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03 March 2012 Written by  Araya Kebede and Sultan Kassim

Conflict of Laws in Ethiopia


    Till this moment, the Ethiopian legal system has been working without rules of conflicts. There is no law to guide judges to the effect. Ethiopian courts have been in trouble if they were confronted with a case containing a foreign element for they could not avail themselves of any provision of law. It was not, however, because there was no any effort to have same. A number of attempts have been made to draft the Private International law rules.

    The first attempt to codify conflicts law was made during the time a civil code was drafted for Ethiopia. However, the Civil Code, promulgated in 1960, was at the end of the day, without a section relating to the conflicts law. The then Codification Commission, it is said, have rejected the section prepared for the discipline. Prof. Renè David, the drafter of the Civil Code, has expressed his regret for the reason that "the matter of conflict of laws, which was included in the preparatory plan has, for different reasons, been excluded from the Civil Code. Although Renè David seemed to have known the reasons, as his statement tends to imply, he did not mention one for the rejection. (Document annexed)

    Still another attempt to draft and proclaim a private international law was made in July 1976 E.C. The Short-Term Law Revision Committee of the then Ministry of Law and Justice had prepared a document on a draft along with its commentary of private international law. (Document annexed)

    The document provides that the Committee on the preparation of draft of private international law has referred to the Rene' David's unsuccessful draft, R.A. Sedler's personal draft (by the way R.A Sedler, has "attempted to propose" a code of the conflict of laws draft), and mainly the draft prepared by the (Imperial Regimes') Ministry of Justice, as the committee thinks. Furthermore, the committee had consulted other countries' private international laws such as those of France and Poland and had considered the then contemporary situation of the country ­__ Ethiopia.

    What could be the reason for non-promulgation? Could it be due to the reason that the then parliament turned down such a proposal? The writers could not get any recorded document telling to the effect. Anyway, whatever the reason may be, the draft was not, again, put into effect.

    However, it is a general norm or practice that any court is not expected to reject a case for lack of law to resolve same. It is the responsibility of any court (of course, with established jurisdiction) to dispense justice.  To refuse to entertain a case for lack of law, inter alia, while one has the power to entertain the case is to deny justice __ unfair! At any rate, a judge is required to resolve any issue of a certain case brought before him.

    As member of the international community and considering Ethiopian citizens are making transactions and other connections with foreigners, problems of conflict of laws do inevitably arise. What, then, was the mechanism being employed by Ethiopian courts in resolving cases containing an extra-state element without a corresponding law to the dispute? What was the practice? On what grounds did they claim judicial jurisdiction? What standards or criteria were utilized for the choice of law problems?

    We have said above that Ethiopia does not have defined rules of private international law. Nor does it have a well developed precedent to enable courts assume judicial jurisdiction. Despite this fact, whenever Ethiopian courts were confronted with a case containing a foreign element, they, in practice, have been resorting to different methods for the purpose of determination of whether they have power of adjudication of a certain case.We will discuss them later. For now let us assess our Codes if they, by a dint of chance, have something to say about judicial jurisdiction.

    There are some insufficient provisions of judicial jurisdiction scattered in different codes designed for specific purposes. These provisions are Arts. 208 and 237 of the Maritime Code that lay rules of judicial jurisdiction in respect of carriage of goods and for action of damages incidental to collision, respectively. Moreover, Art. 647 of the Commercial Code captioned "Jurisdiction" concerning contracts of exclusively internal carrier by air. All these provisions employ domicile to establish jurisdiction.

    In addition to the abovementioned provisions, it was claimed that the Civil Code provisions of domicile (i.e., Arts. 183-191) were destined to serve private international law. Jacquious Vanderlinden, in his Commentary on the [Ethiopian] Law of Physical Persons, in confirmation to this argument amplified saying "domicile is indeed reserved for private international law because nowhere in the [Ethiopian] Codes it is (but residence) used for purely internal disputes."

    In other words, since no effect of domicile seems to exist anywhere in the Ethiopian civil law, but residence alone is taken into consideration; the inclusion of the concept of domicile in the civil code "seems to be that a definition of domicile was necessary in Ethiopian civil law, given the demands of international private (or conflicts) transactions."

    As mentioned above the draft of the 1960 Civil Code included a title on private international law although that part was omitted for unknown reasons when the code was promulgated. Jacques Vanderlinden argues that while the title on conflicts was omitted in the promulgated text; the provisions on domicile, "which can be fully understood only with reference to that omitted title" were forgotten.

    However, in sofar as the judicial practice is concerned, it is generalized that Ethiopian courts seem to have adopted three different approaches to solve the issue of judicial jurisdiction. They are: silence regarding judicial jurisdiction, recourse to the Civil Procedure Code, and recourse to general jurisprudence. Corpus of decided cases is cited as an authority to buttress the argument.

    In this connection, although still, there are no rules to guide, it is to be mentioned that matters of private international law and enforcement of foreign judgments are entrusted to the first instance jurisdiction of the Federal High Court. (Art. 11 (2) (a) and (c) of Proc. No. 25/1996). Incidentally, the power of deciding on the application for the enforcement of foreign judgments and arbitral awards was entrusted, before the present federal arrangement was introduced, to the then High Court pursuant to Art. 15 (3) of the Civil Procedure Code.

    Regarding the choice of law problems, as there is no statute to the effect, looking to practice of courts as to the "approaches" employed, is the only alternative. One can observe from the decided cases of Ethiopian courts that about four "approaches", (if after all some of them are to be considered as approaches) were practiced; viz. general jurisprudence, precedent, ignoring the foreign element and simply applying the lex fori, and looking towards the spatial conditioning of the internal rules.

    The following examples most of which are substantially family cases are of help to support the above statements.

    1. In the Verginella V. Antoniani Case,the only case to which foreign law is applied and a foreign expert, Dr. Vitarelli, is called; a certain Italian Benedetto Verginella who has lived for 23 years and domiciled in Ethiopian petitioned for judicial separation from his Italian wife, Antoniani (who was then in Italy) on the ground of desertion. Although the petitioner prayed his case to be adjudged according to the law of Ethiopia; the court, first questioning on which law to be applied and reasoning that the institution of judicial separation is not known to the Ethiopian legal system, ruled that the principles of Italian law on matters of same should apply based on the  following grounds.

    a)     the petitioner is an Italian subject; b) the respondent is also an Italian subject; c) the marriage between the petitioner and the respondent was celebrated according to Italian law; d) there is no provision in the Ethiopian law governing judicial separation, and e) it has been the practice of the courts of Ethiopia to apply principles of foreign law in matters between foreigners where Ethiopian law makes no provision on such matters.

     

    2. The case in the matters of Giuseppe Calderone asked whether the rights of succession are to be governed by the law of domicile of the deceased or by the law of nationality. It cited cases of the Supreme Imperial Court which decided in favor of the law of domicile and using them as a precedent decided that the law of domicile was more adequate to govern jurisdictional situations and relationships giving rise to by a person who has established his domicile in a particular country without giving up his original nationality. By the way, Ethiopian courts were not consistent in applying the governing personal law of the cases brought before them. For example, while two High Court decisions have held that nationality was the governing personal law, two other Supreme Imperial Court decisions have tilted towards domicile. (Sedler, Conflict of Laws in Ethiopia, pp. 41-43)

    a) In Zevi V. Zevi, although the couple concluded marriage solemnizing in the Catholic Church of Addis Ababa and lived in Ethiopia for many years, they were Italians holding Foreigners' Identity cards as Foreign Residents in Ethiopia. When the wife petitioned for divorce, the minority of the Family Arbitrators, which the Supreme Imperial court, as appealed to, agreed with, disregarded the foreign element of the case or question of nationality (both being foreigners) and just simply declare divorce based on the "sufficiently reasonable grounds according to the Ethiopian Civil Code." The following case has got similar effect.

    b)       In the marriage case Zeyleka Gonji V. Rolbero Joseph, although the husband argued that he is Saudi Arabian (foreigner) and knows nothing about the Ethiopian law and both (he and his Ethiopian wife) were Muslims; the court refused to apply that law but simply referred the case to family arbitrators to be decided according to the Ethiopian law.

    The Peter Case is an example of determination of the spatial conditioning of the internal law. In this case, the couple (Ethiopian wife and British husband) concluded a religions marriage in the Anglical Church in UAE. The court framed an issue "whether the Ethiopian Law could be applied to a religious marriage case or not". For this case is a multistate one, the very framing of the issue was not correct. What if the answer was "no"? It would result in another issue __ what other law, then, would apply? The issue should have been framed like this: "Which law should apply?"

    To make the discussion on the Ethiopian Private International Law full, the Ethiopian Civil Procedure Code has taken up the responsibility of dealing with the third major ingredient of the discipline __ enforcement of foreign judgments though partially. (Note that the "recognition part is not dealt with for unknown reasons). But for the enforcement part, Ethiopian courts were employing the provisions of the Code. What is more, at this time there is a move towards drafting a Federal Conflicts Rules by the Ministry of Justice. In fact Mekelle University Law Faculty was also involved in drafting this law.

    The drafting work is being done at the right time as, besides the international conflicts which have existed till now, the federal structure of the present Ethiopia has come up with other problems __ interstate conflicts problems. It is to be noted that the constituents of the FDRE are empowered to enact some areas of laws, (for example, family law) which inevitably will come up with some differences that call for the application of choice of law rules to avoid forum shopping due to their differences.

    Last modified on Wednesday, 02 May 2012 13:05