Originally from:
World Arbitration Reporter - 2nd Edition - Looseleaf
World Arbitration Reporter - 2nd Edition - Electronic
TUNISIA
Sami Houerbi*
I. INTRODUCTION: ARBITRATION IN TUNISIA
HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
The history of arbitration in Tunisia goes back to the beginning
of the 20th century. Both the law on regional courts dated 1896 and
the Code of Civil Procedure dated 1910 did not address arbitration
explicitly. A scholar interpreted this legislative silence as outlawing
arbitration, supported through his interpretation of the restraining
provisions of the Code of Obligations and Contracts of 1906, which
mentioned arbitration twice, in order to forbid it for the companies’
liquidator and the proxy.1
Before the independence in 1956, the referral to arbitration was
explicitly limited to the resolution of disputes related to mining
exploitations and public markets.
TUNISIA
I. INTRODUCTION: ARBITRATION IN TUNISIA
HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
2. Current law
3. Law reform projects
4. Confidentiality and publication of awards
a) Privacy of proceedings
b) Publication of awards
B. Arbitration Infrastructure and Practice in Tunisia
1. Major arbitration institutions
2. Development of arbitration compared with
litigation
II. CURRENT LAW AND PRACTICE
A. Arbitration Agreement
1. Types and validity of agreement
a) Clauses and submission agreements
b) Form requirements
2. Enforcing arbitration agreements
a) Declaratory actions in court
b) Applications to compel or stay arbitration
3. Effects on third parties
4. Termination and breach
B. Doctrine of Separability
1. Statutory and case law
C. Jurisdiction
1. Which forum decides jurisdiction
2. Competence-Competence
D. Arbitrability
1. Notion and functions of arbitrability
E. Arbitral Tribunal
1. Status and qualifications of arbitrators
a) Number of arbitrators
b) Legal status
c) Qualifications and accreditation requirements
2. Appointment of arbitrators
a) Methods of appointment
b) Appointing authorities
c) Effect of the refusal of one party to co-operate
in the constitution of the arbitral tribunal
d) Resignation and its consequences
3. Challenge and removal
a) Grounds for challenge
b) Procedure for challenge
4. Arbitrator liability and immunity
F. Conducting the Arbitration
1. Law governing procedure
a) Notion and role of seat of arbitration
b) Methods for selection of seat absent party
choice
2. Conduct of arbitration
a) Basic procedural principles
b) Party autonomy and arbitrators’ power to
determine procedure
c) Style and characteristics of the oral hearing
d) Persons able to represent a party in
arbitration proceedings
3. Taking of evidence
a) Admissibility
b) Documentary evidence and privilege
c) Production of documents
d) Witnesses
e) Tribunal-appointed experts and party-
appointed experts
i. Appointment and presentation of
experts by the arbitral tribunal
ii. Admissibility and role of expert witnesses
iii. Influence of the parties upon the selection
of questions to be submitted to the
expert
iv. Independence and impartiality of the
expert and the right to reject a proposed/
appointed expert
v. Oral examination of an expert in a hearing
4. Interim measures of protection
a) Jurisdiction for granting interim measures
b) Types of measures
5. Interaction between national courts and
arbitration tribunals
a) Court assistance before the arbitration begins
b) Other types of court assistance
6. Multiparty, multi-action and multi-contract
arbitration
7. Law and rules of law applicable to the merits
a) Party autonomy
b) Determination by arbitrators
c) Non-national substantive rules, general
principles of law and transnational rules
8. Costs
a) General allocation of costs of the proceedings
b) Deposits or advances for costs or fees
c) Arbitrators fees: law and practice, judicial
control
d) Attorney’s fees and the winning parties claim
for reimbursement
e) Time and form of the decision on costs
G. Arbitration Award
1. Types of awards
2. Form requirements
a) Essential content
b) Reasons
c) Time limits for making award
d) Notification to parties and registration
3. Decision making
a) Majority or Consensus?
b) Dissenting and concurring opinions
c) Signature
4. Settlement
a) Settlement recorded in an award
b) Settlement without an award
c) Use of settlement techniques by arbitrators
5. Correction, supplementation, and amendment
a) Correcting the award
b) Interpretation of award
H. Challenge and Other Actions against the Award
1. Setting aside
a) Grounds
i. Grounds that must be invoked by the
claimant
ii. Grounds that may be invoked ex officio
by the setting aside court:
b) Time limits
c) Limiting judicial review of awards by contract
d) Effects of successful challenge
2. Appeal on the merits
a) Is it allowed?
b) Excluding the right to appeal by agreement
III. RECOGNITION AND ENFORCEMENT OF AWARDS
A. Domestic Awards
1. Statutory or other regime
a) Formal requirement for enforcement of awards
b) Enforcement procedure
2. Practice
B. Foreign Awards
1. Various regulatory regimes
a) Domestic rules
b) New York Convention
c) Other international conventions
d) Court practice applying regimes other than
the New York Convention
IV. APPENDICES
A. National Legislation
[Reserved]
B. Major Arbitration Institutions
[Reserved]
C. Published Cases
[Reserved]
D. Bibliography
[Reserved]
Sami Houerbi is a partner of BK & Associés. His practice as a corporate
lawyer focuses on Tunisian commercial law, with a particular emphasis on
labour and distribution law in Tunisia. He advises on a range of corporate
matters, including on companies' constitution and the investment
framework in Tunisia. He also focuses on employment law matters
and negotiating and drafting labour contracts. Mr. Houerbi obtained his
first degree in law at the University of Paris II prior to obtaining a postgraduate
degree in international law. He also holds an LL.M in German Law
from the Ludwig-Maximilian University in Munich. He was a member of the
Secretariat of the International Court of Arbitration in Paris, where, as
counsel, he was directly involved in the administration of ICC arbitrations.
On the international level, Mr. Houberi's areas of expertise include
international commercial and investment arbitration (counsel and
arbitrator in domestic, ICC, and UNCITRAL arbitrations); international
contracts (installation and construction contracts, energy distribution,
international sale, know-how transfer) under various national and
international legal systems; and international litigation. He speaks Arabic,
English, French and German.
