The Algerian Law on International Arbitration

Introduction

The. Algerian arbitration law on international arbitration has been thoroughly changed by Legislative Decree No. 93-09 of April 25, 1993, which amends and completes Ordi­nance No. 64-154 of June 8, 1966, relating to the Code of Civil Procedure.^' As indicated by its title, the decree has been incorporated into the Algerian Code of Civil Procedure (ACCP). This reform was expected as a logical follow-up to Algeria's 1988 ratification of the New York Convention of June 10, 1958, on the Recognition and Enforcement of Foreign Arbitral Awards.

In the drafting of the decree on international arbitra­tion, the legislature took into account the UNCITRAL (United Nations Commission for International Trade Law) Model Law, as well as new arbitration laws passed in various countries. Recent principles established in international arbitration case law were also taken into consideration. Legislative Decree No. 93-09 is therefore very modem legislation. In this respect the Law No. 08-09 of 25 February 2008 constituting the new Algerian Code of Civil and administrative Procedure does not change the Algerian legislation on international arbitration, the outlines of which are described below

1. Definition of International Arbitration under Algerian arbitration law

2. Article 458 bis 1 of the ACCP provides the following definition of international arbitration:

"Arbitration may be defined as international when it concerns matters of international commerce and where at least one of the parties is resident or has its registered address abroad".

3. As can be seen from the above, the Algerian arbitration law did not adopt a definition of intemationality based on purely economic criteria. Together with an economic standard, the above definition provides a legal criterion: a difference in the place of residence of the parties.

The first criterion in the definition is identical to the one in Article 1492 of the French New Code of Civil Procedure (NCCP) where, indeed, it is the only criterion. This qualification of a contract as "international" on the basis of its economic effect has been widely discussed by eminent commentators^} and will therefore not be examined here. It should be noted, however, that Article 1492 of the French NCCP is the only case in which that criterion alone has been used.'

The second of the two requirements in Article 458 bis 1 of the ACCP is a legal one. Instead of qualifying a contract as international on the basis of the movement of- goods, services or money across a frontier, it uses an external, objective, and easily determined criterion:

"...and where at least one of the parties is resident or has Its registered address abroad."

4. This dual requirement of the Algerian arbitration law, involving both economic and legal criteria, as expressed in Article 458 bis 1, can only be described as highly desirable.' Whereas not all interna­tional commercial operations would be encompassed if the registered address were used as the sole criterion, it must be said that with trade now operating on a world-wide scale, the use of the economic criterion alone can lead in some cases to an unreasonable extension of the definition of international arbitration.

2. The Arbitration Agreement under Algerian arbitration law

5. According to Article 458 bis 1:

"An arbitration agreement applies to future disputes as well as to those already in existence."

Therefore, only one type of arbitration agreement is con­sidered in the Algerian arbitration law; the traditional distinction between an arbitration agreement already in existence before the dispute arises and a submission relating to an existing dispute has not been retained in Algerian arbitration law. This comes as no surprise given the current tendency in legal systems that make this distinction to erase it where international arbi­tration is concerned.

6. Arbitration agreements are obviously governed by contract law. However, there are certain distinguishing char­acteristics regarding the validity of an arbitration agree­ment in Algerian arbitration law. Examined below are the following points: the prin­ciple of autonomy of the arbitration agreement, conditions of form and of substance required for its valid­ity, and lastly, the question of the validity of an arbitration agreement entered into by the state or a corporate state entity.

2.1 Principle of Autonomy under Algerian arbitration law

7. Article 458 bis 4 provides that:

"The validity of an arbitration agreement cannot be con-tested on the basis of the invalidity of the main con-tract."

This article fully recognizes the principle of the indepen­dent character of the arbitration agreement in Algerian arbitration law, which remains unaffected by the invalidity of the main contract. This provision is the codification of the now well-estab­lished international case law on the matter.

2.2 Conditions of Form

8. Article 458 bis 2 provides that:

"An arbitration agreement must be made in writing, otherwise it is null and void."

Thus, to be valid under Algerian arbitration law, an international arbitration agreement must be in written form. This requirement for a written document reappears in Article 458 bis 18, which provides that, for an arbitral award to be recognized and enforced by the Algerian courts, the original arbitral award must be submitted "together with the arbitration agreement."

It should be noted that the new Algerian arbitration law is in harmony with the New York Convention of June 10, 1958, which provides in Artide II(1) that a foreign award must be made on the basis of a "written agreement" in order to be recognized and enforced.

2.3 Conditions of Substance

9. Regarding the actual substance of an international arbi­tration agreement, in Algerian arbitration law, there are three possible sources of validity. Article 458 bis 3 provides that:

"As to the actual substance of the arbitration agreement, it is valid if it satisfies the conditions set either by the law chosen by the parties or by the law governing the merits of the dispute and notably the law applicable to the main contract or by Algerian law...."

10. In the first place, in Algerian arbitration law, the arbitration agreement can be governed by a law designated by the parties. In practice, it is rare for such a choice to be made, at least expressly.

Specific criteria are taken into account in the determina­tion of the law applicable to the arbitration agreement. For example, when considering the validity of the agree­ment regarding its substance, the arbitrator or judge (if the agreement is brought before a court) can apply, nota­bly, the law of the seat of arbitration.'

11. Secondly, in Algerian arbitration law, the arbitrator or judge can refer to the law applicable to the main contract to decide upon the validity of the substance of the arbitration agreement. It should be noted that the majority of international arbitration awards find that both the main contract and the arbitra­tion agreement are governed by the same law. This is logical, since the two separate legal transactions will have identical connecting factors that bring them under the same law.

Lastly, the validity of the substance of the arbitration agreement can be determined under Algerian arbitration law. This rather subsidiary role given to Algerian arbitration law will rarely come into play except in disputes brought before an Alge­rian national court.

2.4 Capacity of State and Public Bodies

12. Until just recently under Algerian arbitration law, only the Algerian State or a State corporation governed by public law could undertake any activity involving an international interest. Thus the importance of the question of whether these entities can or cannot be a party to an arbitration agree­ment.

13. In the first place, it must be emphasized that the recent Algerian arbitration laws to ease restrictions on Algerian public economic enterprises (E.P.E.)  has unquestionably granted these enterprises the capacity to enter into arbitration agreements. Therefore, the discussion here is concerned only with the Algerian State, strictly speaking, and public bodies for which it is directly responsible.

14. Before the reform introduced by Legislative Decree No. 93-09, the Algerian arbitration law on arbitration involving the Algerian State and public bodies was characterized by anachronism and uncertainty. The old Article 442 para­graph 3 of the ACCP provided that: "The State and State Corporations may not be party to an arbitration agree­ment."

In practice, however, this prohibition was largely inef­fective, insofar as numerous Algerian State contracts included a clause referring to the Rules of Conciliation and Arbitra­tion of the International Chamber of Commerce in Paris. The legal basis for this manner of proceeding could hardly be other than in legal customs in Algeria.

15. According to Algerian custom, which has the force of substantive private international law, the State and Algerian State corporations were able to enter into an arbitration agree­ment when a contract involves Algeria's external trade interests.¹⁰ Nevertheless, this contra legem custom was never recognized by the Algerian Supreme Court, so an Algerian court could therefore refuse to enforce an arbi­tral award by strict application of the old Article 442 paragraph 3.

16. The new Algerian arbitration law reflects more truly what actually takes place and has put an end to the awkward contriv­ances previously resorted to Article 1 of Legislative Decree No. 93-09 provides that:

"Article 442 paragraph 2 of the Code of Civil Procedure is abrogated and replaced by the following provisions: Corporate bodies governed by public law may not enter into arbitration agreements except in their inter-national commercial transactions."

Under Algerian arbitration law, a foreign party can therefore now insert an arbitration clause into an Algerian state contract, without running the risk of its being called into question because of the Algerian party's lack of capacity.

3. Appointment of Arbitrators under Algerian arbitration law

17. The first paragraph of Article 458 bis 2 provides that:

"The parties can directly or by reference to a set of arbitration rules appoint the arbitrator(s) or provide for the procedure of their appointment as well as their removal or replacement."

The differences between direct appointment of arbitra­tors-that is, ad hoc arbitration and indirect appoint­ment by reference to a set of arbitration rules are briefly described below, followed by an examination of judicial intervention when problems arise in constituting the arbi­tral tribunal.

3.1. Direct and Indirect Appointment under Algerian arbitration law

18. If the parties choose to appoint arbitrators directly, they can nominate their arbitrator either in advance in the arbitration agreement or after a dispute has arisen. In the case of a three-member tribunal, the parties can either nominate the third arbitrator directly or leave the choice to the two already-nominated arbitrators.

19. Under Algerian arbitration law, if one of the parties fails to nominate his arbitrator, the other party may apply to the presiding judge of the Court of Algiers to nominate the arbitrator.

Appointment of the arbitrators by reference to a set of arbitration rules implies the intervention of a permanent arbitration institution. The method of appointment set out in the institution's rules is deemed to have been accepted by the parties. An examination of the appoint­ment systems used by the main permanent arbitration institutions is beyond the scope of this article. It should be mentioned, however, that in the past, the Algerian State and public bodies have usually used arbitration organized by the International Chamber of Commerce.

3.2. Judicial Intervention under Algerian arbitration law

20. Paragraph 2 of Article 458 bis 2 provides that:

"Failing such appointment and in case of difficulties with the appointment, removal or replacement of arbitrator, the non defaulting party may: where the arbitration is to take place in Algeria, apply to the court with jurisdiction within the meaning of article458 bis 3;

a.    where the arbitration is to take place abroad and the parties have chosen Algerian    procedural law, apply to the presiding judge of the Court of Algiers.

b.    where the arbitration is to take place abroad and the parties have chosen Algerian procedural law, apply to the presiding judge of the Court of Algiers."

21. Article 458 bis 3 provides that:

"The court with jurisdiction mentioned in article 458 bis 2 paragraph 2-a is the one designated in the arbitration agreement or if no such court is designated, then it is the court of the designated place of arbitration, or the place of residence of the defendant(s), or if the defendant is not resident in Algeria, then it is the court of the plaintiff's place of residence."

The Algerian arbitration law has thus provided for the pos­sibility of applying to the national courts to resolve any problems that arise from constituting the arbitral tribunal. However, under Algerian arbitration law the intervention of the national courts is sub­ject to two alternative conditions, each specifying a con­necting factor with Algeria. The scope of the involvement of the national courts is also specified.

22. In fact, under the above-mentioned provisions, the arbitration will either take place in Algeria, because the arbitration clause so provides, or because an arbitral insti­tution has so decided-or it will take place abroad but the parties will apply Algerian procedural law."

Once the decision where to hold the arbitration has been made, the rationae loci (rules of territorial compe­tence) jurisdiction of the Algerian national courts remains to be established. Regarding this, under Algerian arbitration law, two separate situations must be considered.

23. If the arbitration takes place outside Algeria and applies Algerian procedural law, the second paragraph of Article 458 bis 2 grants jurisdiction solely to the presiding judge of the Court of Algiers. On the other hand, if the arbitra­tion takes place in Algeria, the jurisdiction of other national courts is not excluded.^13. Three possibilities arise from the rule of rationae loci jurisdiction provided in Arti­cle 458 bis 3.

First, the court with jurisdiction is the one designated by the parties in the arbitration agreement. Second and third, failing such designation, the court with jurisdiction is that of either the seat of arbitration or the place of residence of the defendant, or where the defendant is not resident in Algeria, the place of residence of the plaintiff.

24. Where the arbitration is to take place in Algeria, it would be wise, given some features of the court systems in all centralized countries, to specify in the arbitration agreement that should a dispute arise in connection with the constitution of the arbitral tribunal, only the presiding judge of the Court of Algiers shall be competent to resolve the matter.

It should be noted that, under Algerian arbitration law, the scope for involvement of the Algerian courts is not limited to the initial problems of forming the arbitral tribunal. In providing that the non defaulting party may apply to the national courts for the "appointment, removal or replacement of the arbitrators," the Algerian arbitration law wished to give the courts jurisdiction to resolve all disputes arising from the consti­tution and operation of the arbitral tribunal.

25. The way in which the second paragraph of Article 458 bis 2 is drafted has the merit of avoiding future problems of interpretation as to the scope of the concept of "consti­tution" of the arbitral tribunal.

Article 458 bis 4 succinctly describes the procedure by which the court applying Algerian arbitration law intervenes in the constitution of the arbitral tribunal as follows:

"When a judge is requested to appoint an arbitrator in the situations mentioned above, he does so by an order on simple request unless a summary examination of the clause reveals that no arbitration agreement was made by the parties. If the judge is requested to appoint a third arbitrator, he [such arbitrator] must be of different nationality from that of the parties."

26. Under Algerian arbitration law, nothing is thus mentioned regarding an appeal of the rul­ing. This is a pity, especially as the order either nominat­ing an arbitrator or finding such nomination inappropri­ate is not an interim measure but a substantive decision.

No appeal of an order appointing the arbitrators is considered possible in light of the first two paragraphs of Article 172 of the ACCP, which provide:

"Any petition for a declaration, summons or other mea­sure of urgency concerning any matter and not detri­mental to the rights of the parties must be presented to the presiding judge of the competent court. The judge then makes an order.

Where the judge holds for the plaintiff, any problems with enforcement will be brought before him. If the petition is rejected it is possible to appeal against the order, except where a declaration or summons is con­cerned, if it has been rendered by the presiding judge of a court of first instance..."

On the other hand, in Algerian arbitration law, an appeal is possible against a ruling whereby the judge upon summary examination of the arbitration clause rejects a request for appointment. This is clear from the two paragraphs of Article 172 cited above. This solution is in keeping with the aim of judicial intervention, which is to render the arbitral tribunal oper­ational.

27. Once the arbitral tribunal has been constituted, the dispute can no longer be heard by a court of law.

However, in Algerian arbitration law, it is not necessary to wait until the formalities of constituting the tribunal have been completed to obtain this effect. In fact, from the moment one of the parties initiates the procedure for the establishment of the arbi­tral tribunal, the national courts no longer have jurisdic­tion. The rule is set out in Article 458 bis 8, which pro­vides:

"An arbitral hearing is due as soon as one of the parties seizes [submits the dispute to] the arbitrator(s) desig­nated in the arbitration agreement, or failing such des­ignation, as soon as one of the parties initiates the procedure for the establishment of the arbitral tribunal.

The Judge is not competent to rule on the merits of the case from the moment an arbitral hearing is due".

4. Effects of Constituting the Tribunal under Algerian arbitration law

27. Once the arbitral tribunal has been constituted, the dispute can no longer be heard by a court of law.

However, in Algerian arbitration law, it is not necessary to wait until the formalities of constituting the tribunal have been completed to obtain this effect. In fact, from the moment one of the parties initiates the procedure for the establishment of the arbi­tral tribunal, the national courts no longer have jurisdic­tion. The rule is set out in Article 458 bis 8, which pro­vides:

"An arbitral hearing is due as soon as one of the parties seizes [submits the dispute to] the arbitrator(s) desig­nated in the arbitration agreement, or failing such des­ignation, as soon as one of the parties initiates the procedure for the establishment of the arbitral tribunal.

The Judge is not competent to rule on the merits of the case from the moment an arbitral hearing is due".

5. Law Applicable to the merits under Algerian arbitration law

28. The different methods for establishing the substantive law that may be used by the arbitrator are beyond the scope of this article. The solution provide by Article 458 bis 14 is straightforward, however, and some of these original features of the Algerian arbitration law are worth highlighting.

Under this article:

"The arbitral tribunal shall resolve the dispute applying the legal rules chosen by the parties, or failing such choice, applying the rules and customs which it deems appropriate."

29. The first half of this article refers to the principle of party autonomy. In Algerian arbitration law, the parties are free to choose the law to be applied to the merits of the dispute. The second half specifies that failing such choice, the arbitrator shall apply the legal rules and customs he deems appropriate.

30. The concept of "legal rules," the role given to customs, and the limits to the arbitral tribunal's discretion require further examination.

In using the term "legal rules" rather than "law," the Algerian arbitration law wished to allow the parties and arbi­trators to apply extra-legal rules and, notably, general principles of law, as well as international trade usages, whether codified or not.

Moreover, by providing that the arbitrator shall resolve the dispute applying legal rules and customs," Article 458 bis 14 puts customs on an equal footing with legal rules and, notably, state legislation. Customs, therefore, are not just supplemental to the law.

It should be noted that this enhancement of the status of customs is in keeping with the importance given to customs by Article 107 of the Algerian Civil Code.

Finally, in Algerian arbitration law, the arbitrator does not have unfettered discre­tion as to the applicable legal rule or customs. His choice must be "appropriate," which implies that a connection with the contract in question is required.

6. Procedural Law

31. Article 458 bis 6 provides that

"The arbitration agreement may provide for the proce­dure to be followed directly or by reference to a set of arbitration rules. The arbitration agreement may also provide for the application of a specified procedural law.

If nothing is mentioned in the arbitration agreement and the parties have not agreed otherwise, the arbitral tribunal shall establish the rules governing the pro­ceedings as required, either directly or by reference to a law or a set of arbitration rules."

This article fully recognizes the principle of party autonomy regarding the rules governing the proceed­ings. The article makes no reference whatsoever to a connection with the law of the seat of arbitration. The Algerian arbitration law gives thus complete freedom regarding the organization of the pro­cedure to the parties, or to the arbitrator should the parties fail to exercise their choice.

Thus, three choices are available to the parties or the arbitrator. The rules governing the proceedings may be established directly, in which case the parties draft their own procedural law, or by reference to a set of arbitration rules, or lastly, by reference to a particular national law.

7. The power of the Tribunal to decides on its jurisdiction and appointment

32. The Algerian arbitration law has given the arbitral tribunal the right to verify its competence and to rule on the validity and limits of its own appointment if contested.

Article 458 bis 7 provides that:

"The arbitral tribunal decides upon its own competence. Any objections to jurisdiction must be raised before any substantial defense is submitted. The arbitral tribu­nal will make a preliminary award [ruling] on its com­petence unless the objection to jurisdiction is con­nected with the substance of the dispute."

33. As for the procedural rules involved in this verification of competence, the tribunal may either render a prelimi­nary award or deal with both the objection to jurisdiction and the substance of the dispute in the final award.

8. Evidence under Algerian arbitration law

34. As for the procedural rules involved in this verification of competence, the tribunal may either render a prelimi­nary award or deal with both the objection to jurisdiction and the substance of the dispute in the final award.

35. Under Algerian arbitration law, the parties and the arbitrator have unfettered discretion in the taking of evidence. Under Article 458 bis 10, the "arbitral tribunal proceeds with gathering evidence," this ties in perfectly with Article 458 bis 6, quoted above (under «Procedural Law»).

Matters relating to evidence therefore will be either subject to an appropriate set of rules that do not have their source in a national legislation, or dealt with by reference to a national legislation or a set of arbitration rules.

36. Regarding the last two possibilities under Algerian arbitration law, it should be noted that all modern national legislation on international arbi­tration, as well as the rules of the main international arbitration centers, also give the parties, or the arbitrator should the parties fail to exercise a choice, complete free­dom to establish the procedure to be followed, and, nota­bly, deal with the primordial question of the evaluation of evidence.

9. Interim measures under Algerian arbitration law

37. In Algerian arbitration law, the question of interim measures is dealt with in Arti­cle 458 bis 9, which provides:

"Unless the parties agree otherwise, the arbitral tribunal may order interim measures at the request of one of the parties.

If the party concerned does not willingly comply, the arbitral tribunal may request assistance from the com­petent court which will apply its own law.

The arbitral tribunal or the judge may make the interim measures which were requested of him subject to the provision of appropriate guarantees by the plaintiff."

38. This fundamental provision dearly affirms the arbitra­tor's competence to take interim measures to safeguard the rights of the parties. However, in Algerian arbitration law, the arbitral tribunal does not have any enforcement powers, which lie only with the national courts. The effectiveness of the measures dictated by the arbitral tribunal therefore depends on the will and cooperation of the parties. Where one of the parties refuses to execute voluntarily an interim measure made by the arbitral tribunal, the tribunal may under the law seek assistance from the competent judge. In such a case, the judge will apply the court's own procedural law and can request that an adequate guarantee be furnished.

39. Nevertheless, in Algerian arbitration law, can one of the parties, in order to obtain a result quickly, seek interim measures from a national court before going to the arbitral tribunal? It would seem that Article 458 bis 9 does not allow this. Such a request to a national court could be authorized only in exceptional circumstances where the arbitral tribunal fails to react to the refusal by one of the parties to comply with the interim measures dictated by the tribunal.

9. The Arbitral Award under Algerian arbitration law

40. Article 458 bis 13 provides specific instructions regard­ing the rendering of an award:

"The arbitral award is rendered according to the proce­dure and in the form agreed upon by the parties.

Failing such agreement, the award is made:

- by the sole arbitrator,

- by majority decision, where the arbitral tribunal is made up of several arbitrators.

The arbitral award must be written, reasoned [justi­fied], signed and dated and the place of arbitration must be stated.

An arbitrator in the minority may include his opinion in the award.

The award] is signed by each arbitrator; if one [of the arbitrators] refuses to sign the award, the other arbitrators must mention this in the award; the award will then have the same effect as if it were signed by all the arbitrators."

41. This liberal piece of Algerian legislation requires no special com­ment apart from noting that subject to the provisions of the procedural law chosen by the parties, a dissenting opinion is an actual part of the award itself.

Moreover, in Algerian arbitration law, the requirements of form in Article 458 bis 13, and notably the duty to justify the award must be complied with even where the parties direct the arbitral tribunal to act as amiable compositeur, which Article 458 bis 15 gives them the right to do.

10. Effects of the Award under Algerian arbitration law

43. As soon as the award is made, the dispute is removed from the arbitrator's jurisdiction. The award has the force of res judicata.

This traditional solution results from Article 458 bis 16, which provides that

"The award automatically removes the case concerned from the arbitral tribunal.

As soon as it is rendered, the award has the force of res judicata in respect of the case concerned.

If the award is not voluntarily complied with, its enforcement is ordered under the conditions provided hereafter under article 458 bis 17 paragraph 2 ACCP."

11. Recognition and Enforcement

44. In Algerian arbitration law, the conditions for recognition and enforcement of an arbitral award are expressed in just one provision, Article 458 bis 17, which provides:

"Arbitral awards are recognized in Algeria if their exis­tence is proved by the claimant and if their recognition is not contrary to international public policy.

Subject to the same conditions, they are declared enforceable in Algeria by the presiding judge of the court in whose local jurisdiction they were pronounced or by the presiding judge of the court of the place of enforcement, if the seat of arbitration was outside the territory of the Republic."

44. This article specifies that, in Algerian arbitration law, the court competent to recog­nize or enforce the award is the one in whose geographi­cal jurisdiction in Algeria the award was rendered. If the seat of arbitration was outside Algeria, application has to be made before the court of the place where enforce­ment of the award is sought.

46. Article 458 bis 18, which repeats Articles IV(1)(a) and (b) of the New York Convention of June 10, 1958, pro­vides that:

"The existence of an arbitral award is proved upon production of the original copy together with the arbi­tration agreement or copies of these documents subject to the conditions required for [establishing] their authenticity."

Surprisingly, this article makes no provision as to the language in which these documents are to be written. In view of the Algerian legislation in force, it may be assumed that documents not in Arabic must be submitted together with an official Arabic translation.

The arbitral award and the arbitration agreement are submitted to the court with jurisdiction. Either the arbi­trator or one of the parties may proceed with such sub-mission.'' Under Algerian arbitration law, a petition for exequatur (an enforcement order) or, as the case may be, recognition of the award is submit­ted together with the above-mentioned documents. An order will be issued only after verification of the award (discussed below).

47. Under Algerian arbitration law, and especially under article 458 bis 17 cited above, international arbi­tral awards are recognized in Algeria if their existence is proved by the claimant and if such recognition is not manifestly contrary to international public policy. Subject to the same conditions, they are declared enforceable by the judge.

48. The judge deciding upon recognition or enforcement must restrict himself to verifying the prima fade regularity of the award. He will also verify that it is in conformity with international public policy as perceived by Algerian national courts. Any review or alteration of the substance of the award during this verification is absolutely for-bidden.

49. Regarding the form of the ruling, Article 458 bis 20 provides:

"Arbitral awards become enforceable by virtue of an order made by the presiding judge at the bottom or in the margin of the record of judgment authorizing the court clerk to issue an enforceable  copy of these awards."

Appeals regarding orders refusing to recognize or enforce an award, and orders recognizing or enforcing an award are discussed below.

12. Appeals under Algerian arbitration law

50. Algeria's ratification of the New York Convention has been a major factor contributing to the harmonization of Algeria's new law on international arbitration with the legislation of the Convention's main signatory countries. The appeals provisions of the Algerian arbitration law are an exam­ple of this harmonization.

51. Legislative Decree 93-09 provides three possibilities for appeal:

- The first, set out in Article 458 bis 22, is for appeal against a ruling that refuses recognition or enforce­ment of an award; it applies to all arbitral awards, whether pronounced abroad or in Algeria.

- The second, set out in Article 458 bis 23, is for appeal of a judgment pronouncing recognition or enforcement of an award; it applies to foreign awards only.

- The third, set out in Article 458 bis 25, is for an appeal to set aside the award; it applies only to awards pronounced in Algeria.

 12.1 Appeal of Refusal of Recognition or Enforcement

 52.  Artide 458 bis 22 is expressed succinctly:

"It is possible to appeal against a judgment refusing recognition or enforcement."

As noted, under Article 458 bis 17, in Algerian arbitration law, the verification of the award by the court charged with recognition or enforcement is strictly limited to confirmation of the material existence of the award and verification of its conformity to international public policy. It follows then that the appeal provided for in Article 458 bis 22-which is not an appeal against the award itself but against a judgment refusing recognition or enforcement of the award can be based only on an error by the judge in interpreting the statutory reasons for refusing recognition or enforcement, which are listed exhaustively in Article 458 bis 17.

53. It should be noted that in Algerian arbitration law, Article 458 bis 24 specifies that the competent appellate court is the court in whose local jurisdiction the first instance decision was rendered, and that such tin appeal must be brought within one month of notification of the refusal of recognition or enforcement.¹⁸

12.2. Appeal of Recognition or Enforcement

54. Appeal against an order pronouncing recognition or enforcement, provided for in Article 458 bis 23, applies only to foreign arbitral awards. This limit on its scope is not expressly stated in the article, but is implied from Article 458 bis 25, which provides the possibility of appeal in the same situations specified in Article 458 bis 23 but applies only to awards made in Algeria. It should be noted that here again, in Algerian arbitration law, the provision is not for appeal against the award itself, but against the order of enforce­ment or recognition.

55. Article 458 bis 23 provides eight grounds for appeal against a judgment recognizing or ordering the enforce­ment of an award; it states:

"It is possible to appeal against a judgment recognizing or ordering the enforcement of an award only in the following situations:

a.    if the tribunal has wrongly claimed or disclaimed jurisdiction;

b.    if the arbitral tribunal made an award without an arbitration agreement or on the basis of a null or expired agreement;

c.    if the arbitral tribunal was irregularly composed

or if the sole arbitrator was irregularly appointed;

d.    if the arbitral tribunal made an award without carrying out the mission it was assigned;

e.    if the award was made exceeding jurisdiction or

if the arbitral tribunal failed to consider one of

the plaintiff's claims;

f.      if rights of the defense have not been respected;

g.    if the arbitral tribunal has failed to state its reasons

for the award, or if the reasons provided are

insufficient, or if the reasons are conflicting;

         h.   if recognition or enforcement is contrary to international public

               policy."

560. Unfortunately, space limitations preclude the possibil­ity of examining these eight grounds here. It should be noted again, however, that, in Algerian arbitration law, any review of the substance of the award by the court of appeal, which alone is com­petent, is absolutely forbidden.

12.3 Appeal to Set Aside the Award

57. In Algerian arbitration law, an appeal to set aside the award is available only against international arbitral awards rendered in Algeria. Article 458 bis 25 provides as follows:

"An application for setting aside may be filed against an arbitral award rendered in Algeria in the context of international arbitration in the situations provided in Article 458 bis 23 above.

There is no appeal against an order granting enforce­ment of the award. However, an application for setting aside an arbitral award implies an appeal against the order of enforcement or for the removal of the case from the judge."

"

58. This appeal provided for in the Algerian arbitration law, conforms to Article V (1) (e) of the New York Convention of June 10, 1958.

The grounds for setting aside an award are identical to those for appeal against a judgment of recognition or enforcement of an award, which are listed in Article 458 bis 23, above.

59. The appeal provided for in the first paragraph of Article 458 bis 25 is direct in that it would seek to set aside the award itself rather than to overrule an order of recogni­tion or enforcement. However, it should be noted that under the second paragraph of Article 458 bis 25, an appeal for setting aside implies an appeal against an order of enforcement or for the removal of the case from the.

judge if exequatur proceedings have already been initi­ated.

In Algerian arbitration law, proceedings for setting aside an award are specified in Article 458 bis 26. They are identical to the proceedings for appeal against a judgment of recognition or for exequatur.

60. Lastly, the filing of an application to set aside an arbitral award suspends the enforcement of the award and the time limit granted for its execution.

Conclusion

61. The solutions provided by the Algerian arbitration law (Legislative Decree No. 93-09) are liberal and of high technical quality.They are an incentive to insert international arbitration clauses in contracts with Algerian legal entities. The validity of these clauses cannot from now on be disputed, even when they are inserted in  Algerian State contracts.