ADR in other Laws

The coming discussion is intended to show you the place and importance of ADR in the dispute settlements arising over different subject matters. In the previous discussions we have seen the role of ADR in the customary dispute settlement and also the provisions under Ethiopian laws regulating the matter under the general provisions of the civil code and the civil procedure code. Now we will see the specific provisions in different subject matters like family law, labour law and insurance law. I would like to remind here the discussion we have made about the issue of arbitrability or scope of arbitration and the blurred legal regime we have. Thus, we are not saying that it is only in those subject matter that arbitration would come. But it is evident in many other fields, like investment law, contract, expropriation of property in property law and others. So it is only an example and the student them selves can look fore ward to see other fields. The other thing here is that, we believe that each specific subject has thoroughly dealt ADR in respect to the dispute arising there under like in the family law, labour law or insurance law courses. It is to emphasise its importance and to compare it with the prevailing principles that we have discussed so far.

Arbitration in Family Law

Introduction

Arbitration, as an alternative dispute settlement mechanism, is widely in use, especially in family matters in Ethiopia. Its proceedings are more preferable to the parties in the dispute due to its speedy nature. Both the civil code and RFC (The Revised Family Code) expressly provides for arbitration. In such away those spouses under the dispute are tried to settle their dispute through their appointed family arbitrators other than the ordinary court litigation.                  

Family arbitration as one method is established in modern way in Ethiopian since 1960 when the civil code came into force for facilitating settlement of family disputes by identifying the chronic problems and helping the couples to communicate, and the arbitrators may indeed help save the marriage. This method also improves the relationships between even previously hostile married partners who have prepared themselves for divorce.

This method is the one which has a mandatory power to family disputes. It is clearly seen under Art.731 of the civil code of Ethiopia “if it is found that no arbitrator had been designated …” shown that arbitration be permanent institution rather than a body that being selected periodically as is known in today’s practice. (Art.82(2) of RFC )

The new revised family code of Ethiopia diminished the role of institution of family arbitration as one devise of settling family disputes. For instance, the sole jurisdiction to see and decide divorce cases is given to the court unless the court forwards the spouses taking their consent to family arbitrators to change their mind. (Senior research paper on function of family arbitration under Ethiopian law, by Medhanit Adamu p.18 Unpublished, Haramaya University) But where the court fails to settle a dispute, the court will refer the spouses to nominate their own family arbitrators to solve the dispute amicably. These arbitrators, unlike the civil code family arbitrators, could be any person either professional, family member or any third party as long as the spouses are well consented.

Generally the rationale behind the RFC for the exclusion of the institution of family arbitrators is that, the appointed family arbitrators in both side devoted much time through litigation by supporting their own sides’ interest. It affects the justice system that tries to solve as speedy as possible in a minimum cost. As it has been shown earlier, the purpose of inclusion of family arbitrators, under the civil code, has been taken away under the RFC since the drafting committee came to know that the pre existing family arbitrator failed to meet the objective it was established.

The positions taken by RFC is that determining or settling family disputes should be substantially made through court litigation means’s. If the court failed to do so, it may recommend the parties to settle their disputes through arbitrators by their own choices. But the problem here is that there is no separate division in the court system which independently sees these family cases like divorce. In Ghana, Brazil & elsewhere marriage and family issues have special tribunals and speedy proceedings. (Senior research paper on function of family arbitration under Ethiopian law, by Medhanit Adamu p.18 Unpublished, Haramaya University).

Kinds of Family Disputes Governed By ADR

Before discussing the subject matters of family disputes that are governed by ADRs in our legal system it is better to have a bird over view of the US model. From the US model the kinds of family disputes that are subject to ADR are broadly categorized into two categories: these are 1) divorce and 2) non divorce. In order to solve the above kinds of disputes among the most applicable dispute resolution mechanism, they use a competent mediator by giving positive strategies in order to manage the problems. (Rebert Coulson, Family Mediation: Managing Conflict, Resolving Disputes,Jossey Bass Publishers, 2^nd Edn, p 43ff ).

The subject matters of family disputes in general constitute the following matters among other things:

A) Divorce- it is a very common kind of marital disputes that arise when marriage is being dismantled from the human complexity of custody and visitation to the complicated financial and legal aspect of property transfer.

B) Pre-martial agreement- it is a negotiation prior to marriage and planning to protect spouses interest.

C) School and parent- such kind of dispute arise between parents and school authorities because of to receive appropriate educational service to wards their children based on their contract.

D) Teenagers and their parents-such dispute arise when adolescent behavioral problems create emotional climax in a family.

E) Teenager pregnancy-when unmarried teenagers becomes pregnant the dispute arises between the two family groups.

f) Other family disputes-here under are some of the examples                                     

I) Relocation- disagreement may arise when spouses receives promotion or job after that moving elsewhere of one of the spouse.                                                                                                               

II) Nursing care -when a family member retires sometimes other members of the family adjust their life style, as a result of such agreement failure to pay the service reward creates dispute between them.

III) family business-control of family owned companies can be come an issue especially when a founder or subsequent owner dies as a result dispute arise among heirs and legatees.

IV) inheritance- dispute over the meaning and application of a will.

V) violence- the disagreement of a family escaletes into violence.

Under Ethiopian law almost all family disputes that are mentioned above are not subject to ADRs and most of them are not recognized in Ethiopia. As has been stated earlier the family arbitration that was established by the civil code has no or only little recognition in RFC. This shows that arbitrators have no power to decide even the matters that were assigned to them by the civil code. Disputes that arise out of the dissolution of marriage, difficulties that arise between the spouses during the marriage, disputes arising out of betrothal or out of breach of a betrothal (Arts 723. 725 and 726 of the Civil Code), were among the subject matters that were governed by ADRs according to the civil code prior to the coming in to force of the RFC.

As it is clearly provided under the RFC art.115-117 the existence of valid marriage, the established of irregular union and divorce did not belong to the family matters that has to be governed by ADRs rather they are matters which will be seen exclusively by the court. Similarly, under the RFC art.118 (1) stated that “without prejudice to art.177 of the provision of this code, disputes arising out of marriage shall be decided by arbitrators chosen by the spouses.” From this provision it is possible to point out disputes that arise in family can be governed by ADRs. Any non divorce conflict, distribution of property, family business, inheritance by will not by law, violence, relocation of the spouses and the like can be resolved by family arbitrators chosen by the consent of the spouses. Mehari Redaie, on his comment on the RFC, takes the position of appreciating the submission of family disputes to the family arbitrators and justifies its importance to the disputing parties, the government and the society. (Some points to understand the RFC by Mehare Redae p. 108) Here, it is noticed that while the code recognized celebration or conclusion of marriage before religious officers and also according to custom, but limited the decision over divorce to courts of law only.

 

Appointments and Removal of Third Party

A. Appointments - The consent of the spouses is determinant for the appointment of family arbitrators. The number of the arbitrators will also be determined by the spouses. The RFC allows the possibility of number of arbitrators being one or more than that under art.119 (1). So there is no indication as to the evenness or oddness of their number. As it is enshrined under the civil code (Art 332-) and accepted in general jurisprudence it is preferable if the number is odd; otherwise, if their number is even, it will create difficulty while giving decision.  In order to avoid this problem the civil code dealt some indications about the number of the arbitrators. It provides that they should be two from wife side and two from husband side and one by their agreement, if failed, by the nominated fours or some times by the court. This was important as the other arbitrators are chosen from both sides to save the possibility of partiality.

Another point in relation to appointment is about their qualification. There is no qualification requirement to be an arbitrator in the RFC. If they are chosen by the consent of the spouses they can arbitrate the dispute. Regarding this issue the civil code pursuant to art.725 (1) had required the personal testimony of the marriage in order to arbitrate the dispute that arises between the spouses during marriage. But this requirement is not absolute and the spouses can agree to the otherwise.

We will deal latter, in recommendation part, with the issue- what will be the solution if the spouses initially agreed to settle their dispute through arbitration and latter fails to agree on the appointment of the arbitrators?

B. Removal of third parties - An arbitrator is required to conduct the arbitration with in a certain accepted standards. The court has the power to remove an arbitrator, (Civil code art. 733(2)) who fails to use all the reasonable dispatch and diligence in conducting the proceeding. (Art 668 of C. C.) Removal of an arbitrator is the act of removing the same from his/her power to arbitrate the disputant. To revoke the authority of an arbitrator is an extreme remedy which might deprives interest of one party. According to the general accepted principle, arbitrator will be removed from entertaining and handling the issue. Grounds for the removal of arbitrators can be; serious and irreparable misconduct, actual/potential bias, incapacity, where he failed to perform the function of arbitrators, where justice requires so and others.

All the aforementioned discussions are based on the general jurisprudence. In our law under the civil code, which is actually repealed, it confirms with the above discussion. Whereas under the RFC it is not stated about the removal of the arbitrators and the grounds of their removal. So there is a gap in this area of the law. The writers of this paper will recommend latter to fill the gap.

3.8.1.4. Powers and Duties of Third Party

A. Powers - After their appointment, family arbitrators have the power upon the spouses. Their power is recognized both by the civil code and the revised family code. (Mehare Redae RFC commentary p.106) These family arbitrators are empowered by the spouses. Since they are appointed by the free consent of the spouses, the power of the arbitrator emanates from the disputing parties.

When we compare the power of family arbitrators in the previous law and the current law, family arbitrators had more power in the previous. Their power was up to the pronouncement of divorce for serious causes.(RFC Art.121(1)) But this power is revoked by the RFC and here what we have to understand is that, even though their power to pronounce divorce is taken away by the current family law it is impossible to say that family arbitrators have no any role.(RFC Art 121(3)) Indeed, their power is to reconcile or making an effort to reconcile the spouses and to make the spouses to renounce their petition for divorce in case of divorce issues now. Family arbitrators have no any power other than reconciling the disputing spouses for disputes involving in divorce (RFC Art.117). As we can see the RFC family arbitrators have the power to act as mediator as far as their purpose is to reconcile the spouses. They can use all possible meanses to settle the dispute and to keep the sustainability of marriage.

Generally speaking, any attempt of the third party arbitrators to pronounce divorce other than persuading for the conciliation has no legal effect. This is for the fact that marriage is the base fore the society in general and for the family in particular. Therefore, it should not be as such flexible to be dissolved by the decision of third party arbitrators. But some scholars argues to the contrary saying that once we have recognized conclusion of marriage to be made in offices other than the court or notary, it would be justifiable to allow divorce in the same cases.

B. Duties of Third Party Arbitrator - Arbitrators, due to the irony relationship that they have with the spouses, play a vital role in family dispute resolution. Both the repealed provisions of the civil code and the RFC, confers duty upon arbitrators. Hence we will see the duties conferred upon them in some detail in this section. What is expected from the chosen arbitrators to be fulfilled includes keeping the principle of confidentiality and arbitrators are assumed to be neutral.

According to the RFC Art. 83(2), they have the duty to report on their efforts to reconcile the spouses and renounce the desire of divorcing. Regarding this point the repealed law had contained broad duty which is gives them the power of deciding over the fate of the marriage though it is subject to the approval of the court (Civil code Art. 679(1)). Similarly they were duty bound to pronounce judgments that could enabled the parties to solve all disputes arising out of divorce. The means of liquidation to be employed were to be decided by the family arbitrators.

 

Procedure

After the arbitrators are already appointed and they accept the status, the next step is starting the procedure to resolve the family dispute. Under the revised family code there is no requirement as to the acknowledgement of arbitrators’ acceptance for being arbitrator by the dispute. However, the civil code had employed such mechanisms to know the willingness of the arbitrators to arbitrate the dispute. After having appointed the arbitrators, the spouses should submit their choice to the court within 15 days (art.119 (1) of RFC). On receiving the list of arbitrators or the appearance of the arbitrators the court will make a record and give direction as to how reconciliation has to be preceded and to submit the result of the arbitration or the attempt of reconciliation within three months. From this time on wards the work of reconciliation is left to the arbitrators except submitting some reports about their progress.

Even though the revised family code provides for direction as to how to proceed the conciliation, it did not mention even some of the procedures to be followed in the reconciliation process. It seems that it is left to the discretion of the arbitrators and the court. Nevertheless, the procedure most likely has to be in the following manner. The arbitrators appoint a day which is convenient for the disputants in the most probably convenient place. Most importantly the place should not be a place having many persons, for example, market place and the like. After asking them separately about the matter, the arbitrators could start the arbitration in the presence of the spouses. Separate talking with the spouses at this level does not amount to caucus since it is made only at the earliest time and for reconciliation but not for transfer of other information.

If they are not able to decide the issue at that day they may adjourn another day which is convenient to the spouses. But it is not possible to adjourn for more than three months, unless the court orders to do so, (art. 119 of RFC). But lastly if they are not successful in reconciling the spouses, they have no power to pronounce divorce of the spouses rather they only report the result of their attempt to the court without delay (art121 (2) of RFC).

Outcomes and enforcement of the proceeding

A. Outcome of arbitration in family dispute - The outcome of arbitration by arbitrator tells us an important step for the resolution of the dispute among the spouses. If reaching an agreement was impossible, there will be no further step, except the reporting step. The outcome of the arbitration will be either of the following two options:

i) Resolving the dispute

ii) Divorce

i).Resolving the dispute - the main purpose of founding arbitration tribunal is to resolve the disputes among the spouses in amicable way. Because of this reason if a petition is taken to the court for divorce, the court will let them to take their case to the arbitrator of their choice and to reconcile as much as they can. After the process, the arbitrators who dealt the issue may come up with conciliating the spouses or they may not. If the arbitrators successfully resolved the dispute, their decision will be effective and they should report the same to the court.

ii). Divorce - once the arbitrators entertain the case and fails to persuade the spouses to reconcile,  according to the RFC the arbitrators have  no power to pronounce divorce, but it is the court that has the power to deal with the issue of divorce (RFC Art   ). But according to the civil code the arbitrator had this power if there exist a serious cause for divorce (Art 668 of the C. C.).

ADR proceeding are playing a pivotal role to settle family disputes in the administration of justice. Family disputes, particularly disputes among the spouses are the crucial problems in the society. This problem most of the time settle by ADR means’s, especially by arbitration proceedings out of court. Nowadays the process of settling family disputes out of court is very much encouraged because the courts are becoming more and more congested and a case requires a long time to be decided. In return arbitration institutions help the justice system by reducing the burden of courts.

This arbitration proceeding are like a mini-trial court proceedings which are conducted by those arbitrators who are appointed by the common interest of the spouses. This proceeding has its own procedures and enforcement mechanisms in which arbitrators have to follow through out of their effort of settling the disputes. Arbitrators have their own powers and duties which they have to discharge and apply where they conducts the arbitration proceedings. If they are not able to carry out their function competently and diligently, they will be removed from their position.

A. Background

The Addis Ababa Chamber of Commerce and Sectorial Associations, established in 1947, provide technical and advocacy services to help business people start, run, and grow their businesses. Today the AACCSA is the only organization that provides a wide range of non-financial assistance to business in the country. The AACCSA also plays a major role in voicing the business concerns to the government. With over 7,000 registered members, the AACCSA is the largest and oldest chamber of commerce in Ethiopia. It is the only representative body that speaks with authority on behalf of the business community. The AACCSA is an autonomous non-governmental, non-political and non-profit organization that acts on behalf of its members. Since, its establishment it has served its members in promoting socio-economic development and commercial relations with the rest of the world. Its major objective is to promote the establishment of conditions in which business in general and in Addis Ababa in particular can prosper. The AACCSA is today one of the most dynamic civil society organizations representing business in Ethiopia and is active in matters of importance extending beyond its regional geographic base.

B. Mission Statement

The Addis Ababa Chamber of Commerce is set to create an environment in which business in Addis Ababa can develop and grow at a much faster pace. In doing so, the Chamber will encourage the Addis Ababa business community to direct its resources on the critical issues facing our city. In the coming years the Addis Ababa Chamber of Commerce will forge a partnership between the private and public sectors:

• to strengthen Addis Ababa’s economy across the six zones,
• to promote a more flexible and hospitable condition for small and medium businesses,
• to promote business ventures that contribute to a large employment base.
• to improve the overall physical condition of the city.

This will be achieved not only by building a team of highly trained and dedicated staff but more importantly by forging a consensus among all stake holders on how best to promote faster and widely shared economic growth.

Business Missions

The AACC strives to strengthen the relationship and co-operation of itself and its members with counterpart organizations and partners in the sectors of International Trade, and Investment. Strengthening friendly cooperative relations by promoting the exchange of business delegates from time to time, and the exchange of publications and other information related to trade, technology and the economy in general, is mutually advantageous in promoting investment and trade relations in various fields. Thus, the Chamber serves as a link between its members and foreign companies by hosting trade missions and providing forums for the exchange of opinions. It also organizes trade missions to different countries and facilitates the establishment of business contacts. The Chamber receives visitors from various countries and organizes business trips for its members abroad.

C. Arbitration Rule of the Chamber

The rule has got   articles which are put in to   different categories. The first chapter is about the preliminary points, the second about the initiation of the proceeding, the third about the composition of the tribunal, the fourth about the arbitral proceeding, the fifth exclusively about the nature of the award, the sixth about the cost of arbitration and two more schedules dealing with the cost of the proceeding and the declaration of independence to be signed by arbitrators. As we did for the EACC rules, let's see this rule in light of the prevailing principles of the concept.

Short Summary on Rules of Arbitration of AACC

I. Institution of proceeding - Any disputes to be settled by AACC should fulfill certain pre-conditions required by the institute. The arbitral proceeding shall start by written application of the parties to the institute which may be in the form of an arbitration clause in a contract or a separate agreement stating disputes which have arisen or which may arise in the future (Art 3). The claimant, up on depositing a down (installation) payment specified in annex1 of the chamber, shall made application for arbitration. Such application must contain the name and address of the claimant, respondent, arbitrator (if more than is to be appointed) and advocate, if any, and all documentary evidences on which the claim is based on (Art 4(1) (i) and (ii)). The secretariat of the institute examines the technical sufficiency of the claim and if it finds not sufficient, it shall reject to be completed the formality. But if the secretariat finds sufficient, then it shall send a notice of arbitration with the copy of the claimant’s application. It shall send also a copy of arbitration rules, list of arbitrators and arbitration fee schedule simultaneously to both parties (Art 4(2)).

The respondent shall, within 45 days (subject to extension by the institute if there are justifiable reasons) from the date of receipt of the notice, submit his documentary evidences and written defence appoint his arbitrator to the secretariat. However if the respondent has counter claim, by paying the down payment specified in the annex, he shall submit  with his statement of defence the facts and reason, and documentary evidences on which the claim is based to the secretariat (Art 5).

The arbitral tribunal may allow the parties to amend their respective claims if it is not too late to raise the request, and such amendment does not affect the proceeding. If the respondent fails to file his defence, then the proceeding shall be conducted by ex-parte hearing. The same rule shall also be applicable when the claimant fails to file a reply against the respondent’s counter claims (Art 5).

ii. Appointment of arbitrations - the parties under the arbitration rues of AACC shall freely determine the number of arbitrators, if not agreed, the tribunal shall decide to be three arbitrators (two of them appointed by each and one jointly). But where the case is not complex, the institute may appoint a sole arbitrator. The arbitrators, to keep the confidentiality and interest to the parties, are expected to be absolutely impractical and independent. There are also other obligations imposed on the arbitration such as entering in to oath and signing on the following "arbitration declaration of independence" and performing in utmost good faith and disclosing any facts or circum stances connected with the case which may put into question his independence in the eyes of the parties (Art 9).

Here it is

I, The Arbitrator whose name is hereunder mentioned, hereby declare and confirm that:

"To the best of my knowledge, there is no reason why I should not serve the Arbitral Tribunal Constituted by the Arbitration Institute of the Addis Ababa Chamber of Commerce with respect to a dispute between -------------------- and -----------------."

."I shall keep confidential all information coming to my knowledge as a result of my participation in this proceeding, as well as the contents of any award made by the Tribunal."

"I shall judge fairly as between the parties, according to the applicable law, and shall not accept any instruction or compensation with regard to the proceeding from any source except as provided in the International Conventions and in the Regulations and Rules made pursuant thereto."

"A statement of my past and present professional, business and other relationships (if any) with any one of the parties is attached hereto."

Name of Arbitrator: -----------------------------

Date of Declaration: ----------------------------

Up on reasonable grounds, the parties have a right to challenge appointment of any arbitrator within 15 day from date of appointment. Generally an arbitrator may be replaced only on the following grounds; when an arbitrator dies (Art 12(1)); when he removed due to failure to perform de jure and de facto his duties (11(10)); and when both parties agree to replace him or the challenge got acceptance by the tribunal (12(3)). However, taking into consideration the comment of the parties and arbitrators, the court may decide, when it deems appropriate, to continue the proceeding with the remaining Arbitrators (Art 12(7)).

iii. Arbitral Proceeding - In the absence of agreement between the parties, the court shall determine the applicable law (Art 21(1)), the language (Art 15) and the place (Art 14) of arbitration on which awards shall be made. On this stage parties have a right to treat and present their case equally. When the court deems necessary, it shall decide whether the proceeding shall be conducted on the basis of the documentary evidences, witnesses (Expert) hearing or oral arguments. But if such party requests to conduct so, the court shall follow it (Arts 13(2) and 16(3)). Subject to prior summon to the parties to appear before it on the day fixed for first hearing, the court shall hear the presentation of their cases in person or representative capacity.

If a party duly summoned fails to appear, without good cause, the Arbitration tribunal shall proceed with the hearing (Art 17(2)). Finally, when the tribunal satisfied that the parties have had a reasonable opportunity to present their cases and evidences, it shall declare the proceeding closed.

iv. Awards and its effects - any order or decision shall be made by majority vote and when there is no majority, the presiding judge may decide on his move. The award shall be in writing and a copies signed by the arbitrators shall be given to the parties. It shall also be final and binding preventing the parties’ right to appeal against the awards.

Before an award is made, a proceeding may be terminated on the following grounds:

• If the parties settled their dispute by their agreement (Art 22(1)),
• If continuation of the proceeding becomes unnecessary or becomes impossible (Art 22(2)),
• If a party fails to pay an additional provisional costs in advance during the proceeding (Art 26 (4) and 29(2-4)),

After an award is made, either parry with notice to the other party, may request the tribunal:

• To interpreter the award (Art 23),
• To correct the award on errors in computation, clerical …etc (Art 24)
• To give additional award on claims presented in the proceeding but omitted from the award and can be rectified without any further hearing or evidence (Art 25)

The award includes determination of cost arbitration which are fees and expenses of arbitration expert witnesses, institute’s administrative expenses and legal & other reasonable costs of the parties during the proceeding. These costs are  determined in advance according to the scale set out in annex 1 and considered as partial payment principally and cost in advance shall be payable in equal share by both parties. But the institute may set separate advances on costs corresponding to their claims or set offs (Art 26(2&5)).

The final award shall fix costs of arbitration and decide which party, in what proportion they shall bear them. However, if the proceeding is suspended or terminated, the institute shall render an accounting to the parties on deposits received and return any unexpended balances to the parties (Art 29(5)).

II. Comments on Rules of Arbitration of AACC

First and for most, according to the provisions of the civil code and civil procedure a party submitting an arbitral submission should be capable under the law  and have the capacity to dispose of a right without consideration ( for gift ) on the matter in dispute (Arts 3326(1) civ.c. & 315(3) c. pr. c.). However, provisions of rules of arbitration of AACC does not clearly state such pre-requests except to have a defined legal relationship, whether contractual or not, irrespective of his minority, interdiction or any other reason incapacitating him to discharge his function properly. The same is true to arbitrators that he could not be an arbitrator if he is not of age, where convicted by a court or unsound mind …etc (Art 3340(1) c.c.). But no such pre conditions under the chambers rules have been put.

Secondly, Arbitrators shall be appointed freely by the parties and in the absence of such agreement or in case of request, the ordinary court and the institute may appoint arbitrators under the codes and the chamber, respectively (Arts 3332 (3) c.c., 316(1) c. pr. & 7 of AACC). Under the civil code without any regard to his nationality, any person can be appointed as arbitrator. However, if the parties are of different nationalists, the institute may appoint a sole arbitrator or chairman of a nationality, other than of the parties unless otherwise agreed or deems necessary by the institute (Arts 3339(1-2) c.c. & 8 of AACC). Can you justify this part of the rule and whether it is in line with the provisions of the civil and civil procedure codes?   

Thirdly, the proceeding before the arbitral tribunal under the civil procedure shall, as near as or be the same as in a civil court. For instance if a witness duly summoned fails to appear, with out good cause or intentionally avoided the service of summon the court may issue arrest warranty with or within bail and he may be liable to criminal prosecution for his failure to assist justice (Arts 118 &317 of c. pr. and 440 cr.p.c. and notes by R. Alen Sedler on Ethiopian C. pr). Even the proceeding in AACC is also more or less similar with that of court proceeding, the institute or arbitral tribunal shall not have a power to order arrest warranty for a witness who is duly summoned and failed to appear before it.

Fourthly, all persons have a right to appeal to a court against any order or judgment of a tribunal which first heard the case (Art 20(6) FDRE Constitution).

The parties shall not waive their right of appeal except such waiver made by the party with full knowledge of the circumstances (Art 350 (2) civ pro). However, the institute clearly prevented the parties to exercise their right to appeal (Art 20 (4) of AACC) except to made application to correct errors on awards. In addition, unlike the arbitration rules of the civil procedure, the institute does not also contain provisions applicable to setting aside awards (Art 355-357 of civ pro) because the institute’s award would be final and binding.

Fifthly, as we stated earlier, it is inevitable during the proceeding that the institute and the arbitrators would incur costs and the disputants shall pay in advance as partial payment, when the proceeding started to secure to bind the parties by the decision of the arbitrations. The fees shall be calculated according to the scale in Annex 1 of the chamber put below.

a. Administrative service Fee Schedule of AACCSA Arbitration Institute

Sum In Dispute in ETB	Administrative Expenses
Up to 50,000	2,000
From 50,001 to 500,000	2,500+3.50% of the amount above 50,000
From 100,001 to 500,000	4,250+1.70% of the amount above 100,000
From 500,001 to 1,000,000	11,050+1.15% of the amount above 500,000
From 1,000,001 to 2,000,000	16,800+0.70% of the above 10,000,000
From 2,000,001 to 5,000,000	23,800+0.30% of the amount above 2,000,000
From 5,000,001 to 10,000,000	32,800+0.20% of the amount above 5,000,000
From 10,000,001 to 50,000,000	42,800+0.07% of the amount above 10,000,000
From 50,000,001 to 80,000,000	70,800+0.06% of the amount above 50,000,000
From 80,000,001 to 100,000,000	88,800
From 100,000,000	88,800

b. Miscellaneous fees

1. Registration fee-500.00 ETB
2. Arbitrator/Adjudicator/Conciliator appointment fee-1000.00 ETB
3. Ad-Hoc Arbitration/Adjudication/Mediation Service fee-4000.00 ETB per three months.

If we take for instance the first schedule for claims involving up to 50,000 Birr, assume there is 10,000 Birr claim in the dispute:

Then the parties would pay,

• 2000 Birr for administrative expenses
• 500 Birr for registration fee
• 1000 Birr for Arbitrators fee
• 4000 Birr for Ad-hoc Arbitration service per 3 months
• Some other costs of expert witnesses, if any

Finally the parties would pay approximately > 7,500 Birr for a dispute having a claim value of 10,000 lasted for 3 months. Therefore, this seems very unreasonable and disproportional with claim instituted and the cost the parties would pay in courts of law. In other perspective for a giant companies like construction and infrastructure companies which are involved in arbitration proceeding, the fee might be reasonable because-

• The companies carried out their transaction through a huge amount of moneys even the scale is at increasing rate in the first nine schedules, finally it is constant.
• The dispute involving such companies is more complex in nature, and needs relatively longer time to settle. So due to these reasons the arbitral proceeding would incur higher expenses, fees and costs required the parties to be paid become reasonable. However, the registration fee (500 Birr) is not proper at all for parties to a mere technical matter.

A. Background

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:

1. 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;
2. Providing ADR services, to the business community, by making available a wide range of expertise, for resolving commercial disputes;
3. 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;
4. Providing professional ADR training for those who wish to qualify as arbitrators, conciliators and mediators;
5. 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;
6. 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.
7. 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.
8. Organizing and providing appropriate facilities, for arbitrators, mediators and conciliators, such as appropriate venues and archives;
9. 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;
10. 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;
11. Advocate for law reform by way of the introduction of a legislation on ADR and related policy changes;
12. 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.

III. Independence

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.

IV. Confidentiality

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 3^rd party not to bring an innocent person and unjustifiable matter before this center. It is up to 3^rd 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?

I. Neutrality

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.

II. Flexibility

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.

V. Confidentiality

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.

Arbitration Proceedings

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: -

1. Summoning parties (in their failure to appear – judgment in default), and fair hearing of parties and their evidences (Art. 317 c.pr.),
2. Inspection of documents and summoning of witnesses (rights and duties of witnesses are similar with court witnesses) (Art. 317(3) c.pr.),
3. When an arbitrator is discharged, any court can appoint them up on application by any party (Art. 316(3) c.pr.).
4. Parties can determine a period within which the award must be given and they can extend it (Art. 318 c. pr.).
5. Decision to be given by a majority vote if there are more than one arbitrator (Art. 318 c. pr),
6. Successful party should have the award confirmed by the court that has jurisdiction to see the dispute (called homologation) (Art. 319 c.pr.),

Arbitral Award

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.)

1. Foreign arbitrary awards- conditions to be fulfilled (Arts. 458 and 461 c.pr.)
   1. 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,
   2. Reciprocity- i.e., execution of Ethiopian arbitral award must be permitted in the country where the award sought to be executed was rendered.
   3. Award given following regular arbitration agreement or other legal act in the country where it was made.
   4. Parties were given equal opportunity in appointing arbitrators and hearing,
   5. Matters not prohibited to be submitted to arbitration as per Ethiopian law,
   6. 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

1. 1. When arbitrators decides matters not referred to it or when the submission was invalid or had lapsed,
   2. In case of two or more arbitrators, when they did not act together,
   3. 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.