Choice-of-Law Clauses in Contracts Involving Morocco: Does a Foreign Governing-Law Clause Hold?

Start with the answer, because it is more useful than the theory. A contract involving a Moroccan company can, in principle, be governed by a foreign law — English, French, New York or another system — provided the governing-law clause is valid under Moroccan private international law. Moroccan courts do not treat a foreign-law clause as inherently suspect, and the parties' choice is recognised as a starting point.

What the clause does not do is just as important. Choosing foreign law does not make Moroccan mandatory rules disappear; it does not import foreign procedure into a lawsuit filed in Morocco; it does not, on its own, select a foreign court; and it does not mean a Moroccan court already knows the content of the chosen law. Each of those is a separate question, and getting them straight is most of the value of this guide.

This guide is written for foreign lawyers and companies contracting with Moroccan counterparties. It explains what a governing-law clause decides, whether a Moroccan court will apply the chosen foreign law and within what limits, how the content of that foreign law is established before the court, what happens if it cannot be, and why the law that governs the contract is a different question from which court decides, from arbitration, and from enforcing a judgment later. It is not a general guide to international contract disputes.

A governing-law clause — a choice-of-law or applicable-law clause — identifies the substantive law the parties intend to govern their contractual rights and obligations: how the contract is interpreted, what the parties owe each other, what counts as breach, and the consequences that follow. That is its function. It speaks to the substance of the bargain, not to the courtroom in which a dispute is fought.

It is worth fixing the boundary at once, because it is the single most common confusion in cross-border contracts: choosing a law is not the same as choosing a court. A contract can be governed by the law of one country and litigated in the courts of another, and the two are decided separately. Which court hears the case is a distinct question, addressed in our guide to choice-of-court clauses and Moroccan jurisdiction.

A governing-law clause is also not a switch that turns Moroccan law off. Even where a foreign law validly governs the contract, parts of the dispute can remain anchored in Moroccan law — mandatory rules, public policy, procedure before a Moroccan court, and certain questions that follow their own connecting factors. The sections below take those in turn.

As a matter of principle, yes. Moroccan private international law recognises party autonomy in contracts through the Dahir of 12 August 1913 on the civil condition of foreigners, whose Article 13 provides that the substance and effects of contracts are determined by the law to which the parties intended to refer. That is the statutory anchor for a foreign governing-law clause in a Morocco-connected contract, and it is long-standing law.

The recognition of the choice is genuine, but it should not be overstated into something absolute. "The parties may choose the governing law" is not the same as "the parties can always choose any law, with no limit and no consequence." The choice is the starting point; the limits that follow — mandatory rules, public policy, and the questions that stay Moroccan regardless of the clause — are part of the same picture, not exceptions bolted on afterwards.

It is also worth resisting the instinct to read modern European conflict-of-laws rules into the Moroccan position simply because the vocabulary is familiar. The Moroccan basis is Article 13 of the 1913 text, applied by Moroccan courts, and it should be described on its own terms rather than by importing rules from instruments that do not bind Morocco.

Not necessarily. Article 13 refers to the law the parties intended to apply, whether that intention is expressed or tacit. So a clearly written governing-law clause is the strongest and cleanest case, but the text also contemplates that a choice may be inferred from the parties' intention rather than stated in so many words.

The practical point is one of certainty rather than doctrine. An express, well-drafted clause leaves little room for argument about which law governs; a tacit or implied choice invites a dispute about what the parties really intended, which then has to be argued and resolved. Because a tacit choice is fact-sensitive, this guide does not offer a checklist of factors that will always establish one — the safe course is simply to say the law in writing, clearly, if that is what the parties want.

Where the parties have not chosen a law, a Moroccan court does not simply default to Moroccan law. Article 13 sets out a fallback: on the parties' silence, and where the applicable law does not emerge from the nature of the contract, the parties' respective situation or the location of the goods, the court looks to the law of the parties' common domicile; failing a common domicile, to their common national law; and, if they share neither a domicile in the same country nor a common nationality, to the law of the place where the contract was made.

This is a cascade of connecting factors from a long-standing text, and it is worth describing it as exactly that rather than dressing it in modern language. It is not the "characteristic performance" or "closest connection" methodology used in some other systems, and it should not be presented as if it were. The reliable takeaway for a contract with no clause is that the applicable law is identified through these successive factors, and that the outcome is fact-specific — which is itself a reason to include a clear governing-law clause rather than leave the question to the fallback.

Potentially yes — a Moroccan court can apply a validly chosen foreign law to the substance and effects of the contract. But "can" is not "must in every respect." The application of the chosen law is subject to Moroccan conflict-of-laws rules, to Moroccan mandatory rules and public policy, and to the practical reality that the content of the foreign law has to be established before the court can apply it.

It is therefore wrong to tell a client that a Moroccan court will always apply the chosen foreign law to the whole dispute, and equally wrong to say that a Moroccan court will disregard a foreign-law clause. The accurate position sits between the two: the chosen law governs the contractual substance, several matters remain governed by Moroccan law or by their own connecting factors, and the foreign law reaches the court only once its content is shown. The sections that follow set out how that content is established and what happens if it is not.

This is where a foreign-law clause becomes a practical, evidential task rather than a purely legal one. Foreign law is not something a Moroccan judge is presumed to know in the way domestic law is. In practice, the party relying on the foreign law may need to establish its content before the court — to put the relevant foreign rules in front of the judge in a form the court can use.

The means of doing so may include the text of the foreign legislation, a legal opinion or a certificat de coutume from a qualified foreign jurist, expert material, and reliable legal sources, generally accompanied by a certified translation into Arabic. None of these is stated here as a single mandatory formula: a certificat de coutume or a legal opinion can assist the court, but it does not automatically bind the judge, who retains a judicial role and may test or supplement what the parties provide, within the adversarial process.

The practical consequence is that a governing-law clause is only as strong as the party's ability to prove the law it selected. Selecting English or New York law is one thing; being able to establish its relevant content before a Moroccan court, clearly and in translation, is another — and it is a task to plan for early rather than improvise at the hearing.

This is the risk that follows directly from the previous section, and it should be described carefully. Where the content of the chosen foreign law is not sufficiently established before the court, Moroccan case law and doctrine may lead the court to apply Moroccan law instead. In other words, failing to prove the foreign law does not leave a vacuum; it can shift the ground back to the law of the forum.

What should not be said is that this is automatic. It is better understood as a real and practical risk than as a mechanical rule: whether Moroccan law is applied instead, and to what extent, can depend on the procedural posture, on which party bore the practical onus, and on the circumstances of the case. The safe way to hold it is this — a foreign-law clause that cannot be substantiated may end up being applied as if Moroccan law governed, which is precisely why establishing the foreign law properly matters so much.

A foreign governing law is not a way of contracting out of Moroccan law altogether. Even where the chosen law validly governs the contract, certain Moroccan rules can continue to apply because of their mandatory character, and certain results can be refused on public-policy grounds. These are two different mechanisms, and the next two sections keep them apart.

The point to carry into both is a boundary, not a catalogue. This guide does not attempt an exhaustive list of every Moroccan rule that might apply despite a foreign-law clause — such a list would be misleading. The reliable message is that a governing-law clause chooses the law for the contractual bargain, while Moroccan mandatory rules and public policy sit above that choice and can bite regardless of it.

The first mechanism is public policy — ordre public international marocain. A Moroccan court may decline to give effect to the chosen foreign law where the result of applying it would conflict with fundamental principles of Moroccan public policy. Where that happens, the foreign rule is set aside to the extent of the conflict, and the court does not apply a result its own legal order treats as unacceptable.

It matters how this is described, because it is easy to overstate. Public policy of this kind is a reserve, an exception invoked at the margins — not a routine tool for rejecting foreign law. It should not be read as suggesting that Moroccan courts regularly refuse to apply chosen foreign law; the ordinary position is that a valid choice is respected, with public policy operating only where the outcome would offend fundamental Moroccan principles.

The second mechanism is different in nature. Overriding mandatory rules — lois de police — are Moroccan provisions that apply by their own force to a situation connected with Morocco, irrespective of the law the parties chose. Where public policy works negatively, setting aside a foreign result, overriding mandatory rules work positively: they apply because of what they regulate, whatever the governing law says.

Rather than a universal list, it is safer to flag the areas where such rules are most likely to be in play, each to be checked against the specific contract: employment and other protected relationships, consumer protection, real estate and land registration, the mandatory rules of Moroccan company law, insolvency, and regulated or foreign-exchange-controlled transactions. The presence of one of these features does not mean the whole contract is governed by Moroccan law; it means a particular mandatory rule may apply on top of the chosen law. Several of these are developed in their own sections below.

Real estate is the clearest illustration of a question that does not simply follow the chosen law. Under the 1913 text, property situated in Morocco is governed by Moroccan law, and rights in rem over Moroccan land — ownership, real rights, title and registration in the land registry — are a matter for Moroccan law regardless of a contractual governing-law clause.

The distinction to hold is between the contractual obligations and the real-right questions. A contract touching Moroccan real estate may still choose a foreign law for its contractual terms — what each party promises and owes — while the real rights, the transfer of title and the registration of the property in Morocco are governed by Moroccan law. It is therefore a mistake to tell a client that any contract mentioning Moroccan property must be governed by Moroccan law; the accurate position is a split between the obligational layer, which the clause can reach, and the proprietary layer, which it cannot.

A foreign governing-law clause in a contract with, or between the shareholders of, a Moroccan company does not carry the company's own legal status along with it. The existence of the company, its internal organisation, the powers of its organs, its legal capacity, and the mandatory rules of Moroccan company law remain governed by Moroccan law. The contract can choose a foreign law for its contractual terms; the company's corporate status does not thereby become foreign. Where the contract is a shareholders' arrangement, the corporate-law boundary is developed further in our guide to a shareholders' agreement in Morocco.

Kept short, the rule is a division of labour: the chosen law can govern the deal, while Moroccan company law governs the company. Confusing the two — assuming that a foreign-law contract can rewrite the mandatory internal rules of a Moroccan company — is a common and avoidable error.

Not every legal question in a contract is answered by the chosen substantive law, and two examples make the point without needing a treatise. Under the 1913 text, the capacity of persons is governed by their national law, not by the law the contract selects; and the formal validity of an act can be satisfied by reference to any of several laws, rather than only the chosen contract law. These are separate connecting factors that sit alongside the governing-law clause.

The reason to mention them is simply to complete the picture: a governing-law clause is powerful for the substance of the contract, but questions such as whether a party had capacity, or whether an act is formally valid, are resolved by their own rules. In a real dispute these are usually checked separately rather than assumed to follow the chosen law.

If the dispute is litigated before a Moroccan court, the process is generally governed by Moroccan procedural law, even where a foreign law governs the substance of the contract. The forum applies its own procedure: how the claim is filed and conducted, the organisation and competence of the court, the procedural rules on evidence, appeals, interim procedure and enforcement in Morocco. A foreign governing-law clause does not import foreign procedure into a Moroccan courtroom.

The word "generally" is doing real work here and should not be dropped. The line between substance and procedure is not always mechanical — some questions can be characterised as substantive and so governed by the chosen law, while others are clearly procedural and governed by the forum. The safe statement is the core one: procedure before a Moroccan court is Moroccan, while the substance of the contractual rights is governed by the chosen law, with a narrow border where characterisation itself has to be argued.

This distinction is important enough to stand on its own, because conflating the two is one of the most consequential errors in cross-border contracting. Choosing the law that governs the contract does not decide which court hears a dispute, and choosing a court does not decide the governing law. The two are separate agreements, analysed separately, and how a Moroccan court treats a foreign jurisdiction clause is a different subject, set out in our guide to choice-of-court clauses and Moroccan jurisdiction.

The independence of the two questions is easiest to see through examples, offered here only as illustrations rather than as guarantees that any pairing is always valid. A contract can be governed by English law and yet be litigated before a Moroccan court; it can name a foreign court while another law governs the substance; and a Moroccan court can, in principle, apply a foreign governing law. English governing law does not mean the English courts, and a French-law clause does not mean the Paris courts. Law and forum are decided on separate tracks.

A governing-law clause is also not an arbitration agreement. Choosing a foreign substantive law says which law governs the contract; an arbitration clause says the dispute is removed from the national courts and decided by an arbitral tribunal, which may apply its own conflict-of-laws approach to determine the applicable law and is not bound to reason as a national court would. If the contract contains an arbitration clause, that is a different route, and the enforcement of an eventual award follows its own regime, covered in our guide to enforcing a foreign arbitral award in Morocco.

The reason to flag it here is only to keep the two apart. A governing-law clause and an arbitration clause can appear in the same contract, and confusing which one is in play changes both the forum and the way the applicable law is determined.

A short boundary closes off another common assumption. A foreign governing-law clause does not control Moroccan insolvency procedure merely because the underlying contract selected a foreign law. Once Moroccan collective proceedings open, Moroccan insolvency law and the collective process govern how claims are treated, whatever law governs the individual contract. The position of a foreign creditor in that situation is a separate subject, addressed in our guide to a foreign creditor in Moroccan insolvency proceedings.

The value of Moroccan counsel on a governing-law question is specific and practical. It begins with identifying the applicable conflict rule and reading the governing-law clause — what it covers, and whether the choice is clear — then working out which questions the chosen law actually governs and which remain Moroccan despite the clause.

From there the work is analytical and evidential: identifying the Moroccan mandatory rules and public-policy limits that may apply regardless of the clause; keeping the governing-law question distinct from the separate questions of which court decides and of arbitration; planning how the content of the foreign law will be established before a Moroccan court, and reviewing legal opinions and translations; and addressing Moroccan procedure. Throughout, the lawyer analyses, advises and represents — it is the court that determines the applicable law and its effect, not the lawyer.

Where a matter is led by a lawyer or firm abroad, the natural division of labour is that foreign counsel explains the content of the chosen foreign substantive law, while Moroccan counsel addresses Moroccan private international law, the mandatory-rule and public-policy limits, and the procedure before the Moroccan court. A realistic sequence runs like this: foreign counsel sets out the relevant foreign law; Moroccan counsel assesses the clause's scope and the Moroccan limits on it; the relevant materials, with certified translations, are prepared for the court; and the Moroccan court determines the applicable law and its effect.

Two candid points are worth making. First, a legal opinion or certificat de coutume from foreign counsel helps establish the foreign law but does not bind the Moroccan court, which retains its judicial role. Second, where confidentiality of legal advice is discussed across jurisdictions, the Moroccan reference point is professional secrecy, which is not simply interchangeable with the common-law notion of attorney-client privilege. What foreign counsel most often needs early is a clear read of which parts of the dispute the chosen law will really govern, and what has to be done — and proved — for the Moroccan court to apply it.

It is worth keeping one further distinction in view. The legal opinion or certificat de coutume discussed here points outward — it helps prove the content of a foreign law before a Moroccan court. A Moroccan-law legal opinion given to foreign counsel points the other way: it is a statement of Moroccan law, prepared on defined questions and subject to assumptions and qualifications, rather than foreign-law material submitted as proof. What that separate work product is, and what it can and cannot establish, is set out in our guide to what a Moroccan-law legal opinion is.

A. A Moroccan distributor under an English-law distribution agreement, with a dispute filed before a Moroccan court. The English-law clause can govern the contractual terms, but the court will apply Moroccan procedure, any mandatory Moroccan rules protecting the local relationship have to be checked, and the content of English law has to be established before the court.

B. A French supplier, French governing law, a Moroccan customer, and no jurisdiction clause. French law may govern the substance if the clause is valid, but where the case is litigated is a separate question, and if it is heard in Morocco the French law must be established there.

C. A Moroccan company under a New York governing-law contract, where a Moroccan regulatory or foreign-exchange requirement is engaged. The chosen law can govern the bargain, while the Moroccan regulatory rule may apply as an overriding mandatory rule regardless of the clause.

D. A foreign-law contract connected to Moroccan immovable property or a security interest over it. The contractual obligations may follow the chosen law, but real rights, title and registration over the Moroccan property remain governed by Moroccan law.

E. A chosen foreign law whose content the party cannot sufficiently establish before the Moroccan court. Here the practical risk is that the court applies Moroccan law instead — a reason to plan the proof of foreign law from the outset rather than assume the clause is self-executing.