Let alone in countries with less developed arbitration industries such as Ethiopia, pathological arbitration clauses are common in countries like the Switzerland, UK, Singapore, and France as well. As stated here, “[a]t least 30 percent of cases have a threshold dispute over arbitrability due to poor drafting of the arbitration clause”.
The legislator who, on the plea of checking litigation, or on any other plea, exacts of a working man as a preliminary to his obtaining justice, what that working man is unable to pay, does refuse to him a hearing, does, in a word, refuse him justice, and that as effectually and completely as it is possible to refuse it. - Jeremy Bentham (A Protest Against Law Taxes)
Today, the adjudicatory system of arbitration is replacing the court, since it is considered to be more private, economical, rapid, certain, conducive to business relationships and in some jurisdictions finality of their decision. However, arbitration has its own limitations. For example, arbitrators may make mistakes and all advantages of arbitration may be for the “winners” of arbitration. That is why almost all countries in the globe agreed for the necessity of vacating an arbitral awards in case where the award is defective. The problem is that unlike the arbitration laws of many jurisdictions, the Ethiopian arbitration law has never said anything about the situation after vacating of an arbitral award. And, leaving the post-setting aside situation without adequate procedural rules amounts to exposing the parties for further controversy. So, the main purpose of this article is to examine and analyze the Ethiopian Arbitration Laws governing post-setting aside situation of a vacated arbitral awards. And, the article upholds qualitative legal research which is based on the identification, synthesis and analysis of the law governing vacated arbitral awards. The arbitration laws of other jurisdictions are also overviewed for better understanding of the issues and to indicate where the gap on the arbitration law of Ethiopia is. Finally, the writer recommends the Ethiopian government to refine the arbitration law governing vacating arbitral awards particularly to include a provision that dictate the effects of a vacated arbitral awards.
In the first part, I 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 court's role in arbitration proceedings, the New York Convention, and the nature and impartiality of the Center as envisaged under the draft proclamation.
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.
አለም ዐቀፍ፣ የግልግል የዕርቅና የሽምግልና ተግባራት መሠረታዊ አላማ፣ ከተለያዩ ሀገራት ዜጐች ወይም ኩባንያዎች ጋር የንግድ ግንኙነት በመሠረቱ ወገኖች መካከል የሚያጋጥም የንግድ አለመግባባትን ከመደበኛው የፍርድ ሂደት ወይም ሥነ-ሥርዓት ውጪ በገላጋዮች፣ በአስታራቂዎች ወይም በሽምጋዮች እንደተዋዋይ ወገኖች ፍላጐት ለመፍታት ጥረት የሚደረግበት አለም ዓቀፋዊ ይዘት ያለውን አሠራር ለማስፈን ነው፡፡
Arbitration has been a prevalent method of dispute settlement, in various countries of the world of today and yesterday. Arbitration is defined in the Black’s Law Dictionary as “a method of dispute resolution involving one or more neutral third party who the disputing parties usually agree to and whose decision is binding.”
ከረጅም ጊዜ በኋላ ይህንን የጻፍኩት በቅርቡ ባነበብኩትና ሰበር የግልግል ስምምነትና የፍርድ ቤቶች ሥልጣንን አስመልክቶ በሰጠው ውሳኔ ላይ የተወሰነ ሐሳብ መስጠት ስለፈለኩ ነው፡፡ ለዚህ ጽሑፍ ብቻ የሚጠቅመኝን የውሳኔ ክፍል በማውጣት እጠቀማለሁ እንጂ ሁሉንም ፍሬ ሐሳብ አልዳስስም ነገር ግን ማንበብ ለሚፈልግ ሰው ውሳኔው ያለበት ቅጽና መዝገብ ቁጥር አስቀምጣለሁ (ቅጽ 25 መ.ቁ 180793)፡፡
የፍርድ ቤቶችን ችግር ለመፍታት፣ ጫናቸዉን ለመቀነስ፣ የሚያቀርቡትን የዳኝነት አገልግሎት ጥራት ለመጨመር ከሚቀርቡት የመፍትሄ ሃሳቦች መካከል አማራጭ የሙግት መፍቻ ስልቶችን (ለምሳሌ ግልግል ዳኝነት) ማበረታት ነዉ። አማራጭ ስልቶችን ማበረታታት ተገቢ ነዉ፣ ጠቃሚ እስከሆነ ድረስ። ነገር ግን ፍርድ ቤቶች በችግሮች በተተበተቡበት ሁኔታ፣ ምንም እንኳን ሕጉ ለአማራጭ ስልቶች እውቅና እና ድጋፍ ቢሰጥም፣ የፍድ ቤቶችን ችግር በመፍታት ወይም አለመግባባትን በመቀነስና በመፍታት ረገድ ግን የሚፈይደው ነገር ጥቂት ነው፡፡
Dispute settlement modalities, other than judicial litigation, were known even before the era of codification. They were continuously practiced as a traditional form of settling grievances. It had different names, like shimgelina, giligil. Irrespective of the nomenclature, each of these institutions sought to reach at amicable solution between the disputants.