- Category: Alternative Dispute Resolution
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Ethiopian Arbitration and Conciliation Center
Ethiopian Arbitration and Conciliation Center (EACC) were established by a group of Ethiopian lawyers, with the aim of providing an alternative mechanism for private dispute resolution. The Center provides arbitration and mediation services on commercial, labor, construction and family disputes. It is an independent body and facilitates the resolution of disputes in a non-adversarial atmosphere, by providing a service that is less costly and time saving than court litigation. Currently, the program is implemented in Addis Ababa with future plans to expand to the regions, in order to make the service accessible nationwide. (Currently one of the regional offices is on the way to be established in Arba Minch, in SNNP) The Center is governed by a board of directors who meet regularly.
EACC was registered at the Ministry of Justice of the FDRE, as a non-profit juridical entity, according to the 1960 Civil Code of Ethiopia and Legal Notice No. 321 of 1966. The Center was inaugurated on the 7th of August 2004, in the presence of the Vice Minister of the Ministry of Justice and the Vice President of the Supreme Court. More than 200 people, including various representatives of the public, business people and, legal and other professional attended the inauguration ceremony, which received wide media coverage. Brochures in Amharic and English, which provide an insight into the Center's objectives and activities were prepared and disseminated. These can now be accessed from EACC's offices.
EACC receives funding for its activities from Canadian International Development Agency (CIDA) and Swedish International Development Cooperation Agency (Sida). Furthermore, on a project basis, EACC receives funding from Initiative Africa and French Embassy. EACC has recently received funding from Japan Embassy.
B. Objective of the Centre - EACC has the following specific objectives:
- Providing a less costly and a more rapid system of dispute resolution and contributing to the reduction of the current overload on the court system;
- Providing ADR services, to the business community, by making available a wide range of expertise, for resolving commercial disputes;
- Providing to the needs of the community as a whole, by dealing with construction, contract, labor, tort, inheritance, and family disputes, including divorce, child custody and maintenance;
- Providing professional ADR training for those who wish to qualify as arbitrators, conciliators and mediators;
- Make use where appropriate, traditional methods of dispute resolution, particularly through mediation and reconciliation, and to that end, develop and promote these services to adopt to the needs of the newly emerging needs of the community;
- Providing 'training of the trainers' course to qualified ADR professionals, in order to enable them to train those involved in the provision of traditional dispute resolution to the community.
- Preparing a “Roster of ADR Professionals” qualified to provide ADR services and monitoring the activities of mediators, arbitrators and conciliators as detailed under the ‘Rules of Arbitrators and Mediators’, which has been prepared by the Center.
- Organizing and providing appropriate facilities, for arbitrators, mediators and conciliators, such as appropriate venues and archives;
- Developing a working relationship and exchange of experience with like minded national and international organizations, and foreign arbitrators and mediators, especially where a case involves foreign investors;
- Conducting research into arbitration, mediation, and conciliation, and disseminating the findings of the research and educating the public, with the objective of introducing to the public the benefits of using the Center’s service and creating overall public and official awareness on ADR;
- Advocate for law reform by way of the introduction of a legislation on ADR and related policy changes;
- Make accessible a reference and documentation section on arbitration, mediation and conciliation, for legal practitioners, academics and students.
C. How to Use the Service:
Parties could stipulate in their contract, that in case dispute arises to use the E.A.C.C in resolving their dispute. Moreover, parties in dispute could direct their case to the E.A.C.C to get the center service.
Here are Model Dispute Resolution Clauses which the parties might make;
1. Parties can provide for arbitration of future disputes by inserting the following clause into their contracts:
"Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the Ethiopian Arbitration and Conciliation Center under its Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof."
2. Arbitration of existing disputes may be accomplished by use of the following:
"We, the undersigned parties, hereby agree to submit to arbitration administered by the Ethiopian Arbitration and Conciliation Center under its Arbitration Rules the following controversy: (describe briefly) We further agree that the above controversy be submitted to (one) (three) arbitrator(s). We further agree that we will faithfully observe this agreement and the rules, that we will abide by and perform any award rendered by the arbitrator(s), and that a judgment of any court having jurisdiction may be entered on the award."
3. Parties can provide for mediation of future disputes by inserting the following clause into their contract:
"If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the Ethiopian Arbitration and Conciliation Center under its Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure."
4. If the parties want to use a mediator to resolve an existing dispute, they can enter into the following submission:
"The parties hereby submit the following dispute to mediation administered by the Ethiopian Arbitration and Conciliation Center under its Mediation Procedures. (The clause may also provide for the qualifications of the mediator(s), method of payment, locale of meetings, and any other item of concern to the parties.)"
An interested party should lodge his/her case with the E.A.C.C, by completing a form which can be obtained directly from our website or by contacting the Secretary General at the Center. Once this form is lodged with the E.A.C.C, it will then be assessed in order to ascertain whether the case falls within the rules of arbitration. The applicant will then be informed of the outcome. If a case is accepted and arbitration is deemed to be suitable for resolving the dispute, a notice will be sent to the other party, in order to notify him/her of the case and to allow him/her to prepare a defense. In the case of mediation, the other party is contacted for his agreement to resolve the dispute through mediation. If he/she agrees the case then proceeds to the next stage.
D. Arbitrators and Mediators:
All arbitrators and mediators are qualified lawyers & experts in other fields with years of experience and training. Once parties decide to resolve their disputes through arbitration or mediation, they will then be provided with a list of arbitrators or mediators. The parties will be given a reasonable time in order to choose an arbitrator or a mediator from the list. Alternately, if the parties fail to respond within reasonable time, then the center will select a suitable arbitrator or mediator to adjudicate the case.
EACC maintains a roster of trained arbitrators and mediators which contains details of qualified mediators and arbitrators. Where a case requires a foreign arbitrator, EACC can arrange for the same as it has agreements with foreign ADR organizations that are willing to provide the service.
E. Arbitration Rule of the Centre
The rule has 43 articles divided in to five further chapters. The first chapter – General Provisions (Arts. 1 – 9) comes exactly next to the preamble and discusses generally about arbitration, its effect, scope and related matters. Chapter two entitled as 'Arbitration Tribunal' (Arts 10 – 15) is dedicated for matters related with the arbitrators – ways of nomination, discharge from office etc. Next to this we have Arts 16 - 33 which deals about the detailed procedural rules that guide the conduct of the arbitrator and the disputants. The next chapter which runs from Art 34 to 36 is exclusively about the award – the nature, content, effect etc. Lastly, we have the Miscellaneous Provisions (Arts 37 – 43).
For better understanding of the rule, in the following discussion we will try to evaluate this rule with the some of the existing and widely used principles that we have discussed under chapter two, its relation with the mandatory laws of the state and how it tried to address some of the contentious issues over the proceeding.
I. Flexibility of the whole proceeding
Flexibility refers to the non-rigidity of the proceedings in relation to normal court litigation i.e. the rules of the centre can be applied or changed based on the consent of the parties to the arbitration. This stresses on the rights of the parties than their duties on the other hand, it is unto the parties to be ruled by these rules or by their own rules of agreement when they come before this centre.
The rules of arbitration under EACC are aimed to be flexible. This can be inferred from the reading of the rules Arts (10 & 11) which gives the parties the rights to determine the numbers and the procedures of appointing the arbitrators. This means the parties, without prejudice to the mandatory provisions of the law, can elect any odd number of arbitrators, either from their relatives or out side based on their free willing and they can also determine ways how to appoint these arbitrators This concept is also given under our 1960 civil code art. 3333. While in normal court preceding this concept is highly under the absentee discretion of court and laws rather than under parties’ discretion. This in turn shows the more flexibility of arbitration proceedings than that of the normal court litigation.
Art (20 & 21) says, both place and language of proceeding are also chosen by parties before the arbitration center determines where to proceed their case and through which language the proceeding has to be conducted. They can do this through agreement they make before they come to the center Arts. 5(2) (6) or 5(2. 6). While in normal court litigation forum and languages are provided by laws and courts based on the jurisdiction (Judicial, material and local), type of cases and parties involved in the case and other grounds for selection of places and languages.
(Art 22) reads as ‘’ parties can choose applicable laws regarding their case’’. Thus, it is up to them to be ruled by any rules or regulations while appearing before arbitration center. The center can’t enforce them to be governed by the rules of the center when they have chosen their own rules. Parties can make this choice on their petition of agreement Art 5(2.6).
Art 36 and 38 also gives the flexibility of the arbitration centre. Under art 36 the parties can request for the interpretation and correction to be made on the award if they want, and this shows how much the center's rule is flexible to review the award or to interpret the award Art 38 further gives parties the right to settle the dispute out of the centre before the award is made and they begin to follow the proceeding, and so they can leave the proceeding based on their consent.
In general, this Arbitration Rule shares the principle of flexibility than court proceedings. When we say these rules are flexible, we are not saying that there are no rules which are rigid in their nature for example arts (31(1) & (2), 38 (2) … etc) are rigid provisions.
II. Neutrality and Impartiality
As Black law dictionary defines neutrality dictates judges, arbitrators, mediator or actors in an international law to refrain from taking side in disputes.
From the very purpose of ADR and also arbitration, the proceedings have to be fair between parties and this is fictitious with out being neutral and impartial. These two principles can be attained by giving equal places and equal considerations to both parties and giving decision only based on rules and evidences but not based on biased attitudes and minds. These terms refer to the state of mind or attitude of the arbitrator in relation to the issues in question and parties to the particular case.
Art 12 (1) (2) & (3) deal with this principle of neutrality and impartiality. It provides even to take an oath which the arbitrator fears not to be partial since human being in nature fears his oath. This principle seems similar with normal court proceeding for judges as per Art 18 of FDRE constitution required to take an oath.
Art 26 (2) reads as #Tribunal may refuse to grant leave for amendment when it is convinced that the request is made with view to causing undue delay or harassing the other party$. When we scrutiny the basis of this provision, it is to help the arbitrators give equal opportunity for the disputants and see them in equal eyes. Art 34 also confirms the already said principle for the award need to be given through the majority rule. So any other case of giving award other than the principle of majority is termed to be bias and unfair which constitutes absence or failure to comply with neutrality and impartiality. Generally, majority rule implies the existence of fairness and justice which is the end product of neutrality and impartiality.
But here as per Art 11 parties can elect any person of their choice as arbitrators and they may appoint their relatives or parents or neighbours who can keep their best interests. This might affect the neutrality of the arbitrator in some instances for such persons nominated as arbitrators stand for the interest of the disputant who nominated him. A little guarantee for this problem has been listed under article 13(2) i.e. when it is "proven that he has acted with clear partiality in favour of one party at the expense of the other" the other part can apply for his removal form his office. Similarly, civil code art 3340 and 3341 also provide the removal of arbitrators when he becomes partial through the application of the other party to guarantee the arbitrators neutrality.
There are two in dependences:
(a) Functional (decisional) independence:-This independence deals with the liberty of the arbitrator while giving an award. He should not be influenced by any external influence. He has to depend only on laws rules and evidences.
(b) Institutional independence (organizational):-This refers to the independence of the center rather than that of the arbitrator. The center should be free from external influence in it's over all activity. When the center deals with the budget allocation or similar cases, it should enjoy this type of independence.
But it is the first type of independence, which is the relevant one in our dealing. Art. 12(1) provides the functional independence of arbitrators. Art. 39 also give the exclusion of the arbitrator of liability in rendering awards based on rules and laws. This implies that, arbitrator is not liable for any damages if he complies with the mandatory provisions and rules; so he enjoys independence. But if he breaks the mandatory provisions and rules provided by this center, he will be accountability. That means he will be liable for any infringement he made and this makes ADR proceeding especially, Arbitration similar to normal court litigation.
Secrecy is the state of having dissemination of certain information restricted. Confidentiality of relationship is characterized by trust and willingness to confine the message in the others wind (e.g. between attorney and client). This means any arbitrator shall have the obligation to keep in secret the personal or organizational information of the parties coming before them to settle their disputes. Art. 24 says "unless the parties agree other wise or the law provides to the contrary the hearing and ruling of the tribunal shall remain confidential".
Any information of a party shall be kept secret but to what extent this confidentiality extends? To whom it will be applied? What constitutes confidential? Is every information confidential? The rule doesn’t answer all these questions and it is left for interpretation.
About the extent of confidentiality many says that though the nature of the case affects the reasonable time, it has to be extended to the life span of the arbitrator. This is because one of the objectives of ADR is to keep the secret of the parties to bring conducive situation for their future relationship. But the arbitrator may reveal it when the parties give their consent, or for the benefit of society at large, or to defend him self before the judiciary … etc. The arbitrator can’t reveal it to any body without the case mentioned under (b) to his wife.
V. Expenses before the Tribunal
Generally it is obvious that there would be some amount expense to be incurred through out of these proceedings. The same is true in case of arbitration service. Though parties benefited more, they are required to pay some amount for the center which gave them service and for witnesses who testified their testimony. Expense includes the payment for the arbitrators, cost of transportation of witnesses and other costs fixed by the rules. But there is no administration fee to be paid to the centre for the service it has delivered.
Art 28(4) makes the party who calls a witness to whom language interpreted is provided to pay the fee for the interpreter. But what if the party cannot afford the payment? The amount of payment may be as well a source of controversy. Art 29(4), 30(1) and 37 also mention costs and fees to be paid. But, the amounts to pay and criterion or procedures to be taken in assessing these costs and fees need to be well stated.
Art 41 imposes a burden to pay costs on the losing party this is very reasonable as far this article puts limitation on 3rd party not to bring an innocent person and unjustifiable matter before this center. It is up to 3rd party to pay all expenses incurred due to a case brought by him without having any reason to sue a person. But the amount to be paid is not known. It is fixed by the tribunal any how it should be reasonable payment.
VI. Quality of Outcomes
Quality of out some can be influenced by qualification of arbitrators and the devises of gathering and treating evidences.
a. Qualification of arbitrators
A judge in court litigation is expected to be a qualified lawyer and the same requirement is put under Art 4(2). This requires the arbitrator in the centre's list to be a highly qualified person in his profession with proved competence and experience, a person who commands high esteem and moral standing in the community, one who upholds the rule of law, and one reputed for his dispute management skills. Arbitration service is a huge service to community so the one who gives this service has to be well qualified at least in fields having certain connection with the subject matter of the dispute
b. Treatment of Evidence
To say the decision given is reasoned and best quality, the handling of evidence must be looked as well. The manner of conducting the proceeding, order of presenting evidence, relevancy and a admissibility of evidence...etc are decided by the tribunals if the parties failed to agree (Art 17). Art 28 also puts ways of conducting the proceedings and presentation of evidences and the order of presentation are - parties present evidence orally, additional evidences required (if any), tribunal hears and determine its relevancy and admissibility.
Is there examination of witnesses in arbitration? Art 317 CPC and art 3345 of civil code answer this question these law articles together say, procedures in arbitration shall be the same or governed by civil procedure code. In addition, Art 16(2) of the rule states that the relevant laws shall apply on matters of procedural that are not covered by these rules or by parties' agreement. Thus, the rules of examinations of witnesses under civil procedural code are applicable under arbitration through the commutative reading of all the above articles of civil code, civil procedure code and the rules under arbitration.
Since arbitrators are highly experienced persons in their profession and evidences are also treated as we treat them under normal court litigation, including the examination of witness and determination of relevancy and admissibility, we can conclude that the quality of arbitration out come will be reasoned decision (award). But this quality may be affected when parties appoint their own arbitrator who may not fulfil the requirements under these rules.
VII. Arbitrable Matters
The rules of EACC did not solve the problem regarding to arbitrability. It simply provides that arbitrable disputes to mean any civil dispute, which is subject to adjudication by arbitration under the relevant law (preamble and Art 2). The existing problematic rules on arbitrability under the relevant laws are left unabridged by the rule of EACC. It is with the aim of filling this gap, that we proposed public policy and other justifications in order to enable us decide on issue of arbitrability under the relevant laws of Ethiopia.
F. Mediation Rule of EACC
Relatively speaking the rules regulating mediation is smaller and less detailed than that of the centre's arbitration rule. There are only 15 articles with out further division to deal the whole issues. For a better understanding of the centre's mediation rule, this is the only one in its type in Ethiopia, we will compare it with the overriding principles in the general jurisprudence and Ethiopian laws, and how it addresses the basic issues. Through out of the following discussion we will notice that the rule used the term "mediation" instead of "conciliation" which is used by the laws of the state like the civil code. Why is that so happened? Do you think it is a mere mistake or intentionally done since the two concepts are not totally different?
Though the function of the mediator is not decisive as compared to arbitrator so far as he is one who inserts input for the final settlement of disputes, he shall perform his duty neutrally. As we clearly infer from the rule, the mediator is an investigator of evidence and he is one who forwards settlement and frames issues. Though the mediator doesn’t finally determine the result of the dispute, unless this function is performed neutrally it endangers the outcome of the case. What needs to be emphasized here is that he is with a persuasive power in the process. The neutrality of the mediator may be affected either from the relation that he has with the issue or the party and the threat exerted from the outside.
The relations of the mediator with the party: - This potential relation emanates from the manner of appointment. The rule suggests the existence of one mediator (Art 12(2)) as to whose identity the parties have agreed. If so he is one who parties relay their trust and confidence. This specific rule closes the door for the possibility of functioning in determinant of one party. So the given priority for the existence of one agreed mediator is a rule created for avoidance of partiality. But we’re in suspicion of other rule which gives each party the right to appoint a mediator unilaterally than by mutual agreement. There is no or little reason for this person to be neutral rather than predisposing the matter in favour of his appointment. The rule as a method for fact finding process allows separate meeting (Art 6(5)), but from the view of neutrality, he may negotiate his neutrality while he spent time with one party.
The relation of mediator with the issue at stand: - since the mediator has a possibility of engaging in many activities, his interest may be involved directly or indirectly with the issue at hand. Really, the mediator does not act contrary with which finally affects his interest. So he may not be neutral at such a case. The rule needs to fabricate a device to avoid such danger. But we’re not lucky to see any rule which prohibits mediator from entertaining some matters or there is no place which have effect of disqualifying the mediator from his position.
Flexibility is very important ingredient of mediation. Concerning this matter our civil code provides some provisions (Art 3318(1) and 3320), but the rule enacted by the center is more flexible for the parties since it provides specific provisions. From the very beginning until the final settlement, consent of the parties have a great place. When we consider scope of application of the rule, it depends up on the discretion of the parties to apply or reject (Art 2(2)).30 This means if the parties bring another rule of mediation, the rule enacted by the center has no place. Besides this, even if the parties agreed to apply rule of the center, there are a lots of discretions left for them.
As to appointment of mediator respective consent of the parties are very crucial (Art 6(2)). Flexibility of the rule extends up to the determination of venue by the parties. If the parties did not agree to the contrary, it will become the head office of the center. (Art 7(4))
Finally we consider flexibility in relation with the result or settlement. The mediator after fulfilling mediation procedure and believe that there is a ground of settlement; he formulates his own terms of settlement in writing. In this time the parties have the right to accept or reject the settlement brought by the mediator (Art 12(6)). Therefore, this all shows us how the rules enacted by the center are as flexible as the general rules of mediation orders.
III. Scope of Mediation
We understand from the preamble, the center only consider those civil matters brought by the parties to solve their dispute amicably. The center accepts two types of cases (Art 12(7)); when parties bring their case by realizing the benefit of amicable dispute settlement mechanism and when a court ordered mediation- some times courts order parties to solve their dispute by rules of mediation when it believes that, the parties settle their dispute effectively.35
Even if the rule provides some guideline as to cases which can be entertained by the center, it is still defective by failing to provide those civil cases which can not be settled by mediation. The reason is that, in order to protect public interest it is obvious that some civil cases like administrative contract prohibited from being entertained by arbitration might not be possible for mediation as well. So there is a lacuna as to this matter, because this rule of mediation did not provide such matters excluded from mediation.
IV. Time Limit
Our civil code provides time limit for the mediator to carry out his duties36. The rational behind providing such time limit is that to fulfil the purpose of law, i.e. speedy proceeding and speedy settlement of the dispute. However, the rule made by the center did not constitute any provision in relation with time limit. This may affect the parties by blocking speedy settlement of their dispute.
All matters which have been raised in then proceeding could be kept confidential between the parties as well as the mediator. 37Even if the case is finally brought to the court or any arbitration tribunal or any adjudicatory organ, the out come of the mediation should not be introduced as evidence for the new litigation18. So through out the proceeding until the disposition of the mediation, confidentiality has to be extended 38
Confidentiality is not the only issue through out the settlement of a dispute, but after the process has been finalized it should continue as confidential as before. The mediator shall not represent at any rate in any judicial or arbitral proceedings in supporting one of the disputant and to the disfavour of the other, as far as between the same parties and the case brought the litigation is the matter what he had a role on it39 The information what he knows in the mediation process prohibits him even to be called as a witness in the same dispute and among the same parties.40 Generally, the disclosure of information in relation to the process, in any form is not allowed whether by the mediator, by the parties or by the center. But it is not as such absolute, there are some exceptions which lead disclosure acceptable, when it has been provided by law 41 and as well when revealing is necessary for the implementation of the settlement. From the above discussion we can decide that the way of disclosure is under a very rarest case and with in a justifiable ground. Therefore, the confidentiality element has been absent in other legislations including Ethiopian civil code.