Case law. Ynna Holding vs Five FCB: the deal of the decade – Media24

Ynna Holding and Five FCB meet for a new round to the Commercial Court of Appeal. This same jurisdiction which, in 2015, had won the case for the French group, has just suffered a disavowal from the Court of Cassation. It will have to deal with the file a second time, and according to the observations outlined by the highest court of the Kingdom.

What are these observations? What are the grounds for the cassation? So far, no details. The judgment dates from October 3. We only know the pronunciation. The recitals will be contained in the final copy of the decision.

By inheriting the case in 2015, the Court of Cassation had to decide a main question: can an arbitration clause signed by its subsidiary be extended to a parent company?

In 2011, Five FCB had obtained an international arbitration award which had opted for a positive response. Result: Ynna Holding had been condemned, jointly with its subsidiary Ynna Asment, to compensate its French adversary (nearly 20 million euros). In fact, Five accuses its opponents of “the abusive termination” of a contract concluded at the end of the 2000s.

But to endorse the arbitrators’ postulate, French society had to obtain “the exequatur” Moroccan justice. At first instance, the judges partially invalidated the arbitration award by limiting its effects to the subsidiary Ynna Asment, thus rejecting the extension option. Extension which will, however, be validated on appeal. Hence the two appeals in cassation initiated by the defense of the Chaabi group:

– The first on behalf of the subsidiary Ynna Asment, which was rejected, meaning that Five won on this part.

– The second on behalf of the parent company Ynna Holding. It is this part, the most important, which was won by the Chaabi and which will be dealt with again by the Court of Appeal.

But does this second decision mean that the Court of Cassation has definitively ruled on the question of the extension?

“We have to be careful. Nothing confirms, for the time being, that the Court has actually ruled on this point of law. The cassation can occur on the basis of a procedural element, or if the sages have considered that the court under appeal has not sufficiently motivated a point other than that of the extension”, indicates this jurist, who invites us to wait for the publication of the judgment.

While waiting for the details of the judgment, already readings and questions

A document that is worth gold, according to the many reactions sent spontaneously to Médias24, and this, directly after the revelation of the verdict in its columns. Two readings confront each other:

– “A subsidiary is a legal person independent of its parent company. The latter does not have to answer for mistakes and faults committed by an autonomous entity. If the Court ruled on the extension by validating it, it would only have respected a well-established logic”, considers this business lawyer.

– “To close the door to the extension is to encourage fraud. It is to allow holding companies to act fraudulently under cover of front companies, while protecting themselves from legal proceedings on the pretext that they are autonomous subsidiaries. Knowing that once the proceedings have been initiated and the trial won, the adversary often finds himself faced with empty and insolvent shells,” deplores a lawyer at the Casablanca bar.

Our two interlocutors, like all those quoted in this article, did not take part directly in the Five/Ynna file. But have diligently followed its course and patiently awaited its outcome, like a large part of the legal sphere.

“This is one, if not THE commercial dispute most important of the decade », comments this lawyer at the Rabat bar. “It is not just about the litigation itself. It questions all the official discourse around arbitration, as a tool for attracting foreign investment. »

Because the theory would like an arbitration to be a guarantee of speed and confidentiality. The conflict between Ynna and Five was neither quick nor quiet. Médias24 has followed step by step the handling of this file which, in all, totals more than a decade of proceedings. From the arbitration award (2011) to the judgment of the Court of Cassation (2022), it is no less than eleven years of legal debate and uncertainty.

A complex dispute, unprecedented in Morocco. This explains, among other reasons, why he took up so much time in court. The Court of Cassation took seven years to deliver its verdict. And to do this, it had to mobilize all of its rooms, either about thirty magistrates among the most experienced in Morocco. A judgment rendered “all chambers” together is usually the equivalent of a legal norm. A quasi-law which will engage the judges on all future cases presenting a similar problem.

While waiting to consult the judgment, the recent decision is already producing some effects on the situation of the parties Ynna Holding, on the one hand, and Fives FCB on the other.

For the Chaabi group, it’s a great victory, despite the defeat on the Ynna Asment part. When it had obtained the exequatur on appeal, Five FCB had hastened to initiate seizures specifically targeting the parent company, de facto more solvent. By disavowing the jurisdiction of second degree, the Court of Cassation has just returned the parties to the stage where they were before the appeal. Which leads to these questions: will Ynna Holding be able and will it claim the return of the property and funds seized by its French adversary?

This same adversary had prosecuted Ynna Holding for “dissipation of seized objects”. Will this accusation stand up to the new reversal?

At the Court of Cassation, Ynna Holding wins its case against Five FCB

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Case law. Ynna Holding vs Five FCB: the deal of the decade – Media24

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