Monday, 23 August 2021 11:20

Seedlings Planting

Written by

MLA is pleased to announce its seedlings planting initiative with focus on post planting care for the seedlings. With the shared view of building responsibly grounded business in Ethiopia, MLA is proud to collaborate with its valued corporate clients in this noble imitative.

I. Scope and Purpose

With the aim of creating a one stop service for investors, the Ethiopian Investment Commission has recently issued a Directive Regulating the Issuance of Work Permit to Expats Employed in Investments and the Implementation of Knowledge and Skill Transfer from Expats to Ethiopians (Directive No. 772/2021 hereinafter ‘the Directive’ ). The Directive seeks to regulate the employment of expats in those investment enterprises that fall within the administrative mandate of the Commission. As such, whilst the Expat Work Permit Directive (Directive No. 23/2018)  that was issued by the Ministry of Labour and Social Affairs will continue to regulate the employment of expats in other sectors of the economy, the Directive seeks to regulate the employment of expats in wholly foreign owned investments,  joint investments that are made between domestic and foreign investors, investments made by foreign nationals who are treated as a domestic investors, and investments made by domestic investors in those areas that are eligible for incentives.

The  Directive also seeks to regulate the employment of refugees who hold a valid identity paper and are seeking to engage in wage employment in Ethiopia. However, the Directive does not regulate the employment of refugees in rural and urban investment projects that have been jointly designed by the Ethiopian government and the international community with the intention of benefiting refugees. 

II. Top Management and Impermanent Non-management Positions

As with the previous directive issued by Ministry of Labor & Social Affairs, the Directive allows an investor to employ foreigners for top management positions in either the construction or implementation phases of a given investment project without any restriction and without the need for complying with preconditions set for other expats - particularly in relation to positions that can be filled by Ethiopians and duties pertaining to knowledge and skill transfer

In relation to impermanent non-management positions, the new Directive has laid out clear instructions that regulate the number of expats that can be employed and the duration of such an employment during the investment project’s construction, installation, commissioning, implementation and maintenance phases.  In this respect, although a company is not expected to explore the availability of Ethiopians before hiring expats for management and impermanent non-management positions, they are expected to set up and provide on-the-job training in order to replace such expats with Ethiopians within a defined period of time.

 

III. Other Positions within the investment enterprise

In relation to positions that are neither top management nor impermanent non-management positions, the Directive has a separate process for the validity and renewal process of work permits.  In this regard, whilst a work permit to be provided to expats for such positions are valid for only one year and such work permits cannot be renewed for more than three years, the Directive provides an exception for these requirements in compelling or necessary conditions and in cases where a company has invested a capital of at least 40 million USD or hired more than one thousand five hundred employees. 

Furthermore, the Directive barres a company from assigning a new expat employee to such positions on which a foreigner had previously served for three years. However, the Directive provides an exception from this requirement when it is unequivocally demonstrated through evidence that the transfer of knowledge and skill was not properly implemented for reasons not attributable to the company, or because the trained Ethiopians left the company on their own will, or the contract of employment was terminated through the fault of the trainee employee.

Similarly, according to the Directive, the renewal of a work permit may only be approved only if it is proven that the enterprise has executed the training of Ethiopian replacements appropriately. However, a work permit may also be renewed without such requirement when it is proved by the Commission that the expat is relevant for the position and that the particular work is of a continuous nature.

 

IV. Knowledge and Skill Transfer

A key aspect of the knowledge transfer scheme in the Directive is the obligation of employers to develop a program that clearly outlines not only the timeline for the replacement of expat employees, but also the nature and schedule of such training. In this regard, the employer is mandated to submit quarterly performance reports of trainings that have been offered or due to be offered by the employer. The Directive also requires that the first-round training program that is to be prepared by the employer shall, at the latest, be presented within one week from the date of employment of the expat.

Furthermore, given the importance of knowledge transfer schemes, the Directive also empowers the Commission to conduct field monitoring every three months in order to assess the implementation and effectiveness of those on-the-job trainings that are being offered to Ethiopians. Beyond these obligations, the employer is also expected to notify the Commission in writing, within 5 working days, if the expat either leaves their place of work, if their employment contract is either terminated or has ended, or if the address of the workplace has changed. 

 

V. Expat Obligations

The Directive also imposes certain obligations on the expats in relation to fulfilling requirements related to their employment.  For example, the Directive states that the employee must appear at a workplace in possession of the issued work permit, must adhere to those procedures that seek to transfer standard knowledge and skill to Ethiopian replacements and comply with the Commission’s request for reporting. Furthermore, the employee is expected to only work for the employer specified in the work permit, refrain from engaging in illegal and immoral activities and only engage in the position/profession registered in the work permit.

Given that failing to comply with the employer and employee obligations that are prescribed under this Directive will result in the revocation of the work permit, it is in the best interest of both parties to not only adhere to their respective obligations, but to also ensure that the particular implementation and supervision criterions listed in articles 5, 6, 9 and 10 of the Directive are understood, respected and observed.    

Saturday, 15 May 2021 16:45

A New Insolvency Law For Ethiopia

Written by

Introduction

After so many years of trials and setbacks at revisions, the Commercial Code has finally crossed the last legislative milestone, an approval by the Parliament on March 25, 2021 means that Ethiopia will have a new Commercial Code and a new insolvency law after more than six decades. The revision of the Commercial Code started in full earnest more than 2 decades ago, but partly because of lack of political and institutional will and partly because of political instability, it has taken these many years to get it past the Parliament. The last two years of Ethiopian political transition have seen a flurry of major legislative reforms, and it is perhaps no coincidence that the revision of the Commercial Code has been successful during this period.

 Last promulgated in 1960 (its actual drafting was much earlier), the Commercial Code has been nearly 70 years old. The countries from which the Commercial Code was derived, most notably France and Italy, have revised their commercial codes several times during this period. Measured in terms only of time, it is fair to say that the Commercial Code long outlived its normal shelf life.

As a systematic collection of multiple laws, the Commercial Code of the 1960 (just repealed and replaced) consisted of five books: General Law of Traders (Book I), Law of Business Organizations (Book II), Law of Carriage and Insurance (Book III), Law of Negotiable Instruments and Banking (Book IV), and Law Bankruptcy and Schemes of Arrangement (Book V). If it were not for the device of a “Code,” which organizes multiple laws into one coherent law book, each of these laws could stand on its own, be revised and promulgated in isolation. It is important to remember that the Commercial Code which was just approved is short of the two sector-related commercial laws of Books III and Book IV. The Commercial Code in its current organization mirrors the life cycle of a business from birth (Book I and II) to growth (Book I and II) to its decline, and resuscitation and/or death (Book III). Now taken out of the new Commercial Code, Books III and IV of the Commercial Code of 1960 will be revised and issued in a separate package as “Financial Code”.

The New Insolvency Law

Forming the last leg of the Commercial Code, insolvency law is the least known in commercial practice and courts so much so that the number of insolvency cases litigated before courts since 1960 can be counted on the fingers of two hands. Factual insolvencies occur every day but few of these insolvencies ever make it to formal bankruptcy proceedings in courts. The reasons for these are many, the most plausible being unfamiliarity with the advantages of a collective bankruptcy proceeding and the dread with which bankruptcy is generally viewed by insolvent businesses. Even the members of the legal profession are often reluctant to contemplate bankruptcy proceedings when their clients are faced with the problem of cessation of payments of debts, and instead prefer the messy procedures of individual civil litigation in seeking enforcement of debts against defaulting debtors. The result has been multiple civil proceedings against a single defaulting debtor and long-drawn out court litigation involving multiple court orders and injunctions against execution of judgments. Orders for executions and injunctions against executions, opening of individual proceedings and stay of executions are familiar incidents in many of the individual civil and/or commercial court proceedings involving debts.

Other rival debt enforcement proceedings have also overshadowed collective bankruptcy proceedings. The creditors which deal professionally with debt default, the banks, have generally been able to avoid collective bankruptcy proceedings, and instead relied upon the foreclosure laws which gave banks the power to unilaterally foreclose on the collaterals of defaulting borrowers. This contributed to a state of affairs in which banks use foreclosure laws in dealing with insolvencies, in many instances to the detriment of all the other creditors of an insolvent business. When banks could go it alone, there was no reason why they would opt for a collective proceeding like bankruptcy in which they had to compete with multiple creditors of an insolvent business.

The few formal bankruptcy proceedings in the courts are themselves are fraught with problems which discourage both insolvent businesses and creditors from viewing bankruptcy proceedings as viable options to other debt enforcement and settlement procedures. Formal bankruptcy procedures are notoriously litigious and slow, and contrary to the real intention of these proceedings, are flanked by multiple proceedings which undermine the very purpose of bankruptcy proceedings as collective proceedings. Formal bankruptcy proceedings are therefore preferred neither for the time they take, nor for the cost they save, nor for the rate of recovery and nor for the outcome. One of the most famous bankruptcies in Ethiopian history, the Holland Car bankruptcy, has taken more than nine years and finality is not yet in sight.

 

Drafted in the context of all these problems of debt enforcement, the new insolvency law, placed as Book III of the new Commercial Code just approved, is set to overcome these problems and more. The biggest reform in insolvency law is the introduction of pre-bankruptcy proceedings whose primary aim is the rescue, rather than liquidation, of struggling businesses. The new insolvency law of the Commercial Code encourages businesses (their managers, directors as well as owners) to initiate business rescue proceedings as early as possible in order to enhance the chances of business rescue and prevent liquidation. In the past, only businesses with the most serious problems of financial default are dragged involuntarily through the bankruptcy process, by which time the chances of business rescue are so slim as to make liquidation and business closure all but inevitable. With the new business rescue friendly proceedings in the Code, it is hoped that more and more businesses struggling with debt payments will come forward and opt for business rescue procedures and thereby forestall liquidation and closure.

One of these pre-bankruptcy proceedings of the new Commercial Code– preventive restructuring – affords debtor businesses the opportunity to enter into court-supervised debt-restructuring negotiations and settlements with their major creditors without having to interrupt their normal course of business. This proceeding is entirely new in Ethiopian insolvency regime and enables businesses to initiate business rescue measures early and provides businesses with the best opportunity to negotiate and enter into a settlement for debt-restructuring. Preventive restructuring is the least intrusive proceeding as the ordinary business of the debtor is continued unaffected and the restructuring plan is approved by the court only if all affected creditors have agreed to the plan. In other words, it is a court-supervised contractual debt-restructuring procedure. 

Businesses facing financial difficulties can also now propose a reorganization plan which will, if voted favorably by a qualified majority of creditors and approved by a bankruptcy court, can provide the businesses with the opportunity to clear their debts and return to a healthy bill of business life. In cases where it is unlikely for the reorganization plan to receive a qualified majority of creditors’ approval, the new insolvency law provides for an alternative scheme of sale of business as a going concern in which the struggling business will have a new lease of life in the hands of third party purchasers.

Modelled after the US Chapter 11 Reorganization rules, the reorganization proceedings of the new insolvency law of Ethiopia provide for more detailed procedures for the preparation and negotiation of a “reorganization plan,” creation of “classes of creditors” for discussing and voting on the “reorganization plan,” and alternative to a reorganization in cases where reorganization plan is unlikely to be approved, called “sale of business as a going concern.” It is expected that with all these rules in place for the assurance of struggling debtor businesses and protection of all classes of creditors, businesses facing financial difficulties will opt for reorganization to prevent total liquidation of their businesses through straight bankruptcy proceedings.

Liquidation and closure of a business are not desirable but sometimes unavoidable. Placed as the last option for businesses facing financial difficulties, the bankruptcy provisions of the new Commercial Code are procedurally similar in many respects to the bankruptcy provisions of the 1960 Commercial Code with only necessary changes in the organization of the rules and filling of the gaps in existing proceedings along with new rules which run with the times. The most important reform in the straight bankruptcy proceedings is the revamping of the rules on simplified bankruptcy proceedings for small and medium enterprises (SMEs). The simplified bankruptcy proceedings for SMEs are aimed at providing for less costly and time-bound proceedings and, are intended to incentivize small and medium enterprises to follow formal bankruptcy proceedings in liquidating and closing their businesses. One of the most attractive features of simplified bankruptcy proceedings is that owners of small and medium enterprises obtain “discharge” if they meet certain conditions. In terms of numbers and perhaps even of cumulative volumes, overwhelming majority of businesses in Ethiopia belong to “small and medium enterprise” category, and if that is the case, it is expected that simplified bankruptcy proceedings will serve as primary liquidation and clearing proceedings for overwhelming number of insolvent SMEs.

The new insolvency regime has also removed features of the old insolvency regime which made bankruptcy proceedings unattractive particularly to debtors. One of these features is the absence of “discharge” for innocent but hapless debtors. Innocent or not, the bankruptcy law of the 1960 Commercial Code lacks provisions for “discharge” of debtors. Not only do bankrupt debtors lose control of their businesses to third party independent administrators (trustees), the debtors do not have any prospect of ever freeing themselves from the deadweight of having been declared bankrupt once in their business lives.

In keeping with the times, the new insolvency law of the Commercial Code has a separate title for “discharge” under which debtors who have been declared bankrupt might apply to the court of bankruptcy and receive “discharge” not only from the debt that remains unpaid after a formal bankruptcy but also from the unflattering status of being declared bankrupt by a court. Bankrupt debtors can now apply to court for “discharge” within three years from the date of the declaration of bankruptcy, and this is a fairly short period of time for debtors anxious to rejoin the business community, cleared from the heavy burden of having been declared bankrupt. “Discharge” is available for innocent debtors only, and only after a court proceeding in which creditors and trustees are afforded the opportunity to demonstrate to the court that the debtor was engaged in activities which precluded discharge.

As innocent debtors are protected from the permanent burden of bankruptcy, debtors and managers of debtors’ businesses, as well as creditors, who are found to be responsible for the bankruptcy of a business are made liable both civilly and criminally for their actions. The Commercial Code of 1960, operating on the strict wall of separation between commercial and criminal matters left criminal offenses to the Criminal Code of the time. The new insolvency law removes this wall of separation and provides for civil and criminal liabilities in the Code itself for offences directly connected to bankruptcy. This was done to ensure that the civil and criminal liabilities associated with bankruptcy proceedings are not overlooked by the parties that are responsible for the conduct of bankruptcy proceedings.

Insolvency Reform and Ease of Doing Business

Successive indices of the WB’s Ease of Doing Business (DB) Index have given Ethiopia a low ranking in the world, and part of the reason for this has been the inability of Ethiopia to revise its the Commercial Code of 1960. Ethiopia’s Doing Business ranking has suffered in all areas where the country has not revised its old laws. One of those categories in which Ethiopia consistently scored low points is in the category of “Resolving Insolvency,” which ranks countries on the basis of the time, cost, outcome and recovery rate of insolvency proceedings as well as the strength of insolvency framework.  Ethiopia’s DB overall ranking for 2020 was 159th out of 190 countries of the world, and its ranking in the area of “Resolving Insolvency” was 149th in the world. In this regard, Ethiopia ranks unfavorably with some high-performing countries of Africa like neighboring Kenya (50th) and Rwanda (62nd).

Ethiopia is expected to score high in such areas of strong reorganization regime, robust creditor-participation in insolvency proceedings, recognition of the principle of “best-interest-creditors’ interest” and discharge of innocent debtors, not to speak of the greater confidence foreign investors and international financial institutions will have on Ethiopian insolvency regime. It is hoped that with the passing of a new and modern insolvency law, Ethiopia’s doing business ranking in the area of “strength of insolvency framework” will improve considerably and with the implementation of the new insolvency law, Ethiopia will also see substantial improvement in its ranking in the areas of the time, cost and recovery rate of insolvency proceedings.

By Taddese Lencho (PhD) Head, Corporate and Tax Practice at Mehrteab Leul & Associates Law Office 

Disclaimer: This information is intended as a general overview and discussion of the topic.  This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation.  Mehrteab Leul & Associates is not responsible for any actions taken or not taken on the basis of this information.  Please refer to the full terms and conditions on our website. 

Copyright©2021 Mehrteab Leul & Associates.  All rights reserved.

 

INTRODUCTION

Ethiopia did not have an independent piece of legislation that regulated the manner in which alternative means of settling disputes operate.  It was only the Ethiopian Civil Procedure Code and the Ethiopian Civil Code (“Previous Laws”), together with other scattered provisions in various laws, which used to regulate arbitration and conciliation for over half a century. These laws provided for basic frameworks of conducting arbitration and conciliation such as governing the arbitration agreement, manner of composition of tribunals, and the arbitration award. However, these laws were criticized for failing to sufficiently address, among other things, the manner of establishment and operation of arbitration centres, identifying arbitrable and non-arbitrable matters, providing a limitation on the role of courts during the arbitration proceeding, the appealability of arbitration awards and the competency of the arbitration tribunal to decide on its own jurisdiction. The provisions under the Previous Laws are also highly incompatible with the internationally recognized principles of commercial arbitration.

The dispute settlement mechanism prevailing in the country is litigation, more than any other, as the litigation system is characterised by protracted lawsuits that take years to resolve a matter. This has inevitably resulted in a congested court environment.  However, this system does not go along with the very nature of commerce for which time, predictability and confidentiality are of the essence; features which are not exhibited in the Ethiopian litigation system.

As part of the recent legislative reform the country is undertaking, the Ethiopian House of People’s Representatives recently ratified the new Arbitration and Conciliation Proclamation No.1237/2021 (the “Proclamation”). The Proclamation entered in to force on 02 April 2021.  It basically repealed and replaced Articles 3318-3324 of the Civil Code, which governed conciliation, and Articles 3325 to 3346 of the Civil Code, which governed arbitration. The provisions of the Civil Procedure Code from Articles 315 to 319 and Articles 350, 352, 355-357 and 461, which deal with arbitration, have also been repealed by the Proclamation.

With the aim of complementing the right to justice and to contribute to the resolution of investment and commercial disputes and to the development of the sector, the Proclamation recognized the fact that arbitration and conciliation help in rendering efficient decisions by reducing the cost of the contracting parties, protecting confidentiality, allowing the participation of experts and the use of simple procedure which provides freedom to contracting parties. It also aims to provide for a general framework for the identification of arbitrable cases, management of arbitration proceedings and execution of those decisions that fit the prevailing reality of Ethiopia. By amending the existing laws, the Proclamation aims to be in line with the international principles and practice and support the implementation of international treaties.

Under this piece of MLA’s Legal Update, we will highlight the key changes and introductions made by the Proclamation as follows.

ARBITRATION

Scope of Application:  The Proclamation regulates arbitration and conciliation modes of dispute settlement. It is primarily applicable to commercial related national arbitrations, international arbitrations with a seat in Ethiopia or outside Ethiopia and national conciliation proceedings. The Proclamation is also applicable when one of the contracting parties is situated in Ethiopia and where the place of arbitration is not designated.

Definition of International Arbitration: Unlike the Previous Laws, the Proclamation provides a clear and exhaustive definition of what international arbitration constitute. The arbitration would be considered as international when the parties agreed, in express terms, that the subject matter of the arbitration agreement relates to more than one country, when the principal business of the contracting parties is in two different countries at the time of conclusion of contract, where the chosen place of arbitration or the place of performance or the place of business of the subject matter of the dispute arises or is closely connected with a foreign country. Defining international arbitration is relevant to determine the applicable substantive laws and to ensure the independence of a sole-arbitrator who shares nationality with one of the parties to the arbitration.

Prohibition of Court Intervention: As a basic departure from the Previous Laws, the Proclamation introduced a prohibition on the intervention of courts in the arbitration proceeding. The Proclamation specifically mentions some exceptions where the courts may intervene in the arbitration proceeding.

Electronic Arbitration Agreement: In line with the Electronic Transaction Proclamation No.1205/2020 and other laws that recognize electronic communications as a valid means of creating a contract, the Proclamation recognizes that an arbitration agreement can be made by the parties to the contract using electronic communication. Electronic agreements include agreements made through electronic media and accessible for subsequent use.

Definition of Non-Arbitrable Matters: As another basic departure from the Previous Laws, the Proclamation contains an illustrative list of matters which are not subject to arbitration. Previously, it was not clear which matters are arbitrable and which are not. Matters relating to family such as divorce, adoption, guardianship, tutorship and succession cases, criminal matters, tax matters, judgement on bankruptcy and dissolution of business organizations, land matters, administrative contracts unless permitted by law, trade competition and consumer protection related matters, administrative disputes and other matters made non arbitrable by other laws are not arbitrable matters under the Proclamation and the parties cannot agree to settle those disputes by way of arbitration. In fact, the Civil Procedure Code used to take administrative contracts out of arbitration agreement and this is maintained under the Proclamation.

Applicable Substantive Law: The Proclamation gives freedom to the parties when choosing the applicable substantive law. However, in the case when the arbitration seat is in Ethiopia, the applicable substantive law will also be Ethiopian law when the parties have not chosen the applicable law.

Composition of Arbitration Tribunals: the Proclamation has regulated the number of arbitrators, appointment of arbitrators and the rights and obligations of arbitrators in a more extensive manner than what was provided under the Civil Code. The parties are free to determine the number of arbitrators, but it must always be odd in number, and the manner of appointment of arbitrators has also been regulated.  Foreign arbitrators can also be appointed by the parties to arbitrate disputes. The Proclamation also defined the rights and obligation of the arbitrators and set out some prohibitions such as individual meeting with the party or receiving gifts. An objection against the appointed arbitrators can be made by the parties to the tribunal and in case the objection is rejected by the tribunal, the matter can be referred to a court.

Removal of an Arbitrator; under the Civil Code, parties who want to remove an arbitrator owing to his default to discharge the obligations may request a court for the removal of arbitrators.  Under the Proclamation, removal of an arbitrator can be done by the agreement of the parties in the event when the arbitrator failed to discharge his obligation. The parties are required to notify the tribunal for the latter to take a measure for the removal. Any grievance by the parties relating to the decision of the tribunal on the removal of an arbitrator is appealable to the Federal First Instance Court.

The Establishment of Arbitration Centres: The other new introduction is that the Proclamation permits the establishment of arbitration centres by government authority or private persons. The Federal Attorney General is empowered to license and supervise arbitration centres and set a criterion for their establishments without affecting the operation of existing centres.

The Recognition of the Kompetenz-Kompetenz Principle: The Proclamation recognizes that the arbitration tribunal designated by the parties have a power to determine the existence or nonexistence of a valid arbitration agreement and whether the tribunal itself has a jurisdiction to preside over the matter. To this effect, the Proclamation recognizes that the arbitration agreement will remain operational irrespective of the fact that the main contract becomes null and void. This limits an ill intended party from bringing the matter before courts by objecting the jurisdiction of the tribunal. It is only after the decision of the tribunal on its own jurisdiction that the party may bring the matter before Federal First Instance Court. Under the Civil Code, only the contracting parties are expected to authorise the arbitrator to decide disputes pertaining to jurisdiction.

The Taking of Interim Measures by the Tribunal: The other major departure of the Proclamation is that it expressly permits arbitration tribunals to take an interim measure and provides the conditions under which the measures can be issued. Upon the consent of the parties or on its own initiative, the Tribunal is authorised to take various preventive interim measures such as rendering decisions that properly preserve and maintain goods in dispute or assets and finds that on which an arbitration decision may be given.  Any interim measure provided by arbitrators are binding in Ethiopia regardless of the place where the measure was issued. The parties are also free to require the court for the issuance of interim measures.

Proceedings of the Arbitration: the Previous Laws used to provide that the procedure of arbitration needs to be as near as the procedure of a civil court. The Proclamation deviated from this and has established the manner of setting the arbitration proceeding in motion, the service of arbitration notice, statement of claim and summon and their respective timing. The Proclamation also recognized the equal treatment of the parties in the arbitration proceeding, their freedom to determine the applicable procedural law and language of the arbitration. The manner of setting in motion the arbitration proceeding is by a notice to be submitted by the plaintiff and the manner of serving the notice to the other party is clearly regulated, which was not the case under the previous laws.  The plaintiff is also expected to present a statement of claim with all the supportive evidences and the defendant shall bring a response for the allegations. The oral proceeding follows the written arguments which is discretionary to the tribunal. The tribunal may even request expert opinion on a particular issue of fact and it may also request for the support of a court in receiving evidence.

Arbitral Awards:  the tribunal is expected to apply Ethiopian substantive law for resolving the dispute. If there are no such agreements, the tribunal has the jurisdiction to apply a law relevant to the matter. The Proclamation regulated the form and content of the arbitral award. Even after making the award, the tribunal is authorized to make the necessary correction on minor errors, provide interpretation or render an additional decision that is based on the application of one of the parties or on its own initiative.

Objection to and Appeal from the Arbitral Award: The Proclamation permits any third party whose interest has been affected by an arbitral award to lodge an objection against the award to the relevant court with a jurisdiction within 60 days. In principle, the Proclamation does not allow an appeal from the award unless parties agreed otherwise. However, unless the parties agreed otherwise, the parties are free to lodge an appeal to the Cassation Division when there is fundamental error of law. 

The Setting aside of Arbitration Award: The Proclamation recognized the manner in which an arbitration award can be set aside. There is exhaustive list of grounds in which a court may set aside the arbitration award. This includes the incapacity of the parties to arbitration, the arbitration agreement becoming null and void, one of the parties not having an equal right to participate in the proceeding, when the arbitrators received a bribe or acted in a way that affected their independence and impartiality or when the tribunal acted without having jurisdiction or exceeded what transpired under the arbitration agreement.

Recognition and Execution of an Arbitral Award: As a principle, the Proclamation underlines that an arbitral award rendered in Ethiopia or abroad will be executed on the basis of the Civil Procedure Code as though the decisions were rendered by a court. An objection to the enforcement of an award can be made by a party on grounds that are similar with those grounds for setting aside the arbitration itself. With regards to foreign arbitral awards, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards to which Ethiopia is a party would be applicable as long as the arbitral awards fall under the Convention. However, the Proclamation lists grounds by which a foreign arbitral award may not be enforced, which are similar in essence with the requirements provided under the Civil Procedure Code.

 

CONCILIATION

The Proclamation also regulates matters relating with conciliation. It defines conciliation as a process of dispute settlement that is facilitated by a third party designated by contracting parties in order to resolve existing or future disputes. The conciliator will be appointed by the parties themselves.

The Civil Code had only 7 provisions with regards to conciliation, while the Proclamation has become more elaborative and has 26 provisions. The basic new introductions are:

  • A conciliation agreement that is validly made can be brought before a court as a preliminary objection;
  • The Proclamation governs the formal process of initiating the conciliation proceeding, which is by the request of one party and the acceptance by another;
  • The Proclamation provides the number of conciliators to be one, unless the parties agreed otherwise;
  • The roles of the conciliator are expanded, authorising the conciliator to summon witnesses, hear expert opinion or conduct other activities. It also entrusts the conciliator to forward a proposal for conciliation;
  • The Proclamation also provides that the conciliation proceeding is not required to be bound by any substantive or procedural laws;
  • The Proclamation recognizes that a conciliation agreement shall remain confidential;
  • It also allows parties to request an interim measure from courts while the conciliation proceeding is pending;
  • When the parties agreed to the proposal of the conciliator, the conciliator will prepare a settlement agreement to be signed by the parties. Once the settlement agreement is drawn and agreed, it constitutes a final and non-appealable decision on which an application for execution can be submitted with a court of jurisdiction;
  • The Proclamation permits parties to resort to court or arbitral proceedings when the conciliator failed to perform their obligations within the time agreed or within six months, if no time is set, or it provides a written declaration confirming that the dispute cannot be resolved through conciliation;
  • One of the parties may apply to a court for the invalidation of the settlement agreement provided that the settlement agreement is null and void, lacks clarity, is contrary to public policy and peace, or the parties lack capacity to conclude the agreement;
  • The Proclamation also introduced basic prohibitions and limitations. For example, the conciliator cannot serve as an arbitrator, attorney, or agent, or be a witness in any judicial or arbitration proceeding on a similar matter he handled as a conciliator. The suggestion forwarded or an admission made by one of the parties or a settlement proposal of the conciliator in the conciliation proceeding are inadmissible in judicial or arbitral proceedings; and
  • With a bid to encourage parties to resolve their dispute through conciliation, the Proclamation offered the reimbursement of court fees paid by parties while instituting a court case when they have resolved their dispute withdrawing the court suit.

Disclaimer: This information is intended as a general overview and discussion of the subjects dealt with.  The information provided here was accurate as of the day it was posted; however, the law may have changed since that date.  This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation.  Mehrteab Leul & Associates is not responsible for any actions taken or not taken on the basis of this information.  Please refer to the full terms and conditions on our website. 

Copyright©2021 Mehrteab Leul & Associates.  All rights reserved.

The National Bank of Ethiopia Issued a New Directive (Directive No. FXD/70/2021, New Directive) governing the retention and utilization of foreign currency earnings from export and inward remittance. Previously the area was regulated by the Directive No. FXD/66/2020 (Old Directive).

The basic changes introduced by the New Directive are highlighted below:

  1. Retention Account “A” and Retention Account “B” has been eliminated: under the Old Directive Exporters of Goods and Services and Recipient of Inward Remittance (Beneficiaries)  were allowed to credit 30% of their foreign currency in Account A and hold for an indefinite time. 70% of the earning will be credited to Account B for 28 days only. The earnings were allowed to be utilised by the beneficiary for the importation of raw materials or other permitted items relating to the export business. Under the New Directive these two kinds of accounts are eliminated and only one Forex Retention Account is permitted.

  2. Mandatory Surrender is established: under the New Directive all the beneficiaries are required to surrender 30% of the foreign currency earning to the commercial banks. Previously there was no surrender requirements applicable to the Beneficiaries.

  3. The Amount of Proceeds to be Retained is reduced: the Beneficiaries are further required to sale 55% of the foreign currency earning to the bank immediately on the day of receipt at the prevailing buying exchange rate. The Beneficiaries can deposit 45% of the proceeds in retention account for an indefinite time. Note that this 45% shall be calculated once the 30% surrender is made on the total earnings.

  4. The requirements for utilization of the foreign currency has been changed: under the Old Directive the foreign exchange under retention accounts can only be used to finance direct business relating to the export and some other permitted payments. Under the New Directive the Beneficiaries are allowed to use the foreign exchange for the importation of goods and services without restriction as long as it has a business license to import these goods and services.

  5. A New Penalty is imposed on Banks: any bank that violates any provision of the directive is liable to pay 5,000 USD for each violation.

Disclaimer: This information is intended as a general overview and discussion of the subjects dealt with.  The information provided here was accurate as of the day it was posted; however, the law may have changed since that date.  This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation.  Mehrteab Leul & Associates is not responsible for any actions taken or not taken on the basis of this information.  Please refer to the full terms and conditions on our website. 

Copyright©2021 Mehrteab Leul & Associates.  All rights reserved.

As an institution that is mandated to protect and promote the health of the Ethiopian people, the Ethiopian Public Health Institute (EPHI) has recently issued a Directive that seeks to mitigate the growing spread of the Novel Coronavirus. Entitled A Directive Issued for the Prevention and Control of the COVID-19 Pandemic (Directive No 30/2020), this new Directive is expected to not only have serious implications for international travelers but also for those employers, employees and customers of local businesses. As such, this legal update will be exploring Directive No 30/2020 in light of the new changes it has brought about as well as explore its legal implications for those that are conducting business in Ethiopia.

After coming into effect in October 5 2020, Directive No 30/2020 has laid down a set of new requirements for those international travelers that wish to enter the country through its international airports. Beyond requiring travelers to provide a negative RTPCR test that was conducted up to five days before arrival, the Directive also requires international travelers to quarantine at home for seven days. This is in stark contrast with the previous Directive, which not only mandated international travelers to quarantine at home for fourteen days but also required them to present a negative RTPCR test that was conducted up to three days before arriving in Ethiopia.

Despite this, there has been a recent practice of not requiring international travelers to self-isolate so long as they have a negative RTPCR test and show none of the COVID-19 related symptoms. In contacting the EPHI for clarification, a representative of the Institute has informed MLA that the policy of home isolation, as per Part 4 of Directive 30/2020, is no longer being followed by the Ethiopian government for such travelers.

However, although Directive No 30/2020 has set a new policy for those international travelers that have tested negative for the Novel Coronavirus, the Directive has continued the policy of temporary isolation for those international travelers that display any of the symptoms associated with COVID-19.  As such, regardless of their negative RTPCR test, international travelers that have a fever, headache, cough, loss of taste and smell, throat swelling, or any other related symptoms will still be taken to one of the temporary isolation centers that have been prepared by the government.

Apart from setting the standard for border health control, it is important to note that Directive No 30/2020 also goes a long way in regulating how private enterprises will be interacting with their employees as well as their customers. For example, the Directive obligates employers to not only provide precautionary materials to their employees but to also make information about COVID-19 readily available as well as ensure that employees are able to work whilst maintaining a safe distance between each other. This obligation to create a safe work environment is particularly stringent in the industry, construction and production sectors, where employers are also mandated to rearrange the workplace in a manner that will allow for physical distancing and sufficient air circulation. As such, by mandating employers to provide sanitary materials at their gates as well as ensuring that the workplace is in line with the public health guidelines of physical distancing and mask wearing, it is safe to say that Directive No 30/2020 provides a robust legal framework that accounts for the safety of employees.   

Similarly, a business’s obligation to create a healthy and safe environment also affects how a particular business interacts with its customers, as they have a dual responsibility to protect both their employees and their patrons. In this light, Directive No. 30/2020 strictly prohibits the provision of services to those customers that are not maintaining a two meter distance or not wearing a mask. Moreover, businesses must ensure that sanitary materials are readily available for customers, that employees are wearing masks at all times, that anything used by customers are thoroughly disinfected, and that physical distancing guidelines are maintained by not sitting more than three customers at a single table and marking spots where customers could stand. In addition to these, it is worth noting that Directive No. 30/202 makes a clear distinction between service providers, as it mandates cinemas, galleries and theatres to ensure that their service rooms have adequate air ventilation and that their occupancy does not exceed one-fourth of their maximum occupancy capacity.

Apart from these, Directive No. 30/2020 has also established strict guidelines for those that wish to organize meetings and conferences in Ethiopia. According to Part 5 of the Directive, meetings of up to fifty people can be held without an additional permit so long as the hall is well ventilated, attendees are able to maintain a distance of two meters between each other and the meeting does not take up more than one-fourth of the hall’s holding capacity. Furthermore, meeting organizers must prohibit participants without a face mask from entering the hall, provide sufficient sanitary material for attendees and keep a register of the attendees’ names, phone numbers and addresses for fourteen days. However, meetings with more than fifty attendees require a special permit from the Ministry of Peace as well as other peace and security structures at the regional, zonal and woreda levels.

All in all, the directives found in Directive No. 30/2020 have significant implications for local businesses as well as those international travelers that wish to do business in Ethiopia. Given its new quarantine policy for international travelers, its policy for meeting venues as well as its clear workplace guidelines for employers, employees and customers, the EPHI’s new Directive provides a robust legal framework for businesses to operate whilst mitigating the spread of COVID-19. 

 

 

As an institution that seeks to foster a healthy financial system as well as facilitate the rapid economic development of the country, the National Bank of Ethiopia (the “NBE”) has the power to formulate and implement those exchange rate policies that can help create a strong and stable economy. Whether it is by monitoring the foreign exchange transactions of banks, establishing the terms and conditions for foreign exchange transfers, or identifying those economic sectors that warrant the prioritized allocation of foreign currency, the role of the NBE in ensuring the efficient allocation of this important yet scarce resource cannot be overstated. This is particularly true in 2020, where the growing spread of the Novel Coronavirus and the troubling desert locust infestation has necessitated the reprioritization of Ethiopia’s decreasing foreign reserve coverage.

Ethiopia's Decreasing Foreign Reserve Coverage- Amount of Months of Gross Foreign Reserve Coverage Available for Imports of Goods and Services  It is in this context that the new Transparency in Foreign Currency Allocation and Foreign Exchange Management Directives (“Directives No. FXD/67/2020”) came into effect in 05 October 2020. In doing so, there are some notable differences between Directives No. FXD/67/2020 and the Transparency in Foreign Currency Allocation and Foreign Exchange Management (as Amended) (“Directives No. FXD/62/2019”), particularly when it comes to how banks prioritize, allocate and utilize their foreign currency reserves. As such, this legal update seeks to assess the NBE’s recently issued Directives No. FXD/67/2020 in light of the previous Directives that regulated the allocation and management of foreign currency in Ethiopia.

 

One important change brought about by Directives No. FXD/67/2020 is the downgrading of particular payments that Directives No. FXD/62/2019 not only considered to be important for foreign investors but also economically essential; warranting the prioritized allocation of foreign currency. In downgrading profit and dividend transfers as well as the transfer of excess sales of foreign airlines from Second Priority payments to Third Priority payments, the NBE has reverted to its 2018 position of considering these payments less of a priority than those other goods and payments listed in 6.1(a) and 6.1(b) of the Directive.

Amount of Foreign Currency Banks are Mandated to allocate from half of their foreign currency reserve for Imports Although the recently enacted Investment Proclamation No. 1180/2020 states that any foreign investor has the right to not only remit the profits and dividends accruing from their investment but also those proceeds from the sale of the business or the transfer of shares, Directives No. FXD/67/2020 will likely make such transactions lengthy as the allocation of foreign currency is not only based on prioritized categories but also on a first come first serve basis. As such, even though Directives No. FXD/67/2020 requires banks to allocate 45% from half of their foreign currency reserves for all imports of goods and services to Third Priority imports and payments, the NBE’s first come first serve policy as well as the fourteen other payments and imports in this category will likely result in the diminished availability of funds for these two important transactions.

Another notable change brought about by Directives No. FXD/67/2020 is its specificity on who can request for special priority allocation of foreign currency. Whilst Directives No. FXD/62/2019 merely stated that the Governor or Vice Governor of the NBE may give special priority approval on a case by case basis, Directives No. FXD/67/2020 limits the discretion of both the Governor and Vice Governor by listing financial institutions, the federal government, regional governments, and city administrations as those that can request for special priority.

Although it is possible to infer from Directives No. FXD/67/2020 that financial and governmental institutions have supplanted investors when it comes to making such special requests, it is important to note that most of the essential imports are still prioritized for foreign exchange allocation. For example, pharmaceutical goods such as medicine and laboratory reagents continue to be classified as first priority essential goods that banks are now mandated to allocate 10% of their foreign currency reserves to.

Similarly, inputs for agricultural and manufacturing investments are still designated as secondary priority imports, making access to foreign currency relatively easier for those investors that wish to purchase and import fertilizers, seeds, and pesticides as well as manufacturing chemicals and raw materials. With Directives No. FXD/67/2020 also entitling bank presidents to approve the import of spare parts for those faulty machinery that can disrupt production, it is our opinion that Directives No. FXD/67/2020 is more supportive of the manufacturing and agricultural sectors than the Directive it repealed.

Payments & Imports included in the Third Priority of the New Directive  �Furthermore, foreign investors are already exempted from the registration process that underpins this priority scheme, as they are still afforded foreign exchange on demand for some of their fiduciary interests. Whether it is the repayment of the principal interest or fees of external debt obligations, the payment of suppliers’ credit, the repatriation of salary by foreign employees, or fees related to consultancy, commissioning and royalties, neither the limitation placed on special priority requests nor the de-prioritization of certain payments will hinder their ability to fulfill their fiduciary responsibilities to their creditors as well as their employees.

In conclusion, the enactment of Directives No. FXD/67/2020 will likely make payments related to profit and dividend transfers as well as the transfer of excess sales of foreign airlines a lengthy process as the allocation of foreign currency is not only based on prioritized categories but also on a first come first serve basis. However, Directives No. FXD/67/2020 still affords foreign investors the right to obtain foreign exchange on demand for some of their most essential fiduciary responsibilities.

Disclaimer: This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Mehrteab Leul & Associates is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.

Copyright©2020 Mehrteab Leul & Associates. All rights reserved.

Introduction

The Ethiopian Government has made commendable efforts, through legislative and procedural reforms, to improve the investment climate of the country and thereby attract more foreign direct investment. Since 1992, the investment law has been revised four times to ensure the participation of more foreign investments in various sectors of the economy. The latest law, the Investment Regulations No. 474/2020 (the “Regulation”) was promulgated on 02 September 2020.

The Regulation, in a stark deviation from its predecessor has changed the “positive list” approach into a “negative list “. In the repealed Investment Regulation of 2012, foreign investors were only allowed to invest in sectors expressly listed in the investment regulation or in sectors opened by the decision of the Ethiopian Investment Board. The shift towards a ‘negative list’ is probably the most significant aspect of the new investment law because foreign investors are now allowed to invest in any investment area except those that are expressly reserved.

1. Major Amendments in the Regulation

1.1 Opening of Reserved/Restricted Sectors to Foreign Investment

One of the major change the Regulation has brought is the restoration of the “negative listing” of investment areas that are open to foreign investors which enables foreign investors to enjoy a much greater opportunity with regards to the areas that they can invest in. The negative listing approach employs the opening of all economic sectors to FDI except those that are expressly reserved/restricted by law. This approach aspires to cope with the ever-changing technological evolutions and pace of business in a globalized economic sphere. This approach is a reversal of the 2012 Investment Regulation which adopted the “positive listing” method that was restrictive by design.

As part of the negative listing approach, the Regulation provides three categories of investment areas. These are areas exclusively reserved for joint investment with government, areas exclusively reserved for domestic investors and areas exclusively reserved for joint investment with domestic investors. All other sectors not reserved in aforementioned sectors will be open for foreign investment.

1.1.1 Areas of investment that are open for foreign investment:

1.1.1.1           Electronic commerce;

1.1.1.2           Real estate development;

1.1.1.3           Education services;

1.1.1.4           Health services excluding primary and middle level health services

1.1.1.5           Grade 1 construction and drilling services;

1.1.1.6           Wholesale of petroleum and petroleum products and wholesale of own products produced in Ethiopia;

1.1.1.7           Import of liquefied petroleum gas and bitumen;

1.1.1.8           Cement manufacturing;

1.1.1.9           Capital goods finance business;

1.1.1.10        VAS (Value Added Services);

1.1.1.11        Management consultancy services;

1.1.1.12        Engineering consultancy services;

1.1.1.13        Repair and maintenance of heavy industry machineries and medical equipment;

1.1.1.14        Operating lease of industry-specific heavy equipment’s, machineries and specialized vehicles;

1.1.1.15        Star-designated national cuisine restaurant service;

1.1.1.16        Star-designated hotel, lodge, resort, motel, guesthouse and pension services;

1.1.1.17        Producing bakery products and pastries for export market;

1.1.1.18        Railway transport services;

1.1.1.19        Cable-car transport services;

1.1.1.20        Cold-chain transport services;

1.1.1.21        Freight transport services having a capacity of more than 25 tones;

1.1.1.22        Manufacturing;

1.1.1.23        Agro-processing and commercial farms;

1.1.1.24        Any investment activity that doesn’t fall under one of the below three categories (areas exclusively reserved for joint investment with government, areas exclusively reserved for domestic investors and areas exclusively reserved for joint investment with domestic investors).

1.1.2 Areas allowed for foreign investors to jointly invest with the government:

1.1.2.1           Manufacturing of weapons, ammunition and explosives used as weapons or to make weapons;

1.1.2.2           Import and export of electricity;

1.1.2.3           International air transport services;

1.1.2.4           Bus rapid transit; and

1.1.2.5           Postal services excluding courier services.

1.1.3 Areas of investment in which foreign investor/s can own up to a maximum of 49% of share capital:

A foreign investor jointly investing with a domestic investor (Ethiopian nationals or companies wholly owned by Ethiopian nationals) in the following areas can own up to a maximum of 49% of share capital of a joint venture company. These areas are:

1.1.3.1           Freight forwarding and shipping agency services;

1.1.3.2           Domestic air transport service;

1.1.3.3           Cross country passenger transport service using buses with a seating capacity of more than 45 passengers;

1.1.3.4           Urban mass transport service with large carrying capacity;

1.1.3.5           Advertisement and promotion services;

1.1.3.6           Audiovisual services; motion picture and video recording and distribution; and

1.1.3.7           Accounting and auditing services.

1.1.4 Areas of investment exclusively reserved for domestic investors:

1.1.4.1           Banking, insurance and microfinance businesses, excluding capital goods finance business;

1.1.4.2           Transmission and distribution of electrical power through integrated national grid system;

1.1.4.3           Primary and middle level health services;

1.1.4.4           Wholesale trade, excluding wholesale of petroleum and petroleum products and wholesale of own products produced in Ethiopia, electronic commerce;

1.1.4.5           Retail trade, excluding retail of and electronic commerce as provided under appropriate law, of own products produced in Ethiopia;

1.1.4.6           Import trade, excluding liquefied petroleum gas and bitumen;

1.1.4.7           export trade of raw coffee, khat, oil seeds, pulses, minerals, hides and skins, products of natural forest, chicken, and livestock including pack animals bought on the market;

1.1.4.8           Construction and drilling services below Grade I;

1.1.4.9           Hotel, lodge, resort, motel, guesthouse, and pension services, excluding those that are star-designated;

1.1.4.10        Restaurant, tearoom, coffee shops, bars, nightclubs, and catering services, excluding star-designated national cuisine restaurant service;

1.1.4.11        Travel agency, travel ticket sales and trade auxiliary services;

1.1.4.12        Tour operation;

1.1.4.13        Operating lease of equipment’s, machineries and vehicles, excluding industry-specific heavy equipment’s, machineries and specialized vehicles;

1.1.4.14        Making indigenous traditional medicines;

1.1.4.15        Producing bakery products and pastries for domestic market;

1.1.4.16        Grinding mills;

1.1.4.17        Barbershop and beauty salon services, smithery, and tailoring except by garment factories;

1.1.4.18        Maintenance and repair services, including aircraft maintenance repair and overhaul (MRO), but excluding repair and maintenance of heavy industry machineries and medical equipment;

1.1.4.19        Aircraft ground handling and related services.

1.1.4.20        Saw milling, timber manufacturing, and assembling of semi-finished wood products;

1.1.4.21        Media services;

1.1.4.22        Customs clearance service;

1.1.4.23        Brick and block manufacturing;

1.1.4.24        Quarrying;

1.1.4.25        Lottery and sports betting;

1.1.4.26        Laundry services, excluding those provided on industrial scale;

1.1.4.27        Translation and secretarial services;

1.1.4.28        Security services;

1.1.4.29        Brokerage services;

1.1.4.30        Attorney and legal consultancy services; and

1.1.4.31        Private employment agency services, excluding such services for the employment of seafarers and other similar professionals that require high expertise and international experience and network.

1.1.4.32        Transport services, excluding the following areas:

(a)            Railway transport services;
(b)            Cable-car transport services;
(c)            Cold-chain transport services;
(d)            Freight transport services having a capacity of more than 25 tones; and
(e)            Transport services reserved for joint investment with the Government or domestic investors.

Disclaimer: This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Mehrteab Leul & Associates is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.

Copyright©2020 Mehrteab Leul & Associates. All rights reserved.

Wednesday, 22 July 2020 09:51

Ethiopia Ratifies the New York Convention

Written by
By: Ben Sanderson and Erika Tesfaye

Introduction

Since the appointment of its new Prime Minister (Abiy Ahmend) in 2018, Ethiopia has witnessed a series of broad ranging economic and legal reforms aimed at boosting the economy by encouraging foreign direct investment (FDI). In view of this, on February 13, 2020 the Ethiopian Government approved the ratification of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. In doing so, Ethiopia becomes the 33rd African and the 162nd international State to sign the New York Convention.

Implications on the ratification of the New York Convention

Ratifying the New York Convention is a significant step forward for Ethiopia and underpins the country’s ongoing efforts to attract greater foreign investment. The adoption of the uniform framework for the recognition and enforcement of arbitral awards will certainly help to improve the country’s profile as a business-friendly jurisdiction.

The previous regime1 for enforcement of foreign judgments and arbitral awards contained a number of grounds which were considered obsolete and ambiguous. The decision to adopt the New York Convention therefore provides international parties with greater certainty and brings the Ethiopian arbitration ecosystem into line with international standards.

One of the most significant stumbling blocks under the old system was the requirement for reciprocity to be demonstrated in order to enforce a foreign arbitral award. In other words, in order for a party to enforce a foreign arbitral award in Ethiopia, the party would have to show that the State where the arbitral award was made would recognize and enforce an arbitral award made in Ethiopia on the basis of reciprocity. As Ethiopia was not a party to the New York Convention, this rule meant that it was virtually impossible to enforce a foreign arbitral award in Ethiopia.

In the well-known Paulos Papassinus case, the Federal Supreme Court denied an application for enforcement of a Greek judgment because the applicant failed to prove reciprocity.2 The Supreme Court found that a party would need to establish the existence of a judicial assistance treaty signed between Ethiopia and the other State. Although the decision rendered by the Supreme Court relates to foreign judgments and not to arbitral awards, it was a widely considered that the courts would reach a similar conclusion regarding the enforcement of foreign arbitral awards. While court decisions in Ethiopia (save those of the cassation bench) do not create precedent, commentators agreed that there was a significant risk that other courts would follow the decision in the Paulos Papassinus case.

Ethiopia is already the recipient of significant flows of FDI, notably in the infrastructure sector, and the decision to bring its recognition and enforcement procedures into line with international best practice is a welcome development. Ethiopia has adopted the New York Convention subject to two common reservations: (i) on the basis of reciprocity to the recognition and enforcement of awards made only in the territory of another contracting State, and (ii) its application only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the laws of Ethiopia. Ethiopian law does not make a distinction between civil and commercial matters and therefore it would be left to the discretion of the enforcing court to determine whether the dispute is commercial in nature or not. Furthermore, the New York Convention will only apply to arbitration agreements made after the date of Ethiopia’s accession. Existing long terms contracts will therefore not benefit from the new regime absent an amendment or restatement of the arbitration agreement.

Conclusion

Addis Ababa is well-placed to become a hub for international arbitration in Africa. Addis is home to both the African Union and the United Nations Economic Commission for Africa, and has many of the facilities and international transport connections which are the envy of other African cities. With these latest reforms, Addis has taken a significant step forward not only in improving Ethiopia’s profile for the ease of doing business, but also to set itself apart as a hub for arbitration in Africa.

The next crucial step for Ethiopia will be to introduce a comprehensive law governing arbitration, which at present is regulated by the Civil Procedure Code. The Ethiopian Government has produced a draft arbitration Proclamation which is currently under consultation. Arbitration practitioners in Ethiopia will be keen to ensure that any new law is in line with international best practice and some commentators are calling for the adoption of the UNCITRAL Model Law. A further updated on progress with this new law is expected later this year.

1The 1965 Civil Procedure Code of Ethiopia (the “Code”), the Federal Courts Proclamation No. 25/1996 and its amendment Proclamation No. 454/2005.

2In the Matters of Paulos Papassinus, Federal High Court, Civil Case No.1623/1980; and in the Matters of Paulos Papassinus, Federal Supreme Court, Civil Appeal Case No.1769/88.

Erika Tesfaye is an Associate at Mehrteab Leul & Associates Law Office. Mehrteab Leul & Associates Law Office is a member of DLA Piper Africa, a Swiss Verein whose members are comprised of independent law firms in Africa working with DLA Piper. DLA Piper is a global law firm operating through various separate and distinct legal entities.

Mehrteab Leul & Associates Law office is a member of DLA Piper Africa, a Swiss Verein whose members are comprised of independent law firms in Africa working with DLA Piper. DLA Piper is a global law firm operating through various separate and distinct legal entities.

Further information on DLA Piper Africa can be found at www.dlapiper.com/africa. This publication is intended as a general overview and discussion of the subjects dealt with, and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Mehrteab Leul & Associates Law office will accept no responsibility for any actions taken or not taken on the basis of this publication. This may qualify as "Lawyer Advertising" requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.

Authors 


Ben Sanderson         Erika Tesfaye

 

 

 
 
 
DLA Piper Africa DLA Piper Africa
 
Legal update: Protocol on workplace response to coronavirus COVID-19 (Ethiopia)
01 April 2020
On 27 March 2020, Ethiopia adopted a tripartite protocol that outlines workplace response to coronavirus COVID-19. The Ministry of Labor and Social Affairs (MoLSA), the Ethiopian Employers’ Confederation and Confederation of Ethiopian Trade Unions jointly issued the protocol which aims at prevention of coronavirus COVID-19 in the workplace and mitigating the socio economic impacts of the pandemic on workers, employers and the overall economy of the country.

The following is a brief summary of the protocol.
Preventive and protective measures
The protocol emphasises the importance of prevention as the most important tool in the fight against coronavirus COVID-19 and lists precautionary measures specific to the pandemic that have to be taken by employers, employees, and safety officers. The preventive measures to be taken by employers are, for the most part, incorporated in our Legal Guidance for Employers, which can be accessed our website and the DLA Piper Coronavirus Resource Centre. The protocol requires employers to take the following additional preventive and protective measures:
Providing employees with protective materials such as face masks and gloves and training them on how to use them;
Setting up a committee dedicated to the prevention of coronavirus COVID-19 in the workplace led by the manager of the business and made up of trade union and/or employee representatives;
Creating a work space that allows employees to practice social distancing while working;
Avoiding a congested environment inside employee transportation services and ensuring windows are open during travel;
Creating awareness around coronavirus COVID-19 and its prevention among employees using different channels in different languages;
Allocating longer meal breaks to avoid crowds in cafeterias and canteens;
Avoiding gatherings, meetings as well as work situations exposing employees to contracting the disease;
Avoiding meetings and encouraging communication via internet or telephone;
Preparing a space where employees displaying coronavirus COVID-19 symptoms can stay until they are transferred to health centers; and
Preparing regular reports on coronavirus COVID-19 in collaboration with labor unions and/or employee representatives.
Under the labor proclamation, employers have the overall responsibility of taking the necessary measures to adequately safeguard the health and safety of employees. It follows from this general obligation that employers must comply with the above listed specific precautionary measures.
Recommended measures to sustain employment and business continuity
So as to ease the impact of the coronavirus COVID-19 pandemic on employment, the protocol outlines recommended measures that may be adopted for the purpose of protecting workers as well as safeguarding business continuity. While emphasizing the key role of consultation between workers and employers in planning and implementing these measures, the protocol recommends the following measures to be considered step by step with due regard to the severity of the situation:
Employees to take paid annual leave and in the case of employees who do not have unused annual leave, employers to allow them to take at least half of next year’s leave;
Ongoing negotiations towards new collective agreements to be suspended for the next 12 months;
Unimplemented salary raise plans to be suspended for the next 12 months;
Benefits and allowances which used to be provided to employees (such as hardship allowance, transportation allowance, house allowance, commission, bonus and other benefits which are not considered as salary) not to be paid until the crisis finishes;
Based on consultations of employers’ and workers’ unions, revising existing salary scales in a bid to maintain business continuity;
For employees assigned to non-essential positions who temporarily lose their jobs, provision of loans and written assurance that they will be reinstated once the situation stabilizes;
Trade unions and employer associations to mobilize their members to discharge corporate social responsibility during these critical times.
While the above recommended measures might not be legally binding, they certainly provide useful guidance on what should be done in terms of responding to the crisis. It is also important to note that the protocol, a result of a tripartite consultation, calls on all stakeholders but mainly workers and employers to commit to the implementation of these necessary policy measures.

Should you have any questions on the new protocol, please get in touch with us.

Kind regards,
Susheela Rivers Benyam Tafesse Dubero
Head of Employment and Immigration
+251 115 15 97 98
Mehrteab Leul & Associates (DLA Piper Africa, Ethiopia)
 
   
DLA Piper
www.dlapiper.com/africa
DLA Piper Africa Offices DLA Piper Africa People
 
To unsubscribe please click This email address is being protected from spambots. You need JavaScript enabled to view it.

This publication is intended as a general guidance and discussion of the issues addressed, and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Mehrteab Leul & Associates Law office will accept no responsibility for any actions taken or not taken on the basis of this publication.

Mehrteab Leul & Associates is a member of DLA Piper Africa, a Swiss Verein whose members are comprised of independent law firms in Africa working with DLA Piper.

DLA Piper is a global law firm operating through various separate and distinct legal entities. Further information on DLA Piper Africa can be found at www.dlapiper.com/africa.

This publication is intended as a general overview and discussion of the subjects dealt with, and does not create a lawyer-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Mehrteab Leul & Associates will accept no responsibility for any actions taken or not taken on the basis of this publication. This may qualify as “Lawyer Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.
Copyright © 2020 DLA Piper. All rights reserved.  |  APR20  |  A05197