Parties’ freedom to agree on any matter extends to agree to resolve their dispute either judicial litigation or arbitration. Arbitration is a system of dispute settlement where by disputants takes their case before arbitrators of their own choice. The civil code defines it “as a contract whereby the parties to a dispute entrust its solution to a third party, the arbitrator, who undertakes to settle the dispute in accordance with the principles of law.” (Art 3325(1)).
As any kind of consensual undertaking, the arbitral submission must adhere to the requirements under art 1678 of the civil code. The incapacity of the parties, the inarbitrability of matters, and the form in which it is signed might make the dispute settlement clause void. For instance, if an administrative agent enters into arbitration agreement, the dispute settlement clause will be voidable, as per art 315(2) of the civil procedure code. Also, for insurance contracts, the dispute settlement clause is expected to be in writing.
Recognizing parties’ interest to take their case to arbitration presupposes their autonomy. Party autonomy is an important pillar in any kind of contract agreement. The concept of party autonomy refers to the parties’ freedom to choose arbitration over judicial litigation, the venue of arbitration, the time limit in which the award can be given, substantive and procedural laws (in case of international arbitration). During signing of dispute settlement clause, the parties can insert arbitration final clause, i.e., a clause which aims to make the arbitral award final (non-appealable).
Ethiopian arbitration law allows appeal for those who are dissatisfied by the awards. Any party to arbitration proceeding may appeal under some specified conditions. However, they can waive the right of appeal but the waiver will not have any effect unless made with full-fledged consent (Art 350(2) of Civil Procedure Code).
Appeal is a procedure where by a party displeased by a decision of a lower court goes to a court of higher material jurisdiction. It can also be a process of asking a substantial change to a prior decision. Rober Allen Sedler, a renowned author on Ethiopian Civil Procedure, defines appeal as, “an application by a party to higher court to set aside or revise a decision of a subordinate court.” The court which is seized has the discretion to conduct de-novo hearing (re-hearing the case without any reference to the prior judgment.) However, Sedler argues that an appeal means a review of the case and not a retrial of the case by the appellate court. Does this exclude de-novo hearing? I will leave the question unanswered as the reader may be interested to read more about it. The grounds of appeal will involve errors of law and fact. Either party may appeal against any final judgment rendered in lower courts.