Dr. Mohamed Ibrahim M.Adam
Dr. Adam & Associates
Please click on the PDF version icon above to download the article you choose to view. In order to view these articles you will need to have Adobe Acrobat Reader installed into your machine. This is available for free download from adobe.com. To download Acrobat Reader, please click the get Adobe Acrobat Reader Icon.
In the Sudan decisions of arbitral tribunals are final and binding. It is not possible to trigger the same subject of dispute employing subsequent court proceedings. In the Sudan the last decade has witnessed a rapid increase of investment by foreign companies particularly Chinese companies in the oil industry. It is expected that growing business transactions may create a need for an efficient, proper arbitration system. It is submitted that international arbitration is the most recommendable manner to resolve disputes relating to international business transactions. Howeverو such a trend requires to be restructured in a manner as would avoid surrounding pitfalls and risks. Again, the modern trend undertake the requisite measures as would secure well experienced arbitrators in the area of international commercial transactions well conversant of internationally recognized arbitration norms and rules. There is a recent trend to organize seminars on international arbitration practice and procedure. It is envisaged that all concerned will be invited to share expertise in such an important area of business. The Sudan is in dire need to keep up with the latest development in globalization trends and in particular international business transactions law including arbitration and E-commerce and internet business.
A new trend which requires to be addressed is the position of arbitration under Islamic shari’ah. The different concepts of legal systems in international business transactions raise important challenges in the domain of cross-border transactions. Arbitration in oil, gas and all energy sectors may pose cultural, legal and institutional difference not amenable to happy solutions. The fact that the Sudan has adopted UNICTRAL model law, ratified ICSID Convention of 1965 and recently ratified the New York Convention of 1958 may encourage backing up a trend of modernization intended to adopt well entrenched concepts in international arbitration. Adequate procedural rules in connection with enforcement of foreign arbitral awards require to be incorporated in the civil procedure act. Again, non-enforcement of arbitral awards on public policy grounds require to be addressed as would limit such a sweeping ground in favor of practical business-like, cogent grounds.
On principle in the event a Sudanese court is asked by a foreign court to enforce a final judgment or an arbitral award, the Sudanese court shall scrutinize the arbitral award in compliance with any international treaty concluded or acceded to by the Sudan, or the rule of reciprocity. If the court believes that the judgment or the award does not contravene the basic rules of the law of the Sudan or encroaches on its national public policy or established morals, it shall issue an order to admit validity of the judgment or arbitral award and enforces it in conformity to the prescribed procedures under the law, or else the Sudan court shall send back the judgment or award to the foreign court.
The procedure for enforcement appropriate in any specific case is subject to the seat of arbitration and pertaining arbitration rules. Arbitral awards in the Sudan are enforced under the Arbitration Act 2005. Article 45 of the Arbitration Act stipulates three requirements for enforcement. First, presentation of a copy of the arbitral award. Of course, the copy must be an authenticated original award or a certified copy. Second, expiry of the time limit to challenge the award on the ground of invalidity. Third, the party against whom the award is given did have a proper notice of the proceedings. Needless to say, the arbitral award may be challenged on general principles of the law. These may embrace, inter alia, lack of jurisdiction to make the award by the arbitral tribunal, the arbitration agreement was invalid, or that the arbitral proceedings determined issues that were not within the compass of the submission, or the determination did not employ the law chosen by the parties or that the award has not yet become obligatory on the parties, or has been set aside in the country in which or under the law of which enforcement can be opposed. Again, Article 46 of the Arbitration Act prescribes five conditions prior to enforcement of an arbitral award. First, the arbitral award has been made by a recognized tribunal or an institution i.e. arbitration center in conformity with international jurisdiction rules recognized in the country the seat of arbitration and the arbitral award has become final under the law of that country. Second, due process has been made, that is to say the parties have been appropriately summoned and represented. Third, the arbitral award shall not contravene with a judgment or an order issued by a competent Sudanese court. Fourth, the award does not offend the country’s public policy. Six, reciprocity is maintained as regards the country where the award is issued. Article 47 of the Arbitration Act clearly stipulates that order of the court presiding over enforcement of the arbitral shall not be subject to appeal.
Enforcement of foreign judgment is addressed in articles 306, 307, and 308 of the Civil Procedure Act 1983 which embrace the same conditions and rules as prescribed under the Arbitration Act 2005. The legal rules in connection with enforcement of arbitral awards apply on equal terms irrespective of where the arbitration was conducted subject to the condition reciprocity.