FINALITY OF ARBITRAL AWARDS UNDER ETHIOPIAN ARBITRATION LAW

On May 31, 2017, a full day conference entitled “Arbitration in Ethiopia, East Africa and Beyond: Prospects, Challenges and Possibilities” was held in AU. Very interesting panelists presented their papers and thought provoking ideas were raised from the audience.

In this short essay, the writer will forward an issue that was given little attention. On account of a recent Cassation Decision Number 42239 of 2010[1], there seems to be an understanding that Ethiopian arbitration law does not promote finality of arbitral awards. Few panelists tended to agree with this statement.

Yet, before reaching such a conclusion, one must comprehend the meaning of final arbitral award and finality in relation to enforcement and appeal.

This short essay argues that in order to protect the autonomy and independence of arbitration, Ethiopian law encourages finality of arbitral awards; however, awards that are deemed to have fundamental error of law are eligible for review. The argument will be based on articles from the Civil Procedure Code, the underlining concept of appeal and examines decisions from the Federal Supreme Court Cassation bench.

1. Appeal Right Under Ethiopian Arbitration Law

At this point, a person may wonder the relevance of discussing appeal right, but it is very important because of the direct relationship between appeal and final judgment. This point will also assist us in our endeavor to develop an argument for our thesis.

Appeal is a constitutional right. At the end of every judgment, the judge will say: “the copy of the judgment must be given to a party who wants to appeal.” Parties must appeal when two conditions are fulfilled: exhaust remedy that can be available at the court which gave the judgment and after a final decision is given.

No appeal is possible on interlocutory matters such as a decision on preliminary objection, admissibility or inadmissibility of evidence, permission to sue as pauper.[2] Yet, nothing prevents a party from raising these matters when an appeal is made against the final judgment.

As arbitration is one form of settling disputes, the law entitles parties with the right of appeal. Article 350/1/ of the Civil Procedure Code gives right to party who is dissatisfied by an award to lodge an appeal. According to article 352 of the Civil Procedure Code, an appeal against an award must be made to the court which would have had appellate jurisdiction had the dispute in which the award appealed from has not been referred to arbitration.

The Civil Procedure Code does not only grant the right to appeal to any party to the arbitration proceeding but also the discretion to waive the right to appeal. Nevertheless, an agreement to waive the right of appeal “shall be of no effect unless made with full knowledge of the circumstances.”[3]

2. The Cassation Decision Number 42239 of 2010

A Cassation judgment has provoked a lot of thought about the finality of arbitral awards under Ethiopian arbitration law. It has made final and binding arbitral awards susceptible for scrutiny by the appellate court. Though the parties intended to make their award final, binding and irrevocable, the losing party can employ tactics to delay execution, which in turn decreases legal certainty in arbitration.

The case entertained under Cassation File Number 42239 has to do with contract of work in relation to exploration of a gold mine. In that case, the parties signed an agreement to take their case to arbitration in case of any dispute.

The arbitral tribunal rendered a final award in favor of Danni Drilling /the respondent/ ordering National Mining Corporation /applicant/ to pay ETB 579,450.35. Aggrieved by the outcome, the applicant filed an appeal at the Federal Supreme Court, but the memorandum of appeal was dismissed without calling the respondent to appear as per article 337 of the Civil Procedure Code.

The applicant was left with one chance: to invoke error of law and go to the Federal Supreme Court Cassation bench. On December 26, 2008, the applicant submitted an application to the Cassation bench making reference to what he called ‘fundamental error of law.’ On March 10, 2009, in its written reply respondent counter argued that the arbitral award is final, non-appealable and no such error of law was committed.

After hearing both parties, the Cassation framed the two issues, but only one which is relevant to our topic will be discussed: would arbitration finality clauses prohibit parties from submitting an application to the Cassation?

In giving its decision on December 8, 2010, the Cassation said: “… one of the purpose of the Cassation system is to ensure uniform interpretation and application of the law… a decision given by this [Cassation bench] court… is binding on every court… even though parties retain the right to waive their right to appeal, make the award non-appealable and final, as per article 80/3/a/ of Ethiopia’s Constitution, Federal Courts Proclamation 25/1996, article 2/4/ of Federal Courts Proclamation Amendment Number 454/2005, the Cassation holds ultimate judicial power in the country… Thus, the agreement signed by the parties about finality does not prevent the Cassation from looking into fundamental error of law”[4].

3. What is a FINAL award?

If the Cassation holds power to review final arbitral awards, it will be logical to ask the meaning of a final arbitral award under Ethiopian law, and a follow up would be would Ethiopian law discourage finality of arbitral awards.

Let’s begin by defining award. Neither the Civil Procedure Code nor explanatory notes, Cassation decisions define the term award. Even the 1958 New York Convention explain the meaning of award other than saying the term arbitral award shall include awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.[5] Coming up with a comprehensive definition for the term award is still difficult, yet this definition was proposed:

‘Award’ means a final award which disposes of all issues submitted to the arbitral tribunal and any other decision of the arbitral tribunal which finally determines any question of substance or the question of its competence or any other question of procedure but, in the latter case, only if the arbitral tribunal terms its decision an award.’[6]

Article 3 of the Civil Procedure Code does not use the word judgment, but decree. Nonetheless, the definition given for a decree may help us to understand the meaning of final in a court judgment or arbitral awards.

Article 3 says: “Decree shall mean the formal expression of any preliminary or final adjudication which, so far as concerns the court expressing it, conclusively determines the right of the parties concerning all or any of the matters in dispute in the suit.”

If we use analogy, a final award means an award that has been given in relation to the merit of the case, which conclusively determined the right of the parties concerning all matters in dispute. From the definition, we can infer that finality of arbitral awards does not have anything to do with appeal. As soon as parties’ right is conclusively determined, then the award is final.

In other words, a final award is eligible for enforcement. In contrast, under Ethiopian law, interim measures do not require a separate execution file since they are not final nor dispose the case till the end. Especially, interim conservatory measures given by foreign arbitral tribunals will not be enforced in Ethiopia since they are not considered to be final.

From the definition provided above, finality of arbitral awards can be understood in two ways: in relation to the tribunal and the parties. Once the arbitrators dispose the main reliefs requested by both parties, they lose jurisdiction to entertain the case. If a party approaches the arbitrators with the same matter, they will close it without going to the merit.

In relation to the parties, they cannot take the case to another tribunal or court since it attained a res judicata status as per article 5 of the Civil Procedure Code, and such a defense can be raised preliminarily according to article 244/2/b/ of the Civil Procedure Code.

As a matter of law, if a final award is given, parties can either appeal as per article 351 or apply to set aside the award in accordance with article 356 of the Civil Procedure Code. The reader should note that grounds of appeal are wider than grounds applied to set aside an arbitral award.

4. ETHIOPIAN ARBITRATION LAW AND FINALITY OF ARBITRAL AWARDS

The main question is this: can arbitral awards be final even if parties sign an arbitration finality clause? This question becomes crucial when we see it in the perspective of a foreign arbitral award.

Ethiopian procedural law rejects the concept of lis pendence.[7] Does this mean that an Ethiopian party to an arbitration proceeding which is being held in London under the auspices of ICC rules, open a file in Ethiopian courts on the same matter and summon the other party to litigate in Ethiopia? Would Ethiopian courts invoke jurisdiction?

According to Cassation File Number 42239, an arbitral award will be final after fundamental errors of law are corrected, if any. Yet, nothing in the judgment or in the law prevents parties from waiving their right for appeal and signing arbitral finality clauses.

Particularly, article 350/2/ of the Civil Procedure Code grants the right for the parties to waive their right to appeal if they understand the circumstances surrounding the case. By the same token, their agreement to make the award final and non-appealable will be enforced if there is no fundamental error of law.

The fact of the matter is that the Amharic term for judicial review and appeal is the same: yegbagne. Nevertheless, the two are totally different: appeal deals with error of law and/or fact; whereas, judicial review is all about error of law. Therefore, even if the Cassation used the word yegbagne it does not necessarily mean ‘appeal’, but it was discussing the concept of ‘judicial review’ in relation to the Constitution and various laws.

In the writer’s humble opinion, Ethiopian law promotes finality of arbitral awards if the parties understand the circumstances of the case and fundamental error of law is not committed.

 

5. CONCLUSION

• Finality is not related with appeal. Finality is all about disposing the merits of the case, determining the parties right conclusively. From the definition provided under article 3 of the Civil Procedure Code, we can infer that finality does not have anything to do with appeal.
• Finality can be understood in relation to the tribunal and the parties. As soon as the tribunal disposes the case, it loses jurisdiction, and the parties will be prevented from bringing the same case founded upon the same cause of action the award attained res judicata
• Nothing in the Civil Procedure Code or jurisprudence prevents parties from waiving their right of appeal and signing arbitration finality clauses.
• The Amharic word used to describe appeal and judicial review is the same: However, it should be clear that the two are totally different. Thus, even if Cassation File Number 42239 of 2010 used the word yegbagne, the Cassation is exercising its right of judicial review.
• Arbitration finality clauses will have effect if the parties understand the circumstances and fundamental error of law, procedural irregularity was not committed.

 

 

[1] National Mining Corporation /applicant/ v Danni Drilling plc /respondent/, Vol 10 pp. 350-354.

[2] Article 320/3/ of the Civil Procedure Code.

[3] For the interpretation of article 350/2/ of the Civil Procedure Code, see Dragadox J&P Joint Venture /applicant/ v Saba Construction plc /respondent/, Cassation Decision Number 37678; Volume 8; Sirak Akalu and Michael Teshome, “YE GELGEL DAGNET BE ETHIOPIA”, Mega Publishing and Distribution plc, 2017, pp. 186-188.

[4] Supra note 1, para 10-12.

[5] Article 1/2/ of the 1958 New York Convention for the Recognition and Enforcement of Foreign Arbitral Award.

[6] Blackaby, Nigel, et al, Redfern and Hunter on International Commercial Arbitration, ed. 5, (UK: Oxford University Press, 2009),  p. 515.

[7] Article 8/2/ of the Civil Procedure Code.