Environmental Engineering Reference
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company founded according to Moroccan or German company law that has its main
seat in the territory of either Morocco or Germany and performs an investment in
the other country. This wide understanding of the term investor allows the operation
of a German company in Morocco, as well as a Moroccan company founded by
German shareholders, to operate in Morocco. In addition, Art. 1(1)(b) of the G/M-
BIT stipulates that shares and all other kinds of involvement, including minority
shares, are an investment.
Parties should not just agree that the investing company is
another national
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because of foreign control, nor should they ignore this issue completely. Taking the
ICJ and ICSID tribunals into account, at the moment is sufficient if the new SPV has
its office outside of Morocco and that an investor has at least 50 % +1 share to
achieve legal certainty concerning the nationality of the SPV.
'
1.5.2.2 Moroccan S.A.R.L. or German GmbH
The question of whether a German GmbH or a Moroccan S.A.R.L. is appropriate
for this cooperation (also known as an SPV) arises as it is within the interests of the
host state to have some influence over the SPV. If there are no divergent terms
stipulated in the company agreement, s 47(1) of the German GmbHG regulates that
ordinary majority applies. According to s 47(2) of the GmbHG, every Euro of a
share grants one vote granting further rights according to s 50(1), 51a(1) and (2),
51b of the GmbHG. Finally, a change to the Articles of Association always requires
a 75 % majority according to s 53(2) of the GmbHG.
Prior to an examination of Moroccan company law, it is worth mentioning that
there is no requirement to found a company according to Moroccan law. 233 Reg-
ulations concerning the establishment, operation and termination of a soci ´t ´
a
responsabilit ´ limit ´e (S.A.R.L.) are within Loi n 5-96 sur la soci ´t ´ en nom
collectif , la soci ´t ´ en commanditesimple , la soci ´t ´ en commandite par actions , la
soci ´t ´ a responsabilit ´ limit ´e et la soci ´t ´ en participation (loi no. 5-96).
According to loi n 17 - 95 relative aux soci ´t ´s anonyms (loi no. 17-95), a soci ´
t ´ anonyme (S.A.) is not an option because it is ' ( ... ) intended for companies of an
average size and/or of a family character, where the personality of the contributor is
generally more important
234 One benefit of
establishing an S.A.R.L. is a “blocking minority”, which requires one fourth of
the shares, according to Art. 67 of loi no. 5-96 or Art. 71 of loi no. 5-96. Further
rights are granted in Art. 75 of loi no. 5-96 and Art. 80 and 82 of loi no. 5-96.
Overall, there is no real difference between a Moroccan S.A.R.L. and a German
GmbH. Although there might be more social acceptance of an S.A.R.L. within
than the capital contributed.
'
R´publique f´d´rale d
Allemagne et le Royaume du Maroc relatif
al
encouragement et
ala
'
'
protection mutuels des investissements), BGBl 2004 Teil II, 333-340.
233 El Moukhtari ( 2010 ).
234 Quinn ( 2009 ), 6.
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