règlement, de règles décidées par le Tribunal arbitral, de stipulations contenues dans la Convention d’arbitrage, et plus généralement de toute circonstance pouvant donner lieu à une objection."
7 "Promptement" in French. Note that the use of this term will surely generate some debate regarding its practical implications.
8 This is a specific feature of international arbitration which does not exist in the national judiciary system.
9 Free translation from French: "l’exception d’incompétence du Tribunal arbitral est soulevée au plus tard dans la Réponse à la Demande d’arbitrage."
10 Free translation from French: "sauf accord contraire des Parties, la procédure arbitrale est confidentielle."
11 Free translation from French: "échanges, mémoires et pièces qui y ont été produits, aux audiences qui s’y sont déroulées et aux décisions qui y ont été rendues."
12 It is the case of the SCC in 1995, of the Singapore International Arbitration Center ("SIAC") in 2013, of the Hong Kong International Arbitration Center ("HKIAC") in 2008, and of the ICC in 2017, for example.
13 Free translation from French of Article 43.1 of the CIMAC Rules: "notamment être justifié par un montant en litige inférieur à l’équivalent de deux cent mille (200.000) euros ou par les circonstances particulières du litige."