Alternative Dispute Resolution

Chapter One
General Overview of ADR

 Dispute is indispensable part of societal interaction since the

inception of human settlement. If it is not well taken and resolved
early, dispute between two individuals will grow up and become
treat to national security, peace and stability, which are the basic
parameter to measure the development of a nation.
 With the objective of settling dispute in a more justifiable manner,
national governments and the constitutions of most nations
establish institutions; judiciary organs of the government. It is the
natural mandate of courts of law to entertain disputes.
 Courts and administrative tribunals are public institutions
established to resolve disputes.
 Contin…

 But before the establishment of courts and administrative

tribunals, and even after their establishment, there have been other
private tribunals by which the society is trying to settle disputes.
These are called Alternative Dispute Resolution (ADR)
mechanisms.
 ADR doesn’t refer a single kind of mechanism, but it is a generic
name to refer dispute settlement mechanisms other than court and
administrative tribunals. Arbitration, Conciliation, Mediation,
Negotiation and Mini- Trial are some of them which are referred
as ADR.
 The provision of effective dispute resolution is the core concern of
domestic as well as international legal system. The aim of
devising mechanisms to afford effective dispute resolution is to
ensure that disputes are solved through effective and efficient
means for the benefits of the disputants and the society in general.
 Contin…
 Alternative Dispute Resolution is a generic term used to describe a
range of procedures designed to provide ways to resolving a dispute
as an alternative to court procedures.
 ADR had been used by human society since ancient times though it
gets wide acceptance and recognition in countries’ laws recently.
ADR methods, in comparison with court litigation, have various
advantages though it is not free from different short comings.
1.2. Definition; What is Alternative Dispute Resolution?
ADR is composed o f different words: Alternative, dispute and
resolution. Thus to clearly understand or define the phrase it is
paramount important to understand each words separately thereof.
The word ‘Alternative ‘, as to the definition given in 6 th edition of
Oxford Advanced Learners Dictionary, refers “a thing that you can
choose to or have out of two or more possibilities.”
Therefore the word in this context is used as an adjective and refers to
all permitted dispute resolution mechanisms other than litigation, be it
in court or administrative tribunal .
 Conti…

The nouns ‘Conflict’ and ‘Dispute’ are used interchangeably all time
and indeed, are synonymous for each other in English Language.
Abebe Semagne in his unpublished senior thesis also quoted
the meaning of dispute as;
“ a conflict or controversy; conflict of claims or right; an
assertion of right, claim or demand on one side met by the
contrary claims or allegations on the other; the subject of
litigation; the matter for which a suit is brought and which issue
in joined; and in relation to which jurors are called and witness
examined”
The other element of ADR is Resolution. The oxford Advanced
Learner’s Dictionary defines ‘Resolution’ as the act of resolving or
settling a problem, dispute, etc.
 1.3. Historical Development of ADR

 There is no clear information when exactly ADR had been used as

means of dispute resolution but it quite possible to conclude its
dating back to the history of human society since there were no courts
to resolve differences during ancient time .Different scholars have
showed the long history of ADR methods in their work.
1.4. Purpose of ADR

What are the advantages of ADR?

A. Reduction of Cost and Time
 Law suits are expensive, some times the cost goes even the
extent of making the victory of a party insignificant or
exceeding of the amount of judgment .
 There are court fees, filling fees, lawyers’ fees, and other
costs. There would also be loses to be incurred by both
litigants because of spending longer time in litigation that
may not be covered by the courts awards. On the other
hand, an ADR system can make it possible to use process
that cost small fraction of the litigation, and yet produce as
good or even better results.
 Contin…
B. Improve or Maintain the Relationship
 In situations where the disputants have an ongoing relation , ADR
system allows them to work through their difficulties in a
productive way that does not destroy their relationship.
 After acrimonious litigation, disputants rarely want to put the past
behind them and work cooperatively. The dispute resolution system
may provide process that will not leave people to work together
angry and frustrated with either the result or the process itself. In
the ADR process the disputants could rather learn information that
will allow them to work more effectively in the future.
C. Satisfactory Outcome
Regardless of the process used, the solution must solve the problem
that exists. ADR procedures tend involve the parties with the view
to achieving settlement.
ADR procedures create a formal setting to bring parties together
for serious attempt at resolving a problem .A dispute resolution
process must move parties towards workable, durable and easily
implement able out come.
 Contin…
D. Deal with Emotion
 The ADR process will give disputants an out let to discuss their
frustrations. They will get the chance of venting emotions in non-
threatening environment. This will help the disputants be satisfied
with the outcome. ADR provides for effective and neutral methods
or factors for achieving maximum impact on the process, strategy,
and tactics to words resolution. A disputant will be ready to deal
with the issues when he or she is satisfied that other person has
listened to his or her point of view.
E. Avoid Future Disputes
An ADR system can yield us techniques that can resolve disputes
effectively and with out damaging relationships. The process used
for a dispute at hand can provide a frame work to deal with
anticipated disputes .In the future or recurring disputes, the system
may help to take advantage of the resolution in the past to avoid
guidance for the future, and to learn from experience.
 1.5. Demerits (Shortcomings) of Litigation

A. Cost of Litigation
 Law suits are expensive. There are legal fees, filling fees and cost
that can be imposed against the losing disputant. There are costs for
being away from daily work to attend court hearing and at this
moment the employer increase cost. In some cases, too, the cost of
trying the case may exceed the amount of the judgment.
B. Time
 It takes time from the commencement of the law suit until a
judgment at the trail. Even after the trial, the loosing disputant may
appeal and it may take a good deal of time before final decision is
rendered. The is also time that is needed for the implementation of
the judgment.
 Cont….

C. Emotional Cost
 Litigation is an emotional process. It increases tension between
the parties. Litigants consider, while they are out of court, what
they have said; what they should have said; what they will say;
how unfair the process; what they may come out under cross –
examination; and the consequence of loosing.
D. Litigation is Public
 The public has the right to attend court proceeding but in few
confidential cases. The press report and comment on the proceeding
might be dispersed through different Medias. On the other hand, the
issues in the dispute may be confidential ones that the disputants do
not want to share with others. Litigants may be embarrassed about the
allegations made against them and may be made public regardless of
whether they are true or not.
 Cont…..
E. Absence of creative solutions
 Judges are empowered to decide the issue before them
according to the law, even if the solution to the issue is
best fit to the other issue. Judges interpret the law relevant
to the case and determine the case based on the legal rights
of the parties. They are not permitted to expand the list of
possible options to see if the particular case would be best
served by a solution that was not argued and that
application of the law would not allow.
F. Little Opportunity for the Parties to Vent Frustration
In court litigation the opportunity for the parties to say what
is in their minds and to express their views to each other is
very little. Litigants can answer questions when the rules
allow them to answer.
 Cont..
 There is no opportunity for them to talk about how the litigation
has affected them, or to vent about what has occurred. Although
there is discovery, indirect and cross- examination, there is no
opportunity to ask the questions that the parties want to ask each
other and to say what the parties want to say.
G. Unpredictability
 In litigation, both sides argue the facts that they believe apply to the
issue to support their positions. However, at the end, the judges will
decide on the issue each side usually believed that his arguments and
analysis is better than the other side’s. However, the issue is
unpredictable and is necessary for the judge to make a decision,
which is binding. As a result a risk in going to trial and putting the
decision in the hands of the judge. Besides there is no guarantee
that the judge will always find the truth.
 Cont…
H. Expertise of Decision Maker
 In trail, the court selects the judge. Moreover, the judge may or may not
understand the unique attributes of the dispute. Judges may work hard to
learn the law relevant to the case before them and do their best to make
informed and reasoned decision. Nevertheless, they may lack the
expertise in all area to properly address the merits of the claim being
made.
G. Control over the Process
 In litigation, the process is determined by procedural laws and by the
judge, the disputants have no control over it. They are told when to sit,
when to stand, when to speak, etc. they have no control who presents first
and who follows, when the process at a day will finish.
H. Win/Lose
 In court litigation, a judge must, determine the winner and the loser.
There must be a loser in particular litigation. Therefore, litigation ends up
in determining the winner and the loser; not in an agreement or will full
disagreement.
 Cont..
I. Decisions are Imposed
 Court decision is imposed on the loser against his /her expectation.
People rarely like to have decision imposed on them. Most of the
judgment debtors of the court judgments perceive it as extremely
imposed and unjust. They consider themselves as loser. And even
though judicial enforcement mechanisms can be used, mostly they
attempt to avoid enforcement of this decision.
J. Damage to Relation
 Usually the end of litigation leads disputants to hate each other and
their relationship is destroyed. The disputants may face difficulty to
amend their relationship to the point where they can do business
together and enter into future negotiation –they will take it not worth
to enter in to contact with their former adversary.
 1.6. Demerits of ADR

A. In balance of power
The benefit of voluntary negotiating agreement may be undermined where there is
a serious imbalance of power between the parties –in effect , one party is acting
less voluntarily than the other.
B. Lack of legal expertise
Where a dispute hinges a difficult point of law, an arbitrator may not have the
required legal expertise to judge.
C. No system of precedent
There is no doctrine of precedent, and each case is judge on its merits, providing
no real guidelines for future cases.
D. Enforcement
 The decision not made by the court may be difficult to enforcement. Don’t forget
that other ADR scholars take easily enforcement of compromise in ADR process
as one of the advantages of the system.
 CHAPTER TWO TYPES OF ADR
• Types of ADR list cannot be exhaustive or final as there are various
dispute resolution mechanisms other than court litigation and it is still
evolving.
• The types of Alternative Dispute Resolution, however, can be
categorized in to three categories based on the procedures we follow
in each dispute resolution mechanisms. These categories are formed
by considering the kind of work product resulting from ADR and how
the parties participate. The categories of ADR procedures are
agreement, decision and advice.
1. Negotiation
Negotiation can be defined as: a non-binding procedure involving
direct interaction of the disputing parties where in a party approaches
the other with the offer of a negotiated settlement based on an objective
assessment of each others position.
It may be to agree to change or refrain from changing: their relationship
with each other; their relationship with others; their relationship with
respect to an object or object.
 Cont….
Perceived advantages of negotiation
One special attribute of negotiation as a method of resolving
difference is flexibility, both with regard to the manner in which the
parties proceed and with respect to the ultimate accommodation
reached.
It allows difference to be adjusted in a way that either maximum
mutual gains or meets at least some needs of all parties to settlement.
A third attribute is that it implicitly recognizes the dignity and worth
of all participants since negotiated resolution requires the parties
assent.
 Finally, unlike some other methods of resolving difference,
negotiation takes in to account unofficial as well as official values –
that is, it can reflect values that are important to the parties even
though these values not have legal status.
 Contin…
Perceived disadvantages of negotiations
 Firstly, as negotiation is all about bargaining, the parties have no
assurance that they will reach a settlement. Nevertheless, the process
requires an investment of time, effort, and often other expenses.
Secondly, the soundness of the resolution may be impaired if the
parties miss present their goal or the back ground information or if,
after agreement is reached, circumstances change from what one or
more parties anticipated during bargaining.
Thirdly, some times negotiated settlement does not satisfy
community mores or relevant and lawful interest of third parties and
thus, may be unenforceable or subject to one or more participants to
criminal penalties. Accordingly, it is not always the most desirable
means of resolving conflict.
 Cont…
Legal effects of negotiation agreement.
If the parties conclude negotiation in line with the law, this agreement
will have effect on the agreed parties. Currently, the general policy of
the law favors negotiated settlement of current and future disputes for
the obvious benefit that which settlement brings- less litigation and
cost in terms of time and money for the parties and the courts.
Settlement agreement is, therefore, considered as contracts between
negotiating parties.
• In general, terms of agreement lawfully concluded by the negotiating
parties shall be binding on them as though they were law. This is to
mean that though the requirements for valid negotiation agreement
differ from country to country , an agreement which is established
with the free consent of the parties in dispute and as to the specific
requirement specified by the law at hand , the agreement will be
binding upon the parties.
 2. Mediation /Conciliation

 It can be defined as the processes by which the participants,

together with the assistance of neutral person or persons,
systematically isolate disputed issues in order to develop optional
alternatives and reach a consensual settlement that will
accommodate their needs.
 Mediation/conciliation is a process that emphasizes the participants’
own responsibility for making decisions that affects their lives. It is
therefore a self-empowering process. Thus , it is purely different
from negotiation so long as there exist a third party involvement.
 The more useful way of looking at mediation / conciliation is to see
it as a goal –directed, problem –solving intervention. It is intended
to resolve disputes and reduce conflict as well as provide a forum
for decision making. Even if all elements of the dispute may not be
resolved, the underlying conflict can be understood by the
participants and reduced to manageable level.
 Contin…
Features of Mediation /Conciliation
Mediation, differ from arbitration where the outsider decides for the
parties (their behalf) how the matter is to be resolved. Although a
mediator may recommend or try to influence a party, he or she has no
comparable decision making powers and practical or legal ability to
compel any party to do or refrain from doing any thing. This is to
mean that mediation is not binding.
Mediation could be annexed to the court system, so as to become a
judgment of the court if the agreement is reached. The parties may
define the issues to be settled by themselves or the mediator may
assist them in this regard. The extent to which the mediator interferes
in the negotiation process can vary widely , on a continuum ranging
from mere as chairperson , to very structured process in which the
mediator go so far as to suggest settlements to the parties.
 Cont….
Perceived advantages of mediation
When used in the contested of on going relation ships, mediation
allows underlying issues and emotion to be addressed and resolved ,
and so allows the relation ship to be continued in the future . Thus,
mediation is commonly used in the area of family law.
As the decision is reached by the parties to the dispute instead of
being imposed on them, there is a great satisfaction with the dispute
resolution process and out come, and consequently, greater
compliance with the result.
The process is less confrontational than adjudication and so reduces
the likely hood of win or loss mentality and provides a frame work
for the future dispute between the parties.
As opposed to adjudication, mediation process is faster, cheaper and
less formalized, both in terms of process and in tailoring results. This
increased flexibility allows the needs of particular parties to be
addressed.
 Contin…
Perceived disadvantages of mediation
It is inappropriate where parties to a dispute are at an imbalance of
power, or where there is a history of physical violence, as one
intimidate the other;
It also increase cost if mediation fails and arbitration follows;
unrepresented party by a lawyer may be disadvantaged than the
presented one.
It is also questionable whether the perceived advantages of
mediation are possible if the process is involuntary.
There are concerns regarding the ability and qualification of
mediators, and whether they should be subject to professional
standards.
Finally, the use of mediator as alternative to court adjudication may
result in second class justice for low –income and disadvantaged
peoples.
 Contin…
Mediation proceedings and the roles of mediator(s)
• Mediation involves an impartial, independent third party, mediator,
helping disputing parties to reach a voluntary, mutually agreed
solution. The disputant, not the mediator decides the terms of the
agreement. The only function of mediator is to assist the disputants
to over come any obstacles during their negotiation, to determine
the dispute in the hope that disputants and mediator will develop
creative solutions that satisfy their interest.
The roles of lawyers in mediation
Lawyers may assume different participatory roles in mediation. A
lawyer may represent his client and negotiate on his behalf. In case
of court annexed mediation particularly, clients would favour if
their lawyers involved in that process.
Lawyers would enable their clients to assess litigation consequences
if the latter take their dispute to courts, and also disputants would
get sufficient information about the working atmosphere in court.
 Cont…

Lawyers should be able to inform disputants of the relevant law and

suggest possible court out come. However, the extent of his help
should be limited to general information, to the extent of defining the
legal issues. Lawyers should not serve as legal advisors or should
not direct the decision of the clients in line with their interpretation
of the law as applied to the fact of the situation. Even after
agreement of disputing parties is reached, lawyers can play great role
to draft the agreement of their clients through mediation process.
 Cont…..

Legal effects of mediated agreement.

The purpose of mediation is to enable the parties to arrive at a mutually
acceptable resolution of the dispute in a cooperative and informal
manner.
The resolution is considered to be a contract and is enforced under the
general principle of contract law. The Ethiopian law, for instance, has
the similar position. Art. 3320 of the civil code requires conciliator to
draw up the terms of compromise when the parties settled their dispute
amicably, i.e. through mediation.
Art. 3307 C.C also defined compromise as one forms of contract. The
provision reads as “A compromise is a contract whereby the parties,
through mutual concession, terminate an existing dispute or prevent a
dispute arising in the future.” If one of parties in their compromise
renounced all of his rights ,actions and claims , he will loose such rights
, actions and claims for good. We can also understand from art.1731 of
the C.C that contractual agreement is a law between contracting parties
and parties are duty bound to respect their promise.
 Arbitration
 Arbitration is typically an out- of- court method for resolving a
dispute in which a party submits a disputed matter to impartial
person (the arbitrator) for decision. The arbitrator controls the
process; listen to both sides and make a decision. Like a court trial
only one side will prevail, but unlike court litigation appeal on the
merit of the case is limited.
 In a more formal setting the arbitrator will conduct hearing where all
of the parities present evidence through documents, exhibits and
testimony. The parties may agree, in some instances, to establish
their own procedure or administrating organization may provide
procedures.
 Arbitration is a settlement of conflict by the decision of not of
regular and ordinary court of law but of one or more persons who are
called arbitrators.
 Cont….
1. Arbitrability
Some disputes are not subject to arbitration due to different reasons,
for instance, public policy might be one reason to exclude an issue
from arbitrability. The issue of arbitrability, therefore, concerns
whether a particular dispute is properly the subject of arbitration .
Disputing parties, thus, have to first determine whether their dispute
is arbitrable or not before they referred their case for a arbitrator who
is appointed to give decision or opinion on the case. States, as to their
real conditions, determine which matters are arbitrable or which are
non arbitrable.
2. Arbitration agreement.
Arbitration is hardly possible without the consensus of the conflicting
parties to submit their difference to third party, arbitrator and thereby
to be bind by the award given thereof. There fore, parties who intend
to resolve their current or potential dispute by arbitration have to
express their consent by agreement, mostly known as arbitration
agreement.
 Validity requirements for arbitration agreement

 As far as arbitration agreement is a contract the requirements for the

validity of contract have to be ensured. In deed these requirements may
differ from one state to the other.
In Ethiopian to establish lawfully sustainable agreement, there are
requirements which have to be respected by the contracting parties. Art
1678 of the civil code enumerates requirements of valid contract in their
generality. The article reads;
Art 1678 Elements of contract.
• No valid contract shall exist unless.
a. The parties are capable of contracting and give their consent sustainable
at law.
b. The object of the contract is sufficiently defined and possible and lawful.
c. The contract is made in the form prescribed by law, if any.
 Cont…

Varieties of Arbitration
1) Ad-hoc arbitration is form of arbitration where the procedure of
arbitration, an most of the time, set by the disputing parties them
selves. Parties in a dispute need not stick on the institutional
procedure. The national law of the place of arbitration avoids
any problem arise of ad-hoc arbitration.
2) Contractual in built arbitration came to juncture due to
increasing of business transaction with complex phenomenon.
While business relation increased, presumably clashes b/n
parties in the transaction is natural, and this scene called for
regular machinery in the shape of in built arbitration clause, an
integral part of the contract covering present or future disputes
and the system devised was reference to named arbitrator or on
arbitrator to be appointed by a designated authority.
 Cont…
3. Institutional arbitration- this is another form of arbitration and
probably most conducive for the parties’ as the parties agree in
advance that in the advent of future disputes they will be settled by
arbitration by the named institute of which one or more of them
were members.
In institutional arbitration parties’ dispute is arbitrated according to
pre- establish rules of the institution, which most of the times
known to disputing parties. The Arbitrators mostly, are among
named specialists.
4. Statutory arbitration:- the above three kinds of arbitrations are
constituted by the consent of the disputing parties. Where as
Statutory arbitration is an imposition by law which governs the
parties in dispute- parties should submit the case to specified
person or institutions for arbitration to resolve their case
irrespective of their consent.
 Arbitration and litigation

Comparing civil arbitration and litigation

Arbitration-resembles litigation
Adversarial process- parties bring contending positions and try to
convince decision- maker to rule in their favour.
Rule of natural justice apply (i.e. notice, fairness, impartiality)
Decision is made according to the law (unless parties agreed to use
Obligations of disclosure to opposite party (although may be
streamlined and focused ) apply
Principle of res judicata and issue estoppel apply.
Appeal is possible unless expressly excluded
 Arbitration awards like court judgments are enforceable at law.
 Cont…
Arbitration- differs from litigation
Disputing parties incur costs accommodation (facilities) (e.g.
room rental fees, court reporters)
Parties pay the decision makers fee
Hearing and other procedures are flexible and informal
Arbitration decision is not precedential; stare decisis does not
apply.
Process in both private and confidential.
Process can not be initiated with out the consent of all parties
either by way of arbitration clause or an agreement to arbitrate
A third party claim by a defendant does not exist unless the
plaintiff and the third party both agree
Parties select the decision maker.
Perceived Advantages of Arbitration
Arbitration may allow a dispute to remain private, and the publicity
inevitably associated with litigation may be avoided.
The public interest is also served because the parties bear the costs of
arbitration themselves.
Arbitration is more flexible than litigation.
The parties have control over their own dispute, the procedures followed
and the principles applied to resolve it. This increases the satisfaction of the
disputants with the process and the outcome.
It is also faster, and consequently, less expensive, than litigation.
There is no precedent value in the decision reached, so a concern for future
cases will not impact on the decision.
As the procedure can be designed to be far less formal and intimidating
than court, the confrontational atmosphere of the dispute is diminished.
This is especially important in maintaining ongoing business relationships.
If experts are used as arbitrators, the process should be more efficient, and
results maybe more in accord (or perceived to be more in accord) with the
expectations of the parties, when they are in the same field as the expert.
 Perceived disadvantages of Arbitration

Arbitration may not always be faster, less expensive, and less

formal. It may be more expensive and time-consuming than
litigation if the arbitration agreement, choice or conduct of
arbitrators, procedure, or award is challenged.
In addition, there are concerns regarding ability and
qualifications of arbitrators, and whether they should be subject
to professional standards.
Generally, arbitral decisions are not reviewable for errors of fact
of law, which may lead to unfair results.
The Role of Arbitrator
 The role of arbitrator is more or less similar to the role of judge.
But still there are some ambiguities on the role of arbitrator
because arbitrators, particularly party appointed arbitrators,
consider themselves as advocators of disputing parties than their
being a judge.
Impartiality of arbitrator

• The issue of partiality or impartiality has something to do with the role of

arbitrator. Most of the time arbitrator has the role of a judge though he/ she
is privately appointed unlike government appointed judges. When ever
judges render decision they have to bee impartial to the parties at a dispute
so as to maintain ‘justice.’ similarly the rule of impartiality should apply in
arbitration process.
• Arbitrator, as a principle at least, should conduct in an impartial
way: his conduct should not indicate any sort of biasness.
Moreover, arbitrator need to avoid circumstances which lead to
‘reasonable apprehension of bias’ , that is a scenario which gives
a fair- minded person reason to doubt arbitrator impartiality.
Conditions which create reasonable suspicion on the impartiality
of arbitrator are infinite: relation ship b/n arbitrator and one of the
disputing party; arbitrator’s loss or gain out of the award and
other similar cases might be possible examples.
Cont….

• In Ethiopian case one can not find definition about what partiality or
impartiality is all about. Nevertheless, Art 3340(2) civil code of Ethiopia
specifies ‘partiality’ as one of grounds to the disqualification of
arbitrators. Art 3340(2) reads “The arbitrator appointed by agreement b/n
the parties or by third party may be disqualified where there are any
circumstance capable of casting doubt upon impartiality or….”
This article tells us the following matters:
1. Let alone real biasness of an arbitrators even circumstance which gives
reason for reasonable person to doubt the impartiality arbitrator can be
ground to disqualify arbitrary.
2. Only arbitrators who are appointed by agreement of conflicting parties
or by third party, who is entrusted to appoint arbitrators, are duty bound to
be impartial. Party appointed arbitrator seems can be partial to a party who
appointed him.
 Independency of arbitrator

• Despite their over- lapping nature, “impartiality” and

“Independency” are not one and the same, that why the civil
code of Ethiopia specifies both issues separately. An
arbitrator, who has not any relation ship whether financially
or not with one of conflicting parties, might be independent
but we could not conclude that this person is impartial also.
The other possibility is that an arbitrator, who is dependent
for one of disputing parties, may give an award with out any
partiality.
• As far independency concerned causes are many in number
and the civil code of Ethiopian also does not mention
conditions that constitute dependency of arbitrator, it lets the
issue as check in blank.
 CHAPTER THREE
ADR IN ETHIOPIA

Introduction
 In Ethiopian history this was the fact before the formal
establishment of courts in the 1940’s and after that in some
localities.
The above discussion gives us some light about the
administration of justice our early history. But this was not the
only means of settling dispute and making justice. The formal
adjudicative function of the governors in their different
hierarchy contributes only for the settlement of some of the
disputes. Most of the disputes were settled by elders, religious
leaders, like priests, or clan chiefs elected by the community.
Cont…

Before the 20th century where there were customary laws

prevailing all over the nation, different localities had their own
ways of dispute settlement inherent in their identity with out
reaching their local governors. These means used the elders or
“SHIMAGILE”, which are the most respected and wise part of
the society because of their status or age, as an intermediate. The
powers of the SHIMAGILE’s were limited on persuading the
disputing parties to compromise their matter. These intermediates
were wise and persuasive enough to succeed backed by the
norms of the community.
As a result of formal establishment of institutions in the second
half of the 20th century like courts with state nominated judges
and administrators nominated by the state, the roles of customary
ways of dispute settlement became absolutely alternative .
Constitutionality of ADR

Constitution regulates most important activities of the state.

For example, it recognizes inherent rights of citizens with its
respective duties, and also establishes government agencies
together with its responsibilities. One of the pillar rights of
citizens which are recognized by Ethiopian constitution, as it
happens in all the constitutions of other nations of the world, is
access to justice.
Article 37 of the same reads as follow
“Everyone has the right to bring a justifiable matter to and to
obtain a decision or judgment by, a court of law or any other
competent body with judicial power”.
Cont…

• This part of the constitution which is subject to broader interpretation has

incorporated different elements. At least the following can be said about
the included rights in this provision. The first clause speaks about the rights
of individuals to bring any of his grievances to the appropriate body. The
second phrase qualifies the nature of the matter that can be safely taken to
the body, i.e. justifiable matter only. This seems to talk about the real
interests of the claimant and the existent of cause of action. Thirdly, we
should not think of a mere right of bringing the matter to the authorized
body but also to get remedy for his or her grievances. This puts a positive
duty to the state to make sure, that after the claim has been accepted by the
appropriate organ, justice has been done to the satisfaction of the general
public.
• Since it is beyond the capacity of the state to satisfy the needs and interests
of all the needy citizens, encouraging the establishment of ADR institutions
and letting disputants settle their dispute amicably is the extended
obligation of the state to best secure access to justice.
Cont…

Article 78(5) of the constitution empowered the House of Peoples

Representative or as the case may be State Councils might establish or
obliged to give recognition to the established customary and religious
courts. The existing Shari’ a court is an example of religious courts
established in the nation under state recognition.
Customary ways of Dispute Settlement
Customary and religious laws are earliest and prominent in Ethiopia to
settle disputes. African continent were filled with customary laws
before the incursions by foreigners. Particularly in Ethiopia customary
laws of different ethnic groups were the major body of law in Ethiopia
for centuries. Even after the introduction of written and authoritative
laws, like the Fetha Negest in the 15th century, customary laws played
a significant role in the administration of justice.
Cont…

The 1950’s and 60’s transformation era primarily aimed at unifying

the laws of the nation under the same authoritative legislation and the
minimization of application of customary laws. Article 3347(Civil
code) envisages this objective the civil code. But this does not mean
that the applications of customary laws are totally abolished by these
new enactments. Rather they are legalized in a sense that the codes
recognized the importance of customary norms of the society in two
ways.
One, by directly incorporating the prevalent customary norms in the
codes, like in the family, succession and property laws.
 In the other hand some times direct reference had been made to
those customary laws of the society as long as they are not contrary
to the prevalent laws, like formation of marriage, interpretation of
contract (Article 1713 of the civil code).
Cont…

Under the FDRE constitution customary laws and practices have been
given due cognizance unless they are not contrary to the legal norms.
Reference can be made to articles 9, 34(5), 41(9) and 91 of the same.
These show as still now customary norms are sources of law in some
subject matters.
Customary laws of Ethiopia which are different in form and substance
are deeply rooted in the traditional institutions of each ethnic group.
They are not uniformly applied but are mostly peculiar to ethnic groups
with some exception.
Among the subject matter where the customary laws are still enforce are
administration of justice or settlement of disputes. We have ample and
unique ways of settling disputes of any nature and degree arisen among
themselves and with their interaction to other ethnic groups. Some exist
though they are contrary to public policy, like arbitrating criminal
matters between the victim and accused.
Common characteristics of customary dispute settlement

1. Intermediates (SHEMAGILES) - The third parties who act as

an intermediate between the disputants have some common
character in their identity, ways of nomination and their role
through out of the proceeding. When we see their identity, they
are the most respected parts of the society as a result of different
reasons. Some times they are chiefs of the clan or the community,
religious leaders or heads of the religion, or local administrators
who have the official capacity.
What ever that matter could be he is expected to be an old person
(mostly men are favored over the women), wise and experienced
enough in settling disputes. Those shimagiles might be from the
relatives or clan of both the disputant equitable in their number in
addition to neutral intermediates or some other times only with
neutral once.
Cont….

2. The nature of the proceeding – After the nomination of the

shimagiles, they will officially start their function of pushing
or persuading the disputants to submit their matter for review
before them. We might not get formal and standard steps
followed by all customary ways of dispute settlement. But
mostly they will make a mini investigation as to the nature of
the dispute and the personal characteristics of the disputants.
The compensation will be handed to the victim in cash or in
kind, like herds of cattle. Often the shimagiles will not be
compensated the expense they have incurred during the
proceeding nor paid for the service they have delivered. It is
considered as a public duty and some times with no option to
resign from the status of being shimagile.
Cont…

3. Subject matter of dispute presented before SHIMAGILES

–
As customary laws were in force for a long period of time in Ethiopia,
we can no see choice being made in the subject matter of the dispute.
Customary dispute settlements have a wider scope in settling family,
succession and property disputes. Specially, bringing family dispute
before court of law will be considered as a shame for the spouses.
Very often dispute which involve a class of peoples or the whole
member of a clan or locality, like a dispute over grazing lands and
water in the lowland areas, murder, rape and abduction cases, are
referred to customary dispute settlement. Even it is believed that the
quality of the outcome of such a method in creating peace and harmony
cannot be compared with what might happen in the courts of laws.
Cont…..

• If it is a compromise, the disputant who is declared to be the wrong

doer will be required to compensate the victim. The compensation
may be in kind or in cash. The amount money will be determined by
looking the gravity of the wrong act, the extent of the injury sustained
by the victim and to some extent the financial capacity of the wrong
doer. The nature of this compromise is like a contract and parties are
bound to perform the obligation they have assumed before the
shimagiles.
• On the other hand, if the proceeding ends up with no success, the
disputant who fails to resign his contention claim will be seriously
condemned by the community for failing to obey the words of those
wise elder men. This will result him to be isolated from the
community in his daily life and in time of emergency to the extent of
expelling him from the clan or religious group.
Compromise in General

• The fact that we do not have a consolidated legal document to

regulate ADR matters does not mean that we do not have any laws
to regulate the matter. Thus, we have got lots of provisions and
principles regulating the issues related with ADR. These
principles, however, are scattered through out of different
substantive as well as procedural enactments.
Definitions
• Gilbert’s Law Dictionary defines the term compromise as “An
agreement to settle differences by making mutual concessions; it
can be made in or out of court.”
• Not far different from the above documents our civil code under
Article 3307 defines compromise as "A compromise is a contract
whereby the parties, through mutual concessions, terminate an
existing dispute or prevent a dispute arising in the future".
Nature and effect of Compromise

• Article 3308 seems to speak about "Form of Contract" as the title

indicates but it, in fact, speaks about what matters can be dealt by
compromise. Thus, it seems it is speaking about the object of
compromise. Any ways, parties, based on the subject matter at their
hand and their pre existing relation, can conclude a compromise
contract to create legal rights and obligations; to modify the existing
rights and obligations; and possibly to extinguish or terminate the
already existing relation among themselves.
• The other effect of compromise is that the parties will bind only to the
extent they have agreed and also it will not have an effect to other
parties alien to the contract, i.e. principle of Privity of Contract (Art.
3311). Further, compromise is more than a contract in a sense that "it
will have the force of res judicata with out appeal". But it may be
contested on the ground of fundamental mistake if any of the
following conditions are fulfilled;
Cont….

1. The instrument for the performance of which it is made is void, or

one or both of the parties was due to the existence of a document
which is shown to be false, and (in both of the above cases) where
the parties have no doubt as to the possible voidability or
falsification of the documents at the time of contracting (Art 3313),
or
2. The dispute they regulated has been already settled by a judgment
having the force of res judicata of which both of the parties are
unaware and no appeal has been started against this judgment
(3314), or
3. A document unknown to any of the parties at the time of the
contract have subsequently been discovered and if this document
were willfully withheld by one of the parties and if the contract is of
a general settlement on all matters they have in common (3315).
Compromise before a Court of law

• Art. (274) of civil procedure code provision gives the parties the right to terminate
all or part of the claim (including accessory matters like cost, damage and
execution 276) for which a substantive litigation has been instituted and proceed
with compromise.
• After a case has been instituted before a court of law compromise can be made in
two different ways; one during the hearing before the court of law and the other is
out of court. In both ways the content of agreement is advised to be drafted in line
with the Art 276(1).
• Compromise in a pending case can be initiated by either of the disputant by their
on motion or possibly by the court in the attempt of reconciling the disputants. In
any of these cases, however, the willingness and consent of the disputants is
mandatory and the court, in no way, can force them to do so. If they agreed to
reconcile the matter, they can do it at the hearing before the court of law. This
agreement will be made in written form and signed by both of the parties. The
court after being satisfied that the contract is not contrary to law and public moral
will entered the compromise in the case file and make a decision or judgment
accordingly. And this will end up the litigation between the parties (277).
Cont…

• The other alternative is the parties can make the compromise out of
the court room. Is such come to happen, the court shall be informed of
such a matter and the plaintiff may apply to the court for permission
to withdraw from the suit (277(3)). The permission granted by the
court will enable the plaintiff to institute a fresh suit in respect of the
same subject matter of the suit in case if they failed to agree and end
up the dispute in compromise (278(2)).
Conciliation

Conciliation is one type of ADR, which may be used in the settlement of a

variety of dispute. The term conciliation is sometimes used interchangeably
with mediation though there is slight difference among these two processes.
The Ethiopian law used conciliation rather than mediation and it is the
second widely used ADR next to arbitration. The civil code in its special
contract part discusses conciliation not in the sense of contract only but also
its procedural aspect. Though it fails to define what conciliation means, it
provides procedure for appointment of conciliator, the rights and duties of
the parties and the conciliator, and its effects.
Even if the Ethiopian law failed to define what the term conciliation means,
it can be defined as an informal process in which a neutral third party,
conciliator, tries to bring the disputants to agreement, lowering tension,
improving communications, interpreting issues and exploring potential
solutions so that they can discuss their dispute and come to a negotiated
settlement.
Cont….

• Conciliation might be the most favourable means of dispute

settlement over arbitration and litigation in some cases like where a
higher amount of flexibility is required, secrecy is top priority, the
dispute is of less serious in nature, the parties' future relation should
not be prejudiced ( e.g. disputes in family and employment relation)
etc. But this does not mean that all disputes are allowed to be referred
to conciliation. Our law is not clear enough to distinguish these
subject matters of dispute.
Conciliators
• Conciliators are persons who act as an intermediate during the
conciliation proceeding between the disputants in their effort to
resolve the dispute by compromise. It the proceeding is out of court,
in fact it is in most of the cases, the power, right and duties of
conciliators are regulated by Arts 3318 - 3324 of the civil code.
Cont…

• It is the inherent right of the disputant or parties to determine the

identity and number of conciliator whom they believe that he or she
can protect their interest by bringing them together and negotiating a
settlement between them.
• This inherent right extends in discharging the conciliator from his
office as well. However, the conciliator may be appointed by an
institution or third party where the disputants wish so to happen
(3318(1) and (2)). To be a conciliator is not a public duty to be imposed
against the interest of the person nominated to such status. Thus, a
person appointed as a conciliator shall be free either to accept or refuse
his appointment (3318(3)).
• Concerning the number of conciliator, Ethiopian law is silent .There is
no limitation as to the number of conciliator; it can be one, two, three,
four, etc. The parties may determine the number of conciliators as they
want.
Cont….
• Conciliators are only facilitators and make no decisions on the merit of the
case and can not impose his view of what a fair settlement would be. The
conciliator shall assist the parties in an independent and impartial manner in
their attempt to reach an amicable settlement of dispute. The conciliator is to
be guided by the principle of objectivity, fairness and justice, The followings
are some of his specific duties;
• He shall give the parties an opportunity of fully stating their views before
expressing his findings (3320 (1) and (2)),
• He shall draw up the terms of compromise if the parties come to a negotiated
understanding or a memorandum of non-conciliation if the parties failed to
reach a negotiated settlement of the dispute. And also he has to communicate
such documents to the parties (3320(3)),
• He is required to keep confidential all matters relating to the conciliation
proceeding. This obligation also extends to the negotiated settlement or
agreement, except where its disclosure is necessary for the purpose of
implementation and enforcement,
Cont…

• Principle of impartiality; He should be neutral, honest and

diligent and stand only to protect the interest of both parties
to the dispute. In discharging his duty he has to be guided by
the principle of objectivity, fairness and justice.
• He shall try to complete the whole proceeding of conciliation
within six months (3321(1)),
• Help the parties to enforce the conciliation, e.g. discharge
stump duty as per the stamp duty proclamation, he may sign
up on the negotiated settlement agreement, but this is not
mandatory.
Cont…

• The corresponding right of the conciliator will be to get due respect and
recognition from the disputants. In addition, he "shall be refunded of any
reasonable expense he has incurred in the discharge of his duties". This is
some sort of compensation for the money he has spent during the
proceeding while facilitating the compromise. But for the time he devoted
and service he delivered, there won't be any payment or remuneration
unless the parties expressly agreed (3323).
Effects of Conciliation
• After you get in to the proceeding, there are two possible outcomes;
compromise or non conciliation. If it end up with success and the parties
sign up on the compromise that will be the end of the case and the one we
have discussed above about the effect of compromise (e.g. res judicata)
will apply. This means if the parties have expressly undertaken in writing
to confirm the terms of compromise drawn by the conciliator, they shall be
bounded by it.
Cont..

• In addition, after a compromise is reached through conciliation and

settled the dispute, then it may be taken as preliminary objection
before the court if one of the parties takes the case before the court
after the dispute had been conciliated. The one who wants the
enforcement of the compromise will get it enforced as he wishes after
paying the stamp duty as per the Stamp Duty Proclamation No
110/1998.
• The other possibility is that the parties or one of them may adhere to
his original extra ambitious claim and fail to drop his proposal. The
law gives the conciliator a maximum of six months to come up with
some result unless the parties provide a different period (3321(1)).
Before the expiry of this time the parties can not institute a case
before court of law on the same cause of action.
Arbitration

• This is the most widely used and commonly known type of ADR. "It
is the submission of a dispute between two parties to a third impartial
(arbitrator) with the agreement that the decision of the arbitrator will
be binding and final. It is a quasi-judicial procedure that avoids the
formality, delay and expense of normal trial.
• Under Ethiopian law, arbitration is regulated in more detail than any
other kinds of ADR. The civil code provisions of Arts 3307 – 3346,
civil procedure provisions which are scattered in different parts of the
code, the family code, labour codes are only some of them. This by it
self shows us how arbitration has got a place under Ethiopian law.
Sources of Arbitration and Arbitral Submission

A. Source of Arbitration
The first thing we have to see here about the valid source of
arbitration, which is either consent or sometimes from the law.
Arbitration emanates either from consents of parties or from law. (Art.
315(c)).
a) Consent (agreement) – when arbitration emanates from
agreement, the arbitral submission should fulfill requirement
of valid contract (Art. 1678 c.c.) and observe mandatory laws:
parties should have the capacity to contract and dispose of that
right without consideration, the contract should be in a written
form and other forms required by law for disposing the right
without consideration (Arts. 3326 c.c. and 315 c.pr.).
 Cont…

b) Law: - In certain matters, like family dispute, the substantive law provides a
compulsory arbitration (e.g. family matters – arts 725- 728 c.c.). In such cases
either the law itself provides details of arbitration proceedings or let it to parties
determination (agreement) in which the agreement or the contract should
observe the above applicable rules.

B. Arbitral Submission
Arbitral submission can be a separate document or an arbitration clause attached to
the contract creating the right that creates the dispute. Such dispute may be an
existing one or future disputes which may arise out of contract or other specific
obligation (Art.3328 c.c.).
Jurisdiction of arbitrator in the submission should be interpreted strictly. An
arbitrator can do such but he cannot decide over the validity of the submission if
contested (Arts. 3329 and 3330 c.c.).
 Arbitral Award

• Final decision or judgment of an arbitrator(s) on all matters referred to

arbitration is called the arbitral award or award. No special form is
provided, but it should be in the form provided for judgment and signed
and dated by all arbitrators (Art. 318 (4) c.pr.). This shows that award
should be in a written form. It should contain clear, final and certain
awards over dealt matters, i.e., reasoned awards. As per article 318(2) Ci.
Pr., unless it is determined earlier, awards should include costs of
arbitration. Copy of it will be served to both parties. Award will be
executed as judgment after homologation (court affirmation)(Art. 319(2)
c.pr.).
Appeal from the Awards
• A party can appeal from the awards of arbitrators to ordinary court in
the grounds listed below. But parties can waive this right if they are
with full knowledge of the circumstance (Art. 359 c.pr.). The procedure
is similar with the making and hearing of an appeal from a judgment.
Cont…

• The procedure is similar with the making and hearing of an appeal

from a judgment. Such jurisdiction is given to a court which would
have had appellate jurisdiction had the dispute not been referred to
arbitration (Art. 352 ccc.pr.). The grounds of appeal are; in
consistency, uncertainty or ambiguity of the award or when the award
is wrong in matters of law or fact, or the arbitrator omitted to decide
maters referred to him. In such instance the appellate court may
confirm or remit to the arbitrator to reconsider it with in three months.
Other grounds are irregularities of proceeding and misconduct of
arbitrator, i.e., partiality of arbitrators, which can be confirmed or
varied as the court thinks proper (Arts. 351 and 353 c.pr.).
Enforcement of Awards (Arts. 456-461 c.pr.)

A. Foreign arbitrary awards- conditions to be fulfilled

(Arts. 458 and 461 c.pr.)
1) A written application to the High Court where
execution is to take place. It should contain
certified copy of the award and court certificate
showing that the award is final,
2) Reciprocity- i.e., execution of Ethiopian arbitral
award must be permitted in the country where the
award sought to be executed was rendered.
3) Award given following regular arbitration
agreement or other legal act in the country where
it was made.
Cont…

4) Parties were given equal opportunity in appointing

arbitrators and hearing,
5) Matters not prohibited to be submitted to
arbitration as per Ethiopian law,
6) Award not contrary to public order and morals, and
enforceable as per Ethiopian law
• The court will summon parties and his observance. Except
where hearing is ordered, decisions will be given according
to the application. When the application is allowed, the
award will be executed as if it had been given in Ethiopia.
Cont..

• Domestic awards- if the award was given in Ethiopia

according to the conditions listed above – 3, 4, 5, 6, it will be
executed as judgment of a court after homologation (Art.
319(2) c.pr.).
Setting Aside of Awards (Arts. 355-360 c.pr.)
• Application to set aside awards has to be made to a court
who has appellate jurisdiction had the dispute not been
referred to arbitration with in 30 days from the making of the
award. Making and hearing of application is similar with
making and hearing of opposition (Arts. 355(3), 358 and 359
c. pr.).
Cont…

• There are limited grounds for application. As per art 356 Civ.
Proc.Code
1. When arbitrators decides matters not referred to it or when
the submission was invalid or had lapsed,
2. In case of two or more arbitrators, when they did not act
together,
3. When arbitrator delegates his authority to a stranger, to one
of the parties or to a co- arbitrator.
• After receiving the application, the court will fix date for hearing
and will summon and serve the copy of application to the other
party. The application may be dismissed which validates the
award given, or the award will be null and void and will be set
aside if the application is granted (Art. 357 c.pr.).
CHAPTER FOUR
ADR IN INTERNATIONAL AND REGIONAL LEVEL

The need for ADR in International disputes

• International tribunals have been established by the UN to
serve as a forum for international disputes. Most nations of
the world are making their diplomatic and commercial
relations much smoother by the help of their institutes, i.e.
UN. Though, there is unlimited number of critiques against
the enforceability and reasonableness of decisions given by
UN dispute settlement systems, huge number of international
disputes are well addressed by it. The panel established under
WTO is also the other most widely acceptable dispute
settlement mechanism entertaining a wide range of
international trade disputes raised among the member states.
Cont…

A. Extra – territorial relations of citizens – With the increasing

concept of ‘Globalization’, the interaction of citizens with other
person or entity who is not a citizen of him is not uncommon. To
survive as a state and to have a civilized nation peacefully
established on the willingness of the subjects, the government
should encourage such kinds of commercial and social
interactions. The state is bound by its commitment to give
protection to its and its citizens’ interests. As long as there is
relation, commercial or other, it is inevitable for a conflict to arise
from that relation. It will be wise to look for effective means of
dispute settlement for such kind of dispute where the outcome
will get recognition from all parties and which secure the
enforceability of it as well. At this time ADR can be thought as a
best alternative.
Cont..

B. Limitations of the domestic courts - As it has been explained

earlier the jurisdiction of domestic courts is limited to the matters
related with the citizens’ interest and sometimes in the interests of
public. Stated differently, state courts might have not jurisdiction
to matters arised in international disputes for some times the other
party is not clearly under the jurisdiction of the court so that
enforcement of such kinds of court decisions will be obstacles.
That means citizens might not get the opportunity to get the
decision enforced and thereby exercise their rights. Especially,
when one of the parties is not an Ethiopian and/or if he doesn’t
have any property under Ethiopian jurisdiction, the decision given
against him will not be easily enforced unless there is reciprocity
in between the nations.
Cont..

• The other thing is when there is a conflict of interest between

the nations where the two disputants belong to. This happens
where, for instance, both of the nation claims to have primary
jurisdiction over the matter, when there is no reciprocity
agreement to the enforceability of decisions given in one
state to the other one. The parties, in such instances, prefer
alternative meanses of getting justice by taking their
grievances to ADR based on the sole consent of the
disputants.
Cont…sssss

C. To promote of Access to Justice – It is not only on the

national level that peoples will be denied of the right to have
access to courts, but some times it happens in the international
relations as well. For instance, it happens when none of the
domestic courts of the disputants assume jurisdiction over the
matter. In other words, some times the national courts where
the disputants belong to me may not have the jurisdiction to
entertain the case according to their own national laws. In such
instances, the parties will not get access to any of the courts
and the only alternative for them will be to look for ADR
based on their free consent.
Cont…

D. Development of e-commerce
The development of e-commerce also increased the need for
ADR. Given the difficulties of processing e-commerce disputes
in a global e-market place, on-line dispute resolution has become
an attractive alternative, particularly in small disputes. When
ADR processes, such as mediation and arbitration, occur in the
on-line environment, it is often referred as online dispute
resolution (ODR).
In the context of civil disputes ADR processes, such as
negotiation and mediation, introduced a civilized way to resolve
international conflicts. They were designed to overcome the
limitations and failures of domestic judicial processes and the
lack of a binding international public process.
Cont…

E. Influence of the UN Charter – The traditional dispute settlement

procedures available under international law are enumerated in Article
33 of the UN Charter;
1. The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall,
first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies
or arrangements, or other peace full means of their own choice.
2. The Security Council shall, when it deems necessary, call up on the
parties to settle the dispute by such means.
F. The Limitation of International Courts – Internationally well
functioning tribunals like the International Court of Justice (ICJ) and
Criminal Court of Justice (CCJ) of the UN and the Dispute Settlement
Body of the WTO have lots of limitation.
Cont..

• The first one is the identity of the parties that have the right
to institute a case or defend their case before these tribunals.
It is only sovereign sates and some times international
organizations that can be a party before the ICJ. By the same
taken, the WTO tribunal accepts claims only from member
states. In terms of the subject matters which can be seen by
these tribunals, all; cases can’t be entertained before them.
Most of the time ICJ entertains disputes “concerning issues
related to frontiers and maritime boundaries, territorial
sovereignty, the non-use of forces, non-interference in the
internal affairs of States, diplomatic relations, hostage-
taking, the right of asylum, nationality, guardianship, rights
of passage, and economic rights.”
Scope and Parties to International ADR

• In the field where there exists the involvement of more than

one parties or interaction among human beings, it might be
inevitable to think of the possible existence of disputes.
Human relation ship is becoming diversified backed by
modern technologies. The world’s commercial and
diplomatic relation requires the involvement of at least more
than one nation or citizens of a nation. Trade is becoming a
global phenomenon which requires the involvement of more
than one nations or citizens or entities of different nations. It
is also becoming impossible this time to think of internal
peace and security with out having smooth diplomatic
relation ship with the neighbor and even other states far from
once geographical location. Border disputes are also common
between states .
International Documents and Organs Regulating ADR

1. New York Convention on the Recognition and Enforcement of

Foreign Arbitral Award, 1958
It was adopted by a United Nations diplomatic conference on 10 June
1958 and entered into force on 7 June 1959. The Convention requires
courts of contracting states to give effect to private agreements to
arbitrate and to recognize and enforce arbitration awards made in other
contracting states. Widely considered the foundational instrument for
international arbitration, it applies to arbitrations which are not
considered as domestic awards in the state where recognition and
enforcement is sought. Though other international conventions apply to
the cross-border enforcement of arbitration awards, the New York
Convention is by far the most important.
2. Convention for the Pacific Settlement of International
Disputes (1899 and 1907) and the Permanent Court of
Arbitration (PCA)

• The Convention which could be said the first in its nature and content
came in to the hands of leaders in the late 1890’s for approval. The
same document, with out affecting the status of the existing one and
as well the commitment of signatories, by enclosing a more detailed
stipulation came in to existence in 1907. These two conventions are
the founding documents of the Permanent Court of Arbitration (PCA),
which is established two decades before the establishment of the
Permanent Court of Justice in the late 1910’s, which is now replaced
by the International Court of Justice.
3. UNCITRAL Documents

• The United Nations Commission on International Trade Law

(UNCITRAL) was established by the General Assembly in 1966) of 17
December 1966).
• UNCITRAL is a subsidiary body of the General Assembly of the United
Nations with the general mandate to further the progressive
harmonization and unification of the law of international trade.
UNCITRAL has since prepared a wide range of conventions, model laws
and other instruments dealing with the substantive law that governs trade
transactions or other aspects of business law which have an impact on
international trade.
4. International Chamber of Commerce (ICC) and
the International Court of Arbitration

• The International Chamber of Commerce (ICC) was founded in 1919

to serve world business by promoting trade and investment, open
markets for goods and services, and the free flow of capital. The
organization's international secretariat was established in Paris and
the ICC's International Court of Arbitration (ICA) was created in
1923.
• The International Chamber of Commerce (ICC) is a non-profit,
private international organization that works to promote and support
global trade and globalization. It serves as an advocate of some world
businesses in the global economy, in the interests of economic
growth, job creation, and prosperity. As a global business
organization, made up of member states, it helps the development of
global outlooks on business matters. ICC has direct access to national
governments worldwide through its national committees among
others.