Mehrteab Leul & Associates

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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  It basically repealed and replaced Articles 3318-3324 of the Civil Code, which governed conciliation, and Articles 3325 to 3346 of the Civil Code, which governed arbitration.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Code from Articles 315 to 319 and Articles 350, 352, 355-357 and 461, which deal with arbitration, have also been repealed by the Proclamation.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. 

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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)
 
   
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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

 

 
 
 
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Coronavirus COVID-19: Legal guidance for employers in Ethiopia
With 334,000 plus confirmed cases and over 14,600 deaths across 189 countries and territories, the coronavirus COVID-19 is causing havoc throughout the world. As the virus continues to rapidly spread across different jurisdictions including Ethiopia, it is causing many businesses and employers to look at what measures they could legally take to mitigate risks in the workplace, and protect health and safety of their employees. It is also indisputable that there is much anxiety about coronavirus COVID-19 and its impact regarding employment in the event that a countrywide lockdown becomes mandatory.

To help our clients navigate through this unprecedented time, we have prepared some general guidance on the impact of coronavirus COVID-19 on the employment relationship under Ethiopian law.
Preventive measures
Health and safety
The Ethiopian Labor Proclamation obliges employers to take the necessary measures to adequately safeguard the health and safety of employees at all times. This broad responsibility means that employers have the duty to strictly follow precautionary measures at work place upon the occurrence of pandemics and transmitting diseases. Though there is no official separate directive or guideline issued by the Ministry of Labor and Social Affairs on specific measures to be taken by employers in relation to coronavirus COVID-19, employers are recommended to take the following actions:
Make employees aware of safety and prevention measures in accordance with public briefings, press releases and guidelines by WHO, the F.D.R.E. Ministry of Health and the Ethiopian Public Health Institute (EPHI);
Availing access to information to the employees. This can be done by regularly updating information on scientific developments and professional advises on notice
Providing water, soap, paper towels, sanitizers and trash cans to dispose of used materials in work places to allow employees to practice good hygiene at all times (it is commendable if support can also be extended to those who cannot afford soaps and sanitizing materials at home);
Organizing office spaces in a way the air can easily circulate;
Regularly assessing the health of employees and remind staff to self-isolate in cases where symptoms are observed;
Creating a working office which allows employees to distance themselves from each other and avoid suffocation. The employer should recommend that employees practice social distancing and discouraging physical greetings such as shaking hands;
Avoiding gatherings, meetings as well as work situations exposing employees to contracting the disease;
Regularly cleaning tables, doors, surfaces, elevators and shared equipment at the work place;
Amending domestic and international travel policies;
Providing options to work from home where applicable; and
Providing information and safety measures to visitors and clients at offices
It is important to note that the Labor Proclamation excludes endemic or epidemic diseases (except in the case of employees who are exclusively engaged in fighting such illnesses) from the definition of occupational diseases. As a result, employers are generally obviated from liabilities that arise from employees contracting occupational diseases. Nevertheless, employers are obliged to take precautionary measures at all times including during epidemics.
Quarantine
Quarantine is not specifically recognized by the law. However, given the characteristics of coronavirus COVID-19, there may be different types of quarantine scenarios and each comes with slightly different legal implications. We have provided below the recommend measures on how an employer should handle different types of quarantine scenarios in light of Ethiopian labor laws:

Government-mandated quarantine due to a positive coronavirus
COVID-19 diagnosis

Where an employee has been diagnosed with the virus and the government or health agency requires quarantine, the employee may be treated as being on sick leave to the extent applicable and provided that the employee has available sick leave. The sick leave to be granted could be fully-paid, partially paid or unpaid depending on circumstances.

Government/Health agency-recommended quarantine
Quarantine may be recommended if the employee is showing signs of illness but has not been diagnosed with coronavirus COVID-19. In such circumstances, if the employee is sick and unable to work (for whatever reason), he or she may be entitled to sick leave (paid or unpaid) in accordance with the requirements of the Labor Proclamation. If, however, the employee is feeling well and provided that he/she is able to work from home during the quarantine, the employer may allow him/her to work remotely during such period of recommended or mandated quarantine.

Employer-mandated quarantine
Where the employer asks employees to stay away from work, for reasons related to coronavirus COVID-19, the employee may be entitled to sick leave depending on the individual circumstances of the employee and the requirements of the Ethiopian labor laws.

Employee self-isolation
If the employee is hesitant to come to work because of a fear of contracting the virus, employers are generally encouraged to investigate the reason for the absence and whether there are special circumstances that need to be taken into account, e.g., if the employee is particularly vulnerable or is living with a vulnerable person. Where the reason is legitimate, and the nature of the work allows the employee to work from home, the employer may allow the employee to continue to work from home to the extent possible.

In connection with sick leave, it is important for employers to understand the difficulty that may be encountered by quarantined employees to acquire evidence of ill-health and as such, employers may consider if they have to temporarily adjust their policies in this regard. Additionally, employers are strongly encouraged to seek legal advice to determine to what extent, in what circumstances statutory sick leave may be applicable and to discuss other available avenues in the event sick leave is not applicable.
Working from home
Although it does not provide details, the Labor Proclamation indicates that an employee may work from home when agreement to that effect has been made with an employer. It has been publicly reported that many businesses in various jurisdictions are currently permitting certain groups or even entire staff to work from home on a trial basis to flesh out and address any issues in advance in the event that more widescale home working becomes mandatory. At this stage, employers in Ethiopia are encouraged to review their work from home policies (if any) to make sure these are up-to-date and fit for purpose and that employees who work from home have the requisite technical and material support.
Relevant legal avenues
The Ethiopian Labor Proclamation provides for various measures that could be considered by the employer during challenging circumstances such as the coronavirus COVID-19.
Suspension
Temporary suspension of rights and obligations arising from a contract of employment may be considered in the following cases.
Leave without pay
Suspension of contract of employment can be applied in cases where leave without pay is requested by the employee and granted by the employer. In such cases, the employer’s obligation to pay wages and benefits and the employee’s obligation to perform work will be interrupted for the period fixed by the parties.
Suspension due to force majeure or financial difficulties
The Labor Proclamation provides that the occurrence of a force majeure circumstance which results in the full or partial interruption of the employer’s work for not less than 10 consecutive days justifies temporary suspension of employment contracts. Similarly, financial problems not attributed to the fault of the employer that lead to the interruption of activities of the employer for no less than 10 consecutive days constitutes a valid ground for temporary suspension.

Before suspending employment contracts on the basis of occurrence of one of the above mentioned grounds, the employer is legally required to submit a request for approval to the Ministry of Labor and Social Affairs (MoLSA) or the appropriate labor authority stating the grounds for suspension. The Ministry or the appropriate authority has to determine the existence of a good cause for suspension and announce its decision within three days. If the employer has not received a response from the relevant authority within this period, this will be considered as affirmation of the request and the employer can suspend the employee(s).

When the Ministry or authority approves the request for suspension, it will fix the period of suspension which will not exceed 90 days. On the other hand, the Ministry or the appropriate authority may order the resumption of work and payment for the days on which workers were suspended if it finds that there is no good cause for suspension. In such a case, the employer has a right to appeal to the appropriate labor court within five working days after the final decision has been passed.
Termination
Ethiopian labor law recognizes grounds attributable to organizational or operational requirements of an undertaking as valid causes for terminating an employee after giving notice. One of the grounds that justify termination with notice is fall in demand for the products or services of the employer resulting in the reduction of the volume of work or its profit. In such cases, the employer may terminate employees after giving the applicable advance notice and effecting payment of statutory termination benefits.

However, if the termination affects workers representing at least 10% of the number of workers employed or termination of at least five employees over a continuous period of not less than ten days, in cases where the number of workers in an undertaking is between 20 and 50, the termination may be considered as a “reduction of workers” and will be subject to further regulations and procedures stipulated by the law. In the event of a reduction of workers, the employer should observe the mandatory rules on consultation with trade unions and workers representatives and rules relating to prioritization of employees to be terminated.
For help and support in relation to coronavirus COVID-19, please reach out to your regular contact or alternatively use the contacts in our Coronavirus Resource Center.
 
   
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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.  |  MAR20  |  A05197

The Excise Tax Proclamation No. 307/2002 (Previous Proclamation) that had been in effect since 2003 has been repealed. The Ethiopian Parliament has approved a new Excise Tax Proclamation No. 1186/2020 (New Proclamation) on 13 February 2020. Below we provide a summary of the major changes introduced by the New Proclamation.

Scope

The scope of application of the New Proclamation is on excisable imported goods and those manufactured in Ethiopia by licensed manufacturers. Excisable goods are those itemised in a Schedule attached to the Proclamation which currently lists 19 classes of goods and 378 specific items classified under each of the classes.

Registration and licensing by the tax authority

The New Proclamation has introduced a system by which all producers and suppliers of excisable goods have to be mandatorily registered and licensed by the Tax Authority for production and supply of excisable goods and services in Ethiopia and engagement in activities subject to the licensing in a Directive to be prescribed by the Ministry of Finance.

Tax rates

The New Proclamation has introduced the application of a specific excise tax rate that is based on the quantity or weight of goods along with an Ad Valorem rate (i.e. based on percentage of value) as opposed to the Previous Proclamation which adopts only the latter type of excise tax rate. Ad Valorem rates range from a minimum of 5% (e.g. rubber tyre) to a maximum of 500% (most used vehicles with a cylinder capacity exceeding 1800 cc and aged more than seven years). Specific rates are adopted for goods such as beer (in which specific and ad valorem rates apply alternatively, whichever is higher) and cigarettes (in which a combination of both rates apply).

The Ministry of Finance is empowered to increase or decrease the Excise Tax Rate up to a maximum of 10% of the rate indicated under its first Schedule. In order to cater for inflation, the Tax Authority is given the responsibility to apply an inflationary adjustment at least once a year on the Standard Excise Tax Rates according to a Directive to be issued by the Ministry of Finance.

Tax base and time of payment

As a significant shift from the Previous Proclamation, the tax base for goods produced locally is now the factory selling price. This is the price paid by the purchaser or the fair market value of the goods in case of related party transactions less the applicable VAT on supply of goods, the cost of Excise Stamp and the cost of returnable packaging. Excise tax must be shown separately on the transactional invoice.

For imported goods, the tax base is the value of goods to be determined as per the Customs Proclamation plus the applicable Customs Duty payable on the goods.

For goods manufactured locally, the time of exit of goods from factory or their consumption therein determines the time of payment of the tax. On the other hand, the time of entry of goods into Ethiopia is when the tax must be paid for imported goods with the exception of petroleum products in which the Ministry of Finance could give special permits to change such time.

Exemption, refund and deduction

The New Proclamation introduces elements the fulfilment of which renders goods not excisable. It also lists situations and items that are exempt from the payment of Excise Tax. Excisable goods exported or sold to persons with a tax free privilege, excisable goods destroyed by the producer following the Tax Authority’s approval and excisable goods lost or destroyed by accident or other factors beyond one’s control are exempt items in the New Proclamation. The Ministry of Finance is also given the power to exempt goods from the tax due to economic, social and administrative reasons.

The New Proclamation has also introduced a mechanism by which an Excise Tax that is already paid to the Government could be refunded to the taxpayer based on occurrence of certain events such as loss or destruction of goods or their return to the seller by the purchaser.

The deduction of Excise Tax paid on inputs is also allowed for a local manufacturer of all excisable goods save for alcohol, tobacco and sugar.

A monitoring mechanism on excisable goods

The New Proclamation has introduced a monitoring mechanism of excisable goods by the Tax Authority while excisable goods are inside the manufacturing factory of an authorised producer. Accordingly, an officer of the Tax Authority is empowered to investigate the nature and status of excisable goods, to weigh their weights, and count their quantity inside the factory. Authorised manufacturers of excisable goods are in turn obliged to register list of inputs and outputs in an approved form and set up a mechanism by which the officer of the Tax Authority can realise its monitoring responsibilities.

Excise tax stamp

The New Proclamation empowers the Ministry of Finance to issue a Directive that governs stamps that are to be used to identify excisable goods, alcohol products that are exempt from the tax, export goods and those goods produced for the consumption of exempt entities. The time, place and manner of administration of such excise tax stamps is also to be addressed in this Directive. The type and content of the excise tax stamps is to be publicized by the Tax Authority in newspapers having nationwide circulation.

New excisable items and changed tax rates

The other major change introduced by the New Proclamation is the levying of the tax on items that were not excisable under the applicable excise tax law and change of the tax rate on already excisable goods.

The new excisable goods include fats and oils, foods containing sugar, chocolates and cacao products, fireworks, plastic bags, plastic vehicle tyres, artificial flowers and fruits, human and synthetic hair, tractors, special purpose vehicles, trailers, gambling and video game machines are among the newly introduced excisable items.

Penalties

The manufacturing and importation of excisable products without having the appropriate license results in an administrative penalty amounting to double of the excise tax that would have been payable. Fines ranging from ETB 50,000 – 200,000 and imprisonment ranging from a minimum of three to a maximum of seven years are also included as criminal penalties in the New Proclamation for offences committed in violation of the different mandatory provisions of the law. Such administrative and criminal liabilities are in addition to those already provided in the Tax Administration Proclamation unless provided in an overlapping manner, in which case the New Proclamation applies.

Effective date

No effective date is specified and the President of Ethiopia has not signed in the copy of the New Proclamation that was circulated by the Ministry of Revenues. Nonetheless, the Ministry of Revenues circulated the copy with a notice to taxpayers stating that the New Proclamation will take effect beginning from the 14 February 2020, a day after the approval of the Proclamation in the Parliament.

Normally and in the absence of a relevant rule in the law itself, new laws that have been approved by the Ethiopian Parliament – the House of Peoples Representatives, begin to take effect when they are published in the nation’s official publication, the Federal Negarit Gazeta. Article 57 of the Federal Constitution of Ethiopia provides that laws passed by the Parliament must be signed by the President of Ethiopia within fifteen days and it is if the President fails to sign the law within such period that the law will take effect without his/her signature.

Leaving the above controversy on the New Proclamation’s effective date aside, there is a grace period of six months for persons engaged in manufacturing of excisable goods to continue manufacturing without having the appropriate license as indicated above. In addition, those goods for which a letter of credit has already been opened before issuance of the New Proclamation and those goods imported into Ethiopia within six months from entry into force of the New Proclamation will be excised based on the Previous Proclamation.

The Ministry of Finance (MoF) approved the import of agricultural mechanization, irrigation and animal feed technologies, and equipment to be tax-free. https://lnkd.in/dMM9Kmi

Mehrteab Leul and Associates Law Office (MLA) is pleased to be recognized by the Legal 500 as a Tier one firm in Ethiopia. We believe the ranking accurately reflects our first-rate legal services.

Wednesday, 22 May 2019 11:01

Ethiopia Partnership Forum

Pleased to share that one of our star lawyers, Benyam Tafesse is representing MLA at the “Ethiopia Partnership Forum” hosted by the U.S. Department of State in the Loy Henderson Auditorium at the U.S. Department of State in Washington, D.C. Good Luck Benyam!

Our very own Mehrteab leul Kokeb Tadesse Lencho and Sisay Habte are members of the tax team who won the African Transfer Pricing Team of the year last night at the International Tax Review awards. Congrats to all DLA Piper Africa Tax Team!

Wednesday, 22 May 2019 10:58

Boston for the 2019 INTA Annual Meeting

More than 11,000 brand owners and IP professionals from 150 countries have gathered in Boston for the 2019 INTA Annual Meeting, which kicked off last Saturday. We are so glad Benyam Tafesse is representing MLA. International Trademark Association (INTA)

Tuesday, 18 December 2018 05:22

Celebrating Ethiopian New Year – 2008

Societies around the world developed different calendars, pinning the first day of the year as an astronomical or agriculture event. 

Ethiopia, located in the horn of Africa, enjoys not only a favorable climate but also a unique calendar that consists of 13 months. The 13th month contains 5 or 6 days which is generally dependent on whether the year is a leap year or not.

The Ethiopian New Year comes after the rainy season (June-Aug), when nature's beauty can be seen most clearly. The sun comes out to shine all day long, creating an atmosphere of dazzling clarity. Mountains and valleys of the country are all green and with the fresh smell of flowers, including the symbolic yellow daisies which burst out in their entire splendor. This is also the harvest season and therefore a time of parties and celebrations. 

The New Year is heralded by young girls signing the song abeba ye hosh meaning do you see the blooming flowers, in their respective villages. While boys give paintings to each household as their new year wishes, adults are expected to respond by rewarding them with small gifts (either bread or money), as a small token in return.

Later in the day, families gather to share a traditional meal of injera (flat bread) and wat (stew). The day of celebration winds down with families visiting friends and relatives, sharing drinks, while children roam around freely and spend their newly received riches. 

According to the legend, origins of the New Year festivities are related to the return of the Queen of Sheba (Ethiopia) from her famous visit to King Solomon in Jerusalem. The name "Enkutatash" meaning gifts of jewels, is derived from reports of the Queen of Sheba being welcome back by her chiefs and priests with praises and extravagant gifts of jewels. This joyful holiday has supposedly been celebrated since this time, marked by dancing and singing across the green countryside, budding with spring flowers.

Embracing the modern spirit, residents in the city in recent times have adopted the more western way of sending out greeting cards and partying on New Year’s Eve. September hence, is the month which sees the transition period of the transformation from the old to the new that nestles within it the hopes for a brighter and better future.

 

Year's end is neither an end nor a beginning but a going on, with all the wisdom that experience can instill in us.”—Hal Borland