THE ROLE OF WILL IN AGREEING TO INTERNATIONAL COMMERCIAL ARBITRATION
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Abstract
Algeria has adopted arbitration as a non-judicial essential means to resolve disputes that may arise between it and foreign investors, and has worked to grant them full freedom to resort to international commercial arbitration, either by agreeing to appoint the arbitrator or arbitrators and specifying the procedures and basic arbitration rules, or by agreeing to resort to institutional arbitration, making the parties' will swing between freedom and restriction in choosing between ad hoc arbitration or institutional arbitration. This study aims to demonstrate the role of will in agreeing to resort to international commercial arbitration, focusing on ad hoc arbitration due to the significant role of the parties' will in its establishment.
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References
) Law No. 08-09, dated February 25, 2008, including the Civil and Administrative Procedure Code, amended and supplemented, Official Bulletin of the Republic of Algeria, No. 21, dated April 23, 2008.
) Abdul Qader Yakhlef," Legislative enshrinement of international commercial arbitration and its role in ensuring investment" Journal of Legal and Political Thought, Volume 5, Issue 2, 2021, p. 63.
) Free arbitration It is arbitration undertaken by the parties in a specific dispute and they have absolute freedom to choose the arbitrators and the procedures and rules that apply to this dispute., while Institutional arbitration is undertaken by an organization or a body center Or organizations or permanent arbitration centers.....in which dispute resolution shall be in accordance with rules and procedures previously established to govern the work of these bodies. See: Khaled Muhammad Al-Qadi, Encyclopedia of International Commercial Arbitration in International Joint Project Disputes, with special reference to the latest rulings of the Egyptian judiciary, first edition, Dar Al-Shorouk, Cairo, 2002, p. 117.
Article 975 of the Civil and Administrative Procedures Code also stipulates that public legal persons may resort to arbitration by saying: “The persons mentioned in Article 800 above may not conduct arbitration except in the cases mentioned in the international agreements ratified by Algeria and in the article on public transactions,” and what is meant by this Persons include the state, state, municipality, and public institutions of an administrative nature.
) Decision dated 01/27/2022, File No. 1499606, Chamber of Commerce and Maritime, Supreme Court, Supreme Court Journal, No. 1, 2022, pp. 62-64.
Article 1007 of the Civil and Administrative Procedures Law stipulates that: “The arbitration clause is the agreement under which the parties to a contract related to rights available within the meaning of Article 1006 above are obligated to submit the disputes that may arise regarding this contract to arbitration.”
) Article 1011 of the Code of Civil and Administrative Procedure stipulates that: “The arbitration agreement is the agreement according to which the parties accept to submit a dispute that has previously arisen to arbitration.”
) Elham Azzam Wahid Al-Kharaz, International Commercial Arbitration within the Framework of the Conflict Approach (Comparative Study), Master’s Thesis, An-Najah National University, College of Graduate Studies, Nablus, Palestine, 2009, p. 17.
) Article 1014 of the Civil and Administrative Procedures Law stipulates that: “The arbitration court shall not assign power to a natural person, unless he enjoys his civil rights. If the arbitration agreement appoints a legal person, the latter shall appoint one or more of its members as arbitrator.”
) Elias Ajabi, "The legal system of international commercial arbitration under the Code of Civil and Administrative Procedure", Legal Forum Magazine,Issue 7, 2010, p. 192.
) See Article 1041, second paragraph of the Civil and Administrative Procedures Law
) For more details about the response of the arbitrator or arbitrators, see: Mustafa Sreij, Commercial Arbitration Rules in Algerian Legislation in Light of the Civil and Administrative Procedure Code, Master’s Thesis.inLaw, specialty:Business Law, Colonel Akli Muhammad Olhaj University, Faculty of Law and Political Science, 2016-2017, pp. 76-78.
) Which is consistent with the provisions of Article 18 of the Algerian Civil Code, which states: “The law chosen by the contracting parties shall apply to contractual obligations if it has a real connection to the contracting parties or to the contract.”
) and its text: “The arbitration court shall decide the dispute in accordance with the rules of the law chosen by the parties, and in the absence of this choice, it shall decide according to the rules of law and customs that it deems appropriate.”
) Abdul Qadir Yakhlef, opcit, p. 65.
Temporary or precautionary measures are classified into three categories: one category relates to presenting and preserving evidence, one category relates to ensuring the stability of legal relations between conflicting parties, and another category aims to create a legal situation. See: Lias Ajabi, opcit, p. 196.
) Mustafa Sarij, opcit, p. 112.
Based on Article 24 of the Civil Code, we find that it stipulated that the foreign ruling should not conflict with public order in Algeria, by stipulating that: “Foreign law may not be applied in accordance with the previous texts if it is contrary to public order.” Or public morals in Algeria, or his jurisdiction was established by deception according to the law. Algerian law shall be applied in place of foreign law that violates public order and public morals.”
) Abdul Qadir Yakhlef, opcit, p. 66.
) See Article 1058, second paragraph of the Civil and Administrative Procedures Law.
) See Article 1059 of the Civil and Administrative Procedures Code.
) See Article 1060 of the Code of Civil and Administrative Procedure.
) See Article 1061 of the Code of Civil and Administrative Procedure.