Fly-by-Night: A Brief Overview of the Federal Courts Draft Proclamation

 

 

1. Introduction

This piece provides a bird’s eye view of the draft proclamation on the Federal Courts with particular focus on issue of Cassation.

Needless to mention, the Ethiopian legal system is used to be typical follow continental legal system as it mainly contains four substantive codes i.e., Civil Code, Criminal Code, Commercial Code and Maritime Code and two procedural codes i.e., Civil Procedure Code and Criminal Procedure Code.  This implies that decisions of courts will not have a binding and precedential value to settle future related cases.

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An Overview of the Draft Arbitration Proclamation - Part one

 

Introduction

When we come to commercial dispute which arise out of not respecting contractual obligations by one or more parties, settlement of dispute through court come in the for front. However, the existing Ethiopian court system is extremely sluggish, rigid and expensive. On the contrary arbitration is praised for its speedy proceeding, flexible process, confidentiality of the proceeding, finality of dispute which ultimately saves time and money. Although there are some critics against the heart of the system, arbitration stands out as one of the most popular means of dispute settlement mechanism.

One of the many definitions of arbitration is “non-state institution that resolves the disputes entrusted by the parties that found themselves in a dispute.”  The existing Ethiopian arbitration law is found in the Civil Code of Ethiopia, Article 3325 to Article 3346 of the Civil Code and partly in Civil Procedure Code, Article 315 to 319 and Article 350 to 357. However, recognizing the fact that arbitration is becoming part and parcel of the mainstreaming dispute resolving mechanism, the law maker come up with the draft arbitration rule. Structurally, the draft has 11 sections and 86 Articles. The main reason to came up with this draft is for the establishment of international arbitration center in Ethiopia which is financed by the government. In this brief, I will discuss, if I can, the main typical feature and some areas of concerns that popped-up during the discussion with various stakeholders.

  1. Continuity of uncertainty over arbitrability of administrative contract – it’s generally accepted principle that arbitrability or non- arbitrability of any matter is the concern of public policy. In emphasizing this point the competent authors in the field state that: “the concept of non-arbitrability is in effect public policy limitation upon the scope of arbitration as a method of settling disputes. Each state may decide, in accordance with its own public policy considerations as to which matters are incapable of being settled by arbitration under the law of the place of agreement or of arbitration.” (emphasis supplied) In the same token recognition and enforcement of an award since it may be refused if the subject-matter is not arbitrable under the law of the country where enforcement is sought.

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An Overview of the Draft Arbitration Proclamation - Part Two

 

In the first part I had discussed some issues under the draft proclamation. This includes arbitrability of administrative contract, competency-competency, separability doctrine, pauper proceeding, appeal and the standard to challenge the arbitrators. In this part, I will briefly discuss the role of the court in arbitration proceeding, the New York Convention and the nature and impartiality of the Center as envisaged under the draft proclamation.

1. The role of the court in arbitration proceeding:- In every jurisdiction there is a competing and conflicting interest of maintaining the balance between excessive judicial intervention and necessary intervention of the court in the arbitration proceeding. However, the contemporary trend is that the court as much as possible should minimize their intervention in Arbitration proceeding.

In principle arbitration proceeding takes place without court intervention unless the law specified otherwise. Although arbitration is an independent proceeding, the Tribunal might need the assistance of the court during the process. The first and foremost role of the court is to oversee the enforceability of arbitration award. Enforcement of an arbitration award is only possible through the involvement of court as the Tribunal has no such power. Second, unlike court proceeding whereby the judges are appointed by the parliament, the arbitrators are chosen by the parties in arbitration proceeding. However, if one of the parties failed to choose, the court may choose the arbitrators.

Third, arbitration clause or submission is a contractual transaction and binding only on the contracting parties. This implies that the Tribunal doesn’t have a cohesive power over third party. Therefore, the Tribunal might need the assistance of the court to bring third party into the proceeding. Fourth, interim measures of the Tribunal will not be directly enforced and hence court intervention or assistance is required. And finally, the aggrieved party might appeal to the court for seating aside of the judgment.

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