18 February 2012 Written by  Tefera Eshetu and Mulugeta Getu

Ethiopia’s Approach to International ADR

Ethiopia’s Approach to International ADR

As part of the world, Ethiopia is under the influence of international practices like that of dispute settlement. The existence of very dynamic idea and technology transfer helped the country to expose itself to the world community. In addition, the movement of citizens from place to place for settlement and investment facilitates the flow of practices which were limited to certain part of the world. If a nation have foreign relation with the citizens of the other in private manner and in the state level, it will be inevitable to be exposed itself to the international dispute settlement mechanisms. Thus, it will be important to consider our nation as part of the international practice in the implementation of ADR as an international dispute settlement method.

Ethiopia exposes itself to the international practice of ADR in different respects. The place of those international documents in Ethiopian legal regime and the relation of the institution of the nation with other international institute will be assessed in the coming section.

Ethiopia and International Documents - As we have discussed in preceding parts Ethiopia is not yet a party to the 1958 Convention to the recognition and the enforcement of foreign arbitral awards. This might be considered as one failure of the legal regime in incorporating this very important international document which guarantees the enforcement of an award given in Ethiopian to be enforced elsewhere in other member states. Reciprocally, the convention would have guaranteed the smooth enforceability of an arbitral award given in the other member states of the convention to Ethiopia. Unfortunately, Ethiopia is one among the 51 nation who have not yet approved this convention as of September 2007.

But the New York Convention is not the only document that regulates the reciprocal enforceability of foreign arbitral awards in other states. Other regional and bilateral treaties have also been made in the pats years to facilitate the same. In addition to these agreements between states, national laws also regulate the enforceability of foreign arbitral award in the same way as they regulate the enforcement of foreign court decisions.

The enforcement of foreign arbitral award in Ethiopia, therefore, is regulated by the national law and the bilateral treaty signed so far. The civil procedure code provisions, i.e. Articles 456 – 461, are the important one in this respect guarantying the enforceability of foreign award in Ethiopian jurisdiction subject to the fulfillment of the conditions listed there under. Though, the first few articles speak about the enforcement of foreign decision, Article 461, which exclusively deals about enforcement of foreign arbitral awards, refers back to these sets of provisions which are applicable to the foreign decisions. Thus, for a better understanding of this issue a close reading of Articles 456 – 461 and references to the discussion made under section 3.6 of Chapter Three of this course can be made.

On the other hand, we have made a pace in the incorporation of one of the founding convention of the PCA (Permanent Court of Arbitration), the 1899 Convention on the Pacific Settlement of International Disputes. Though, Proclamation 348/2003 ‘A Proclamation to Provide for Ratification of the Pacific Settlement of International Disputes (1899)’ done on June 24, 2003, it has been recorded in the registry of the convention on May 28, 2003. The other founding convention of the PCA done in 1907 didn’t repeal the first one. Of course, the second document has included more detailed provisions in the attainment of its objectives. For example, under Part III, which deals about the International Commission of Inquiry, more detailed provisions have been included for its working procedure. Especially, the commission has been put under the supervision of the International Bureau of the Permanent Court of Arbitration, which serves as a registrar. Part IV of it included a new system which was not there under the predecessor Convention. Chapter IV of it established “Arbitration by Summary Procedure” in disputes admitting of a summary procedure. Remember, we are not yet the signatory for this second document.

Question: Why do you think Ethiopia approved the 1899 PCA founding convention and failed to do the 1907 one? Do you think that the 1899 convention is more beneficial to us than the later one?

Ethiopia’s relation with PCA documents does not stop here. She has used the 1992 Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States in the Ethio – Eritrean boarder dispute. Section 4 paragraph 11 of the Ethio - Eritrean agreement (the Algiers Agreement) which was done in Algiers on the 12th of December 2000 reads as follow;

The Commission shall adopt its own rules of procedure based upon the 1992 Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States. Filing deadlines for the parties’ written submissions shall be simultaneous rather than consecutive. All decisions of the Commission shall be made by a majority of the commissioners.

From the reading of the agreement, especially section 4, we can easily understand that the neutral Boundary Commission which is composed of five members, four of them elected by the two nations two each and the other presiding commissioner by the already nominated four commissioners or in their failure by the Secretary-General of the United Nations, is an arbitration tribunal. This tribunal had the right to make its own rules of procedure, but this right is a qualified one; its rules should make the 1992 PCA Optional Rule for Arbitrating between two States as a bench mark. Any state or institute can use this optional rule with out any accession to it or to the PCA founding conventions.

There is no specific requirement of accession to the UNCITRAL documents since most of them are Model Laws which might help nations to use it as a bench mark or model in developing its own domestic laws or treaties with other nations. These documents can help us in formulating laws or public policies to fill the gap in the existing legal regime regulating the matter.

The other possibility that Ethiopia will have connection with international ADR is the existence of foreign companies working in the nation in different areas; as investors, service delivers, constructors, consultants in different field, NGOs, etc. These relations will substantially depend on the agreement made between the two parties who are not regulated by the same law of a nation. Thus, it is common to include dispute settlement mechanisms and determine the applicable laws which will regulate their relation including disputes of the contracting parties. Since the parties are from two different legal regimes, the international ADR tribunals (especially arbitration) and documents will be the first option for the parties to the contract. This is the other possibility that brings Ethiopia before international tribunals and international documents regulation ADR.

Globalization is trying to create one village composed of different and diversified custom and practice. Technology and commerce is accelerating this mob by making some region of the world dependent on the activities of the other tip of the world. As part of this dynamic interaction of peoples of different nations, dispute settlement mechanisms where parties of any nation could be entertained are becoming very important. Ethiopia has been involved in the international ADR in different respects; approving the 1899 PCA founding convention and referring the Ethio – Eritrea Boarder Commission to use the 1992 PCA Optional Rule for Arbitrating between two States are few examples that are discussed above.

Last modified on Wednesday, 02 May 2012 13:05
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