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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant):
Algeria.
2. Date of entry into force of the New York Convention:
8 May 1989.
(Source: Decree No. 88-233 of 5 Nov. 1988, published in Journal officiel de la République algérienne, (JORA) no. 48 of 23 Nov. 1988, p. 1256.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes. Algeria made a reciprocity reservation under the New York Convention. Consequently, the Convention only applies to recognition and enforcement of awards rendered in a Contracting State. However, the Algerian Code of Civil Procedure (‘ACCP’) contains specific provisions on recognition and enforcement in Algeria of international awards (within the meaning of the Algerian legislation) rendered in the territory of another State, whether or not it is a Contracting State.
(Source: ACCP, Art.1051 para. 2 ACCP.)
(b) commercial relationships?
Yes. Algeria made a reservation for commercial relationships. Therefore, the Convention only applies to disputes arising out of legal relationships, whether contractual or not, that are considered commercial under the national law.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Art. 975 to 1061 of the ACCP cover issues of arbitration under Algerian law. According to Art. 1031 of the ACCP, international arbitrations cover disputes relating to the economic interests of at least two states. Awards rendered in Algeria in such matters are considered international awards.
(Source: Art. 1006 et seq., ACCP.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Judge-made law is not considered as source of law (Art. 1, Algerian civil law).
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The applicable limitation period is 15 years, as from the day on which the award becomes enforceable.
(Source: Art. 630, ACCP.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Where the award was rendered in Algeria, the authority with jurisdiction is the President of the court with jurisdiction over the place where the award was rendered.
(Source: Arts. 1035 and 1054, ACCP.)
Where the award was rendered outside Algeria, that court is the court with jurisdiction over the place where enforcement of the award is sought.
(Source: Art. 1051 para. 2, ACCP.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
(a) Substantive conditions
The existence of the award is established by the party relying upon it and if such recognition is not contrary to public policy.
(Source: Art. 1051 ACCP.)
(b) Procedure and formal requirements
(i) Original award and certified copy of arbitration agreement:
The existence of the award is proven through the filing with the registry of the court of an original of the award and a certified copy of the arbitration agreement.
(Source: Art. 1035, ACCP.)
(ii) Translation of documents in Arabic:
The above-mentioned documents must be translated in Arabic.
(Source: Art. 8, ACCP; Art. IV(2), New York Convention.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting or denying recognition and enforcement are obtained through ex parte proceedings.
(Source: Arts. 1035 and 310, ACCP.)
The time limit for appeal against such an order starts to run from the date of notification of the award.
(Source: Art. 1057, ACCP.)
10. (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
The order refusing recognition or enforcement may be appealed without limitation, while the orders granting the execution of arbitral awards rendered in Algeria are not subject to any remedy. The order granting recognition or enforcement rendered outside Algeria may be appealed on limited grounds provided for under Algerian law and the New York Convention.
(Source: Arts. 1055, 1056, and 1058 al. 2, ACCP.)
(b) How many levels of appeal or recourse are available against this decision?
There are two levels of recourse available against the decision granting or denying enforcement and/or recognition of awards. Indeed, the courts of appeal’s decisions rendered under Art. 1055, 1056 and 1058 are subject to recourse before the Algerian Supreme Court.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The earliest stage for initiating enforcement proceedings of an international award is as from the date of the order rendering the award enforceable.
(Source: Arts. 1035 and 1054 ACCP.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
One original or one copy (presenting the conditions of authenticity) of (i) the award, and (ii) the arbitration agreement.
(Source: Art. 1052, ACCP.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The entire award is required. In case the arbitration agreement is contained in a contract, the whole contract should be submitted.
(c) Are originals or duly certified copies required?
The original of the award accompanied by the arbitration agreement may be filed, or copies of these documents provided they meet the conditions required for their authenticity.
(d) How many originals or duly certified copies are required?
One.
(e) Does the authority or court keep the originals that are filed?
The parties may at the end of the proceedings obtain, either by themselves or by proxy, the return of documents produced against receipt. However the original award is kept by the court.
(Source: Arts. 31, 1035 and 1036, ACCP.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes. Production of documents translated in Arabic is required.
(Source: Art. 8, ACCP.)
(b) If yes, into what language?
Arabic.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes. The translations must be an official translation.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
There are no specific provisions in this regard. In practice, the entire document is translated.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Generally, actions for annulment do not suspend execution of the award in Algeria. However, Art. V(1)(e) of the New York Convention 1958 applies in Algeria and therefore actions to set aside an award rendered outside of Algeria, at the place of arbitration may well justify a request for a stay before the Algerian judge pending the foreign court’s decision.
(Source: Art. 1060, ACCP; Algerian Constitution, Art. 150.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
A stay of the enforcement/recognition proceedings may be ordered where the matter cannot be tried, i.e. (i) if there is a change of capacity of a party where the proceeding is transmissible, and
(ii) the death, resignation, cancellation, suspension, or absence of representation by a lawyer where such representation is mandatory.
If a party challenges the authenticity of a document, the judge may defer the matter if it considers that such matter depends on that document.
(Source: Art. 181, ACCP.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
In order to safeguard confidentiality, all proceedings with intervention of the State judge in arbitral proceedings for recognition and/or execution take place outside public hearings. The judge’s decisions are taken by ordinances that are pronounced in the office of the President and not in court rooms. The documents transmitted by the parties are not accessible to the public.
(Source: Art. 272, ACCP.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
As mentioned in Q.15 above, decisions on recognition and/or enforcement are taken by ordinances which are pronounced in the office of the President and not in court rooms accessible to the public.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
No. When decisions are published by the Supreme Court these decisions only bear numbers and initials.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
All arbitral awards of any kind may be recognized and enforced.
(Source: Arts. 1051, 1053 and 1035 to 1038, ACCP.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
There are no restrictions on obtaining recognition and enforcement of awards granting non-monetary relief.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
There is no legal provision relating to this issue.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
As mentioned in Q.14(a). Actions for annulment do not suspend the recognition or enforcement of an arbitral award. There are no provisions in Algerian law in this respect. However, Art. V(1)(e) of the New York Convention should apply in Algeria.
(Source: Art. 150, Algerian Constitution.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Country Reporter: Nasr-Eddine Lezzar