The document provides an overview of alternative dispute resolution (ADR) practices in Algeria, specifically sulh (settlement/conciliation). It discusses the historical background of sulh in Algeria from pre-Islamic times through the Islamic and French colonial eras. It then outlines the laws relating to ADR incorporated into the Algerian Code of Civil and Administrative Procedure, including provisions for court-annexed sulh and mediation. Statistics on the use of mediation in Algeria are also presented, followed by a conclusion on the increasing trend of using ADR globally and Algeria's reforms to promote these alternatives.
2. Outline
• Introduction
• Brief historical background of sulh (ADR) in Algeria
• brief background of Court-annexed mediation and
conciliation in Algeria
• Muslim Law Courts and the French Colonial State in Algeria
• Algerian Code of Civil and administrative
Procedure(ACCAP)
• References of ACCAP
• Statistic
• conclusion
3. Preface
ADR is taken by the most world’s legislation and they appear with
different names exceed eighty names:
• informal justice,
• Friendly Justice,
• agreed justice ,
• In French are known as Regulation of conflict ,
• external dispute resolution in some countries, such as Australia
• in Canada is as “charging solutions to the rules of disputes ”
• ..
Main types of ADR:
• Negotiation/Mediation/Reconciliation/Arbitration/ombudsman…..
4. Introduction
Islamic law has Exhorted on Sulh, and urged to resolve
disputes between believers specially and public people in
general .
Algerian legislator has introduced these alternatives, in an
effort to reduce the size of the disputes which have become
tired of judges and affect the yield qualitative judgments. It
also was intended to prompt settlement of disputes and
avoid prolonging the introduction and respond to appeals
and alternative ways by sulh and mediation as the
precious traditions.
Algerian mentality often prefer to resort to these methods of
dispute resolution, whether family councils or group, or
what is termed in some areas of the country : Tarbat or
Tajmat .
5. Brief historical background of sulh
(ADR) in Algeria
Pre-Islamic era:
• Through tribal arbitration: was considered as the
sanctioned method for of dispute settlement .
• Through the priest(ess): during this period,
people referred disputes to the priest(kahin) or
soothsayers, this latter claimed supernatural
powers through divination(revelation from
heaven).
6. E.g. kahina rule (Berber queen)
• Her personal name is : Daya or Dihya , She was born in the
early 7th century (585-712AD) , Her title was cited by
Arabic-language sources as al-Kāhina (the priestess
soothsayer). This was the nickname used by Muslims
because of her reputed ability to foresee the future!!!.
• Kahina ruled as a Christian queen ( "sorcerer") . but
finally died around the end of the 7th century in modern-
day Algeria in a battle near Tabarka: according to Islamic
legends, she ordered -when dying after her final defeat in
702 AD- her sons to convert to Muslim faith.
7. During Islamic era
• The qur’an and sunnah should form the basis of every
dispute resolution mechanism. practiced in rural societies
by ‘shuyukh’ of the kabila or’ djemaa’ of the’dachra’.
• main verses and hadiths about sulh.e.g:
هللا يقولتعالى:الخـيربين ٍإصالح أو ٍمعروف أو ٍةبصدق أمر من إال نجواهم من ٍكثير فيالناسهللا مرضات ابتغاء ذلك يفعل ومن ،
النساء ًاعظيم ًاأجر نؤتيه فسوف114
• Meaning: 'No good is there in much of their private
conversation, except for those who enjoin charity or that
which is right or conciliation between people. And
whoever does that seeking means to the approval of Allah -
then We are going to give him a great reward’’{4:114}
8. Cont..
• تعالى هللا يقول:َّتاَو ْمُكْيَوَخَأ َنْيَب واُحِلْصَأَف ٌةَوْخِإ َونُنِمْؤُمْلا اَمَّنِإَونُمَح ْرُت ْمُكَّلَعَل َ َّاَّلل واُقالحجرات10
• Meaning: 'The believers are but brothers, so
make settlement between your brothers. And
fear Allah that you may receive mercy’’{49:10}
9. Cont..
• The Prophet ( ﷺ) said: Shall I not inform you of
something more excellent in degree than
fasting, prayer and almsgiving (sadaqah)? The
people replied: Yes, Prophet of Allah! He said:
It is putting things right between people,
spoiling them is the shaver (destructive).
Reference: 4919/sunan Abu dawud,narrated by AbudDarda
10. brief history of Court-annexed
mediation and conciliation in Algeria
Mediation was now in Algeria before the recent
new law . it was practiced historically in the rural
communities by imams, in the azzaba(groups) as
well as in tribal and notables' counsels.
The best way to resort to mediation in Algeria was
to submit one's complaint to the imam or sheikh
of the village, who applied religious concepts to
keep parties from the 'shame‘ of resorting to
courts. This method was more practiced in
villages than in cities.
11. Muslim Law Courts and the French Colonial
State in Algeria
Overview of Algerian Courts since French Colonization
until this time:
• The judicial system in Algeria draws on both French and
Islamic legal tradition. Trade and investment and company
law is regulated by secular legislation. The Algerian Family
Code includes strong elements of Islamic law.
• There are three levels of court in Algeria: Daira tribunals
are the courts of first instance for civil and certain criminal
matters. There are 48 Wilaya courts, one in each province,
which have appellate jurisdiction over lower court
decisions in civil matters. The Supreme Court, seated in
Algiers, is the court of final appeal.
12. The new laws relating to ADR:
law no. 08-09 of February 2008, relating to
arbitration, mediation and conciliation has
been inserted in the local code nicknamed:
Algerian Code of Civil and administrative
Procedure(ACCAP)
It entered into force as of February 2009.
16. Algerian legislature defined the sulh in Article
459 of the Civil Code, saying that:
Sulh:
« is the contract which terminates the dispute
between two parties or to avoid a probable
conflict , so that each party waives on his some
rights ».
Definition of Sulh in Algerian legislation
17. Laws relating to ADR in Algerian Code
of Civil and administrative Procedure
• Part 5: ADR
• Chapter one: sulh and mediation
• Section 1: sulh
• (Art 990-993): by virtue of this law, whenever a
dispute is pending before a judge, the latter must
suggest mediation to parties as the beginning or
during the proceeding and at the time and place
considered appropriate. Regulated conciliation is
a compulsory court-annexed mechanism.
18. Cont..
• Section 2: Mediation
• (Art 994): the judge must propose to the parties to
resort to mediation in all private and administrative
matters beside family, ‘prud’hommes counsels’(ie.,
labour related) and public order fields.
• When a judge proposes mediation, he keeps
jurisdiction over the subject matter. He appoints the
mediator and is allowed to examine the merits of the
dispute at outcome of failed mediation proceedings .
19. Time and body
• the time limit of the mediator’s mission is
three months and can be extended upon
parties’ agreement and mediator's request for
a similar period (Art 996).
• the mediator can be a person or an association
(moral person) according (Art 997)
20. Condition of mediator
(Art 998): a mediator will be chosen among persons renowned
for their probity and law obedience . He must:
• not have been sentenced for shameful crime
• not have been felony
• not have been depraved of his civil rights.
• must, moreover, be socially and morally acceptable
• have had theoretical and practical training in mediation.
This training is deferent from the one practiced in rural
societies by ‘shuyukh’ or’ djemaa’ of the’dachra’.
These requirements are related to the currently prevailing
mediation practiced norms.
21. Process of mediation
• Mediation is covered by confidentiality (Art 1005).
• By virtue of its court-annexed nature, the mediation
procedure his followed by court officer of the
appointing tribunal. He takes charge of the mission of
serving the parties and the mediator (Art 1000).
22. Cont..
• (Art 1002)?: if a mediation fails, the judge
immediately terminate the proceedings upon
the mediator’s or the parties’ request.
• (Art 1003): when a mediation successfully
ends, the mediator must inform the judge, in
writing, of the solution reached. Thereupon
he must prepare and sigh a report, co-signed
par the parties, that discloses the content of
the settlement.
23. Cont..
• (Art 1004): the judge re-examines the content
of the settlement and homologate it in the
minutes by virtue of a definitive non- recourse
court order.
• Once registered, the court’s minutes
documenting the settlement agreement
transform it into an enforceable deed.
24. Statistic
• Until the end of 2009, unofficial statistics
show that 1550 court-annexed mediators have
been appointed in pending cases in Algeria.
• Over 1520 of these disputes were successfully
settled.
25. Conclusion
• Most of the legislation in the world have tended to interest of
alternative disputes resolution , which became impose themselves
in order to be an effective tool to achieve and install justice and
maintenance of rights. where he was a shift from coercive justice to
consensual justice .
• In this light, the Algerian legislature had taken to consider other
legal mechanisms to help the judiciary to adopt them, thereby to
enable the litigants to resolve their problems quickly and effectively
with their involvement in finding solutions for themselves, who is
not achieved by litigation process . in This context , the Algerian
legislator has opted of the reform of justice, while amended the
Law on Civil and Administrative Procedures, which included them in
the law of civil and administrative proceedings, under the title of
alternative ways to resolve disputes, which includes sulh,
mediation, and arbitration through the Articles , from 994 to 1005.
