- Category: Alternative Dispute Resolution
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As per the objective of the law, arbitration proceedings have to be made expeditiously and fairly. In the parties’ failure, arbitrators will determine the place, time and language of the proceeding. The proceedings, however, as per article 317 of Civ. Pr. should be nearly the same as a proceeding in a civil suit. These are: -
- Summoning parties (in their failure to appear – judgment in default), and fair hearing of parties and their evidences (Art. 317 c.pr.),
- Inspection of documents and summoning of witnesses (rights and duties of witnesses are similar with court witnesses) (Art. 317(3) c.pr.),
- When an arbitrator is discharged, any court can appoint them up on application by any party (Art. 316(3) c.pr.).
- Parties can determine a period within which the award must be given and they can extend it (Art. 318 c. pr.).
- Decision to be given by a majority vote if there are more than one arbitrator (Art. 318 c. pr),
- Successful party should have the award confirmed by the court that has jurisdiction to see the dispute (called homologation) (Art. 319 c.pr.),
Final decision or judgment of an arbitrator(s) on all matters referred to arbitration is called the arbitral award or award. No special form is provided, but it should be in the form provided for judgment and signed and dated by all arbitrators (Art. 318 (4) c.pr.). This shows that award should be in a written form. It should contain clear, final and certain awards over dealt matters, i.e., reasoned awards. As per article 318(2) Ci. Pr., unless it is determined earlier, awards should include costs of arbitration. Copy of it will be served to both parties. Award will be executed as judgment after homologation (court affirmation)(Art. 319(2) c.pr.)
Appear from the Awards
A party can appeal from the awards of arbitrators to ordinary court in the grounds listed below. But parties can waive this right if they are with full knowledge of the circumstance (Art. 359 c.pr.). The procedure is similar with the making and hearing of an appeal from a judgment. Such jurisdiction is given to a court which would have had appellate jurisdiction had the dispute not been referred to arbitration (Art. 352 ccc.pr.). The grounds of appeal are; in consistency, uncertainty or ambiguity of the award or when the award is wrong in matters of law or fact, or the arbitrator omitted to decide maters referred to him. In such instance the appellate court may confirm or remit to the arbitrator to reconsider it with in three months. Other grounds are irregularities of proceeding and misconduct of arbitrator, i.e., partiality of arbitrators, which can be confirmed or varied as the court thinks proper (Arts. 351 and 353 c.pr.)
Enforcement of Awards (Arts. 456-461 c.pr.)
- Foreign arbitrary awards- conditions to be fulfilled (Arts. 458 and 461 c.pr.)
- A written application to the High Court where execution is to take place. It should contain certified copy of the award and court certificate showing that the award is final,
- Reciprocity- i.e., execution of Ethiopian arbitral award must be permitted in the country where the award sought to be executed was rendered.
- Award given following regular arbitration agreement or other legal act in the country where it was made.
- Parties were given equal opportunity in appointing arbitrators and hearing,
- Matters not prohibited to be submitted to arbitration as per Ethiopian law,
- Award not contrary to public order and morals, and enforceable as per Ethiopian law,
The court will summon parties and ask to present his observance. Except where hearing is ordered, decisions will be given according to the application. When the application is allowed, the award will be executed as if it had been given in Ethiopia.
Domestic awards- if the award was given in Ethiopia according to the conditions listed above – 3, 4, 5, 6, it will be executed as judgment of a court after homologation (Art. 319(2) c.pr.)
Setting Aside of Awards (Arts. 355-360 c.pr.)
Application to set aside awards has to be made to a court who has appellate jurisdiction had the dispute not been referred to arbitration with in 30 days from the making of the award. Making and hearing of application is similar with making and hearing of opposition (Arts. 355(3), 358 and 359 c. pr.).
There are limited grounds for application. As per art 356 Civ. Proc.Code
- When arbitrators decides matters not referred to it or when the submission was invalid or had lapsed,
- In case of two or more arbitrators, when they did not act together,
- When arbitrator delegates his authority to a stranger, to one of the parties or to a co- arbitrator.
After receiving the application, the court will fix date for hearing and will summon and serve the copy of application to the other party. The application may be dismissed which validates the award given, or the award will be null and void and will be set aside if the application is granted (Art. 357 c.pr.).
Institutionalized Practice in Ethiopia
When we talk about institutionalized arbitration practice in Ethiopia, we are referring to entities or organizations or association which are established solely or incidentally to serve as a forum for the disposition of disputes by employing arbitration proceeding. These duly registered institutes work not only as a forum to facilitate the smoother bargaining between the disputants but also work in the fostering of arbitration and introducing the ADR options for the society and judicial offices. The existence of these institutes to the minimum helps the society to use the ADR options backed by framed rules of these institutes, encourages disputants to use the option and not to question the lack of forum as one obstacle, create awareness about the alternative through their different activities and forums.
A branch under Addis Ababa Chamber of Commerce and the Ethiopian Arbitration and Conciliation Centre (EACC) are the two currently well functioning institutes practicing institutionalized ADR, more widely arbitration, in Ethiopia. Often these institutes dispose disputes by arbitration and they have framed rules to guide the proceeding other than the mandatory laws enacted by the state which the parties might be obliged to adhere. With regard to EACC, it has Mediation Rule and a well furnished room to accommodate mediation proceeding, which is different from the room where arbitration will be held.