Arbitration - Investing into North African Solar Power - page 123

way. Nevertheless, it must be reviewed how Morocco deals with the issue of public
policy.
It is very difficult to define public policy in Maghreb countries. 619 Some mention
that arbitration is generally forbidden in cases of public policy. 620 Another problem
is to determine whether the Shari

a is part of the public order or not. In Maghreb
countries there is a clear distinction between the Shari

'

a and law, whereby all
countries emphasis their Islamic background. Nevertheless, some authors say that
it does not make a difference if international arbitration or national legislation is
chosen, because both solutions are problematic. 621

'

2.7.3 Moroccan and Arbitration Awards

To understand the relationship between Moroccan law and the Shari a, a closer look

at the (1996) Dahir n 1-96-141 du 8 rabii II 1417 (Moroccan Constitution) is
necessary. The Preamble of the Moroccan Constitution highlights that Morocco is a
sovereign and Islamic country. Secondly, Art. 1 of the Moroccan Constitution
points out that it is a democratic and social constitutional monarchy. Art. 82 stipu-
lates that the judicial sector is independent from the executive and legislative
branch. Furthermore, all judgments are executed in the name of the king, according
to Art. 83. Overall Morocco also makes a clear distinction between the Shari

'

a and
law. All articles of the Constitution underline the fact that there is a clear distinction
between law and religion. This is also illustrated by Art. 6 of the Constitution,
which separately addresses the question of religion.
There are also problems of arbitral award enforcement in Africa and the Middle
East. 622 The compliance with awards is rather the exception than the rule. 623
E.g. the mere fact that Saudi Arabia accepted the NY Convention does not mean
that all awards are automatically enforceable. 624 There are some courts in Islamic
nations which have refused the enforcement of an award on the grounds of domestic
public policy, although the conventions referred to international public policy. 625
Comparable to Algeria, ' ( ... ) the presiding judge of the court of first instance grants
enforcement (

'

) (and this) decision is subject to appellate recourse, and thereafter,
to cassation before the High Court

...

, this also applies to Morocco. 626 Most Maghreb

'

619

Ouerfelli ( 2008 ), 241 (254).

620

Aljazy ( 2000 ), 1 (1).
621 McIlwrath and Savage ( 2010 ), 364 para 6-105.
622 McIlwrath and Savage ( 2010 ), 364 para 6-105; cf Ouerfelli ( 2008 ), 241 (241).
623 McIlwrath and Savage ( 2010 ), 364 para 6-105.
624 Kutty ( 2006 ), 565 (602).
625 Kutty ( 2006 ), 565 (603).
626 Ouerfelli ( 2008 ), 241 (247-248).