15 Feb 2024
Dr Amel Makhlouf MCIArb sets out the legislative context to private dispute resolution in Algeria.
Algeria has a civil law system based on the Constitution. Pursuant to Article 1 of the Algerian Civil Code, the law applies to all matters referred to by the wording or the spirit of one of its provisions. In the absence of a legal provision, the judge shall apply Islamic law and, failing that, customary law. Where applicable, the judge shall refer to natural law and the rules of equity.
Algeria’s judicial system is divided into civil and administrative courts. It also provides for amicable and alternative dispute resolution methods (mediation, conciliation, and arbitration) which are broadly known for being faster and more flexible than litigation.
Algeria acceded to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), under both the reciprocity and commerciality reservations, through its law No. 88-18 of 12 July 1988 and decree No. 88-233 of 5 November 1988[1]. To comply with its commitments deriving from the NYC, Algeria’s initial legislation on international arbitration was first introduced by the legislative decree 93-09 of 25 April 1993[2]. Based on French and Swiss legislations, this provides for a dualistic approach, separating domestic and international arbitration. By amending the Algerian Code of Civil Procedure (CPC), the legislative decree adds a whole section on international arbitration to the CPC and repeals former Article 442 of the CPC which banned arbitration for public entities.
The Algerian legal framework on international arbitration was then substantially revised by law No. 08-09 of 25 February 2008[3] (2008 Law) pertaining to the new Civil and Administrative Procedure Code (CAPC). Largely inspired by the laws of France and Switzerland, the 2008 Law also introduces court-annexed conciliation (Articles 990 to 993) and mediation (Articles 994 to 1005) as alternative ways to resolve disputes in the Algerian legal framework[4]. Through Articles 1006 to 1061, the 2008 Law governs both domestic and international arbitration. One of its significant amendments is found in Article 1006 of the CAPC, which grants arbitrability to disputes involving Algerian legal entities subject to public law, in matters related to their international economic relationships and public procurement contracts. The CAPC substantially embodies the principles outlined in international treaties on arbitration, to which Algeria is a party, notably the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965 (International Centre for Settlement of Investment Disputes Convention) which entered into force on 22 March 1996[5].
The Conciliation, Mediation and Arbitration Centre of the Algerian Chamber of Commerce and Industry (CACI), based in Algiers, is able to administer both domestic and international arbitration proceedings. However, the CAPC does not restrict foreign arbitral institutions providing arbitration services in Algeria. In practice, the International Chamber of Commerce International Court of Arbitration (ICC Court) is widely used by Algerian parties and often acts as an international appointing authority. Domestic arbitration remains marginal in Algeria in contrast with international arbitration which is commonly used in the energy, construction, and maritime sectors.
Based on Article 1051 of the CAPC, an international arbitral award is recognised in Algeria if its existence is established by the requesting party and if such recognition or enforcement does not breach international public policy. Pursuant to Article 1052 of the CAPC, the existence of an arbitral award is granted either by producing originals of both the award and the arbitration agreement, or duly certified copies of such documents.
Contrary to Article 1515 of the French Code of Civil Procedure, the CAPC does not contain any provision on arbitral awards drafted in a foreign language, i.e. a language other than Arabic. The Algerian legislator should have anticipated practical issues arising from such an oversight and have added a second paragraph to Article 1052 requesting the filing of a certified translation of the award. Such a provision, initially advocated by the doctrine, has not been considered by the legislator.[6]
No new Act or piece of legislation on or involving dispute resolution is expected in the next 12 months. However, it is time that the Algerian dispute resolution landscape be updated in the wake of COVID-19 to include provisions governing the use of new technologies, to address third-party funding in litigation and arbitration, and to encourage and foster the use of amicable dispute resolution in Algeria.
Dr Amel Makhlouf MCIArb is an independent counsel and arbitrator, qualified to practice in Paris, specialising in international arbitration, banking and finance, FinTech, Islamic law and finance, and laws of the Arab Middle East. She has gained extensive experience in cross-border disputes and arbitral proceedings based in the MENA region governed by the laws of France, England and Wales, Russia, Algeria, Morocco, Iran, Bahrain, United Arab Emirates, Saudi Arabia and Hong Kong. Dr Amel Makhlouf is the former Managing Editor for the Country Surveys (Vol. 21 & 22) of the Yearbook of Islamic and Middle Eastern Law, which is the leading English-language journal covering contemporary Islamic laws and laws of the Middle East. She serves as a research associate at the Centre of Islamic and Middle Eastern Law at SOAS University of London, and as a member of the Management Committee of the SOAS Arbitration and Dispute Resolution Centre (SADRC). Additionally, she holds positions as a lecturer in international arbitration and banking and finance at the Paris Bar School.
[1] Law No. 88-18 of 12 July 1988 relating to accession (with reservations) to the New York Convention (J.O.R.A. No. 28 of 13 Jul. 1988, p. 771); Decree No. 88-233 of 5 Nov. 1988 (J.O.R.A. No. 48 of 23 Nov. 1988, p. 1256). The NYC was ratified on 7 February 1989 and entered into force in Algeria on 8 May 1989.
[2] Legislative decree 93-09 of 25 April 1993 amending and supplementing Order No. 66-154 of 8 June 1966 on the Code of Civil Procedure (J.O.R.A. No. 27 of 27 April 1993, p.42). Introduction into the Code of Civil Procedure of a Section IV dealing with international commercial arbitration, comprising articles 458 bis to 458 bis-28.
[3] Law No. 08-09 of 25 February 2008 pertaining to the new Civil and Administrative Procedure Code (J.O.R.A. No. 21 of 23 Apr. 2008, p. 3).
[4] See Book V on alternative dispute resolution (articles 990 to 1065).
[5] The ICSID Convention was signed on 17 April 1995 and ratified on 21 February 1996.
[6] Mohand ISSAD, « La nouvelle loi algérienne relative à l’arbitrage international », Revue de l’arbitrage, 2008, n° 3, pp. 419-428. The translation of the above-mentioned documents into Arabic relies on article 8 of the CAPC.