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2.1 Overview of the law of governing arbitration in Ethiopia
2. Part one-General overview of the international instruments
2.1 The UNCITRAL Model law
The UNCITRAL model law (the Model law)4 was adopted by the UN on June 1985. It was aimed at establishing a
comprehensive and uniform law of arbitral procedures and international commercial5 arbitration practice in all states.6
In other words, it was designed to harmonize the then disparities on arbitration laws of national laws and thereby
develop an acceptable legal or economic system for different states.7 The Model law addresses all procedures of the
arbitral process from the process of formation of arbitration agreement and recognition and enforcement of an arbitral
award. Hence, it was a groundbreaking for many countries to base their arbitration law on it, even though it was
revised by the UN in December 2006 to include an allowance for the requirement of an arbitration agreement to be in
writing to be defined in very broad terms.8
The Model Law intended to achieve four policy objectives.9 The first objective is to limit the role of national court in
commercial arbitration and allowing the parties to be free to choose how their dispute will be determined.10 The
second policy objective is to establish defined core mandatory provisions to ensure fairness and due process in the
arbitration proceeding.11 Thirdly is to ensure the provision of a framework for the conduct of commercial arbitration,
so that in the event of the parties being unable to agree on procedural matters, the arbitration would nevertheless be
capable of being completed; and lastly is to establish provisions which would aid the enforceability of awards and
clarify certain controversial practical issues.12 The intention of the Model Law is to ensure that arbitral institutions
have autonomy and are independent from court interference save for few allowances which are meant for support of
the arbitration process.
The Model law has three parts. The first part deals with the international commercial arbitration13 and the second part
address the explanatory note by the UNCITRAL secretariat on the model law on international commercial
4 See the Preamble to the UNCITRAL Model Law,
http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf (last visited July 2020) 5 Although the UNICITRAL Model law contains the words “International Commercial Arbitration”, it does not define the term
“Commercial” in its main provision. But in its foot note, it is defined as follow; The term “commercial” should be given a wide
interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a
commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or
services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering;
licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or
business cooperation; carriage of goods or passengers by air, sea, rail or road. 6 See UNCITRAL Model Law on International Commercial Arbitration, available on UNCITRAL’s website
at http://www.uncitral.org. 7 Ibid 8 See Redfern and Hunter on International Arbitration, 5th Edition, Oxford University Press, 2009. 9 See The UNCITRAL Model Law, supra note, 6. 10 Ibid 11 Ibid 12 Ibid 13 Arbitration is considered to be international in nature when according to Article1 (3) of the UNCITRAL Model Law if it falls within the
following three ambits:
i. If the parties to the arbitration have at the time of completion of the agreement, their places of business in different places.
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arbitration14 and the final part dictates about recommendation on the interpretation of some articles and paragraphs of
the Model law with regard to recognition and enforcement of foreign arbitral award.
According to the preamble, the objectives of the Model law are: recognizing arbitration as a method of settling
dispute; develop harmonious international commercial relation; establish a unified legal framework to settle a dispute
arising from international commercial relation through fair and efficient manner; create a uniform law of arbitral
procedures; and facilitate the recognition and enforcement of foreign arbitral award.
With regard to the scope of the application of the Model law it applies to the agreement concluded between the
signatory member states and any other state/s. on the matters of international commercial arbitration, except the
application of this Model law is excluded by the explicit provision which precludes the certain disputes may not be
submitted to the arbitration. Other than this fact, the basis of jurisdiction to the applicability of this Model law is
clearly stated under Article 1/3 of thereof.
The Model law was adopted by many countries. The first country which adopted this law was Hong Kong15 and
followed by Australia,16 Canada,17 and Nigeria18. At this time, over sixty-five countries19 have promulgated their laws
in light of the Model law, out of which nine are African countries20 including our neighbor Kenya21 and Uganda.22
2.2 UNIDROIT Principles
The principles of international commercial contracts (UNIDROIT Principles)23 adopted in 1994 by the international
institute for the unification of private law as a result of intensive research and deliberation.24 The objectives of the
UNIDROIT Principles is to establish a workable set of rules on international commercial relation throughput the
world in spite of having disparities in legal traditions, economic and political condition of the countries. Its goal is to
reflect such principles in their underlying general policy. With regard to its content, the UNIDROIT Principle of
international commercial contracts incorporates about general provision of contract; formation of contract; validity of
the agreement; interpretation of terms and other conducts; content; performance, and non-performance of contracts.
ii. If one of the following places is situated outside the state in which the parties have their places of business (a) the place of
arbitration if determined in or pursuant to the arbitration agreement, (b) any place where a substantial part of the obligation the
commercial relationship is to be performed or the place with which the subject matter of the dispute is more closely connected.
iii. The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country. 14 International commercial arbitration is a form of arbitration where the parties have their places of business in different countries, or the
subject matter of the arbitration relates to more than one country, or a substantial part of the obligation of the parties are to be performed
outside the countries of their places of business. 15 See Sutton B, Hong Kong enacts the UNCITRAL Model Law, ARBITRATION INTERNATIONAL, 72, 75 (1990). 16 See Finlay A, An Overview of Commercial Arbitration in Australia, JOURNAL OF INTERNATIONAL ARBITRATION 99, 104 (1987). 17 See Brierly N, Canadian Acceptance of International Arbitration, 40 MAINE LAW REVIEW 288, 291 (1988). 18 See Ezejiofor, The Nigerian Arbitration and Conciliation Act: A Challenge to the Courts, JOURNAL OF BUSINESS LAW 81, 82(1993). 19 Visit
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html for (last visited May 10, 2020). 20 For example, Egypt (1994), Kenya (1995), Madagascar (1998), Mauritius (2008), Nigeria (1988), Tunisia (1993),
Uganda (2000), Zambia (2000) and Zimbabwe (1996). 21 See Act No. 4 of 1995 of Laws of Kenya. 22 See The Arbitration and Conciliation Act, 2000 of the laws of Uganda. 23 See UNIDROIT Principles of International Commercial Contracts (2010). Available at http://www.uncitral.org/uncitral/en/index.htm.
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Article 9: Secured transactions, involved with the granting of credit secured by personal property; for
example, agricultural liens, promissory notes, consignments, and security interests
3. Part two-Critical appraisal of commercial arbitration at the international instruments
3.1 The Purpose and scope of applicability of commercial arbitration agreement at international level
Arbitration is a private way of adjudicating dispute outside of any judicial system, though it is enforceable in a
national court.26 In most instances, parties choose arbitrators and rules of arbitral institution.27 In addition, parties can
choose place and language of arbitration.28 The decisions are also final and binding. In resolving their dispute, parties
have a substantial autonomy and control over the process of arbitration. Parties in arbitration want to escape from the
fear of “home court advantage” and provide a neutral form and thereby secure fair hearing.29 Today, international
commercial arbitration has become the norm for dispute resolution in most international business transactions. In
their arbitration agreement, the parties can select the rules that will govern the procedure, the location of the
arbitration, the language of the arbitration, the law governing the arbitration, and frequently, the decision-makers,
whom the parties may choose because of their particular expertise in the subject matter of the parties’ dispute.30
Arbitration in international commercial disputes is believed to contribute to market integration by safeguarding and
improving the efficiency of international private transactions.
3.2 Formation and content of arbitration contract at international level
The arbitration agreement is commonly confined in the clause that is embedded in the parties’ commercial contract.
Such agreement clause must be entered before the dispute has been raised. However, if there is no arbitration clause
in the parties’ agreement, they can rarely enter in to a submission agreement, when both parties have agreed though it
less likely to agree on such agreement once dispute rose. Hence, it is generally better for parties in the arbitration to
agree to arbitrate when they are in good terms.
In most jurisdictions, the arbitration clause is separate and distinct agreement. The doctrine of separability permits the
arbitrators to hear and decide the dispute even if the main contract is terminated, never existed, or invalid for various
reasons.31 In addition, the arbitration agreement is required to valid. In particular, the enforcement of international
agreement is determined by the New York convention.32 Under this convention, the validity of arbitration agreement
is decided based on the following requirements. The first requirement is that arbitration agreement is required to be
in writing and signed by the parties.33 Under the New York convention, the other requirement is, the dispute between
26 See Margaret L. Moses, The Principles and Practice of International Commercial Arbitration, (1st ed., 2008) at 55. (here after Margaret) 27 Ibid 28 Ibid 29 Ibid 30 Id p17 31 Id 18 32 Id19 33 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Art 11/2.
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the parties must be “in respect of a defined legal relationship, whether contractual or not”.34 Even though most
arbitration agreements are contractual by their nature, there are non-contractual relationships such as tort law. The
other requirement for arbitration agreement to be enforceable is that the subject matter has to be capable of being
settled by arbitration.35
In addition to such requirements, the New York Convention under Article II/3 provides that the arbitration agreement
is enforceable only and only if it is not “null, void, inoperable or incapable of being performed”. In particular, an
arbitration agreement is considered as null and void when there is lack of consent as a result of fraud, duress,
misrepresentation, or undue influence.36 When a particular dispute is barred by res judicata an arbitration agreement
is called inoperable.37 Moreover, an arbitration agreement is taken as incapable of being performed when it is too
vague, confusing, contradictory, or any other unforeseeable condition has been happened.38 When parties draft
arbitration clause they are required to spell out and include every essential requirement and other additional
provisions in the agreement.
3.3 Applicable laws, rules, and procedures in international commercial arbitration
Arbitration is governed by the rule of arbitration which the parties have adopted and by the law of the place of
arbitration. The modern tendency, however, the great weight is given to autonomy of the parties and non-intervention
of national courts at first instances unless the law provides. In particular, in any contract that includes an agreement to
arbitrate the commercial dispute, the autonomy of party is considered as an important element of arbitration.39 Parties
choose a law to regulate the contract. Such law is a substantive law which is likely to be the national law of one of the
contracting party. In particular, under the contract of the sale of goods, it is governed by the international law such as
United Nations Convention on Contracts for the International Sale of Goods (CISD).40 The rules and procedures that
will be used in arbitration are part of this agreement. Apart from the substantive laws which guides the tribunals
decision on the merits of the case, the internal process of the arbitration and the external relationship between the
arbitration and the courts are regulated by the procedural laws.41
34 New York Convention Art.II. 35 In most jurisdictions, for example, issues such as criminal matters, child custody, family matters, and bankruptcy are not arbitrable. It
would be against the law or the public policy of the local jurisdiction to try to arbitrate disputes in these areas. In addition, in patent law, the
validity of the patent will generally not be arbitrable because that is considered to be an issue for a local regulatory agency, or for a court. On
the other hand, disputes arising out of an agreement to license a patent normally would be arbitrable, because those disputes are basically
contract disputes. Increasingly, disputes involving antitrust laws, which were formerly considered inappropriate for arbitration, are being
arbitrated. Securities issues are also arbitrable, at least in the United States. Some tribunals have held that issues of bribery are not arbitrable,
but more recently, commentators and courts have taken the position that a mere allegation of illegality should not relieve a tribunal of
jurisdiction to determine the dispute, including the question of illegality. In sum, most disputes today are considered to be arbitrable, except
for those that fall within clearly defined areas such as criminal law, family law, and patent law. 36 See Margaret, supra note 26, p. 32 37 Ibid 38 Id p. 33 39 See Margaret, supra note 26, p. 55. 40 See U.N. Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, S. Treaty Doc. No. 98-9 (1983), 1489 U.N.T.S,
http://www.uncitral.org/pdf/english/clout/CISG-digest-2012e.pdf ; http://www.cisgac.com/default.php?sid=128. 41 See Alastair Henderson, Lex arbitri. Procedural law and the seat of arbitration, Singapore academy of law journal, 26 SAcLJ (2014). (here
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Currently, the role of various laws and their application to the international arbitration is the subject of debate.
Among such debates include how the concept of lex mercatoria42 applies properly at international commercial
arbitration, the extent of discretionary power of arbitrators in selecting applicable law and the methodology they
should apply, the duty of arbitrators to apply the law are among others.
International commercial arbitration will involve more than one system of law or of legal rules: (a) the law governing
the parties’ capacity to enter into an arbitration agreement; (b) the law governing the arbitration agreement and the
performance of the agreement; (c) the law governing the existence and proceedings of the arbitral tribunal; (d) the
law governing the substantive issues in dispute (applicable law); and (e) the law governing recognition and
enforcement of the award. Standing from this, the following are some of the key issues to be addressed under this
section.
3.3.1 Delocalization of international arbitration
This argument favors on the theory of that international arbitration should not be restrained by the national laws of
the place where the arbitration agreement is entered.43 The proponents of this theory argue that international
arbitration should be detached from the law of seat and the states do not have any concern about the dispute of the
parties who are not its citizens. Instead, the pertinent to apply over the dispute is the law applied by the court at the
place of the enforcement of the award. Additionally, they oppose the court interferences during the arbitration
process.
The delocalization debate has exerted a powerful and valuable influence on modern arbitration by promoting the
widespread modern consensus that the national laws should be permissive, non-interventionist, and respectful of the
party‘s autonomy wherever possible.44 A number of international tribunals support the delocalization of international
arbitration by saying that arbitral proceedings should be detached from the local jurisdictions.45 According to them,
arbitration is an institution without a forum and without a geographic basis. Arbitration is part of no state’s judicial
system. The arbitrator has no allegiance or connection to any single country. Parties have the sole power to decide on
it.
42 Lex mercatoria refers to the body of rules of international commerce which have been developed by the customs by the field of commerce
and affirmed by the national courts. The term lex mercatoria comes from the Latin and means merchant law. This term had been used during
the medieval times by the merchant in Europe to name the body of commercial law. 43 See Margaret, supra note 26, p. 50 44 See Alastair, supra note 41, at 11. 45 Ibid
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3.3.6 Recognition and Enforcement
The Model Law stipulates that arbitral awards shall be recognized as binding and are enforceable upon application to
the competent court and provides a closed list of grounds that allow courts to refuse to enforce awards. These
provisions apply irrespectively of the place where the award was made, and, hence, the UNCITRAL text equally
treats domestic and foreign awards.
The Model Law also spells out the procedural requirements to recognize and enforce an award. According to the
amended version of the Law, the revised provisions on the form and the content of arbitral awards, have excluded the
requirement for a party to submit the original document of the arbitration agreement (or a certified copy thereof) to
courts when seeking to enforce the award, which was made pursuant to that agreement.
According to the results of the Assessment, similarly to the Scope of Application category, the recognition and
enforcement of awards is a contentious issue. This is even truer with relation to foreign arbitral awards. The national
legislation varies significantly.
3.4 Emerging issues and trends in international commercial arbitration
Over the past few years, international arbitration has become a growing preferred mechanism for resolving a dispute
for international contracts and investment, though it prevailed by default.53 In particular, multinational corporations
have spent their decision and time in crafting and selecting the arbitration clause to protect their confidentiality and
proprietary nature.54 Companies operating across more than two countries opt for international arbitration over
domestic courts for various reasons. The primary reasons are to avoid perceived biased and take the advantage of
flexibility offered by the international arbitration.55 Parties can choose the applicable law, the seat of arbitration, the
arbitration institution, the arbitrators, the jurisdictional scope, and the general procedure and conduct of the
arbitration, all of which can provide efficiency advantages over domestic courts as well as important legal and tactical
advantages customized to the subject matter of the dispute.56 The basis of selection such advantages is based on
neutrality and impartiality of the legal system as well as the familiarity of parties and subject matter to the law.57
The major independent arbitration organizations such as International Chamber of Commerce (ICC), the London
Court of International Arbitrations (LCIA), and the American Arbitration Association (AAA) have redrafted their
international arbitration rules since 1996.58 Changes are taken on rules governing administered arbitration. This
practice is in contrast to ad hoc arbitration, where the individual parties operate the arbitration under procedures
fashioned by individual negotiation and agreement on programs, or by adoption of an established set of arbitration
53 See KIMBERLEY CHEN NOBLES, EMERGING ISSUES AND TRENDS IN INTERNATIONAL ARBITRATION, CWSL Scholarly
Commons, (2012) at 1-4. 54 Ibid 55 Ibid 56 Ibid 57 Ibid 58 See Michael P. Malloy, Current Issues in International Arbitration, University of the Pacific Scholarly Commons, Vol.15 (2002) p.3.
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rules by agreement of the parties.59 Many of the revisions to the ICC, AAA and LCIA rules appear to be modest
technical changes to operational provisions. They are designed with the effect of having uniformity and predictability
in the settlement of international commercial disputes. Completion among arbitration institution was encouraged.
As the international arbitration become a popular in resolving commercial disputes, the subsidiarity and supremacy in
the context of delocalization of arbitral awards become an autonomous principles and approach to arbitral
proceedings.60 Moreover, cross cultural difficulties in arbitral practice and other competing legal traditions that may
affect the arbitral proceedings such as examination of witnesses, the role of tribunals, submission of pleadings in oral
or written, and use of expert evidence tends to be harmonized.
Currently, most commercial codes including UCC considers the common business practice or trade usage as
important interpretative sources for courts to consider when resolving contract disputes. In drafting contract
provisions, consideration should be taken on trade usages. The UCC looks to trade usage as part of the "agreement,"
unless clearly contradicted by prior dealings, course of performance, of the express language of the contract."61
In particular, when we investigate the status of agreement to arbitrate, arbitral proceedings, and arbitral awards at
international level, some national laws allow arbitrators to take various measures like proceedings on ex parte basis
and discovering documents.62 Even though arbitrators lack to enforce coercive orders, they can demand the help of
national courts to realize their objectives.63 There is also an effective enforcement regime of multilateral and bilateral
conventions and treaties that guarantees the recognition and enforcement of arbitral awards, regardless of their place
of origin, in most of the major trading nations of the world.
With regard to the arbitration institution, there are emerging trends to simplify their procedures and increase their
market share by enacting procedures that encourage business globally.64 For instance, arbitration institutions such as
the International Bar Associations (IBA), UNCITRAL and others are revising their arbitration guidelines and rules
since 2010 to minimize the level of cost and delay, streamline evidence production, increase confidentiality, and
simplify overall procedures, at every minimal than the court system.65 In this regard, the institutional revisions
address conferencing of evidentiary procedures, modernized electronic discovery, and statements by witnesses, expert
testimony, oral testimony, privilege claims, and the concept of good faith are discussed below.
Concerning with the conferencing of evidentiary evidence, the revised rules allows parties on arbitral tribunal to
introduce evidence at the earliest time to achieve efficient, economic, and fair process during arbitration proceedings.
This protects confidentiality. In reducing the overall time and cost during arbitral tribunal, the revised rules
introduced a modern electronic discovery in the production of evidence. The revised rule also avoids a long-lasting
59 Id p.4 60 Id p5 61 See Uniform Commercial Code, 1-205 and 2-208. 62 See Bobette Wolski, Recent Developments in International Commercial Dispute Resolution: Expanding the Options, Bond Law Review,
Volume 13, Issue 2 (2001) p.8. 63 Ibid 64 See KIMBERLEY, supra note 53, p.11-16. 65 Ibid
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ambiguity on witness statements. Accordingly, in most jurisdictions, discussing witness’s prospective testimony with
the witness is proper and avoids a potential procedural deception.
Under the revised rules, expert is required to be independent and impartial. These revisions help to increase the
reliability and fairness of dispute resolution through arbitration. Oral testimony is also simplified under the revised
rules when it is requested by the tribunal or the party. Oral testimony can be supported through video conferencing
and other new technologies. The revised rules also introduced the concept of good faith to the evidentiary process of
international arbitration.
The UNCITRAL Model Law, since 2010, various revisions have been made in harmonizing its procedures. Most
importantly, the amendment addresses on the following issues;66
The revised rules now require the statements of claim and defense to set out the legal arguments and be
accompanied by all supporting documents and other evidence relied upon.
The revised rules provide additional details regarding the award of interim measures to provide uniformity in
the application of interim measures in arbitration.
Under the revised rule, a tribunal applies the substantive law it deems the most appropriate without regard to
conflicts of law rules, provided that there is no express choice of law by the parties.
The revised rules provide for a right to external review and correction of fees charged by arbitrators.
The revised rules now include provisions permitting multi-party arbitration (i.e., greater than two parties),
which increase the utility of the arbitration system and harmonize its procedures with other modern arbitral
rules.
The revised rules now include procedures to object to experts appointed by the tribunal.
Finally, the UNCITRAL is in the process of drafting new rules directed at increasing transparency,
particularly with respect to selection, payment, availability, and past performance of arbitrators.
4. Part three-Commercial arbitration in Ethiopia
4.1 Overview of the law of governing commercial arbitration in Ethiopia
In Ethiopia, the issue of arbitration is governed under the 1965 Civil Procedure Code67 and 1960 Civil Code68. It is
considered as a milestone for the introduction and development of arbitration and its proceedings. The Civil Code69
regulates the substantive aspect of the arbitration whereas the Civil Procedure Code70 addresses the procedural aspect
of arbitration. In particular, the substantive part includes provisions with regard to the form and signing of an
arbitration agreement, the appointment, replacement and removal of an arbitrator and other provisions relating to the
constitution of an arbitral body. Besides, the procedural part deals with arbitration proceedings, making of awards,
review of awards, and the requirements and procedures for the enforcement of foreign awards.
66 Ibid 67 See Civil Procedure Code of the Ethiopia, 1965, Proc. No.165, Neg. Gaz. Year 25, No.3. (here after Civil Procedure Code) 68 See Civil Code of the Empire of Ethiopia, 1960, Proc. No.165, Neg. Gaz. Year 19, No.2. (here after Civil Code) 69 See Arts.3325-3346 of the Civil Code 70 See Arts.350-357 and Arts.315-319 of the Civil Procedure Code
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Before the codification process of the 1950s and the following, arbitration was taken as part of traditional dispute
resolution mechanisms.71 Even though the lexical meaning of arbitration in Ethiopia is assimilated to “Shimguilina”
but the later has a wider conceptual meaning than the modern so called arbitration.72 In addition, with regard to the
investment and mining issues, the dispute is settled by the arbitration by the pertinent legislations.73 Bilateral
investment treaties to which Ethiopia is a party also serves as the source of resolving state-state and investor-state
disputes by way of arbitration.74
Currently, Ethiopia is not a party New York Convention on the recognition and enforcement of foreign arbitral
awards and the Washington Convention on the Settlement of Investment Disputes between States and Nationals of
Other States. Hence, the Ethiopian arbitration law is not drafted as simplified and modernized was as defined under
the UNCITRAL Model Law. The Ethiopian arbitration law designed mainly to address the domestic arbitration.75
With regard to the arbitration institution, Ethiopia has a single forum for arbitration i.e. the Addis Ababa Chamber of
Commerce and Sectorial Associations Arbitration Institute. However, many cases are settled through ad hoc
arbitration.
The term arbitration is defined under Article 3325 of the Ethiopian civil code as it is “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.” In addition, arbitrators are only entrusted with the question of fact as stipulated under the same
provision sub Article 2. With regard to the formation of arbitration agreement, the formation of contract stated under
the general law of contract can be considered.76 When the arbitration agreements are drafted both substantive and
formal requirements are required.77 Substantive requirements include consent, capacity, offer and acceptance; the
formal requirements in arbitration agreements includes oral or written.78 The Ethiopian arbitration is raised as a
peculiar law when the provision stipulated under Article 3326 of the Civil Code requires an arbitral submission to the
third party arbitrators. This can be considered as a means to establish a private judicial system. Besides, this provision
also determines the capacity of parties to bring their dispute for arbitration. A similar connotation is stated under
Article 315 of the Ethiopian Civil Procedure Code and it says “No person shall submit a right to arbitration unless he
is capable under the law of disposing of such right”.
With regard to the arbitral process, parties have a freedom in appointing and selecting the members of arbitrators in
equal manner. Their freedom is not only limited to the appointment of arbitrators but also in deciding the identity,
number, qualification and jurisdiction of the arbitrators.79 Arbitrators can be appointed either at arbitral submission or
71 See Hailegabriel G. Feyissa (2010), THE ROLE OF ETHIOPIAN COURTS IN COMMERCIAL ARBITRATION, MIZAN LAW
REVIEW Vol. 4 No.2, p4-5. (here after Hailegabriel) 72 Ibid 73 the Mining Operations Proclamation No. 678/2010 and the Energy Proclamation No. 810/2013 74 https://www.mehrteableul.com/index.php/component/k2/item/13-overview-of-commercial-arbitration-in-ethiopia 75 See Hailegebriel, supra note 71, p.6. 76 See Arts,1678-1730 of the Civil Code 77 See Hailegebriel, supra note 71, p.10 78 Ethiopia recognizes arbitration agreement can be drawn in both forms i.e. it can be drawn in the form required by the law for disposing of
the right to which the arbitration agreement relates. Read the acontrario provision of Art.3326/2 of the Civil Code. 79 See Art.33311 of the Civil Code.
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subsequently (Art.3331/1 of the Civil Code). Parties are at liberty to state the manner of the appointment and the
number of arbitrators in their arbitral submission either to be one or several. In the absence of prior agreement, the
manner of appointment and the number of arbitrators is limited to appoint one party from each party. If there is no
agreement on the appointment of arbitrators, the court has a power to appoint arbitrator at the request of one of the
parties.
As said earlier, the procedural aspect of the arbitration is governed by the Civil Procedure Code through Arts315-319.
According to Art.315 of this Code, parties may settle their dispute by arbitration where they have agreed in a written
agreement or where arbitration is required by law. However, arbitration cannot be undertaken on administrative
contracts or in any other issues prohibited by law.80 Parties are also required to have legal capacity.
4.2 Critical comparison between the Ethiopian civil code and the UNCITRAL Model Law
The close reading of Article 3326/2 of the Civil Code states that the arbitration submission agreement required to be
made in a special form is required to be in writing and registered in a public notary. However, the UNCITRAL Model
Law allows the electronic communication between parties so long as it is readable and accessible in one hand and
accepted the existence of agreement by the other party.81
Arbitration proceedings in Ethiopia looks like as a litigation of regular courts. This conception can be read from
Article 3345 of the Civil Code and Article 317/1 of the Civil Procedure Code similarly dictates that the tribunal
procedure, execution of award and appeal to be followed by the arbitration tribunal shall be as the same as that of
litigation in ordinary courts.
Even though the role of courts in Ethiopia in resolving a commercial dispute is supposed to have a minimal
intervention but national courts are intervening in the commercial arbitration process against the primary purposes
and merits of arbitration i.e. expediency, convenience, confidentiality, and maintaining future business relationship.
The intended interests of parties, such as resolving dispute at earliest time with a minimum cost, to smooth their trade
and investment by way of arbitration through confidentiality. At international level, such as in UK, Kenya, and
Uganda, the role and intervention of court in arbitration is prescribed by saying “except as provided in this arbitration
act, no court shall intervene in matters governed by this act”.82 In most jurisdictions including the Model Law
restricts the jurisdiction of courts to only such matters as provided for the arbitration act and recognizes the policy of
party’s autonomy in the arbitration proceedings and tribunals.
With regard to the principle of separability, the Ethiopian Civil Code remains silent. In most jurisdictions, the
doctrine of separability permits the arbitrators to hear and decide the dispute even if the main contract is terminated,
never existed, or invalid for various reasons. In particular, the arbitration agreement cannot be affected by the
80 See Art.315/2 of the Civil Procedure Code. 81 See Article 7/4 of the UNCITRAL Model Law 82 See Julius Cosmas (2015), THE STATE OF INTERNATIONAL COMMERCIAL ARBITRATION IN TANZANIA: A COMPARATIVE
CRITIQUE AND CALL FOR THE REFORM, US-CHINA LAW REVIEW Vol. 12, p9-10.