THE AUTHOR:
Michael Teshome, Lawyer & Director of Ethiopian Mediation and Arbitration Center
The Arbitration and Conciliation Working Procedure Proclamation is Proclamation No. 1237/2021. The proclamation focuses mostly on arbitration, with the remainder addressing conciliation. This article’s goal is to examine in detail how arbitral tribunals’ interim orders are enforced in accordance with the decree through the arbitration process.
The way that Proclamation No. 1237/2021, the new Ethiopian arbitration law, outlines the process for issuing and enforcing temporary measures of protection through arbitration is one of the many novels and encouraging aspects of the law. Under the terms of the Civil Code, this was not the situation. The court was granted all authority. In order to enforce the arbitration agreement, claimants had to bring a different lawsuit, i.e., compel the other side to designate the arbitrator prior to the formation of the panel. This is how to request an injunction, particularly in ad hoc arbitration, prior to the formation of a panel.
However, under the new law, “upon request made by one of the contracting parties,” the tribunal may grant an interim measure of protection (Article 20). Yet before issuing an interim measure, arbitrators are required by the new statute to take into account the following requirements:
- If there will be irreversible harm
- According to Article 21, the effect on the individual to whom the order is given must be proportionate.
Before making a ruling, the arbitration panel may choose to allow the opposing side to be heard. However, the tribunal may request that the party making the request provide adequate security to compensate for the harm caused by the order (Article 21/3).
As stated in the first line, this blog’s primary goal is to investigate the enforcement of a tribunal’s interim order. In domestic arbitration, the claimant’s attorney frequently requests the court’s help in providing an interim measure and delivering it to the proper office. However, it is important to examine how this scenario manifests itself in the international arbitration procedure.
How would Ethiopia implement the temporary protections granted by international arbitration panels?
A foreign-seated tribunal may provide temporary protection. The Proclamation’s Article 25 establishes the guidelines and process for carrying out this directive. Article 25 states that “an order of interim measure issued by the tribunal shall be binding, irrespective of the country in which it was issued, without prejudice to recognition and enforcement of foreign awards.”
Why does “regardless of the country in which it was issued” appear in the law? The judge tasked with enforcing an award in international arbitration will decline to do so if the award originates from a nation with a significant diplomatic dispute with his or her own. I think it’s wonderful that arbitration isn’t being used as a political tool by the new Ethiopian law.
The enforcement of an interim order made by an international arbitration panel with its seat abroad may be considered by the Federal High Court under the new arbitration statute. The party seeking enforcement may take the matter to the Federal High Court if the institution in question refuses to comply with the order.
The proclamation grants judges the authority to consider the following before approving or rejecting enforcement.
- The tribunal lacks jurisdiction, and the order is outside its purview; there is no valid arbitration agreement; arbitrability under Ethiopian law; and loss of capability
Arbitration respects the autonomy of the parties from the beginning. An alternative to judicial litigation is arbitration. Avoiding court intervention as much as possible is the main goal of arbitration. This widely recognized principle is also supported by this recent proclamation. However, all that the new law stands for is negated by Art. 26/1/a/. Why would a judge look into the party’s ability or whether the arbitration agreement is still in effect? This would be in violation of the competence-competence principle, wouldn’t it?
If the case is not arbitrable under Ethiopian law, would the judge deny enforcement of an interim measure? When granting temporary protection, arbitrators do not consider the evidence or delve into the specifics of the case. They only assess the case’s urgency, the possibility of irreversible harm, and other pertinent factors that aren’t immediately related to the case’s content.
But wouldn’t it be disregarding party autonomy if an Ethiopian judge began to determine whether the case was arbitrable right away? This affects the final award’s enforcement as well; for example, if a judge denies enforcement of an award due to the case’s inarbitrability, can’t the judge also deny enforcement of the final award on the grounds of inarbitrability? Why would a judge look into the jurisdiction of the tribunal? Shouldn’t the tribunal handle this itself? The doctrine of separability and the competence principle have been incorporated into Art 19 of the proclamation. Why can’t competence be accepted for international arbitration if it is respected for local arbitration? Isn’t verifying the tribunal’s jurisdiction equivalent to considering the case?
Does maintaining judicial authority over arbitral autonomy give rise to this mindset? Judges should, in my opinion, only be able to verify that the interim measure complies with Ethiopian law. The arbitration tribunal should be in charge of all other matters pertaining to jurisdiction, arbitrability, capacity, and the legality of the arbitration agreement. It will be extremely difficult to establish Ethiopia as a center of international arbitration, as the Proclamation hopes to do unless the government starts to have faith in tribunals.
ABOUT THE AUTHOR
Michael Teshome is a licensed practitioner in Ethiopia. He has a decade of experience representing clients before Federal Courts. He is also the author of Arbitration in Ethiopia, the first of its kind to deal extensively with Ethiopian Arbitration Law. He has also taught a Civil Procedure Law Course at Addis Ababa University Law School. In addition to practicing law, he is also the director of the Ethiopian Mediation & Arbitration Center.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
