Arbitration - Investing into North African Solar Power - page 118

usage of arbitration in Morocco and the public authorities seem to promote this
trend. 574
Nevertheless, the wording of Art. 310 of the Code de proc ´ dure civile is clear
and does not allow the state and its entities to be part of arbitration. There is the
assumption that there was no intention to make the state subject to international
arbitration. As Moroccan case law reveals, there was an awareness of the issue that
the state could not by law be subject to international arbitration. The Projet du Code
de l

Arbitrage included a provision which would have solved this problem once and
for all. However, the legislator did not include this section in the new provisions of
the Code de proc´dure civile. This could be a clear expression of rejection.
However, the legislator included several new provisions on international arbitration
and mentioned its obligation under international conventions. Morocco also con-
tinued to ratify international treaties, e.g. the 2004 BIT with Germany, which
includes an obligation of international arbitration. International trade and com-
merce require the acceptance of international arbitration. Morocco would be iso-
lated by not participating in international investment and commercial arbitration.
Therefore, the intention of the legislator cannot be to exclude the possibility of
international investment and commercial arbitration for the state. Consequently, the
historical interpretation and the intention of the legislator result in an acceptance of
the international arbitration subjectivity of the state and its entities.
Since the Moroccan system has close ties with the French legal system, it is also
beneficial to analyze it. Taking a look at the French system, Art. 2060 of the Code
Civil arbitration is not possible if a public collective or public establishment is
involved. However, today there is no doubt that this does not apply in cases of
international arbitration. French courts have highlighted that public entities cannot
escape their international obligations by invoking national law, 575 making the
situation comparable. It is clear that the state of Morocco can be subject to interna-
tional arbitration. Globalization and international cooperation (e.g. WTO) do not
allow any different interpretation. The new section concerning international arbitra-
tion in the Code de proc´dure civile would be pointless. The missing proposal can
only be a mistake of the legislator. Furthermore, the old case law remains in place,
which means the state could be subject to international arbitration, allowing
Morocco/ONE to be subject to international commercial and investment protection.

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2.6.3 ICC Arbitration and Morocco

As mentioned above, Morocco has been party to ICSID arbitration several times.
In addition, the state of Morocco has already been party to ICC proceedings. 576

574 Taarji et al. ( 2011 ), 12-13.
575 Hanotiau and Caprasse ( 2008 ), 721 (724-725).
576 In the MENA region, Moroccan parties submitted, among others, the most cases to the ICC, in:
Hammoud and Houerbi ( 2008 ), 231 (232).