Mekonen Degaga Final Thesis Adr

OROMIA STATE UNIVERSITY
SCHOOL OF LAW
COLLABORATION WITH
VRIJE UNIVERSITY AMSTERDAM
Legal and Practical Problems of ADR Enforcement in Oromia Regional

State: The Case of Sinana District Court
BY: Mekonen Degaga Tola
ADVISOR: Megersa Dugasa (LLM, LLB, Ass. Proff)
July, 2022
Batu, Ethiopia
0
SCHOOL OF LAW
COLLABORATION WITH

BY: Mekonen Degaga Tola
ADVISOR: Megersa Dugasa (LLM, LLB, Ass. Proff)
SUBMITTED TO:
Oromia State University, School Of Law Collaboration with Vrije University,

Submitted for Partial Fulfillment of Degree of Master of Law (LLM).
July, 2022
Batu, Ethiopia.
i
Approval Sheet

SCHOOL OF LAW
COLLABORATION WITH

BY
MEKONEN DEGAGA TOLA
Approved by the Board of Examiners:

_________________________ ______________________
Dean, Graduate Studies Signature & Date
_________________________ ______________________
Advisor Signature & Date
_________________________ ______________________
External Examiner Signature & Date
_________________________ ______________________
Internal Examiner Signature& Date
ii
Declaration
I, Mekonen Degaga, declare that this research, titled “Legal and Practical Problems of ADR
enforcement in Oromia Regional State: (The Case of Sinana District)” is done with my own
effort. I have produced it independently except for the guidance and suggestions of my research
advisor. I assure that this study has not been submitted for any scholarly award in this or any other
university.
Mekonen Degaga
Signature ––––––––––––––––––––– Date ––––––––––
iii
Certification
Here with I state that Mekonen Degaga has carried out this research work on the topic entitled
“Legal and Practical Problems of ADR enforcement in Oromia Regional State: (The Case of
Sinana District)” under my supervision.
This work is original in nature and has not presented for a degree in any university and it is
sufficient for submission for the partial fulfillment for the award of degree of masters in Law
(LLM).
Megersa Dugassa (LLM, LLB, Ass Proff)
Signature ––––––––––––––––––––– Date –––––––––––
iv
Contents
Approval Sheet................................................................................................................................ ii
Declaration ..................................................................................................................................... iii
Certification ................................................................................................................................... iv
Acknowledgement ........................................................................................................................ vii
Acronyms ..................................................................................................................................... viii
Abstract .......................................................................................................................................... ix
CHAPTER ONE ............................................................................................................................. 1
1. INTRODUCTION .................................................................................................................. 1
1.1. Background of the study .................................................................................................. 1
1.2. Statement of the problem ................................................................................................. 3
1.3. Objectives of the study ..................................................................................................... 5
1.3.1. General objectives of the study ................................................................................. 5
1.3.2. Specific objectives of the study ................................................................................ 5
1.4. Research questions ........................................................................................................... 5
1.5. Significance of the study .................................................................................................. 5
1.6. Scope of the study ............................................................................................................ 6
1.7. Limitation of the study ..................................................................................................... 6
1.8. Methodology of the study ................................................................................................ 6
CHAPTER TWO ............................................................................................................................ 8
2. REVIEW OF RELATED LITRATURES .............................................................................. 8
2.1. Alternative Dispute Resolution (ADR) ............................................................................ 8
2.2. Brief overview of notation of Arbitration ...................................................................... 10
2.2.1. Arbitration and other modalities of dispute resolution ........................................... 11
2.2.2. International and Domestic Arbitration .................................................................. 13
2.3. The Tradition of using Arbitration as a Dispute Resolution Mechanism in Ethiopia .... 15
2.4. Why Arbitration is Preferable in Ethiopia and Elsewhere ............................................. 16
2.5. Technical and Commercial Issues .................................................................................. 17
2.6. ADR Enforcement .......................................................................................................... 19
2.6.1. Judicial Review of an Arbitration Award by the court ........................................... 20
CHAPTER THREE ...................................................................................................................... 21
3. MAJOR PROBLEMS ASSOCIATED WITH ADR IN ETHIOPIA ................................... 21
3.1. Lack of modern substantive and procedural Arbitration Laws ...................................... 21
3.1.1. Brief overview of Ethiopian Arbitration Law ......................................................... 21
v
3.2. Adaptability of Ethiopian Arbitration law to Technical & Commercial Disputes ......... 23
3.2.1. Construction Dispute & Arbitration Law ............................................................... 23
3.2.2. Investment and Arbitration Law ............................................................................. 26
3.3. Problems of Arbitration law relating to ensuring Neutrality, Efficiency and Disciplinary
standards of Arbitrators............................................................................................................. 30
3.3.1. Disclosure and Disqualification standards for Neutral Arbitration ........................ 30
3.3.2. Efficiency/ Qualification of Arbitrators .................................................................. 33
3.3.3. Disciplinary standards of the Arbitrators ................................................................ 34
3.4. Lack of Modern, well-functioning and sufficient Arbitration Institutions..................... 35
3.4.1. General Overview ................................................................................................... 35
3.4.2. Institutional Vs Ad hoc arbitration ......................................................................... 36
CHAPTER FOUR ......................................................................................................................... 38
4. THE LEGAL PROBLEMS ASSOCIATED WITH DISPUTE RESOLUTION
MECHANISM AND PRACTICAL PROBLEMS IN SINANA DISTRICT COURT ................ 38
4.1. The Legal Problems associated with proclamation no.130/2007 and Regulation
no.151/2017 .............................................................................................................................. 38
4.2. The Types and cause of Disputes in Sinana Woreda ..................................................... 43
4.2.1. The Type of Disputes in Sinana Woreda ................................................................ 43
4.3. The Cause of Disputes in Sinana Woreda ...................................................................... 45
4.4. Analyzing the Effectiveness and General Problems Associated with ADR Mechanism
47
4.5. Chapter Summary........................................................................................................... 48
CHAPTER FIVE .......................................................................................................................... 49
5. FINDINGS, CONCLUSSION AND RECOMMENDATION ............................................. 49
5.1. Findings .......................................................................................................................... 49
5.2. Conclusion...................................................................................................................... 50
5.3. Recommendation ............................................................................................................ 50
5.4. Bibliography ................................................................................................................... 53
Appendixes ................................................................................................................................... 59
vi
Acknowledgement
Primarily, I would like to thank the Almighty God for His help. The completion of this thesis
involved kindly contribution, support and encouragement of many people. I wish to express my
sincere gratitude to my advisor Megersa Dugasa (LLM, LLB, Ass prof) for his encouragement,
and support. Without his understanding, patience and useful supervision, it could be more
challenging for me to complete this thesis.
I am also very thankful to family and friends for their support and encouragement. Finally, I also
show my appreciation to Sinana Woreda Court, Bale zone court employees and private lawyers
and other employees for their patience and cooperation in filling questioners and providing
necessary information through my thesis work.
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Acronyms
ACCP Austrian Code of Civil Procedure
ADR Alternative Dispute Resolution
ART Article
CCE Civil Code OF Ethiopia
CDR Commercial Dispute Resolution
CFDRE Constitution of Federal Democratic Republic of Ethiopia
CPC Civil Procedure Code
CPE Civil Procedure of Ethiopia
EACC Ethiopian Arbitration and Conciliation Center
FDRE Federal Democratic Republic of Ethiopia
ICESCR International covenant on economic, social and cultural rights
JDR Judicial Dispute Resolution Mechanism
LLM Master of Laws
PA Peasant Association
RLCL Rural Land Contract Law
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNCRE Untied Nation Convention on Recognition and Enforcement
viii
Abstract
This Thesis examines the laws governing the legal and practical problems of alternative dispute
resolution enforcement in the Oromia Regional State in sinana woreda court through identifying
gaps in the law, exploring the causes of disputes and investigating the compliance of practice in
the study area (Sinana Woreda) with the laws of the Region. To this end, the Thesis has built on
literature review of selected country studies, laws, questionnaires and court cases. The general
objectives of the study is to assess the legal and practical problems of ADR enforcement in sinana
district court. In this research mainly qualitative legal research approach has been employed. The
thesis found out that arbitration in Ethiopia is encircled by lack of modernity of the substantive
and procedural arbitration laws as a result of which the laws are not adaptable to the demands of
disputes of the day. The Thesis came up with findings that show gaps and lack of clarity in the
laws. It further generally revealed the major types and causes of disputes, Woreda people‘s
perception and preference of ADR or court, the level of attention given by government in
practically administering and the problems of ethics. On top of these, it identified factors that
contribute to effectiveness and the level of effectiveness of the mechanisms put in place by laws of
the Region. Amendment of the arbitration laws, ratification of the Convention for the Recognition
and Enforcement of Arbitral Awards, working in the promotion of importance of arbitration, and
increasing the number, competitiveness and effectiveness of arbitral institutions are the solutions
to the major problems. To rectify these problems and improve resolution of disputes in a way that
is more participatory and re-establish harmony between parties, this Thesis calls for express
recognition of Oromo customary dispute resolution mechanism, strict compliance with existing
laws, legal and institutional reforms and public awareness creation.
Key Words: Alternative Dispute Resolution, Arbitration
ix
CHAPTER ONE
1. INTRODUCTION
1.1. Background of the study
In accordance with the principles proclaimed in the charter of the United Nations, recognition of
the inherent dignity and of the equal right of all members of the human family is the foundation of
freedom, justice and peace in the world the people have the right to develop their cutler1, all society
have their Owen way of justice implementation and enforcement in such way we see different
ADR which solve dispute.
The recognition and enforcement of arbitral awards made in the territory of a state other than the
state where the recognition and enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. Apply to arbitral awards not considered as
domestic awards in the state where their recognition and enforcement are sought. Each contracting
state shall recognize arbitral awards as binding and enforce them in accordance with the rules of
procedure of the territory where the awards relied up on under the conditions laid down, and also
recognition and enforcement of an arbitral award may also be refused if the competent authority
in the country where recognition and enforcement is sought finds that2; according to this
convention to enforce the ADR Award country’s must be recognize the foreign Awards in their
century with the fully formality to be enforced .
Like ways while reforms in the judicial sector should be undertaken with necessary speed, it does
not appear that courts and tribunals will be in apposition to hear the entire burden of the justice
system. It is incumbent on government to provide a reasonable cost as many modes of settlements
of disputes as are necessary to cover the variety of disputes that arise. Litigants should be
encouraged to resort to alternative dispute resolution so that the court system proper would be left
with a smaller number of important disputes that demand judicial attention3.
1
. International covenant on economic, social and cultural rights 1966
2
. The 1958 untied nation convention on recognition and enforcement
3
. the international center for alternative Dispute Resolution [ICADR]inaugurated By shri P.V. N
1
An arbitration clause allows a party to contract for a means of alternative dispute resolution. Parties
to a contract can decide that disputes that may arise will go to arbitration rather than litigation. An
arbitration clause can apply to all disputes. If another party refuses to arbitrate per the contract’s
terms, a party may have to go to court to enforcing arbitration clause. Federal law creates a strong
presumption in favor of enforcing arbitration clause and provides a means to compel arbitration
through the courts; however, the fact that there is arbitration will occur. The entire contract must
be examined to determine if the clues is applicable to the dispute and whether it is enforceable.
Further, the arbitration clause can open the door for a few surprises the signatories may not have
anticipated, such as a third party attempting to compel a signatory to arbitration4.
Many African citizens have lost faith in the ability of their nations courts to provide timely or just
closure to their grievances, the 2009 survey in Liberian and civil disputes were taken to a formal
court over 40 percent sought resolution through informal mechanisms .the remaining 55 percent
went to no forum at all, this includes cases where claimants felt the need to take justice in to their
own hands, often with violent consequences.
The 1995 constitution of the federal Democratic Republic of Ethiopian proclaimed that everyone
has right to bring a justiciable matter to, and to obtain decision or judgment by, court of law of law
or any other competent body with judicial power likewise ,pursuant to sub-article 5 of article 34
the peoples representatives and state councils can establish or give official recognition to religious
and customary courts, religious and customary courts that hat state recognition and functioned
prior to the adoption of the constitution shall be organized on the basis of recognition accorded to
them by this constitution.
Without prejudice to the international Treaty to which Ethiopia is a signatory5, this proclamation
shall apply to commercial related national arbitration , international arbitration whose seat is in
Ethiopia and national conciliation proceedings in addition to this without prejudice to the
provisions articles 50 or 52 of proclamation, on arbitral award rendered in Ethiopia or in a foreign
country shall be deemed to be binding and shall be executed pursuant to a civil procedure code
applying to a court that is empowered to execute the award had the case been heard by a court and
4
. Arbitration clauses :Enforcement and surprises , Sohlman - Arbitration Clauses.pdf
5
. Proclamation No.1237/2021 Arbitration-and-Conciliation-Working-Procedure-Proclamation.pdf
2
only an objection to be the enforcement of arbitral award may only be made, where an application
made to the court previously to have the award set aside has not been dismissed.
The 1994, the Oromia Regional state Constitution proclaimed that, everyone has right to bring a
justiciable matter to, and to obtain decision or judgment by, court of law of law or any other
competent body with judicial power Article 37. The constitution give right to bring justiciable
matter according to their cultural dispute resolution methods.
“Customary structure responsible for execution of judgment’ ’means organs such as foollee’,
‘Nakkala’, ‘Jallaba’, or ‘Jal-kaawa’ that are responsible for the executing of orders of organs
authorized to give judgments, in accordance with the customary law where the customary court
operates. But when we see the current situation of those executive bodies where weekend and
diaper so that, to strengthen those institution the government have to strengthen the current
activity.
1.2. Statement of the problem

ADR has become increasingly relied-upon and popular throughout the world. Its various methods
have become business-universal means of resolving international commerce-related disputes,
comparable in a sense to the English language, which now serves as the universal language of
business. The absence of clear and effective dispute resolution systems makes success in
international business and trade highly unlikely.
The 1995 constitution of the federal Democratic Republic of Ethiopia provides a strong
constitutional foundation for the introduction and effective Right of access to justice – to obtain a
decision or judgment by, a court of law or any other competent body with judicial power6.
The proclamation will be enacted to implement how to enforce arbitration award “without
prejudice to recognition and enforcement of foreign awards, an order of interim measure issued by
a tribunal shall be binding. Irrespective of the country in which it was issued and where an order
for interim measure cannot be enforced, one of the contracting parties may apply to a court for
the enforcement of such order, where the application made pursuant to sub-article [2] of this
Article is from within the country, it shall be submitted to a court which would have had
6
. The1995 constitution Federal Democratic Republic of Ethiopia.
3
jurisdiction had, it not been summited to the tribunal where the order is issued by a foreign tribunal,
this the federal high court shall have jurisdiction over the case.
Similarly, there are legal problems associated with the regulation. Article 18(12) of the regulation,
which states in case governmental and private organizations are involved in rural land disputes as
respondent. The same article indicates that the ADR procedure is applicable even when the
Government organization or the Kebele Administrator is a party to the dispute. This will also be
analyzed in light of the developed literature and other country‘s experience.
Like ways a proclamation to provide for the Establishment and Recognition of Oromia Region
Customary Courts and Execution of Judgment, to establish, effective in fact finding, dispensation
of justice follow simple and flexible procedures, capable of strength social relationship ADR
Award Enforcement as much as possible,7.
The above being about the legal gaps and ambiguities, next the problems associated with the
practices are also discussed. The first basic practical problem is the problem of the effectiveness
of the dispute settlement mechanism. The mechanism requires the application as to the dispute to
start from the Kebele Administration. As to why this procedure is prescribed, as I mentioned above,
is to be investigated. If the aim of this procedure is to reduce the overcrowding of cases before the
regular court, whether it has achieved that objective or the extent to which it has achieved this
objective is to be studied. Other set of issues to be considered is: whether the Sinana Woreda Court
is currently overcrowded with the disputes; whether the court is accessible to the people; whether
the court has major challenges; whether a long and repetitive adjournment is given to the
disputants; whether the decision of the court in relation to disputes is clear and predictable.
Furthermore, as the contents of the findings of the local elders differ practically from one to others,
this will also be scrutinized. The research also identifies the mechanism which, according to the
perception of the people, best protects their interest. Generally, this research is unique in that it
deeply investigates the problems related to the gaps and obscurity of laws, the types of disputes
which should go through the channel laid down by law, the mechanism which is preferred by
7
. Sirk Akalu and Michal Teshome ,’’YEGELGEL DAGNET BE ETHIOPIA’ ’Mega publishing and Distribution
,Plc,2009 E.C
4
people, the extent of effectiveness and accessibility, and the overcrowding of cases (case
congestion) related to disputes in the Sinana Woreda Court.
1.3. Objectives of the study

1.3.1. General objectives of the study
The general objectives of the study is to assess the legal and practical problems of ADR
enforcement in sinana district court.
1.3.2. Specific objectives of the study

The specific objectives of the study are:
i. To assess the cause for the problem of ADR enforcement in sinana district.
ii. To explore the legally and practical problem in ADR enforcement.
iii. To find out legal ground for executive body how to enforce ADR award.
iv. To draw lessons and recommend alternative options how to enforce ADR Awards.
1.4. Research questions

The following are the research questions:
i. What are the legal and practical problems to enforce ADR Awards?
ii. What are the cause for the problems of ADR enforcement?
iii. Is there adequate capacity for executive body to enforce ADR agreement?
iv. Is adequate institution capacity to discharge ADR enforcement?
1.5. Significance of the study

ADR enforcement in general a major problems legally and practically seen in ADR development
and currently importance of the sector, It is, there for quite essential for decision makers to
appreciate the need to look at development from a broader perspective, in terms of sustained
development of alternative justices. To this effect, the government of Ethiopia has issued different
legislations to develop cultural dispute resolution, and show the simplest way of using ADR
enforcement.
5
But using ADR at day to day activity of human beings there is gap’s in bringing effective
enforcement of ADR. So, this research may provide insights for policy makers and concerned
bodies regarding the constraints that hinder the success of the ADR enforcement.
Moreover, the findings of this research will help to provide responsible bodies, academician and
interested individuals with a recent documentation of the institutionalization and application of
ADR law.
The recommendations of the study will also serve policy makers and all other stakeholders as a
spring board to advocate and enhance the effective implementation of the ADR enforcement in the
process of promoting sustainable development of customary law enforcement.
1.6. Scope of the study

The current system of government in Ethiopia is organized in to a federal structure, comprised of
a federal government and Eleven Regional states .Government administration body in enforcing
the ADR awards shared at different federal government and regional states court according to the
case present.
Thus, in order to cope with the shortage of time and resources the scope of the study only focuses
on legal and practical problem of ADR enforcement on the case sinana District.
1.7. Limitation of the study

The first limitation is difficulty of getting access to detailed materials related to major problems
associated with ADR in Oromia. It also became very hard to access some materials available only
on online payment basis. There is also challenging task to do research simultaneously with
government work. With However, I did my best to get the possible materials available.
1.8. Methodology of the study

In this research mainly qualitative legal research approach has been employed. Qualitative legal
research approach was used to identify the way people interpret and make sense of the problems
observed in the process of resolving disputes, the types of alternative dispute resolutions that
undergo the procedure of mandatory conciliation, the people‘s knowledge of the procedure, the
6
people‘s preference of the mechanism, the basic challenges and accessibility of Sinana Woreda
Court.
The other reason why we have employed qualitative legal research methodology is to analyze the
law and help one to understand the provisions regulating the mechanism to resolve disputes as they
stand now.
This research is geographically limited to Sinana Woreda Court and it assesses the practice in the
Woreda. Sinana Woreda is one of the Woredas in the Bale Zone of Oromia Region of Ethiopia.
In order to arrive at reliable findings, the researcher will have to administer questionnaires to 24
respondents (five Judges of the Sinana woreda Court, five Lawyers, five Woreda Prosecutors,
Seven Kebele Administrators, Two members of Woreda arbitral Council).
7
CHAPTER TWO
2. REVIEW OF RELATED LITRATURES

2.1. Alternative Dispute Resolution (ADR)
We cannot stop the inflow of cases because the doors of justice cannot be closed. But there is a
dire need to increase the outflow either by strengthening [both qualitatively and quantitatively] the
capacity of the existing system or by way of finding some additional outlets. In this situation ADR
mechanism implementation can be such a drastic step for which things are required most;
 Mandatory reference to ADRs
 Case management by judges
 Committed teams of judges and lawyers
Equal justice for all is a cardinal principle on which entire system of administration of justice
based. It is too deep rooted in the body and spirit of common law and as well as civil law
jurisprudence that the very meaning which we ascribe to the word “justice’ embraces It. we cannot
conceive justice which is not fair and equal. Effective access to justice has thus come to be
recognized as the most basic requirement. The most basic human right, in modern egalitarian legal
system which purports to guarantee and not merely proclaims legal rights to all.
We should aim to achieve earlier and more and more proportionate resolution of legal problems
and disputes by;
 Increasing advice and assistance to help people resolve their disputes earlier and more
effectively,
 Increasing the opportunities for people involved in court cases to settle their disputes out
of court and
 Reducing delays in resolving those disputes that need to be decided by the courts.
To implement the noble ideas and to ensure the benefits of ADR to common people, the four
essential players [government, bench, bar litigants] are required to coordinate and work as a whole
system. Case management includes identifying the issues in the case; summarily disposing of some
8
issues and deciding in which order other issues to be resolved; fixing time tables for the parties to
take parties to take particular steps in the case; and limiting disclosure and expert evidence.
ADR is not a recent phenomenon as the concept of parties setting their disputes themselves or with
the help of third party, the primary object of ADR movement is avoidance of vexation, expense
and delay and promotion of the ideal of “access of justice “for all. ADR system seeks to:
 Government: has to support new changes, if the government support and implements
changes, ADR institutes will have to be set up at every level from district to national level.
 Bench ; unless mindset of the judges are changed , there will be no motivation for the
lawyers to go to any of the ADR methods
 Bar; the mindset of the bar is also to be changed accordingly otherwise it would be difficult
to implement ADR. The myth that ADR was alternative decline in Revenue or alternative
Drop in Revenue is now realizing that as more and more matters get resolved their work
would increase and not decrease.
 Litigants; few parties are usually interested in delay and not hesitate in taking a stand so
as to take the benefit if delay. Parties have to realize that at the end, litigation in court may
prove very costly to them in terms of both cost and consequence.
Provide cheap, simple, quick and accessible justice. ADR is a process distinct from normal judicial
process. Under this, disputes are settled with the assistance of third party, where proceedings are
simple and are conducted by and large. In the manner agreement to the parties’. ADR stimulates
to resolve the disputes expeditiously with less expenditure of time.
This has been rightly said that: An effective judicial system requires not only that just results be
reached but that they be reached swiftly, But the currently available infrastructure of courts in
India is not adequate to settle the growing litigation with in reasonable time. Despite the continual
efforts, a common man may sometimes litigation carries on even on to the next generation. In the
process, he may dry up his resources, apart from suffering harassment. Thus, there is a chain
reaction of litigation process and civil cases may even give rise to criminal cases, speedy disposal
of cases and delivery of quality justice is an enduring agenda for all who are concerned with
administration of justice.
9
In this context, there is an imminent need to supplement the current infrastructure of courts by
means of Alternative dispute Resolution [ADR] mechanisms. Apart from brining efficiency in
working of the judiciary, measures are being taken all over the world for availing ADR systems
for resolving pending disputes as well as at pre-litigation stage. Efforts towards ADR have met
with considerable success and good results elsewhere in the world, especially in the litigation-
heavy United States, where professional teams of mediators and conciliators have productively
supplemented the dispute resolution and adjudication process8.
2.2. Brief overview of notation of Arbitration

Arbitration dates back to the ancient Egypt and Greek Civilizations as a mode of dispute settlement
mechanism preceding litigation9. Commercial arbitration was common to the ancient desert
Caravans in Marco Polo’s time, ancient Phoenicians and Greek traders. Industrial Controversies
such as terms of employment, working conditions and wages were also arbitrated in the ancient
times10.
In modern day scenarios, the legal assumption of arbitration process is that arbitration merely
derives its existence from the contractual consent and will of the disputant parties. In most relevant
instances, contractual agreements between the disputants is the foundation for the inception of
arbitration process. Arbitral agreements, be it in the form of arbitral submission or an arbitral
clause, may contain seat of arbitration, choice of law, composition of the arbitral tribunal and other
relevant elements deemed important by the parties. Arbitration can take different forms such as
civil arbitration, investment related arbitration and commercial arbitration as the case may be11.
In relation to leading international instruments, the United Nations Commission on International

Trade Law (UNCITRAL), is a UN organ which is based in Vienna, and is charged predominantly
with drafting model statutes and other supportive materials promoting international trade12. The
UNCITRAL made two prominent contributions to the development of international arbitration
8
. ADR and Access to Justice: issues and perspectives, Hon’ ble Thiru S.B sinha, judge supreme court of India seen
at ADR- ISSUES AND PERSPECTIVE.pdf
9
. Hailegebriel G. Feyissa, ‘The Role of Ethiopian Courts in Commercial Arbitration’, (2010), Vol. 4, Mizan LR, 298.
10
. ibid
11
. Hailegebriel G. Feyissa (n 10) 298.
12
. James H. Carter, ‘The International Commercial Arbitration Explosion: More Rules, More Laws, More Books, So
What?’, [1994], Michigan JIL, Vol.15, 787
10
approved by the U.N General Assembly in 197613. The second foundational contribution is the
adoption of the UNCITRAL Model Law in International Commercial Arbitration in 198514.
The Rules have become a widely accepted rules of procedures applicable in ad hoc arbitration
proceedings15. Therefore, the Rules are meant to be applicable only in case of ad hoc arbitration
proceedings. Unlike institutional arbitration, in ad hoc arbitration, there is no Arbitration Center
to administer the case as per its own rules of procedure. The Model Law, however, is meant to
govern both ad hoc and institutional arbitrations. These two instruments are designed to be
complementary to one another and are becoming an international norm which reflect a sort of
international consensus.16
Ethiopia has not yet adopted the UNCITRAL Model Law, as part of her arbitration law. The
incompatibility of Ethiopian arbitration law with the Model Law is going to be assessed later in
this paper. Though Ethiopia signed the ICSID Convention, it has not yet ratified and made it part
of the law of the land17. Ethiopian parliament is set to ratify the 1958 New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards as the deliberation steps have been
completed.
The UNCITRAL Model Law, the UNCITRAL Rules and the New York Convention for the
Recognition and Enforcement of Foreign Arbitral Awards are considered as ‘landmarks in the
development of international arbitration’ in addition to their relevance for the modernization of
national arbitration systems.18
2.2.1. Arbitration and other modalities of dispute resolution

 Arbitration Vs Litigation
13
. G.A. Res 31//98, Reprinted in 15 I.L.M 701 (1976)
14
. United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial
Arbitration (Herein after cited as UNCITRAL), 21 June 1985, U.N.Doc.A/40/17, Annex, I, at 81-93
15
. Carter (n 15) 787
16
. ibid 787-788
17
. Hailegebriel G. Feyissa (n 10) 302.
18
. Daniel Alemayehu, ‘Review of Arbitration in Ethiopian Construction Industry’ (LLM Thesis, Addis Ababa
University 2014) 9
11
Arbitration is one ‘variant of adjudication’19. Arbitration is an alternative means of adjudicating
disputes20. The significant difference between arbitration and litigation is that litigation involves
courts in the decision of the case while arbitration involves resolution of disputes outside of the
court. Arbitration, as one variant of adjudication, guarantees the right to proof and argument to the
parties21. In arbitration, ‘the due process doctrine is qualified as fair hearing’22. Just like litigation,
arbitrators are supposed to render an explained and reasoned award. According to Fekadu Petros,
the assumptions that arbitration is more flexible, less costly, more prompt and involves more party
autonomy than litigation are ‘either unchallenged ritualized thoughts or result from the mere
private nature of arbitrator’s office’. This remains controversial as other literatures argue in favor
of those points as distinguishing features of arbitration from litigation. I will be stating the
arguments in the literatures in the upcoming sections23.
Arbitration process, in most relevant respects, begins with the agreement of the parties, while
litigation does not demand the consent of both parties as sin qua non condition for beginning the
process. In arbitration, the arbitrators are in principle chosen by the parties while in litigation
judges are assigned by the sovereign.24
 Arbitration Vs ADR Mechanisms
Conciliation, mediation, early neutral evaluation, Expert Determination, Mini-Trial, Negotiation

and Compromise are all the forms that fall within the category of ADR25. The acronym “ADR”,
however, is contestable as to what it stands for. Even though many people have the opinion that it
stands for “Alternative Dispute Resolution”, the ICC is of the opinion that ADR stands for
“Amicable Dispute Resolution”26. The “Alternative Dispute Resolution” connotation was initially
developed in USA when merchants looked for alternative dispute resolution other than litigation.
The notion of “Amicable Dispute Resolution” corresponds with the ideal of assisting parties to a
19
. Fekadu Petros, “Underlying Distinctions Between ADR, Shimgilina, and Arbitration, A critical Analysis”, (2009),
Vol.1(1), Mizan LR, 109
20
. Zekarias Keneaa (n 9) 137.
21
. Fekadu Petros (n 23) 108.
22
. ibid 110.
23
. ibid 109
24
. Zekarias Keneaa (n 9) 138 and see also the Civil Code of the Empire of Ethiopia, 1960, Article 3331, Extraordinary
Issue, Proc. No. 165, Negarit Gazzeta, 19th Year, No. 2 (herein after cited as Civil Code).
25
26
. ibid 115
12
negotiated settlement avoiding the confusion with arbitration and also avoids the problematic
question ‘to what is it alternative’.27
ADR, unlike arbitration which is the variant of adjudication, is rather one variant of contract 28. It
involves freedom of will and consent. The basic idea of freedom of contract is ‘contracting parties
are rational enough to best know their interest, and make the right choice of values in the course
of bargaining with each other’29. Their free will and consent is the basis for contracts. It is all about
willful exchange of values between the parties. It is the free will aspect of the contract as dispute
resolution mechanism that distinguishes ADR from arbitration30. In ADR, as variant of contract,
the parties will have every right at any stage of the process to stop the process using their free will,
which is not the case in arbitration as it is adjudication. In Arbitration, the process starts by the
contractual agreement of the parties. Once they submit their consent and arbitration begins,
unilateral freedom of will vanishes away. In ADR, however, the freedom of will is intact until the
final result is agreed between the parties. The outcome of the process is in the hands of the parties
in ADR, while the outcome of the arbitration process is in the hand of the arbitrators based on the
parties’ proof and argument.31 Unlike arbitration, the third party in ADR does not control any part
of the proceeding as a result of which the neutrality of the third party in ADR is less important
than in arbitration.32
Unlike arbitration, hearing, production of evidence and arguments, presentation of witnesses and
cross examination of witnesses are not mandatorily required in ADR. Furthermore, there is no
mandatory requirement for fair hearing and duty to give reasoned and explained decision in
ADR.33
2.2.2. International and Domestic Arbitration

An arbitration may be deemed domestic and international based on seat, for legal persons, and
residence of the parties involved in the dispute. Furthermore, an arbitration can be deemed
27
. ibid
28
. ibid 114
29
. ibid 115.
30
. ibid
31
. ibid 111
32
. ibid 115
33
. ibid 118.
13
domestic or international based on the nature of the transaction 34. Some countries make distinct
rules that regulate domestic and international arbitration while some others confine to the same
rules that regulate both domestic and international arbitration.35
Sometimes, the issue of international arbitration involves the study of conflict of law rules which
becomes more complex in Ethiopia due to the facts that there is no clear intention in our arbitration
law to regulate international arbitration; we don’t have conflict of law rules; and there are no
practical cases related to the problem under examination.36
Making the distinction between domestic and international arbitration is a matter of national law
of the country in focus and the practice shows that different states have different laws on the subject
matter37. The UNCITRAL Model Law, however, came up with standards to identify a certain
arbitration as international arbitration. If the parties to the agreement, at the time of the conclusion
of the contract, have different States of place of business; if the place of arbitration agreed by the
parties is situated outside the State in which the parties have their places of business; if the
substantial part of the commercial relationship to be performed between the parties or the place
with which the subject-matter of the dispute is most closely connected to a State other than the
parties’ place of business; and if the arbitration agreement relates to more than one country, then
the arbitration is deemed international arbitration by virtue of the Model Law. Though there is no
clear indication to that effect, the Ethiopian arbitration law seems to have ignored international
arbitration and has been devised to serve only domestic arbitration.38
34
. Michael Teshome, ‘Laws and Practice of Commercial Arbitration i n Ethiopia: Brief Overview’, 11, available at
www.abyssinialaw.com , accessed on 10/01/2020 and see also United Nations Conference On Trade and
Development (n 1) 13.
35
. For instance, England, Wales, Brazil and Austria have the same rules for both domestic and international arbitration
while Colombia and Cyprus have distinct rules that regulate domestic and international arbitration; one can see James
J. Carter(ed), The International Arbitration Review, (Law Business Research Ltd 2018) on the experience of various
States on this regard
36
. Bezzawerk Shimelash, ‘The Formation, Content, and Effect of an Arbitral Submission Under Ethiopian law’,
(1994), Vol. 17, J Ethiopian L 90
37
. United Nations Conference On Trade and Development (n 1) 12
38
. Bezzawerk Shimelash (n 44) 90
14
2.3. The Tradition of using Arbitration as a Dispute Resolution
Mechanism in Ethiopia
In Ethiopia, arbitration began to take modern form since the introduction of the Ethiopian Civil
Code in 1960 and the Civil Procedure Code in 1965. While the proclamation 1237/2021 regulates
substantive issues on arbitral submissions and the establishment of the alternative dispute
resolution and conciliation helps to complement the right to justice and, in particular, contribute
to the resolution of investment and commercial related disputes and to the development of the
sector39, and Civil Procedure Code regulates the procedures on how to arbitrate40.
Customary dispute resolution based on customary laws is the most prevalent practice in Ethiopia.
These customary laws, rules, methods, and procedures which are largely unwritten are the ‘organic
and living law’ of the indigenous business community of Ethiopia.41
Shimgilina, Gilgil, Yezemed Dagninet and Irq are Amharic terms used under Ethiopian legislations
as if they connote ADR and arbitration.42 The law itself is contributing to the confusion by using
four of the Amharic terms in different legislations to represent arbitration.
Most nations and nationalities in Ethiopia have dispute resolution mechanism that corresponds to
Shimgilina. Shimgilina across various communities share commonality of providing services that
correspond to modern terms such as arbitration, conciliation, mediation and compromise.
According to literatures, in all systems that correspond to shimgilina, elders initiate dispute
resolution, they conduct hearing, party presentation of a certain sort, they finally render morally
binding decisions and compromise and they receive no fee for their service43. Such traditional
dispute resolution schemes remain controversial as to whether they qualify to be called arbitration
in the strictest sense of the term or not.
39
. Proclamation No. 1237/2021, a proclamation to provide for arbitration and conciliation working procedure.
40
. The Civil Procedure Code of the Empire of Ethiopia, 1965, Articles 315-319 and 350-357, Extraordinary Issue,
Decree No. 52, Negarit Gazzeta, 25th Year, No. 3 (Herein after Cited as Civil Procedure Code).
41
. Alemayehu Yismaw (n 6) 40
42
. Tecle Hagos Bahta, ‘Adjudication and Arbitrability of Government Construction Disputes’, (2009), Vol. 3(1),
Mizan LR, 31 and also see Fekadu Petros (n 23) 121.
43
. Shimgilina connotes a dispute resolution by the elderly in the Ethiopian community. The Shimgilina status is
acquired, inter alia, by the age, wisdom and social status of the person in question. See Fekadu Petros (n 23) 123.
15
Therefore, shimgilina’s congruence with the modern concept of arbitration has to be evaluated.
The procedures followed in arbitration proceedings are nearly similar to the procedures in regular
court litigations in Ethiopia.44 However, arbitral proceedings are not required to fully comply with
regular court proceedings and flexibility is involved. In addition to decision making according to
normative systems governing law, ‘most lex arbitri regulations allow decision making according
to ex aequo et bono (principles of equity and fairness)’45. Shimgilina looks to have similarities
with the ex aequo et bono arbitration. However, in ex aequo et bono arbitration, the equity and
fairness applies to the substantive aspect of resolution of the dispute without affecting the
procedural standards.46 Shimgilina disregards both substantive and procedural laws making the
outcome not enforceable arbitration award. However, the two coincide when shimgilina follows
proper procedural rules stipulated in the law. When they coincide, the award given by the
Shimagles/Arbitrators will be enforced like court judgement as per the new proclamation
1237/2021.
The current acceptable Amharic word to represent modern arbitration is Gilgil. Most of the recent
Proclamations and AACCSA-AI Rule employed the term Gilgil to refer to arbitration in the
modern day sense of the term.47 We also see that Federal Supreme Court Cassation Bench
Decisions use the term Gilgil/ግልግል.
Generally in Ethiopia, practical recent developments are indicative of an increased interest towards
arbitration as a dispute settlement scheme.48 Detail issues relating to current situation may be dealt
with in the upcoming sections.
2.4. Why Arbitration is Preferable in Ethiopia and Elsewhere

Arbitration is a preferred mode of dispute resolution for a number of reasons. It enables the parties
to avoid litigation and decision by biased and unfriendly foreign court in the case of international
commercial disputes.49 Second of all, arbitration enhances the possibility of presenting ones
44
. See Gebru Kore V. Amadeyiu Federeche, (Federal Supreme Court 2003) Cassation File No. 52942 and
proclamation No. 1237/2021 of the Civil Code.
45
. Alexander J. Behlolavek, ‘Application of Law in Arbitration, Ex Aequo et Bono and Amiable Composetor’, (2013),
25, available at www.arbitrationlaw.com, accessed on 01/01/2020.
46
. Fekadu Petros (n 23) 128
47
. ibid
48
Daniel Alemeyehu (n 22) 47.
49
. Alan Redfern and Marthin Hunter, Law and Practice of International Commercial Arbitration, (London Sweet &
16
dispute to learned and experienced experts.50 The parties are at liberty to choose the arbitrators that
preside over the arbitral proceeding or they can choose the authority who assigns the arbitrators.
Furthermore, arbitration provides for greater flexibility of procedure which results from
compromiser clause itself, or from the procedures by Arbitral Institutions, or from the decisions
made by arbitrators within scope of their authority. Arbitration keeps the businessmen’s secret
intact. The dispute is not supposed to be heard in public unlike litigation. In relation to expense,
however, as the individual circumstances vary, there is a probability, not certainty, of a reduced
cost in arbitration. Arbitration has an easier possibility of enforcement across national boundaries
unlike enforcement of a foreign court judgement.51 This is one reason that international
commercial arbitration is now popular in the world.52 For instance, Under the New York
Convention of the 1958, the USA is bound to 77 other countries on mutual recognition of foreign
arbitral awards, which is not the case to litigation judgements.53
2.5. Technical and Commercial Issues

Resolution of disputes which are technical in nature is often best served by special knowledge or
expertise on the part of the decision maker.54 Very often, judges in litigation do not have such
technical expertise, and they must call and rely on expert witness evidence. However, arbitration
would rather pave the way for the parties an opportunity to secure the services of an individual
experienced in a technical area in question, or one who has knowledge of the commercial norms
relevant to a particular business field.55
Businessmen may settle disputes through negotiation or compromise which don’t demand the
involvement of neutral third parties. But this does not work if the relationship between the parties
have already been strained resulting in mistrust between the businessmen.56 This would necessitate
the intervention of third party to resolve the dispute. Conciliation by third party may not fit the
Maxwell 2005) 1-5 and see also Richard J. Graving, ‘The International Commercial Arbitration Institutions: How
Good Are They Doing?’, (1989), Am. U. J. INT’L L. & POL’Y, Vol. 4 324
50
. Graving (n 61) 324
51
. ibid.
52
. United Nations Conference on Trade and Development (n 1) 16.
53
. Graving (n 61) 319.
54
. Why use Arbitration, Dispute Resolution Series, Practice Module 4, Produced by Dispute Prevention and
Resolution Series Department of Justice, Canada, available at www.justice.gc.ca accessed on 10/01/2020.
55
. ibid.
56
. Bezzawerk Shimelash (n 44) 93.
17
dispute as their decision is not binding unless agreed otherwise. Litigation is the other option.
However, litigation has problems related to backlog of cases and it takes long time to get
judgement and problem of corruption, which is often referred to as ‘palm greasing’.57 Furthermore,
judges in litigation do not often understand business disputes as they are not specialists only in
business area of law. Even though it is not perfect, arbitration is the other better option left to the
businessmen in dispute. Arbitration becomes the only option, without alternative, when the dispute
is international in nature, when dispute is technical and complex like in petroleum operations, or
large construction projects, or where the dispute involves large amount of money.58
However, it is undeniable that it is not easy to find arbitrators who are acquainted with knowledge
in the field and the legal principles involved.59 Due to these reasons disputes in the construction
industry, investment, international trade, banking and insurance are often better resolved through
arbitration.
In Ethiopia, arbitration is the preferred scheme of dispute resolution due to knowledge of the
arbitrators in the dispute, arbitration keeps the smooth relationship between the disputing parties,
arbitration is expedient and less expensive, parties have opportunity to choose arbitrators and
Institutions, and arbitration is adaptable to the nature of the dispute.60 Though public courts have
been the main source of justice in the Country since 1940’s, public courts have congestion and
backlog of cases, and are not accessible, follow strict procedures, are time consuming and costly,
are unpredictable and uncertain, conduct trial publicly, are not independent and they are corrupt.61
Furthermore, they obviate animosity and enmity between the parties. 62 Businessmen do not want
disputes to be exposed to the public as that affects their business and they don’t want to have
animosity with their customers or their business partners. Therefore, arbitration is preferable to the
business communities than litigation.
57
. ibid
58
. ibid.
59
. ibid
60
. Daniel Alemayehu (n 22) 49.
61
. Alemayehu Yismaw (n 6) 40.
62
. ibid.
18
2.6. ADR Enforcement
An arbitration clause in a contract will most likely be enforced due to the strong presumption
created under federal law in favor of arbitration, if a party refuses a demand to arbitrate pursuant
to a valid arbitration clause, the other signatory to the contract may file an action in court to enforce
the agreement and have the court order arbitration. If a dispute ordered to arbitration is currently
in litigation, a party may petition the court for a stay of the litigation pending the arbitration; the
stay must be granted.
The court initial query in to the arbitration clause begins with the question of whether the parties
agreed to arbitrate the dispute in question. State –law principles will be applied to make the
determination. Whether the parties agreed to arbitrate involves a two-party inquiry;
1. whether there is a valid agreement to arbitrate between the two parties
2. Whether the dispute in question falls within the scope of that arbitration agreement
The United States Supreme Court established four guiding principles regarding arbiter ability,
1. arbitration is a matter of contract and a party cannot be required to submit to arbitration

any dispute which he has not agree to submit.
2. The court is to determine the question of arbiter ability unless the parties clearly provide
otherwise.
3. The court must not rule on the potential merits of the underlying clams when addressing
the issue of arbiter ability.
4. Where the contract contains an arbitration clause, there is a presumption of arbiter

ability……unless it may be said with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted dispute.
Parties to a contract can elect to include a contractual provision that provides the option of
arbitration or litigation, and the court should enforce the party’s .choice if the contract language
provides such an option. The parties must be clear through their drafting on how they wish such a
clause to apply to future disputes.
19
The option could be available in all disputes or only a narrow category of disputes, the contract’s
arbitration provision applied to “any and all unsettled claims, differences and disputes of what so
ever nature arising out of or relating to the contract.’’ The court interpreted the arbitration provision
as providing plaintiffs with the potion of litigation which plaintiffs chose. The court would not
compel plaintiffs to arbitration as result.
2.6.1. Judicial Review of an Arbitration Award by the court

At the conclusion of the arbitration, the arbitrator issues the award, but the question can remain
open as to whether a party will challenge the award. If a party challenges the award in court, a
district court will conduct a very narrow review of an arbitration award. An arbitration award may
only be vacated when:
1. The award was procured by corruption, fraud, or undue means.

2. There is evidence of partiality or corruption among the arbitrators
3. The arbitrators were guilty of misconduct which prejudiced the rights of one of the parties
4. The arbitrators exceeded their power
With this matter the parties can take steps to protect the type of judicial review they want through
contract.
The parties to an arbitration agreement do not have to rely on the courts and law to completely
determine the scope of judicial review permitted.63
63
. Arbitration clauses: Enforcement and surprises, Sohlman - Arbitration Clauses.pdf
20
CHAPTER THREE
3. MAJOR PROBLEMS ASSOCIATED WITH ADR IN

ETHIOPIA
3.1. Lack of modern substantive and procedural Arbitration Laws
3.1.1. Brief overview of Ethiopian Arbitration Law
FDRE Constitution under article 34(5) recognizes adjudication of disputes of a personal nature in
accordance with customary or religious laws with the consent of both parties. Disputes of a private
commercial nature, family and labor can be adjudicated through costmary law. Communities can
form an arbitration forum to resolve disputes of a private nature which arise among members of
the community. Arbitration is, therefore, constitutionally recognized means of adjudicating private
and family law related disputes.
In Ethiopia, the new proclamation which is 237/2021, International arbitration and commercial
related national arbitration ratified by Ethiopia and Bilateral agreements to which Ethiopia is a
party could be sources of law employed to regulate arbitration.64 But as a problem the proclamation
couldn’t specify which article is applicable and which is not or which article is ratified and which
one is not. Hence, this creates some misunderstanding during decision.
Under Ethiopian arbitration law, arbitral submissions are contracts that are supposed to fulfil
substantive and formality requirements. The requirements of consent, capacity and object are
relevant substantive requirements to be fulfilled.65 In relation to form, where the contracting party
who has initiated the arbitration has notified the other party to participate in the appointment of
arbitrator or properly notified to designate co- arbitrator from his side and if he fail to replay within
30 days or deny the existence of an arbitration agreement, the requesting party shall have the right
to cancel the agreement in his own time and submit his suit to the court.66
64
. FDRE Constitution, 1995, Article 1(8, 9, 25, 26, 27, 51, 52&53), Proclamation No.1237/2021,
65
.
Note has to be taken that arbitration agreement is contract that is supposed to fulfil basic substantive and formality
requirements of general provisions of contract by virtue of Article 1676(1) of the Civil Code. That includes consent
sustainable at law, capacity, acceptable object and formality requirement put in place in law as provided in Article
1678
66
. Proclamation No. 1237 Article (4) of the Civil Code.
21
The arbitration agreement could be to submit to arbitration existing disputes termed as compromise
agreement or disputes which arise out of contract in the future often termed as clause
compromiser.67
The power to appoint arbitrators is in principle given to the parties. Unless provided otherwise in
this proclamation, contracting parties shall be free to agree on procedure of appointment of
arbitrators, appointment of arbitration centers or by third party.68 When the court appoints an
arbitrator in accordance with paragraph (b) of sub Article (3) of this article, it shall take in to
account the criteria stated in the arbitration agreement and the impartiality and independence of
the arbitrator as well as his professional competence in relation to the dispute.69 Arbitrators can
also be appointed by a third party as long as the parties have entrusted the third party to do so. For
instance, arbitral institutions can be entrusted by the parties to assign arbitrators who preside over
the arbitration. In the same fashion, where one of the contracting parties fail to appoint the co-
arbitrator within 30 days from the date of receipt of the notice by the other party, or where the two
arbitrators fail to agree on the appointment of the third arbitrator within 30 days from the date of
their appointment or where the contracting parties fail to agree, in the case of sole arbitrator, the
first instance court shall appoint such arbitrator upon the request of one of the parties.70 Where
the contracting party who has initiated the arbitration has notified the other party to participate in
the appointment of arbitrator or properly notified to designate a co-arbitrator from his side and if
he fail to reply within 30 days or deny the existence of the arbitration agreement, the requesting
party shall have the right to cancel agreement in his own time and submit his suit to the court.71
The Civil Code enumerates a number of grounds for disqualifying an appointed arbitrator. Without
prejudice to sub article (1) of this article, where the hearing is an international arbitration hearing
conducted by sole arbitrator, it shall be taken in to account that the citizenship of the arbitrator is
different from either party’72.
67
. See also Zekarias Keneaa (n 9) 141.
68
. See Art. 12(2) of the Civil proclamation 1237/2021
69
. Art. 12(5) of the proclamation 1237/2021
70
. Article 12(3) (b) of the proclamation 1237/2021.
71
. Article 12(4) of the proclamation 1237/2021.
72
22
In relation to the procedure, contracting parties may agree on the procedure of objection against
the appointment of arbitrator.73 Unless the arbitrator against whom the objection is raised resign
willingly or the other party agrees to the objection, the tribunal shall render decision on the
objection.74 The form in which arbitral award is made should also be in the same fashion as a court
judgement.75 If the award is given in writing signed by the arbitrators along with assessment of
evidence and reasons and fulfilling other requirements of the law, the award is executed just like
a court judgement.76 As per Article 351 of the CPC, parties are entitled to appeal to ordinary courts
provided the conditions in the law are met. For instance, if equal opportunity to present evidence
is not given to both parties, the court will revoke the arbitral award.
Finally, the proclamation couldn’t give a power to enforce the arbitration practically for the
customary rather it makes the law to pave the way to become modern standard.
3.2. Adaptability of Ethiopian Arbitration law to Technical & Commercial

Disputes
3.2.1. Construction Dispute & Arbitration Law
The Growth and Transformation plan of the Government along with increasing growth of cities
and increasing demand for housing are increasing the construction projects in Ethiopia.77 Due to
the unique feature of construction projects, the specific period of time within which it is supposed
to be completed, their nature of being handled by special groups of experts, the complicated nature
of the dispute and the effect of globalization in the field of construction makes it prone to frequent
disputes. There needs to be effective and efficient means of out-of-court amicable dispute
resolution scheme for the construction industry and arbitration is a preferred scheme. 78 The
compatibility of the Ethiopian arbitration law should be assessed if it meets the demands of the
disputes in the construction industry.
Appealing against awards and setting aside of awards are possible in a number of grounds under
Ethiopian arbitration law. Accordingly, appeal is possible, inter alia, if the award is ‘inconsistent,
73
. Article 15(1) of the proclamation No. 1237/2021.
74
. Article 15(3) of the proclamation No. 1237/2021.
75
. ibid Article 318(2).
76
. ibid Article 181 and 319(2).
77
. Daniel Alemayehu (n 22) 1.
78
. ibid 2.
23
uncertain, or ambiguous or is on its face wrong in law or fact’.79 Furthermore, the Cassation
decided that the Cassation bench can review the award on its merit if there is fundamental error of
law even though there is finality clause in the arbitral submission.80 The Cassation Bench Judges
who presided over the case are of the opinion that waiver of right of appeal and finality clause
should not override the Constitution’s ambition to create uniformity of interpretation across the
country by correcting fundamental error of law and Ethiopia’s ambition to be arbitration-friendly
country should only be seen within the Constitution’s provisions. It should not be forgotten that
arbitration is a private procedure which only stands up on the will and consent of the parties. The
Cassation Bench decided in another case that though parties waive their right to appeal in the
arbitral submission, the award handed down by the arbitrators can still be appealable alleging that
appeal is basic right.81 As a result, courts can review the tribunal’s decision in the existence of
contractual waiver of the parties to right of appeal.
As a result of the multiplicity of grounds of appeal, parties to an international arbitration seated in

Ethiopia operating a major construction project may have difficulties over the finality of the
award.82 The Cassation Bench further aggravated the multiplicity of the grounds of appeal by
ruling out any possibility for an agreement to waive the right to appeal. This will have an impact
for domestic and foreign construction companies who want speedy out- of court final resolution
of their disputes by arbitration.
When one comes to the UNCITRAL Model Law, however, an award can be appealed and set aside
only in few defined circumstances. These few circumstances include: invalidity of the arbitration
agreement, lack of proper notice, or inability to present one’s case, the dispute is outside the
submission to the arbitration, incorrect composition of the tribunal, the subject matter of the
79
. Civil Procedure Code, Article 351(a).
80
. National Mineral Corp Pvt Ltd V. Danni Drilling Pvt Ltd Co (Federal Supreme Court, 2010), Vol. 10, Cassation
Bench, Civil Case No. 42239
t is to be recalled that this decision was given by 7 judges to reverse the Cassation Decision given in Cassation Civil
Case No. 21849 in which 5 judges decided that if the parties waive their right to appeal in their agreements, the
Cassation Bench will not have power to review the award.
81
. Deragados J&P Joint Venture V Saba Construction (Federal Supreme Court, 2008), Vol. 8, Cassation Bench Civil
Case No. 37678.
See the arbitral award that was made appealable at ‘Report of Arbitral Awards, Volume 3, 1-85’, and one can see the
dispute is construction dispute and it involves complicated issues.
82
. Kim Rosenberg et al, ‘Construction Arbitration in East Africa’(2018), The Middle Eastern and African Arbitration
Review 2018, available at http://globalarbitrationreview.com-2018/1198288/construction-arbitration-in-esat-africa
accessed on January 16/2020
24
dispute is not arbitrable, and the award conflicts with the State’s public policy. 83 The current
arbitration law in Ethiopia is different and wider in scope than the UNCITRAL Model Law.84
Based on the rulings of the Federal Supreme Court Cassation Bench, the most important departure
of the Ethiopian law is that part of the law that permits review of the merit of the award in the
name of appeal and further prohibition of agreement to waive appeal right. This has a direct
negative repercussion in the resolution of disputes in the construction industry.
Furthermore, the CPC under Article 315 prohibits submission of administrative contracts to
arbitration. Public construction contracts are administrative contracts.85 This will be an
impediment to the submission of government construction disputes to arbitration. However,
Federal Cassation File No. 16896/1998 decided otherwise and made administrative contracts
arbitrable. The Cassation bench stated that the dispute between Illubabor Zonal Department of
Education and Zemzem PLC should be submitted to arbitration as per the contractual agreement
of the two parties. The Justification is based on Article 1731 of the Civil Code that provides that
contracts are laws as between the parties. However, the Court’s ruling looks to have been against
Article 315(2) of the CPC which clearly prohibits arbitrability of administrative contracts. 86
Therefore, question of arbitrability of administrative contracts, which certainly includes, inter alia,
government construction disputes, remains controversial concern. Uncertainties are prevalent.
Judges in State Courts are less likely to be acquainted with the same degree of expertise in the
highly technical cases that come before them.87 The involvement of expert witness called by the
court judge has its own danger as the judge is influenced by the persuasion power of the expert
than the technical merit of the case.88 In construction disputes, there are possibilities for engineers
or architects as well as lawyers to be assigned as an arbitrator. As a result, contract enforcement
problems will also be high if the disputes are entertained via the problem-fraught litigation.
83
. See Article 34(2) of the Model Law.
84
. Kim Rosenberg et al (n 99).
85
. Articles 3244-3296 of the Civil Code.
86
. Tecle Hagos Bahta (n 52) 24.
87
. United Nations Conference on Trade and Development (n 1) 14.
88
. Douglas A. Stephenson, Arbitration Practice in Construction Contracts, (Blackwell Science Ltd, Fifth Edition
2001), 6-9, 41.
25
3.2.2. Investment and Arbitration Law
Arbitration is the preferred dispute resolution mechanism for international investors who are doing
business in Africa, for it offers investors with the advantage of having their disputes determined
by independent and competent arbitrators according to the rules which are predictable and flexible,
with a larger possibility of easier enforcement of the final award.89 Before investors decide to
invest in Africa, they are giving due attention to whether the target State for investment has already
become party to the New York Convention for the Recognition and Enforcement of Foreign
Arbitral Awards and whether the State incorporated the Model Law on International Commercial
Arbitration.90
Among African countries, 36 of them are parties to the New York Convention and this provides
assurance of enforcement of award from all 157 countries of the world to coming to invest in
Africa.91 Furthermore, 11 of the African Countries have adopted the Model Law, which provides
a reliable and well-structured domestic regime favorable to investors.92 Ethiopia is an African
country that wants to encourage investment.
Not only is arbitration important in attracting foreign investment, it is also vital in promoting the
domestic private sector investment.93 Therefore, modernizing the substantive and procedural
arbitration laws is vital in the effort to promote foreign and domestic investment. Countries are
promoting investment by adopting the UNCITRAL Model Law. This may work well to other
sectors of businesses too.
Moreover, when the Ethiopia arbitration laws are evaluated against these standards, we don’t find
clear provisions adopting the doctrines of separability and competence-competence. A close look
at most international arbitration rules, however, indicates that they have adopted the doctrine of
separability which is a trend showing a practical universal acceptance of the doctrine in
international commercial arbitration.94 The doctrine of separability provides for ‘the autonomy of
89
. Jean Chrstopher Honlet et al, “Africa Overview” in James J. Carter (ed), The International Arbitration Review,
(Law Business Research Ltd 2018), p. 9 and see Fekadu Petros (n 23) 132.
90
. ibid 9.
91
. ibid 10
92
. ibid.
93
94
. See for instance, UNCITRAL Arbitration Rules, Article 21, ICC Arbitration Rules of 1998, Article 6(4), American
26
the arbitration agreement as a standalone and severable contract, the validity of which is not
contingent up on the underlying legal relationship’.95 The doctrine becomes relevant in the case
when there is an arbitration clause contained in the substantive agreement, termed as clause
compromiser.96 The doctrine of separability ensures predictability to the business community by
giving effect to their desire of resolving disputes through neutral, speedy and cost effective
arbitration process by avoiding court intervention. From the above it may be concluded that the
doctrine of separability keeps the autonomy of the arbitration agreement which avoids the
involvement of courts to decide the fate of arbitral agreements contained in a substantive contract.
In relation to the doctrine of competence-competence, the formulation of Article Art 19(1) of the
tribunal have authority to rule over their own jurisdictions except in case of jurisdictional
challenges which do not relate to the validity and existence of the arbitration clause, and/or when
the parties have agreed to authorize the arbitrator to rule on these other challenges. This is against
the general consensus even recognized under the UNCITRAL Model Law, which provides under
Article 16(1) that the arbitral tribunal is empowered to rule on its own jurisdiction, including
rulings on the existence and validity of the arbitral agreement.
Furthermore, the arbitration law has clear provision that adopts restrictive interpretation of arbitral
submissions. Article 19 (1) of the 1237/2021 proclamation provides for the tribunal shall have the
power to determine the existence of a valid arbitration agreement between the contracting parties
including as to whether it has jurisdiction to hear the case or not. This is against the liberal
interpretation adopted by the UNCITRAL Model Law.97 Liberal Interpretation favors arbitrators
to have jurisdiction to entertain the dispute in cases which are controversial in relation to
jurisdiction of the arbitrators.98
Arbitration Association(AAA) Rules of 2003, Article 15(2), Arbitration Rules of the London Court of International
(LCIA of 1998), Article 23.1; China International Economic and Trade Arbitration Commission(CIETAC), Rules of
2005, Article 5(4), World Intellectual Property Organization Arbitration Rules, Article 36 as cited in Solomon Emiru,
‘Comparative Analysis of the Scope of Jurisdiction of Arbitrators under the Ethiopian Civil Code’, (LLM Short Thesis,
Central European University 2009).
95
. Angela Di Franco and Rafael Zabaglia, “Brazil”, in James J Carter(ed), The international Arbitration Review, (Law
Business Research Ltd 2018) 88.
96
. Solomo Emiru (n 111) 4.
97
. UNCITRAL, Article 16(1).
98
. Alemayehu Yismaw (n 6) 43.
27
The other important issue is the issue of enforcement of domestic and foreign arbitral awards.
Though the CPC provides for domestic arbitral awards to be enforced just like court judgement,
without prejudice to the provision Article 50 or 52 of this proclamation, an arbitral award rendered
in Ethiopia or in foreign country shall be deemed to be binding and shall be executed pursuant to
civil procedure code by applying to court that is empowered to execute the award had the case
been heard by a court Article 51 (1) of proclamation No. 1237/2021. The law does not have
specification of the form and content of the homologation application, meaning of homologation,
the standards and procedures of homologation.99 In a Federal First Instance Court case in which
the researcher was a presiding judge, order of direct execution of the arbitral ward was given due
to lack of clarity of the homologation issue.100
The UNCITRAL Model Law adopts a clear standard of execution of the award as long as the
conditions stated under Article 36 of the UNCITRAL Model Law are not met. The Conditions
stated in Article 36 relate to the incapacity of the parties, invalidity of the arbitration agreement
under the applicable law, lack of proper notice of appointment of arbitrator, awards out of the
scope of the arbitral submission, the composition and arbitral process not compatible with the
arbitral submission and other clear conditions entertained by the application of the party against
whom the award is given. The standards apply both to domestic and foreign arbitral awards. The
CPC is, however, ambiguous in relation to the requirement of homologation to execute domestic
arbitral awards. In relation to foreign arbitral awards, where a foreign arbitral award falls under
international treaties ratified by Ethiopia, it may be recognized or enforced in accordance with
such treaties 52 (1) of the proclamation 1237/2021.
Foreign arbitral awards will be enforced only if the party proves that there is reciprocal duty of
that other State to enforce awards from Ethiopia. One of the ways to prove reciprocity is existence
of treaty and Ethiopia signed such a treaty only with the Republic of China and ratified the same
by Proclamation Number 1007/2017 on June 7/2017.101 This would be repugnant to the interest
of the business community in Ethiopia as there is no certainty of enforcement of foreign awards
even though sufficient property is available in Ethiopia for enforcement. The ratification of the
99
. ibid 44
100
. Federal First Instance Court, Kolfe Bench, Civil File No. 106088.
101
. Mesfin Tafesse, ‘Ethiopia’s Ratification of the New York Convention’, available at www.africalegalnetwork.com,
accessed on March 3/2020.
28
1958 New York Convention for the Enforcement of Foreign Arbitral Awards by the Ethiopian
Parliament is set to make as soon as the Parliament comes into normal operation after the problem
due to Covid-19 pandemic and the whole process of deliberation steps have already been finalized.
120 If approved, that changes the whole scenario related to enforcement of foreign arbitral awards
in Ethiopia. The Convention does not have requirement of reciprocity. The Convention becomes
part of the law of the land if the Convention is ratified by the Parliament and as soon as the
Ratification Proclamation is made public in Negarit Gazzeta. However, the problems attributed to
domestic awards’ execution remains intact unless the country adopts the UNCITRAL Model Law
which treats both types of awards in the same standard.
In the arena of international transactions, in which Ethiopia may get involved, certainty and
predictability are very important in ensuring confidence in the business relationship. 102 However,
the Ethiopian arbitration law does not guarantee certainty and predictability. Arbitration is believed
to play a central role by providing independent, competent, impartial, effective and efficient
dispute settlement mechanism, which is supposed to be neutral from the national jurisdiction of
any Country. However, the existing arbitration laws are not modernized and have contradictions
with the UNCITRAL Model Law Provisions. The laws enacted in 1960s are not compatible with
the current development of the business and investment scenario. The Ethiopian arbitration laws
do not go with modern day standard laws like the UNCITRAL Model Law.
Generally, the outdated arbitration laws in Ethiopia are not responsive to the modern demands of
the business community. The technical and commercial features of some disputes demand the case
to be resolved through arbitration. Enforceability of the award across jurisdictions also encourages
investors to rely on arbitration process. However, the foreign award enforcement has been a major
problem until today and Ethiopia is yet to ratify the New York Convention for the Enforcement of
Foreign Awards in the near future. However, the country has not yet adopted the UNCITRAL
Model Law. This makes the existing Ethiopian arbitration law non-adaptable to technical and
commercial disputes which may include construction, investment, international trade, banking and
insurance.
102
. Solomon Emiru (n 111) 60.
29
3.3. Problems of Arbitration law relating to ensuring Neutrality,
Efficiency and Disciplinary standards of Arbitrators
3.3.1. Disclosure and Disqualification standards for Neutral Arbitration
Although the Civil Code enumerates a number of grounds for disqualifying an arbitrator,
independence and impartiality are much more important grounds than the rest of all other
grounds.103
Though the law does not have clear definition, partiality can be defined as bias or prejudice of the
arbitrator either towards one of the parties or the issues in dispute. The bias or prejudice the
arbitrator is suspected of can be the result of the relationship between the arbitrator and one of the
parties or with the issue in dispute. The arbitrator may have quarreled with of one of the parties or
may have prior knowledge of the facts of the dispute which may affect the neutrality of the
arbitrator. Partiality is more abstract than independence in that it is in the mind of the arbitrator the
bias or prejudice exists and that is difficult to measure.104 Independence, on the other hand, is about
the relationship between an arbitrator and one of the parties.
The relationship can take a form of ‘past business relations, an existing business relations, future
business relations, employer employee relations, lawyer-client relations, consanguinal or affinal
family relations and love affair relations’105. A party appointing his brother as arbitrator does not
expect the brother to be neutral in the process and outcome of the case. Impartiality and
independence are not the same, but both are instruments of ensuring neutrality of the arbitrator in
the process and outcome of the case.
Some writers like Rene David hold the opinion that the party appointed arbitrator can be partisan
to the party that appoints him/her provided that the other party has appointed his/her own.
However, David emphasizes that concealment and dishonesty are forbidden. Article 3340 of the
Civil Code does not prohibit a partisan arbitrator but also does not have disclosure requirement.
This opens up the way for concealment and the resulting dishonesty to have a wider room in the
arbitration process. Even if we accept the possibility for partisan arbitrator, we can’t tolerate the
103
104
. ibid 161.
105
. ibid 165-169.
30
concealment and dishonesty that result from the opportunity. The same writer David argues that
independence and impartiality are supposed to exist in arbitral tribunal in the same standard as the
requirement for judges of courts. A partisan judge is not possible at all in courts. The same
argument should be forwarded to disallow partisan arbitrator. This should apply to party appointed
arbitrators too.
The tribunal may, on its own initiative, modify, suspend and reverse the order upon request by the
contracting party or in exceptional circumstance, upon prior notice to the party.106 The law is thus
less interested in ensuring the neutrality of the arbitrators for any reason that can be mentioned
Experiences of other countries may show the same trend, but we can see that ensuring neutrality
is not the primary goal of the Ethiopian arbitration law. The policy reason that is given primacy
looks ensuring equality of the parties to appoint partisan arbitrators. Ethiopian law, however,
provides undue influence of one party against the arbitrator and acquisition of interest in the
outcome of the case by the arbitrator are grounds to appeal.107 It is meaningless to allow a partisan
arbitrator to stay on duty which, at end of the day, is a ground for appeal to have the arbitral award
given by the partisan arbitrator quashed.
The above controversies are not applicable to arbitrators appointed by the agreement of the parties
or by third party. With respect to matters falling under the arbitration agreement, the contracting
parties may request the court interim measures to be taken before the arbitration proceeding is
initiated or during the proceeding. This shall not be considered as violation of arbitration
agreement by the contracting parties and as intervention by the court.108
A closer look at UNCITRAL Model Law Articles 12 and 13 indicates partisan arbitrator is not
possible and if the arbitrator is proved to be partisan at any stage of the proceeding, he/she shall
be challenged.
In relation to disclosure requirement, in the recent decision by the Supreme Court of Austria, there
was an interesting question on whether failure to disclose facts giving rise to impartiality or
106
. See Arts. 23 of Proclamation No. 1237/2021.
107
. Article 351(d) of the Civil Procedure Code.
108
. See Arts. 9 of proclamation 1237/2021.
31
independence would constitute sufficient ground to challenge the arbitrator.109 The Supreme Court,
after making reference to the IBA Guidelines on Conflict of Interest in International Arbitration as
the Common International standard, decided that it constitutes sufficient ground if the arbitrator
failed to disclose ‘in a culpable way or in very extreme cases’110. The California Ethics Standards
for Neutral Arbitrators provides mandatory and automatic disqualification if the arbitrator fails to
make the required disclosure.111 Furthermore, the American Arbitration Associations Code of
Ethics for arbitrators in commercial disputes requires to disclose any financial or personal interest
in the outcome of the case. More importantly, the UNCITRAL Model Law under Article 12(1)
requires the arbitrator to disclose facts giving rise to doubts as to his/her impartiality and
independence before appointment and subsequently after appointment. However, the Ethiopian
arbitration law does not have disclosure requirement provision.
The disclosure requirement serves two basic purposes. The first one is it ensures the tribunal’s
neutrality and second of all, it helps the parties to assure arbitrator’s neutrality and serves them as
one evidence to prove that they did not know the circumstance that might give rise to partiality of
the arbitrator at the time of his/her appointment.
Furthermore, the Ethiopian arbitration law does not have specified conditions and procedures for
resignation by arbitrators. This, in some way, relates to the disclosure requirement in that the law
should have specified the disclosure requirement before appointment as an arbitrator and should
have specified the condition as one ground of resignation after appointment. This is because both
disclosure requirement and resignation are applicable by the free will of the arbitrator and the
difference is the time at which the arbitrator acts. But the law is silent about the issue of the grounds
and procedures for resignation.
109
. Austrian Supreme Court, 5 August 2014, docket numbers 18 ONc 1/14 p and 18 ONc 2/14 K, cited in Jean
Chrstopher Honlet et al (n 106), 58.
110
. ibid.
111
. Marrick T. Rossein & Jeniffer Hope, ‘Disclosure and Disqualification Standards for Neutral Arbitrators: How Far
to Cast the Net and What is Sufficient to Vacate Award”, (2007), Vol. 81, St. Johns LR, 205.
32
3.3.2. Efficiency/ Qualification of Arbitrators
The EACC and AACCSA-AI are said to have been well posited institutions to appoint efficient
arbitrators on behalf of parties as the two institutions had rosters of competent arbitrators.112
An arbitrator shall, if the contracting parties agree, be removed from his position where he is unable
to properly discharge his functions on legal grounds or clauses delay in performance without good
cause. The contracting party shall notify their agreement to the tribunal in writing.113 Reasons such
as detention or imprisonment, fulltime otherwise engagement in other duties, personal or family
problems can be grounds for disqualification within the meaning of the law. Even though not
specifically mentioned, qualification can be associated with competence of the arbitrator to dispose
the dispute properly and within a reasonable period of time within the meaning of the law. Every
layman incidentally appointed as arbitrator by the choice of the parties should be disqualified based
on these grounds. If the parties knowingly selected the arbitrator, such opportunities to challenge
arbitrators should be limited. However, the law does not have strict precision on whether
professional competence is expected. As has been stated time and again, arbitration is a preferable
mode of dispute resolution to commercial and technical disputes. Commercial and technical issues
demand a special proficiency of the arbitrator on the technical and commercial feature of the
dispute.
As per Article 4(2) of the Rule of procedure of the EACC, the arbitrator in the arbitrators list is
supposed to be highly qualified person in his profession along with proved competence and
experience. Arbitrator should uphold rule of law and should also be ‘reputed in dispute resolution
skills’114. Since arbitrators appointed this way are highly experienced persons with greater level of
competence and high moral charisma, the outcome of the arbitration is supposed to be reasoned
arbitral award. However, if the parties choose and appoint their own arbitrators, the quality of the
decision may be jeopardized. The Rule of the procedure went beyond what is provided in the law
demanding the arbitrator in the list to be competent, experienced and qualified in his profession.
112
113
114
. The 2005 Rules of Arbitration of the Ethiopian Arbitration and Conciliation Centre (herein after cited as
Arbitration Rule of the EACC), Article 4(2).
33
The UNCITRAL Model Law provides under Article 12(2) that if the arbitrator ‘does not possess
qualification agreed to by the parties’, the arbitrator may be challenged. We find no clear provision
in our arbitration laws having such clear ground of challenge on the question of qualification.
Furthermore, the Model Law in Article 14 provides that ‘if an arbitrator becomes dejure or defacto
unable to perform his functions’ and if there is controversy over the inability, the court shall decide
on the termination of the mandate. More important here is that the dejure or the defacto inability
can be associated with professional competence to decide the disputed subject matter. The
Ethiopian law does not have such a precision on the subject.
3.3.3. Disciplinary standards of the Arbitrators

As per Article 4(2) of the Rule of Procedure of the EACC, the arbitrator should be a person who’
commands high esteem and moral standing in the community’. What would happen if the arbitrator
is later discovered to be not a person of high esteem and moral standing after being appointed.
This is not clearly regulated in the Rule and the arbitration law does not have anything to say about
the minimum disciplinary standard expected of an arbitrator and as to how complaints related to
discipline are to be presented and to whom such compliant may be presented. Arbitration is an
adjudication in which the arbitrator will give binding arbitral award. This power has a lot to do
with the constitutional right of access to justice specified under Article 37 of the FDRE
constitution.115
Arbitration Institutions, at least, may come up with their own rules to regulate some aspects of
disciplinary standards. After all, the law does not clearly oblige the institutions to have such rules.
The problem comes to be more apparent in ad hoc arbitrations which do not have their own rules
of procedure to conduct arbitration. Had the law had specified framework of standards, it would
have been applicable to ad hoc arbitration, and would have served as a framework to the Rules
designated by the Institutions. In Ethiopia, there has to be framework law regulating the conduct
and misconduct of the Arbitral Institutions and arbitrators too. Acceptance of complaints relating
115
. As part of adjudication, in principle the arbitrator gives binding and final arbitral award at the end of the day. This
is beyond court decisions which are, at least, appealable on merit to a higher level court. If we have disciplinary
framework standard to judges of courts, for stronger reason, we have to have framework disciplinary standards for
arbitrators as part of an effort to guaranty the right of access to justice.
34
to misconduct of arbitrators and Arbitral Institutions should be given to a body neutral to the
government.116
The first attempt to stop the EACC’s function of facilitation of arbitration began by the high
officials of the government who alleged that there were misconducts in the institution/center and
by the arbitrators. The high officials arbitrarily and unofficially ordered the closure of the service
of arbitration by the Center without having the response and evidence of the EACC personnel.
This kind of arbitrary act further necessitates the existence of framework law on how to deal with
the conduct of arbitrators and the Institutions/Centers as well. This ensures the proper conduct of
the arbitral process and it avoids the arbitrary interference from the officials of the government on
allegation of misconduct.
3.4. Lack of Modern, well-functioning and sufficient Arbitration

Institutions
3.4.1. General Overview
To date there are not sufficient well-organized and functional arbitral institutions that promote the
use and practice of arbitration in Ethiopia.117 Where there are no contemporaneously organized
arbitration machinery or established rules of procedure, it becomes far easier to the disputing
parties to choose litigation over arbitration.118
In USA, although institutional arbitration found foothold in Chambers of Commerce as early as

1768 in New York and 1794 in New Haven, 1801 in Philadelphia, they were not effective for a
long time owing to absence of public education of importance of arbitration. The change in 1920s
was manifested by ‘modernizing the arbitration law, systematic planning, organization of
machinery, cultivation of spirit of arbitration, and construction of foundation of knowledge.119
This experience of USA in the early development of arbitration tells us that the mere existence of
institutions does not suffice unless it is coupled with modernizing the law, enhancing public
116
. ibid.
117
. Bezzawerk Shimelash (n 44) 4.
118
. Emerson (n 11) 3.
119
. ibid 6.
35
awareness of the institutions and working in the development of knowledge and awareness of
arbitration.
Furthermore, these days parties to international transactions often times decide venue of
international arbitration on the basis of factors such as ‘nationality of various interested entities,
the governing law, and the language of the contract’120. Parties, however, choose USA in many
cases because of the convenience of doing business there and absence of fear of any improper
home field advantage. Hospitality of the forum to international arbitration, with judicial support
of arbitration with no undue interference, being the factor, USA has a well-deserved reputation as
one of the favorable sites of arbitration. In Ethiopia, let alone the hospitality issue, we don’t even
have sufficient number of arbitration centers, and the existing ones operate in very small circle.
Ethiopia has AACCSA-AI, the Bahir Dar Arbitration Center, not yet actively operating, the
Arbitration Institute of the Ethiopian Chamber of Commerce and Sectoral Associations, which is
at infant stage of development, and the resuscitated EACC.121 We don’t have arbitration
institutions and centers in the rest of regions to date. Beyond regions, we have to develop
arbitration centers that extends to entertain international trade disputes.
3.4.2. Institutional Vs Ad hoc arbitration

Putting clear dichotomy between institutional and ad hoc arbitration is not an easy task even in the
existing literatures. Institutional arbitration is when an arbitration is ‘administered by specialist
arbitral institution under its own rules of arbitration’122. Institutional arbitration comes into effect
when the parties choose an institution to administer the arbitration proceeding.123 It is to be noted,
however, that the Ethiopian Civil Code and CPC don’t have express definition for institutional
arbitration.
There is constitutional recognition to cultural institutions to resolve disputes of private and family
nature in Ethiopia. The law does not have any prohibition to entrust a dispute to be resolved by
institutions chosen by the parties. For instance, parties are at liberty to entrust resolution of their
120
. Carter (n 15) 794.
121
. Girmachew Nigussie, ‘Commercial Arbitration and Accommodation of Third Parties in Ethiopia’, (LLM Thesis,
University of Addis Ababa 2018) 51
122
. Nigel Blackaby, Constantine Partasides, Alan Redfern, Marthin Hunter, ‘Redfern and Hunter on International
Arbitration
123
. Michael Teshome (n 42) 13.
36
dispute by a certain law firm choosing arbitrators from among the members of the firm.124
However, the state policy reflected in the prohibition of the EACC from providing arbitration
service indicates that the state policy does not allow arbitration to be submitted to institutions
unless clear permission is granted from itself or established by clear law. In a manner that
supplements the above idea, however, it is to be noted that only legally empowered institutions to
undertake institutional arbitration are entitled to come up with their own rules to administer
arbitration.
124
. Fekadu Petros (n 23) 127 and see also Zekarias Keneaa (n 9) 146.
37
CHAPTER FOUR
4. THE LEGAL PROBLEMS ASSOCIATED WITH DISPUTE

RESOLUTION MECHANISM AND PRACTICAL
PROBLEMS IN SINANA DISTRICT COURT
This chapter examines the mechanism used in Oromia Region in light of the general approaches.
Specifically, under this chapter, the legal problems; the issue as to whether the mechanism which
is employed by the laws of Oromia Region is conciliation or arbitration? Which type of disputes
should undergo the ADR mechanism?, the question as to whether the objective of the scheme laid
down by the law is clear or not, the issue as to whether there is power overlap in between different
organs that administer?, and the question as to the effect of skipping the mandatory procedure of
bringing application before the Kebele Administration are analyzed.
4.1. The Legal Problems associated with proclamation no.130/2007 and

Regulation no.151/2017
With respect to the legal problems associated with the land laws of Oromia Region, the discussion
is better started with identifying the type of alternative dispute resolution (ADR) employed in
resolving disputes. In this regard, Berhanu Beyene, in his article, argued that the local elders who
are elected by the disputants play neither the role of the conciliators nor arbitrators. He, despite a
clear employment of the term arbitration’ in the law‘s English version, said it is not arbitration as
the elders do not render award. He further said that while the conciliation is not binding there is a
possibility to be bound by the agreements125, while conciliation does not necessarily results in
finding Art. 16(g) of the Proclamation requires it, there is no memorandum of non-conciliation as
provided under 1237/2021 of the Ethiopian Civil Code and the findings are not kept confidential.
The two terms in the provision, i.e., =result’ and =arbitration’ are vague. I concur with the
argument that the elders are not playing the role expected of arbitrators. However, I argue that the
role being played by the elders is that of conciliators‘. This is, primarily, because in conciliation,
the conciliator, not the parties, often develops and proposes the terms of settlement. The parties
come to the conciliator seeking guidance and the parties make decisions about proposals made by
125
. Substantiating with Oromia Regional State Rural Land Use and Administration Proclamation, 2007, Art.16(1)(f),
Proclamation No.130, Mag.Oro., Year 15, No.12
38
conciliators.126 This role is supposed to be played by the elders as it is clearly indicated in article
18(10) of the Regulation. The Regulation is also succinct in stating if a mutually agreed solution
is reached between the parties on the terms of settlements proposed by elders, the Kebele
Administration is there to register and enforce the agreement within fifteen days.
It is also provided under article 16(1) (f) of the proclamation that a party who does not agree with
the proposal of the elders can initiate a proceeding over the dispute in a Woreda court within 30
days of the registration of the proposal in the Kebele Administration. The question one can raise
here is what if a party does not bring a suit within 30 days? The effect is not clear. If the parties
accept the proposal, it means they have agreed (do not have a complaint), the proposal becomes
agreement and it will be binding. If a party does not accept the proposal, it will remain a mere
proposal and cannot be turned to agreement which is binding. As the proposal may be in favor of
the applicant or respondent and since the proposal by elders may in no case be binding unless it is
accepted by both parties, it is not right to conclude that article 16(1) (f) of the Proclamation may
imply binding nature of the proposal.
Finally, the Regulation states that in case the proposal of the elders is not accepted by the parties
(which means unable to reconcile), the elders report the fact that the parties have not agreed to the
Kebele Administration, which controls the process, in writing and the administration shall send it
to Woreda court.127 This provision is also not requiring the mentioning of the terms of agreement
in the elders proposal. It simply requires showing the fact that the parties have not mutually agreed
(memorandum of non-conciliation) and no where you can find the terms; this means that the terms
in the proposal is kept confidential. So, as to me despite the bad drafting technique of the laws, the
type of ADR employed by the laws is conciliation.
The other issue which is worthy of discussion here is the objective of the mechanism that is used
by the proclamation. This is neither indicated in the preamble nor under article 16 of the
Proclamation. It is required to be clearly expressed as unless it is made clear, you cannot
understand toward which goal you are working and this, by itself, will have a bearing on the
implementation of the scheme. This being the defect of the law, it can be analyzed from literature
126
. Ibid.
127
. Cited above at note 27, Art.18 (11).
39
and list the probable objectives of the scheme. To mention some of the probable objectives; the
scheme is employed to decongest cases in court, to speed up the resolution of disputes, to promote
traditional methods, to save costs and time.
In addition, the Proclamation and Regulation are not clear on the types of rural land disputes that
should start by application that is brought to Kebele Administration and should undergo the ADR
mechanism. According to article 16 of the Proclamation, it is =any conflict or disputes arising on
land or property that should undergo the scheme that is laid down. The Regulation has also under
article 18(1) provided that it is a dispute over boundary or use right regarding farming land, rural
house, grazing land, irrigation land, well or ground water land and...Etc. that undergo ADR
procedure. From this provision, it can contrarily be inferred that a dispute regarding inheritance of
rural land, a dispute that is leading in the Region, need not undergo the ADR procedure. However,
the experience of Tigray Region and Kenya show us that every dispute in relation to rural land,
including inheritance of rural land, is required to go through ADR mechanism. Generally, as the
inheritance of property is in its very nature required to be liquidated and as the process of
liquidation is not something that is carried out in court, it is very important to undertake the
liquidation and partition of rural land using the ADR process before the Kebele administration.
There are other legal problems associated with the Regulation. The Regulation provides that in
case governmental and private organizations are involved in disputes as respondent, summon
should be sent to them twice and if the respondent does not appear within fifteen days of the receipt
of first summon, Kebele administration shall direct the applicant to bring his case before court.128
This provision seems to discriminate against natural persons in relation to the number of times
summon is required to be sent. This shows partiality of the procedure.
The same article indicates that ADR procedure is applicable even when the Government
organization or the Kebele Administrator is a party to the dispute. However, in analyzing this in
light of the general jurisprudence regarding the use of ADR and experience of Philippines, it is not
advisable to employ ADR procedure in disputes where a government is party. In addition, the
Regulation provides when the respondent refuses to appear or unable to appear, the Kebele
administration shall itself elect the elders on behalf of the absentee respondent and the case shall
128
. Id., Art.18 (12).
40
proceed in his/her absence.129 This provision is also defective as it, on the one hand, empowers
Kebele Administrator to elect elders, which seems to be against the Proclamation and, on the other
hand, it requires the default procedure or ex-parte to be applied on the procedure of ADR.
Literature in this regard also prohibits the use of ADR when one party does not or cannot appear.
On top of these, the regulation under its article 18(10) states that once the elders selected gather
information as to the dispute, they deliberate on the issue and if they all agree and have the same
position, they should disclose this agreed idea to the parties and encourage or push them to agree
on it. If the agreement is reached the Kebele Administration should execute the agreement within
15 days. In this regard, one informant said that this provision cannot be translated into practice as
Kebele Administrations do not have necessary police powers that enable them to execute the
agreement. Enforcement of the agreement largely depends on the willingness of parties to abide
by the agreement arrived at, at the end of the process.
It is also provided under article 28 of the Regulation that the Kebele Land Administration and Use
Committee, which has five members, elected by the residents of each Kebele and works for a term
of four years is established. The Committee has office, supported and supervised by Kebele
Administration. It is accountable to Kebele Administration. The regulation has reduced the role of
this committee in dispute settlement to just creating awareness.
The Regulation also provides for liability of the Kebele Administration in case it has failed to carry
out the responsibilities entrusted to it within a limited time. This provision is also not clear, as it
has not succinctly laid down the remedy available (whether action for damages or mandatory
injunction) for the party aggrieved. It is also not clear on the organ (the court or higher
administrative organ) which has the power to hold it answerable.
The other issue which is worth mentioning in relation to the land laws of Oromia is the issue of
power overlapping. Obviously, the potential for multiple organs to be involved makes it
challenging to know who has ultimate responsibility to resolve or enforce land disputes. This
problem is visible in the land laws of Oromia. For example, it is provided under the Regulation
129
. Id., Art.18 (2) and (3).
41
that both Kebele130 and Woreda131 administrations have the power to supervise and follow every
disputes arising from land use right and boundary to be resolved according to the land
administration and use law timely. The Woreda Administration is further empowered to take
measures when rural land disputes arise. Similarly, the Oromia Bureau of Land and Environmental
Protection has power to, in collaboration with concerned organs, resolve or cause to be resolved
any conflicts or disputes arising on land. On the other hand, it is enshrined under the Proclamation
that every rural land dispute is started by the application made before the Kebele Administration
and if the issue is not resolved there, it is to be taken to the Woreda Court for resolution.
Similarly, here, the issue related to article 16 (1) (g) of the Proclamation should be discussed. It is
embodied in the Proclamation that Woreda Court should not receive the suit if the result given by
the arbitration (sic) is not attached to it.132 This provision is a mandatory provision that compels
the court. However, here, the question that can be raised is what would be the effect when this
procedure is skipped and the case reached an appellate court? Currently, the practice in the Region
shows that, simply for the reason that this mandatory procedure is not complied with, appellate
courts quash the judgement and order for retrial. Even, the Oromia Supreme Court Cassation
Division is repeatedly quashing the judgements of the lower courts justifying that not complying
with this procedure is committing fundamental error of law. Note, here, economically analyzing,
this second trial has the effect of doubling the expenses which should be incurred for trial. And
this hinders the achievement of the general objectives of civil procedure; which is, ensuring that
disputes are handled by an impartial legal tribunal in a fair and orderly manner and as expeditiously
and economically as possible.
In addition, the issue must be analyzed in light of the doctrine of ‘harmless error analyses‘.
Harmless error rules are, essentially, proxies for the level of assurance that an appellate court must
have before it is permitted to set aside the judgement below. It is best viewed as a quest to
determine whether the trial resulted in a judgement that is manifestly just; if the judgement is
130
. Cited above at note 27, Art.18(14)
131
. Id., Art.28 (6).
132
. Id., Art.16 (1) (g).
42
deemed just, the error is deemed harmless, and the judgement will stand.133 In this regard, the
rules of procedure134 in USA states that,
“no error in either the admission or exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for
granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise
disturbing a judgement or order, unless refusal to take such action appears to the court in
consistent with substantial justice. The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the substantial rights of the parties.”
In Ethiopia, the Civil Procedure Code provision that is related and applicable to the issue is the
basic principle that is incorporated under Article 207.
Furthermore, one can analyze the issue from the perspective of the objective that is intended to be
achieved by the provision. The objective of incorporating article 16 in the Proclamation (the idea
of compelling the disputants to start from the Kebele administration) is basically, as explained in
the earlier chapter, to enable the disputants to resolve their cases amicably at the village level and
thereby enable them to get decision within short period of time and with reduced costs. The success
of this mechanism is still based on the willingness of both parties and if one of them refuses to
undergo the ADR procedure, it means it becomes unsuccessful and it makes the order of appellate
courts meaningless. So, generally, once this step is skipped, it would be unwise and uneconomical
to quash and send for retrial (if it, of course, equals retrial).
4.2. The Types and cause of Disputes in Sinana Woreda

Under this sub-section the types and causes of rural land dispute are discussed, the type which is
most prevalent and the leading cause will also be identified.
4.2.1. The Type of Disputes in Sinana Woreda

Land disputes comes first in many forms, but can broadly be organized by factors such as: (i) the
type of land involved, e.g., privately or publicly owned, common property of a community or
133
. Robert M.Filiatrault and Elizabet PriceFoley, The Riddle of Harmless Error in Michigan, 2000, Digital
Commons Michigan State University College of Law, the Wayne Law Review, Vol. 46(2000), p. 425.
134
. The Federal Rules of Procedure of USA, Art.61.
43
natural resources; (ii) the parties involved and their interests, e.g., individuals, families,
communities, private sector and official actors and (iii) the nature of the dispute. Boundary or
trespass dispute, family dispute, dispute over cultivation/crops, disputes between investors and
peasants, violent land use right acquisition, destruction of property over land, lease, and
inheritance.
Narrowing down to Sinana Woreda Court, the data amassed shows that inheritance disputes,
boundary disputes, land use right disputes, land use related contractual disputes and disputes in
relation to right of way are the common ones.
To identify the magnitude of each type of land disputes (in percentage), 58 files which are related
with land disputes and entertained by Woreda Court, in the last three years, are randomly selected.
These 58 court cases are analyzed and demonstrated shortly in the following table. Of course, the
types of disputes are categorized simply based on the title of the action and the content of statement
of claim.
Table 1:
No Type of dispute Number of files Number in %age
1 Inheritance 5 8.6%
2 Unlawful possession 24 41.4%
3 Boundary 11 18.9%
4 Illegal contract (lease, donation and 16 27.6%

sale)
5 Right of way 2 3.4%
sum 58 100%
From this table one can easily draw a conclusion that, in the Woreda, unlawful possession of rural
land (any claim pertaining to interference with the right to possession and dispossession) related
44
to is type of rural land disputes that is most rife. Dispute in relation to illegal contract is the second
type of disputes that stands second in rank. These ranks do not align with the ranks of the causes
of disputes. While the leading cause is illegal transfer of land, why is the type of disputes that is
most prevalent does not align with it? Is the question that must logically be answered? This is
caused because for one thing, as I said above in categorizing the types only the statement of claim
is focused on and when one further goes on investigating the statement of defense, the whole issue
is changed mostly into cases of contract.
4.3. The Cause of Disputes in Sinana Woreda

In order to minimize the magnitude of the disputes it is obviously necessary to find out the causes
or sources of the disputes. Regarding the causes of disputes, a research undertaken by Haftom has
revealed that absence of effective, efficient and strong administration unit along with the clashes
of private interests are the main causes of disputes. Of course, literature tells us that the functional
deficits of institutions are not the core reason for conflicts; they merely facilitate them. Similarly,
other source shows that changes in population, increasing land prices, changes in education level
and the work of dalals (brokers) are the basic causes of disputes.135 It is further identified that
legislative loopholes, contradictory legislation, poverty and poverty-related marginalization
(exclusion), missing or inaccurate surveying are also the causes of disputes especially on land. On
top of these, uncertainties over the nature of land interests and over the position of ill-defined
boundaries are fruitful sources of disputes in many developing countries.136
Coming to the general causes in Oromia Regional State, in this region, the un-clarity of the law in
relation to inheritance of land is said to exacerbate the inheritance disputes. The un-clarity is related
to the subjects who have the right to inherit land. In this regard, the Federal Proclamation states
that any holder shall have the right to transfer his land use right through inheritance to members
of his family. It further defined ―Family member‖ as any person who permanently lives with
holder of holding right sharing the livelihood of the latter.
135
. Danielle Stein, Land Disputes and Settlement Mechanisms in Nepal‘s Terai, The Justice and Security Research
Programme, The Asia Foundation, 2014, p. 9.
136
. Tim Hanstad, ―Designing Land Registration Systems for developing Countries,‖ American University
International Law Rev., Vol.13(1998), P. 654-655
45
Similarly, the Oromia Proclamation provided for this right of land holder. But as to the definition
of a ‘family member‘, it differs as it says family member’s children of the landholder or dependents
who do not have other income for their livelihood. Here, the question one can raise is for how long
you have to stay with the holder to inherit? What if you have income and live with the holder? Are
the children going to miss it? Any ways, the proclamation of Oromia seems to categorize the
children and other dependents who are required to have no income in order to inherit. Seen in light
of the Federal Proclamation, it seems it restricted conditions that must be fulfilled in order to inherit
and the provision is also not clear. This problem in law is identified as a cause of disputes.
This being the general causes now let me turn to the causes as identified in Sinana Woreda. In this
Woreda, as the Woreda court and Kebele Administrations do not have a data base that separately
registers rural land dispute, it is not easy to identify the exact level of the disputes. As a result, to
dig out the status of rural land disputes (whether increasing or decreasing) and its causes,
questionnaires are administered to 24 respondents (lawyers, prosecutors, judges, Kebele
Administrators, member of woreda arbitral councils) and out of these respondents, 18 (75%)
responded that the dispute in this Woreda is increasing year after year. They reasoned saying that
the increase in the value of the land, the people demand (claiming to inherit and claiming to acquire
from government), juridical acts not entered into according to the land laws are all the causes for
the increase in disputes.
On the other hand, those respondents who said the Woreda‘s rural land disputes are decreasing, 6
persons (25%) have justified saying the decrease. As of their suggestions since land is the main
cause of disputes, the attributed of the first land possession certificates that is issued to the land
holders decreases the case of disputes.
As to the causes (factors that contribute) of the Woreda‘s disputes, the respondents have said that
the causes are too many and interrelated. Among the causes mentioned; lack of clarity of the land
laws, lease and donation not contracted as per the land laws, natural population growth which
resulted in increase in demand for land, and consequently land prices, the unqualified land
possession certificates, sale of land under disguise of leasing or donating, boundary disputes,
increase in the value of land, flaws in the land administration system are some.
46
4.4. Analyzing the Effectiveness and General Problems Associated with
ADR Mechanism
Although it is not easy to comprehensively measure the effectiveness of a judicial system there are
experts who try to set parameters to determine it.137 Accordingly, the most basic elements of an
effective judicial system are (a) predictable judicial discretion applied to rulings; (b) feasibility of
access to the courts on the part of the general population regardless of income level; (c) disposition
within a reasonable time; and (d) adequate remedies. It is also stated that increases in delays,
backlogs and uncertainty associated with expected judicial outcomes have the impact of hampering
access to justice and diminishing the quality of court services.138 Literature further shows us that
the procedure of hearing or examining cases and the use of ADR have impacted efficiency of a
court. These parameters are employed to measure judicial system in general. These can possibly
be narrowed down and applied to a single Woreda Court (the procedure before Kebele
Administrations and Sinana Woreda Court).
In this Woreda, despite these formal mechanisms there is a council of Abba Gadaas that settles
disputes (including land disputes) which cannot be corroborated with evidence. They are also
playing their role of settling land disputes. Disputes are brought to this council of Abba Gadaas if
the parties are consented to, and the Council is reconciling based on customary system which
requires each party to produce their families to take an oath.
Similarly, it is important to economically analyze the mechanism of enforcing property rights i.e.,
enforcing land disputes. In economically analyzing the new mechanism of land dispute settlement
(mechanism that mandatorily requires application to be presented to Kebele Administration and in
doing this goes beyond the rules of Civil Procedure), one can take the rule of thumb that the
Ethiopian Civil Procedure is reasonable in fixing reasonable length of trial. This procedure
obviously aims to ensure that disputes (including land) are handled by an impartial legal tribunal
in a fair and orderly manner and as expeditiously and economically as possible. This shows us the
procedure has the objective of reducing the costs of government as well as parties. Rules that go
beyond this and increase costs are not effective. Hence, if the rules (be it proclamation or
regulation) that we follow in resolving land disputes do not have other objectives than just adding
137
. Ibid.
138
. Ibid
47
costs to the party (increase average costs of litigation), then the mechanism should be economically
analyzed.
Accordingly, questions like, what are the challenges sinana woreda court? Is the woreda court
effective? And what mechanisms of investigations is the court using resolving the disputes? Are
to be analyzed as follow:
Population density become the most challenges of sinana woreda court, the court is accessible to
kebeles and the court tries to convince litigants to use conciliation by the elders and the court
receives the application of disputes without the findings attached.
In a similar vein, out of the 58 files of the Woreda Court examined 12 (20.6%) files revealed that
the elders who are empowered to propose a solution are going beyond their power and giving a
decision. These files also show that when the respondent fails or refuses to appear, the procedure
that is being followed is, either simply reporting this fact or report it after hearing evidence of one
side. These all imply that the reports of the elders are not similar and thus not predictable, they are
not effectively carrying out their duties and that they do not have adequate knowledge of the law.
It is similarly revealed by interview that elders usually decide on the matter. Despite this, there is
an informant who said that, as part of promoting cultures through expanding the roles of elders, it
is necessary to give the decision making power to them.
4.5. Chapter Summary

Under this chapter, the issue as to whether the mechanism which is employed by the laws of
Oromia Region is conciliation or arbitration? Is discussed and come to a conclusion that the laws
adopted conciliation. In addition, the issue as to which type of disputes should undergo the ADR
mechanism? Is dealt with and concluded that all types (including inheritance) should undergo
through the process of ADR. On top of this, the question as to whether the objective of the scheme
laid down is clear or not? Is analyzed and generalized that the objective is not clear. The meanings
given to Family Members‘ by the Federal and Oromia land laws are comparatively dealt with and
summed up that the Proclamation of Oromia has more restricted the prerequisite to inherit land. It
is also identified that there is power overlap in between different organs that administer land in
Oromia.
48
CHAPTER FIVE
5. FINDINGS, CONCLUSSION AND RECOMMENDATION

5.1. Findings
Disputes are a common phenomenon generally in this country and specifically in Oromia Region.
These disputes often have extensive negative effects on economic, social, spatial and ecological
development. To avoid or reduce these negative effects, effective mechanism which enables one
government to resolve the disputes must be put in place. Oromia Regional State, as one of the
Regions in Ethiopia, has enacted laws that provide for the means of resolving disputes. However,
some of the provisions of these laws are found to be unclear and there are gaps in them. In addition,
the practical problems in Sinana Woreda are identified.
Accordingly, this Thesis specifically found out that the land laws of Oromia have adopted an
hybrid approach of land settlement mechanism, that the terms ‘result ‘and ‘arbitration ‘are vague,
that type of ADR method employed is conciliation, there is confusion and overlap of power in
between different organs that are involved in administration of land, that the objective of scheme
(ADR) introduced by the Proclamation is not clear, that the law is not clear as to the length of year.
All types of disputes (including inheritance) should undergo through the process of ADR.
With regard to the practical problems in the Sinana Woreda, this thesis identified that the people
of the Woreda prefer ADR and want their cases first heard at the village level. It is also found that
the reports of the elders are inconsistent and there are ethical problems of the Woreda conciliation
workers, Kebele Administrators and elders.
The Thesis also revealed that people of the woreda lacked adequate legal knowledge and the
Woreda Court is repeatedly establishing a committee which shall investigate the real possessor of
the different disputed issues in the name of additional examination (investigation). On top of these,
the Thesis revealed that there is delay in the Woreda Court, problems of follow up, supervision,
practical flaws in administration, and generally less attention that is given to the mechanism put in
place, and these have impacted the level of effectiveness of the mechanism.
49
5.2. Conclusion
The main findings of this thesis have demonstrated that there are lack of clarity and gaps in the
laws that govern dispute settlement mechanisms and that there are practical problems in the study
area (Sinana Woreda). This thesis has further identified the leading cause, the type of disputes that
is prevalent and the factors that have contributed to the effectiveness of the mechanisms that are
laid down by the laws of Oromia.
Because of these problems in law, the peoples in Oromia in general, and due to the problems in
practice and problems in the causes (factors) that have contributed to the effectiveness of the
mechanism, particularly the societies in Sinana Woreda might lose the confidence in enforcing
their land holding rights employing the mechanism put in place by the land laws of Oromia. These
problems, obviously, have bearing on tenure security and hinder the farmers from optimally
exercising their constitutional and legal land right. And these in turn, stifle economic development.
In order to remedy these problems, the writer recommends legislative amendments faithful
implementation of the law as well as institutional reform.
5.3. Recommendation
Based on the findings, which call for express recognition of Oromo Customary Dispute Resolution
Mechanism, a change in procedural laws, an establishment of a modified institution, creating
public awareness and complying with the laws, generally, through amending the laws and
administrative measures, and as well on the basis of conclusions of the thesis, it is recommended
as follows:-
 Recommendations on Proclamation and Regulations

 With respect to the un-clarity of the objective of Article 16 of Oromia Rural Land
Administration and Use Proclamation, the Proclamation should be amended so as to clarify
the objectives of the mechanism by expressly stating decongesting cases in the court, to
speed up resolution, to promote traditional justice system, to build harmony, to save time
and costs‘.
 Pertaining to the problems of effectiveness, of follow up, supervision, practical flaws in
administration and generally less attention that is given to the mechanism put in place, the
aforementioned Proclamation should be amended so as to clearly change the structure and
50
embody that the resolution of any rural land disputes should be tried first by (negotiation
or compromising mechanism), if it fails through Gadaa‘ or Jarsummaa Mechanism‘ (which
must again be based on the consent of both and have structure at local Kebele level) before
the application is made to any organ, and then to mandatory court-annexed conciliation (as
disputes have bearing on the functions of ordinary court), in which case one legal officer
of the Woreda Court (who must reside (or work in circuit) in each Kebele, act as secretary
of the elders, keep and register the proposal of settlement.
 Improve the problems of elders‘ favoritism or biasness due to relation, to improve

effectiveness of the conciliation and ensure more community participation in the dispute
resolution mechanism, the Proclamation should be amended so as to embody the practice
of Philippines, i.e., firstly, the applicant who want to initiate rural land dispute against
another individual should apply (in written or orally as the case may be) to the Kebele
Administrator, then the Kebele Administrator should transcribe into writing (if it is
presented orally) and call the respondent to try to negotiate, if respondent appeared but
refused to negotiate, the administrator should create a condition for the parties to select
three members of conciliation (who among themselves elect chairman and secretary), who
should be empowered to reconcile, from Kebele Rural Land Administration and Use
Committee (whose number of members should be increased from 5 to 15, appointed by
Kebele Administrator and voted by residents, who must be respected, take an oath and
work, at least, for three years, whose composition should at least consists of three women)
or if the respondent refuses to appear, certify this fact and send it to Woreda Court.
 As to the problems associated with the vagueness of the terms; ‘result‘ and ‘arbitration‘,
the Proclamation should be amended so as to give a consistent and effective meaning, and
replaced by ‘finding‘ and ‘conciliation‘.
 With respect to the means of enforcement especially when the disputants have reached the
agreement before elders, the Regulation should be amended so as to clearly give the power
to enforce the agreement to the organ that has the police power not to the Kebele
Administration.
 With respect to the legal defects that are identified in relation to the Regulation‘s provision
of Ex-parte procedure in the process of ADR and discrimination in the procedure of
51
summoning when a case involves organizations and individuals, the Regulation should be
amended so as to avoid them.
 Recommendations on Practical Problems revealed in Sinana Woreda
 With respect to the unethical conduct (biasness) of elders in the Woreda, Oromia
Justice Bureau should arrange a training on which Abba Gadaa (a leader who is
currently working on and promoting Oromo‘s social values) should preach on deep
social values of Oromo nation, how the Oromo nation perceives justice and impacts of
biasness.
 Regarding the problems of backlog of rural land cases in Sinana Woreda Court, the
Oromia Supreme Court should establish a special bench in the Woreda that entertains
solely rural land dispute cases, and fill it with adequate and specially trained judges.
 As to the problems identified by this study as sources of disputes (including informal
dealings on land such as sale under disguise of leasing, juridical acts which do not
comply with administrative formality and extra-legal use rights, the Proclamation
should be amended in a way that it regularizes the extra-legal land use rights and in a
way it lifts restrictions such as authentication before the concerned organ without, of
course, not allowing the sale of land.
 Regarding the findings in relation to lack of adequate knowledge of land laws by the
public, elders and Kebele Administrators, Rural Land Administration and Use
Committee at Kebele Level should create awareness in cooperation with Oromia
Justice Bureau; Civic Society Organizations (NGOs) should also be allowed to involve
in creation of public awareness.
52
5.4. Bibliography
Books, Articles and Researches
Abebe Mulatu, ―Access to Justice and Rural Land Dispute Settlement in Ethiopia, ‖ in Muradu.
Abdo, (ed) Eth. business Law Series, vol. III. (2009).
Aiyedun, Adenike and Ordor, Ada, ―Integrating the Traditional with the Contemporary in
Dispute Resolution in Africa‖, Law, Democracy and Development, Vol.20 (2016).
Alberto Vargas, the Philippines Country Brief: Property Rights and Land Markets, (Land Tenure
Center, University of Wisconsin-Madison, Financed by U.S. Agency for International
Development).
Alessandra Sgubini, Mara Prieditis & Andrea Marighetto, Arbitration, Mediation and
Conciliation: differences and similarities from an International and Italian business perspective,
2004.
Amari Okama, ADR Mechanism and Resolution of Land Disputes in Nigeria, Ebony State
University. Available at: www.amariomaka.blogspot.com (Accessed on September 23/2017).
Anna Locke, Property Rights and Development Briefing: Property Rights and Economic Growth,
odi.org, 2013.
Berihu Asgele Siyum, Bihon Kassa, Betelhem Sisay and Mewcha Amha Gebremedhin, ―Farm
Land Conflict and its Socio-Economic Consequences in Tahtay Qoraro, Tigray, Ethiopia‖,
International Journal of African and Asian Studies, Vol.9(2015).
Birhanu Beyene, ―The Oromia Rural Land Dispute Settlement Scheme, So Ambiguous and
Expectedly Not Working‖, (Jimma University Journal of Law, Vol.4, No.1).
Chege Waiganjo and Paul E.N.Ngugi, The Effects of Existing Land Tenure Systems on Land use
in Kenya Today. Available at: https://www.fig.net (Accessed on October 2/2017).
Claudia R. Williamson, Securing Private Property: Formal versus Informal Institutions,
Development Research Institute Department of Economics New York University. Available at:
https://nyudri.files.wordpress.com (Accessed on October 2/2017).
Cotula L., Toulmin C. and Quan J., Better Land Access for the Rural Poor, Lessons from
Experience and Challenges ahead (IIED, FAO, 2006).
Damodaran Kuppusamy, ―Property Rights and Technology Adoption in Agriculture,‖
International Journal of Environment and Sustainable Development, Vol.6(2014).
53
Daniel Steudler, Abbas Rajabifard and Ian P Williamson, Evaluation of Land Administration
Systems, (Submitted to the Journal for land Use Policy, Unpublished, 2004), p. 4.
UN/ECE/WPLA, 1996, Land Administration Guidelines, New York, Geneva).
Daniel W/Gebriel and Melkamu Belachewu, Land Law, (Teaching Material Prepared under the
Sponsorship of the Justice and Legal System Research Institute, un published, 2009).
Desalegn Chemeda Edossa, Mukand Singh Babel, Ashim Das Gupta and Seleshi Bekele
Awulachew , Indigenous systems of conflict resolution in Oromia, Ethiopia, International
workshop on =African Water Laws: Plural Legislative Frameworks for Rural Water Management
in Africa‘, (2005, unpublished, Johannesburg, South Africa).
Dessalegn Rahmato, Searching For Tenure Security?, (The Land System and New Policy
Initiatives in Ethiopia, FSS Discussion Paper No.12, Forum For Social Studies, Addis Ababa,
2004).
Domingo P.Disini, Jr. & et al, Dispute Resolution Mechanisms in the Philippines, (Institute of
Developing Economies, IDE Asian Law Series No.18, 2002).
Edgardo Buscaglia and Paul B.Stephen, An Empirical Assessment of the Impact of Formal Versus
Informal Dispute Resolution on Poverty: A Governance-based Approach, International Review of
Law and Economics, 2005.
Elin Henrysson and Sandra F. Joireman, Property Rights Adjudication in Kisii, Kenya, Wheaton
College Dept of Politics and International Relations Wheaton , II.
Endalkachew Birhan, ―Challenges and Opportunities of Indigenous Conflict Resolution
Mechanism in Oromia Regional State: The Case of Rayitu Woreda, Bale Zone‖, European
Academic Research, Vol. IV, Issue 6(2016).
Geoffrey Nyamasege, Muhammad Swazuri & Tom Chavangi, Alternative Dispute Resolution as
a Viable Tool in Land Conflicts: A Kenyan Perspective, (Annual World Bank Conference on Land
and Poverty, Washington DC, 2017).
Gertrude Sackey, Investigating Justice Systems in Land Conflict Resolution: A case study of
Kinondoni Municipality, Tanzania, (Thesis submitted to the faculty of Geo-Information Science
and Earth Observation, University of Twente in Partial fulfilment of the requirements for the
Degree of Master of Science in Geo-Information Science and Earth information, specialization,
2010).
54
Gudeta Seifu ―Rural Land Tenure Security in the Oromian National Regional State, ―in Muradu
.Abdo, (ed) Eth.buisiness Law Series, vol.III. (2009).
Haftom Tesfay, Rural Land Dispute Settlement Mechanisms in Tigray: The case of Humera, A
Thesis Submitted in Partial Fulfillment for The Requirements of Masters of Degree of Laws (2011,
unpublished, library, Addis Ababa University School of Law).
Hernando, De Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else, New York, NY: Basic Books, 2000.
Hussein Jemma, the Politics of Land Tenure in Ethiopian History: Experience from the South,
(Paper Prepared for XI World Congress of Rural Sociology, Agricultural University of Norway,
2004).
Deininger, Klaus, Implementing China‘s New Land Law: Evidence and Policy Lessons, (World
Bank Washington DC, 2014).
Kenea Zekarias, ‘Formation of Arbitral Tribunals and Disqualification and Removal of Arbitrators
under Ethiopian Law’, (2007), Vol. 21, J. ETH. L
Mamo Hebo, Land Disputes Settlement in a Plural Institutional ‘Setting: The Case of Arsii Oromo
of Kokossa District, Southern Ethiopia, (Graduate School of Asian and African Area Studies,
Kyoto University, Unpublished, 2005).
M.M. Ahmed, S.K. Ehui, Berhanu Gebremedhin, S. Benin and Amare Teklu, Evolution And
Technical Efficiency Of Land Tenure Systems In Ethiopia, (International –ILRI- International
Livutock Muarch Institute Socio-economic and Policy Research Working Paper 39, 2002).
Muradu Abdo, State Policy and Law in Relation to Land Alienation in Ethiopia, A Thesis
Submitted in Partial Fulfillment of the Requirements of the Degree of Doctor of Philosophy in
Law, (2014, unpublished, University of Warwick, School of Law).
Murado Abdo, ―Legislative Protection of property rights in Ethiopia: Overview, ‖ Mizan Law
Rev., Vol.7 (2013).
Noah Coburn, Hybrid Forms of Dispute Resolution and Access to Justice in Afghanistan:
Conceptual Challenges, Opportunities and Concerns, Hamida Barmaki Organization for the Rule
of Law Working Paper No.2015/03.
Paul Van Der Mollen, Eugene H. Silayo and Arbind M. Tuladhar, A Comparative Study to Land
Policy in 9 Countries in Africa and Asia, Available at: https://www.fig.net (Accessed on
Sept.20/2017).
55
Petros Fekadu, “Underlying Distinctions between ADR, Shimgilina, and Arbitration, A critical
Analysis”, (2009), Vol. 1, Mizan Law Review
Reconciling customary land and development in the Pacific, The Report prepared by the Australian
Agency for the Commonwealth of Australia, Vol.1 (2008).
R.J.A.Wilson, Land Tenure and Economic Development, (A Study of the Economic Consequences
of Land Registration in Kenya‘s Smallholder Areas, 1971).
Robert M.Filiatrault and Elizabet PriceFoley, the Riddle of Harmless Error in Michigan, 2000,
Digital Commons Michigan State University College of Law, the Wayne Law Review, Vol.46
(2000).
Ruth Meinzen-Dick, Property Rights for Poverty Reduction? (DESA Working Paper No. 91,
December 2009).
Samuel Gebreselassie, Land, Land Policy and Smallholder Agriculture in Ethiopia: Options and
Scenarios, (Paper prepared for the Future Agricultures Consortium meeting at the Institute of
Development Studies, 2006).
Shimelash Bezzawerk, ‘The Formation, Content, and Effect of an Arbitral Submission Under
Ethiopian law’, (1994), Vol. 17, J ETH L
Shimelles Tenaw K.M. Zahidul Islam & Tuulikki Parviainen, Effects of land tenure and property
rights on agricultural productivity in Ethiopia, Namibia and Bangladesh, University of Helsinki
Department of Economics and Management Discussion Papers, 2009.
Shipi M., Alternative Dispute Resolution in Ethiopia: A legal Framework, 2013. Available at:
http://www.ajol.info/index.php/afrrev/article/download/41054/8478 (Accessed on 15/09/2016).
Teferi Bekele, the Practical Problems in Resolving Oromia Rural Land Disputes: The Law and the
Practice, (Research conducted in Oromia Justice Sector Training and Research Institute in Afan
Oromo Language, Unpublished, 2010).
Tesfaye Teklu, Rural Land Rights and Security in Cultivated Highland Ethiopia: Incremental
Reform but Persistent Uncertainty, 2014, International Journal of African Development, Vol.2
(2014).
Tigistu Gebremeskel Abza, Experience and Future Direction in Ethiopian Rural Land
Administration, (Paper Presented at the Annual World Bank Conference on Land and Poverty,
2011).
56
William Kalande, Kenyan Land Disputes in the context of Social Conflict Theories, (FIG
Commission 7 Annual Meeting and Open Symposium on Environment and Land Administration
Big Works for defence of the Territory, 2008).
Zhenhuan Yuan, ―Land Use Rights in China‖, Cornell Real Estate Review, Article 6,
Vol.3(2004).
Laws
Constitution of the Federal Democratic Republic of Ethiopia, 1995, Proclamation No.1, Neg. Gaz.,
year 1, no.1
Federal Democratic Republic of Ethiopia Rural Land Administration and Land Use Proclamation,
2005, Proclamation No. 456, Neg. Gaz., year 11, no.44.
A proclamation to provide for the public ownership of rural lands, 1975, Proc. No 31, Neg. Gaz.
year.
Federal rural land use and administration proclamation, 1997, Proc. No 89, Neg. Gaz. Year No.54.
Federal rural land use and administration proclamation, 2005, Proc. No 456, Neg. Gaz. year 11.
Federal Negarit Gazette No. 21, 2nd April, 2021, Proclamation No. 1237/2021
Oromia Regional State Rural Land Administration and Land Use Regulation, 2013, Art.18,
Regulation No.151.
Oromia Rural Land Use and Administration Proclamation, 2000, Proclamation No.56, Mag. Oro.,
Year 9, No.2.
Oromia Rural Land Use and Administration Proclamation, 2007, Proclamation No.130, Mag. Oro.
Year 15, No.12.
The Civil Code of the Empire of Ethiopia, 1960. Proc. No. 165, Neg. Gaz, Year 19, no.1.
The Civil Procedure Code of the Empire of Ethiopia, 1965. Dec. No. 52, Neg. Gaz. Year 25, no.3.
The Constitution of the Federal Republic of Ethiopia, 1995, Proc. No 01, Neg. Gaz., year 1.
The Southern Nations, Nationalities and Peoples Regional State Land Administration and
Utilization, 2007, Proc. no 110 Debub Neg. Gaz. Year 13.
57
Tigray regional State amendment on Rural Land Use and Administration, 2007, Reg. No 48,
Tigray Neg. Gaz., Year 16.
Tigray regional State amendment on Rural Land Use and Administration, 2007, Proc. No 136,
Tigray Neg. Gaz., Year 16.
58
Appendixes
SCHOOL OF LAW
COLLABORATION WITH
Questionnaire
This is questionnaire designed to gather information to be used in writing an LL.M Thesis on
“Legal and Practical Problems of ADR Enforcement in Oromia Regional State: The Case of
Sinana District Court.” You as a judge of High Court, or a judge of Sinana Woreda Court, or a
lawyer, or a Woreda Prosecutor or a member of Woreda Gadaa Council are selected to be a relevant
informant. Your genuine and complete responses are highly helpful to make the findings of the
study reliable.
Thank You!!
Mekonen Degaga
Part I: Basic Demographic Profile
1. Sex:
2. Name of the office:
3. Qualification:
4. Year of service:
Part II: Questionnaire:
1. Have you ever faced a dispute? ____________________________

2. Is the dispute in Sinana Woreda increasing? Or decreasing? _________________
3. Out of the following reasons and the reasons you listed which reason is the major reason
for increasing of the disputes? Which is the minor reason? Please put them in order
a. Increase in population size,
b. The absence of written or documented evidence,
c. Selfishness,
d. Un-clarity of the laws,
e. The absence of clear decision or mediation agreement,
59
f. Expansion of urban Centre and expropriation,
g. Sale and unlawful of land,
h. Donation and will not made in writing in accordance with law,
i. Insecure or ill-defined property right.
4. What are the causes for disputes in Sinana Woreda? _________________
5. Out of the following causes and the causes you listed which cause stands first? Please put
them in order.
a. Inheritance of land disputes,
b. Disputes on community of properties between husband and wife,
c. Boundary disputes,
d. Disputes related with land holding rights,
e. Contract related disputes.
6. To what extent is the mandatory conciliation before the Kebele Administration
supplementing the court by decongesting the cases in the court? (based on the settlement
made by elders and registered)
a. High level b. medium level c. Low level
7. On what level is the backlog and predictability of the Woreda Court? (depending on the
data, distance and costs to access the court)
A. High level B. Medium level C. Low level
8. To what extent people prefer to resolve their disputes through conciliation? (take into
consideration the absence of concrete evidence and the presence of perjury)
A. High level B. Medium level C. Low level
Part III: Interview
1. What are the causes of disputes in Sinana Woreda? Which cause stands first in rank?
2. What practical problems are observed in resolution of disputes through ADR (by elders)?
3. What types of disputes undergo ADR mechanism that is controlled by Kebele
Administration?
4. Do you think that the public have adequate knowledge of the procedure of the laws?
5. What is the objective of mandatory conciliation before the Kebele Administration?
6. What are the requirements for the eligibility to be elders? Do they have adequate skills and
knowledge of the law?
60
7. Are the elders using the customary rules in resolving the disputes? What procedures do
they follow?
8. To what extent is the mandatory conciliation supplementing the court by decongesting
cases in the court?
9. Do the people prefer to use the procedure of mandatory conciliation in disputes or want
directly to take their case to the court?
10. What are the challenges of Sinana Woreda Court? Is the Woreda Court effective? Is there
congestion of cases in the Woreda Court? Is it accessible? What mechanisms of
investigations is the court using in resolving the disputes? Is the court receiving the
application of disputes without the findings of the conciliator being attached to the
application?
Thank You!!
61
62

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OROMIA STATE UNIVERSITY

Legal and Practical Problems of ADR Enforcement in Oromia Regional

BY: Mekonen Degaga Tola

ADVISOR: Megersa Dugasa (LLM, LLB, Ass. Proff)

Legal and Practical Problems of ADR Enforcement in Oromia Regional

BY: Mekonen Degaga Tola

ADVISOR: Megersa Dugasa (LLM, LLB, Ass. Proff)

Oromia State University, School Of Law Collaboration with Vrije University,

OROMIA STATE UNIVERSITY

Legal and Practical Problems of ADR Enforcement in Oromia Regional

Approved by the Board of Examiners:

Signature ––––––––––––––––––––– Date ––––––––––

Megersa Dugassa (LLM, LLB, Ass Proff)

Signature ––––––––––––––––––––– Date –––––––––––

ADR Alternative Dispute Resolution

CCE Civil Code OF Ethiopia

CDR Commercial Dispute Resolution

CFDRE Constitution of Federal Democratic Republic of Ethiopia

CPC Civil Procedure Code

CPE Civil Procedure of Ethiopia

EACC Ethiopian Arbitration and Conciliation Center

FDRE Federal Democratic Republic of Ethiopia

ICESCR International covenant on economic, social and cultural rights

JDR Judicial Dispute Resolution Mechanism

LLM Master of Laws

RLCL Rural Land Contract Law

UNCITRAL United Nations Commission on International Trade Law

UNCRE Untied Nation Convention on Recognition and Enforcement

Key Words: Alternative Dispute Resolution, Arbitration

1.2. Statement of the problem

1.3. Objectives of the study

1.3.2. Specific objectives of the study

1.4. Research questions

1.5. Significance of the study

1.6. Scope of the study

1.7. Limitation of the study

1.8. Methodology of the study

2. REVIEW OF RELATED LITRATURES

 Mandatory reference to ADRs

 Case management by judges

 Committed teams of judges and lawyers

2.2. Brief overview of notation of Arbitration

In relation to leading international instruments, the United Nations Commission on International

2.2.1. Arbitration and other modalities of dispute resolution

 Arbitration Vs ADR Mechanisms

Conciliation, mediation, early neutral evaluation, Expert Determination, Mini-Trial, Negotiation

2.2.2. International and Domestic Arbitration

2.4. Why Arbitration is Preferable in Ethiopia and Elsewhere

2.5. Technical and Commercial Issues

1. whether there is a valid agreement to arbitrate between the two parties

1. arbitration is a matter of contract and a party cannot be required to submit to arbitration

4. Where the contract contains an arbitration clause, there is a presumption of arbiter

2.6.1. Judicial Review of an Arbitration Award by the court

1. The award was procured by corruption, fraud, or undue means.

3. MAJOR PROBLEMS ASSOCIATED WITH ADR IN

3.2. Adaptability of Ethiopian Arbitration law to Technical & Commercial

As a result of the multiplicity of grounds of appeal, parties to an international arbitration seated in

3.3.3. Disciplinary standards of the Arbitrators

3.4. Lack of Modern, well-functioning and sufficient Arbitration

In USA, although institutional arbitration found foothold in Chambers of Commerce as early as

3.4.2. Institutional Vs Ad hoc arbitration

4. THE LEGAL PROBLEMS ASSOCIATED WITH DISPUTE

4.1. The Legal Problems associated with proclamation no.130/2007 and