A principal-agent relationship is like a tripartite contract where the agent enters into any legal transaction on behalf of the principal. Art 2199 of the Civil Code defines agency as “a contract whereby a person, the agent, agrees with another person, the principal, to represent him and perform on his behalf one or several legally binding acts.” Such an authority can be conferred by court or by agreement of the parties.
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)).
It will be unwise to begin the essay without introducing the reader about injunction in Ethiopian Civil Procedure Code (CPC). Injunction is one form of provisional measure ordered by a competent judicial organ to the requesting party. Robert Allen Sedler, a famous author on Ethiopian civil procedure, says that it may be necessary to make provision for the protection of the parties and the maintenance of the property in dispute pending the final determination of the case. The court is vested with exclusive power to issue provisional measures until the final judgement.
Arbitration is crafted in a way that can satisfy parties’ interests from the beginning until the final award is rendered. In each step, decisions rendered by arbitrators may potentially affect the interest of adversarial parties. Anyone closely following the evolution of international commercial arbitration will not be surprised to see interim protection measures become a center of debate. From the publication of scholarly articles until the amendment of the UNICTRAL model law, the international arbitration community has made various efforts to adopt uniform application and enforcement of interim protection measures in international commercial arbitration.
What would you answer if you were confronted with a question: is appeal a fundamental right? Would you say yes, no, or neither? I think the argument leans towards yes, does not it? Art 20(6) of the constitution affirms the right of any person to “appeal to the competent court against an order”; yet, I do not aim to discuss appeal in courts, but its general perception in arbitration.
I say 1958 was a year the international arbitration world took a remarkable move. The UN and other parties interested in international arbitration embarked an international convention to recognize and enforce foreign arbitral awards. The convention was signed in New York, The New York Convention to Recognize and Enforce Foreign Arbitral Awards (NYC), and it became the most popular convention in the whole wide world. The major trading nations, those that appear to be antagonistic have signed it without any kind of reservation. Thus far, round about 150 countries have signed and ratified it. Even, it is hailed as the “successful convention drafted by the UN.”
In 1996 the case between Arab Republic of Egypt v Chromalloy Aero services brought a new debate to the international arbitration world. Chromalloy Aero services (“Chromalloy”), an American corporation, entered into a military procurement contract with the Air Force of the Arab Republic of Egypt (“Egypt”) to provide parts, maintenance, and repair for helicopters.
An interesting article, published on Jimma University Journal of Law, entitled “the immediate appealability of a court order against arbitration: it should be allowed and even made compulsory”, argues that an immediate appeal against a court order which is against arbitration must be allowed; article 320/3/ of the Civil Procedure Code should be amended to take the special nature of arbitration into account.
In an old English case [Richardson v. Melish, 2Bing. 228(251) Court of Common Pleas, England (1824)] Judge Burrough stated that public policy is “unruly horse and once you get astride to it, you do not know where it will carry you.” This judge has sufficient reason for saying public policy is unruly horse: case law and scholars have tried to define public policy; but none succeeded in giving a concise, precise, and short definition. Its concept remains controversial.
The case between Salini Costruttori S.p.A v. AAWSA, ICC Case 10623, is very interesting. What makes the case appealing is the Ethiopian Supreme Court’s interference in the proceeding and the consequent explanation given by the arbitrator tribunal. By the application of AAWSA, the Ethiopian party, a respondent in the case, the Ethiopian court was convinced that the international arbitral panel was partial; hence, the court ordered the tribunal to cease the proceeding.