Note on conflict of law.

Because of different factors there is not universal accepted defition of conflict of law. Because of
the unique feature of the subject,because of the varation in the scope of the disceplene,we have
no universally accepted definition of conflict. Conflict of law deals with special class of
cases,case that contain foreign element. The forum law or the local law is also called lex foreign.
Different jurisdictions try to assign different to subject matter. For example in civil law legal
system,issues of choice of law are only considered as subject matter of conflict of laws. Other
issues like judicial jurisdiction,recognition and enforcement of foreign obligation and private. re
not considered as conflict of law. Because of the above reasons and others there is not universaly
accepted definition of conflict of laws. Conflict of law is lys any other subject of law,it’s part of
the domestic law,of state that gives procedures and guide lines,for a court or for a judge to select
to determine jurisdiction of a court,to select appropriate law a case containing foreign element. It
also gives procedures and guideline for recognition and enforcement of foreign law. The foreign
element is the basic concept of the definition of the subject matter or a unique feature of the
subject matter. What is foreign element? When a case involves the fact,an event,transaction
which is closely connected with foreign system of law,that necesatate the application of that
foreign law. Foreign element in a case may appear in different forms;it may appear in personal
form,local form,material form. A foreign element said to have personal nature,when one of the
parties in the case,or both parties in the case are foreigners. It can also appears in local
nature,when the subject matter of the dispute or when a given transaction take place either partial
or totally in foreign territory. It can also appear in material nature,when the object of the dispute
is property is located in foreign state. In private international law context the foreign states also
includes member states of a federation. The term private international law implys the subject
matter or the law,that deals with litigation of private matter. Private international law is criticized
not be discrebtive,of the subject,because it confuses with public international/law of
nations,because private international law mseems to appear another branch of law disceplene.
International law may seem to have two division,pu The term conflict of law,it implys the
subject matter has the objective of provoking disputes or conflicting laws. But the purpose of
conflict of law is it trys to solve such conflicts. It has also other names,choice of
law,comity,transinternational law,intermanicipal law. One characteristic of conflict of law is
conflict of laws do not resolve the dispute it does not provide a substantive solution. It’s function
is after selecting the appropriate law,it indicate the appropriate system of law,it takes a case half
way. The other feature of private international law rules are simply inistruments that provides
guidelines’ and procedures for prescribtion of jurisdiction of courts,or for the selection of
appropriate laws,recognition of foreign judgment and arbitral awards. The other feature of
conflict of law is it may occur at national and international level. International conflict of law
happens,when two municipal laws of sovereign state,conflict differ in the way way dealing with
the subject matter.at national level it occurs when there is federal form of government when
power is divided between the federating state and the centeral government. In civil law legal
system,considers question of choice of law. In cevil law legal system recognition and
enforcement of foreign judgement aas well as judicial jurisdiction is a matter of
international procedural law. In France,nationality citizenship,status of eliance is the matter of
public international law. Franse consider nationality citizenship issues of status of eliance as
matter of conflict of law. What is the reason for the existence conflict of laws? Because in the
world there is nno uniform law,or because of the existence of diversity of law. Laws are
formulated taking into count the specific needs of the community. When laws are made it takes
into account culture,economy,status and religion and other. The other is existence of municipal
of laws,in the world that deal with legal relationship,the existence of conflict of laws,is because
of the existence of multiple system of laws. Conflict of law trys to solve the situation this can be
achieve through choice of laws. Choice of laws are drafted and formulated carefully in a way or
in manner that makes them to incorporate substancially a sense of justices,because they try to
select the applicable law by making conection the subject matter of the disceplene.

there are different theories of laws which talk about the aproprate governing laws. Or theory of
conflict of laws talk about determining the proper system of laws. For a given dispute.
These theories of laws help us to understand the reason for the existence of conflict of laws. The
history of conflict of laws explain that during ancient time there are different laws, different
catagories of laws of that were applied for foreigners and different courts. For example in ancient
greek and Roman cities they were special judges and special courts for cases involving
foreigners. A transaction or legal relationship that involves Greeks and Egyptians if they were
made in Greek form they were tried in Greek form,the same is true if if they were made in
Egyptian form.

One of the classical theories of law is;the so called statutory of intent. This theory developed by
scolar in 13th century in Italy as well as in Franse. During this period attempted to address the
problem of choice of law,in theoretical fashion,rather than substantive issues or considerations
that has close connection with subject matter of the dispute or transaction., this theory classifies
laws into two catagories,these are real and personal statute. Real statutes are those statutes
involve cases applicable for properties and by their nature real statute are territorialso they were
not apply extraterritorial. Personal statutes are those statutes deals with personal matters like
issues of capacity and status. These personal statutes the follow the person and they are extra
territorial. It has been agreed that conflict of laws emerged in Italy. In 13th centuries in Italy
there different city states in Italy;those city states had their own lawsthe so called statutes. So
these theorist when transaction made between residents of different city states they try to address
the problem by this mechanism. the major problem with the application of this theory is it is
difficult to classify statutes into real and personal. There is not technique to identify a given
statute as territorial and a given statute as personal. The theorist did not come up with technique
to indentify a given rule for classification. They simply said that a given statute is territorial if
the first word in the statute is a thing;while reading the rule if the person came with person then
statute a person. It is also important to mention the issue of the so called lex markatoria. Which
is also known as the law of merchants. It developed in Italy in 13th century it is also known as private
international law of middle ages law of merchants. It governs the relation between or
transactions that emanates from trade interactions between different nationals and developed the
rule which could be applicable transnational.

The other classical theory is the so called party autonomy. It is the extention of statutory theory
it just simply adds another category to the classification of laws;that is the will of the parties. In
adition to classifying laws into territorial and personal;it classifys also laws by taking the will of
the parties;as the sourse of laws. so what matters here is not statute rather will of the party. This
will of the parties may be expressed or implied;it applys also extra territorially regardless of of
statute.

The other is the theory of vested right.

This theory of conflict of theory of law state that the right which has been created appropriately
by a given state;will be recognized and will be forced every where. What matters is the creation
of the right accordance with the procedures of the laws of state. This theory was founded by
three jurists these theorist say that if rights are created aproprately by the law of state then it
should be acured recognition and as well as enforced. So an act valid well done is valid every
where or illegal relationship valid where made is valid every where.

The other theory is the theory of location of legal relation.

This theory was profounded by Germany jurist;this theory makes a shift from statutory by
focusing on the location of legal relationship. To which legal system a given legal relationship
or legal transaction should appropriately belonged to? is the main focus of this theory. As a result
the choice of law problems inconflict of laws can be addressed by a scientific method. He came
with a scientific method by proposing different princeples that have some kind of relationship or
connection with the law of the state. And he said that solution for choice of law problems can be
found by discovering to which legal relationship;the legal territory which the legal relationship
belongs to. So according this theorist making logical connection between the legal relationship
or the transaction and the legal territory. How can we define; the logical relationship between
legal relationship and legal territory? There are different factual situations that give rise to legal
relationship or legal transaction must be considered in order to find the appropriate legal territory
or legal jurisdiction. There different factual relationship; these factual relationship are can be
domicile of a person, transaction of the place and the place of the court. Question of procedure is
governed by the law of the place of the court. Question of personal nature issues like capacity
and issues of family are governed by the law of the domicile of the parties. Question of
litigations involving property governed by the place of where things found. The same is true the
place where transaction a given transaction has ocured/was made govern question of relating to
dispute. This theorist advocates international nature of conflict of law. He said conflict of laws
are part of international law or the law of nation. Every state should apply this logic to make
logical connection.

The other theory is comity theory. Considering the interust of others.

Comity means cartasy showing friendliness. Acorging to this theory the forum state applys the
foreign law by virtue of comity. This theory is also called the other version of the territorial
theory. It is considered as version of territorial sovereignty approach. These theorist say that
each state has an absolute sovereignty, to bind every person and every property that is situated in
it’s territory. Irrespective of the nationality or the status of individuals state has an absolute right
to enforce it’s law and no sovereign can apply it’s law beyond it’s territory. So when we come to
the question of enforcing the law of state beyond it’s territorial limit; it only by virtue of comity.
This theory has been criticized for being to narrow;and for being relegating the issue of thought
of law to the discretion of the land. It only focuses on local law or the forum law. It has no
criteria and it has no unilaterial obligation. It can not be called theory of proper. It is no similar
with reciprocity. The other theory is nationality theory. It was developed by Italian jurist. This
theory says law is personal not territorial it is made for people. Laws follow every where the
person goes. Irrespective of the place where a person acts or domiciled the applicable law for
that individual for that person is always law of his nationality. Law of the state will bind
foreigners the law of nationality will be the governing law. It has the tendancy of
internationalism because it demands each state to apply the laws of a foreign state and by protect
the interust of state. The main idea of nationality theory is law is personal not territorial but law
can be exceptionally territorial. When public policy when public order of the forum state
necessitates the application of the local law or when the agreement of the parties other wise
demands the application of the law of the nationality of the parties. So the exception is public
order and agreement of the parties may give room for the forum court the law rather that the law
of nationality of parties. This theory is criticized law is not made for nationality of a given state
rather law is made for for a given territory. Law should be made for governing people that reside
in a given territory not simply for nationals of that territory.

The other theory is local law.

This theory says that the appropriate governing law for conflict of laws is always the law of the
forum. If the case involves foreign element it should be adjudicated by local law because it is
convinent. Foreign law is considered when the local law outcome is similar with foreign law.

The modern theory of law.

Lexforeig theory says the basic law always the law of the forum and foreign law shall be applied
only in limited circumstance;it is only to fill gups such gup can be created when application of
the foreign law impose substancial injustices or unfair for defendant or when the interust of
foreign government prevails over the interust of the government interust of the forum law. To
displace the foreign law the conflict should be true conflict. When we say two laws are
conflicting they prescribe different things; and their legal consequence is different. Conflict of
law exists when the laws are different and when the different laws resulting when causes
substantial difference. By false conflict we mean both laws are similar and the outcome is the
same this lexforeig and government interust analyses theory, says conflict of laws should not
depend on fixed rules. Conflict of laws should be policy orented. The policy of state can be
traced from the constitution.

The other modern theory is value orented approach. This theory says instead of taking in acount
some kinds of rules for addressing the choes of law;there should be some princeples to be
followed. According to this theory the interust of parties must be taken into account what would
follow upon the application of a given law would it fair to the parties? First there should be an
assessment. There is also another approach functional approach and policy orented approach
which takes into account the policies of the competing approach states or two states which policy
should be given preference? Is the emerging or previous policy?

Lecture three conflict of laws in Ethiopia. Until now we have no rules,inactment,guide line and
procedure, the Ethiopian legal system works with out private international law. Ethiopian courts
have no rules or guide lines for judicial jurisdiction,choice of law as well as subject matter of
conflict of law. Minding you! this does not mean that there has not been made an effort to
come up with conflict of law or to promulgate conflict of laws. During codification or
drafting of the civil code the drafter of civil code Rain Devid dedicated a section in the civil
code,for private international laws, however for unknown reason that section was not made part
of the civil code. How ever the absence of rules does not give an excuse an Ethiopian courts
from intertaning an international law,because the purpose of establishment of judicial
inistitutions is to render justice. So noe existence of laws does not abolish the power of courts to
render judgment. So the absence of rules,the absence of precedent system what mechanisms do
Ethiopian courts use? is There court practice? What techniques do they use to select the
appropriate law? What grounds or factors should Ethiopian courts take into account while
exercising judicial jurisdiction? Is the main focus of this topic. Even though we have noe
laws,rules or inactments,we have there is an approach or practice of courts establishing judicial
jurisdiction, in selecting the proper governing law as well as the other subject matter. There are
fragmented rules in different codes of the country,private international law of Ethiopian is
caractrized fragmented provisions, they are found here and there. These fragmented provisions
are found in proclamation 25/96,under commercial code, under maritime code,as well as under
civil code. Under Article 11 paragraph two A and C of proclamation 25/96 the federal highcourt
has a first inistance jurisdiction to deal with an international matters whether these matters are
interstate or international cases. But there is no detail rules as to wy,how,when, courts can
exercise that jurisdiction. But still there is no detail rules on the issue of judicial jurisdiction.
When come to the civil code,the civil code provision on domicile,from Article 183 up to 191,are
demed to deal with private international law. The concept of domicile in Ethiopian law in general
is only invoked for private international purposes. No where in Ethiopian law mentioned for
internal dispute. Article 647,of commercial code,Article 208 and 237 of maritime codes
mentionted the concept of domicile. We have also provisions in Civil procedure code that deal
with enforcement and recognition of foreign judgment,article 456 and the following. Even if
these provisions talk about execution of judgment and arbitrar awards,if not elaborately dealt by
these provisions,it has been argued that since recognition of a foreign judgment a precondition
for execution,those provisions of recognition also mutantis mutadis serve as for recognition.
Ethiopian courts use general precedent, some times they use lexforeign or special conditioning
of internal rules. The practice of Ethiopian courts shows either of thise approach conserning
problem of choice of law. Ethiopian private international law characterized by interms of none
certainity,none uniformity,and unpredictability. We see inconsistency of decesions in Ethiopian
courts. Domicile is a ground for establishment of jjurisdiction instead of nationality and
residence. As we said Article 647 of comercial code it says specifically jurisdiction. It deals with
internal carriage,or carrier by transportation of goods and people and domestic air
transportation. For international air transportation,the watso convention is the only legal regime.
When ever there is a claim that emanates from internal air transportation,such claim shall be
adjudicated by the court of domicile of the carrier, or principal place of business, the place where
the carrier has an agent or place of destination. Article 208 deals with goods by see, Ethiopian
courts to establish jurisdiction on this matter,the place of arrival is in Ethiopia. This provision is
narrow because it does not deal with cases of judicial jurisdiction outside Ethiopia. Article 208 is
mmultilaterial provision. It grants different aspects for establishing judicial jurisdiction. Article
80 and 20 of the civile procedure code they do not deal with jurisdiction,but they are considered
by Ethiopian courts they are jurisdiction granting provisions. Article 8 specifically paragraph
two it talks about pendency. Pendency of suit inre out of the provision of local jurisdiction
provisions.foreign court will not prevent Ethiopian court from adjucating cases. Unlike primary
objection of pendency under Article 244 when a pendency of suit lys within another court in
Ethiopia. Article 8 can not be invoked for establishing judicial jurisdiction. Article 20 talks about
defendant’s approach. It deals with cases having foreign element. This provision is found in local
jurisdiction chapter,this provision even if it deal with defendant residing abroad it is not a
jurisdiction matter,it does not grant Ethiopian courts a power to exercise judicial jurisdiction.
This provision grants Ethiopian courts to adjucate cases after they established judicial
jurisdiction issues. The other sourse is the practice of Ethiopian courts,adopted three different
approaches for exercising jurisdiction. The first approach is silent the second is recourse to civile
procedure code third is general prudence. The court that entertains the private international
private law dispute or litigation,must first ascertain the existence of judicial jurisdiction. If it
wants it’s judgment a formal validity,how ever this is not the case in Ethiopian courts. They do
not deal with or raise the issue of judicial jurisdiction,in majority of their decesions. They
directly go to selecting the aproprate law. They keep silent in the issue of jurisdiction. They
exercise judicial jurisdiction without conscious instability perjurisdiction. They do not
consciously and racially establish judicial jurisdiction. In such cases they establish judicial
jurisdiction by virtue of consent of the defendant. The civile procedure code oftenly resorted by
courts and parties. For Article 19 and 24 are invoked by parties. In a given the plaintiff invokes
Article 19 to establish the jurisdiction of Ethiopian courts. The defendant also invoke Article 24.
But there are not judicial jurisdiction provisions rather they are local jurisdiction. Ethiopian
courts assume judicial jurisdiction by these provisions. By assuming local jurisdiction replaces
judicial jurisdiction. Local judicial jurisdiction provisions can not adequately establish sufficient
causes. Others are out of local jurisdiction provisions. Article 18,80,4,8 sub two. Third
approach is general practice or coman practice of to other countries.

Lecture four.

Jurisdiction has always to deal with the power of a court to determine a controversy. It
presupposes a duely constituted court that has control over the parties as well as over the subject
matter. Judicial jurisdiction is defined as the power of court of particular state to pass a binding
judgment, on individual and his property. There is not rules under Ethiopian legal system that
regulate the issue or matters of judicial jurisdiction,of course there are rules,there some
provisions under federalcourt establishment,2596 which trys to deal with judicial jurisdiction.
But these provisions are not detailed enough. What compels a state to recognize foreign element
or what forces state to not recognize not to ignore foreign element. One factor is enforcement of
foreign element the other is fear of retaliation of another state and for facilitating commercial
transaction. There is no legal instriant on state not to exercise jurisdiction over conflict of law
matter. State is not obliged to see princeples of judicial jurisdiction but this does not make state
to freely determine the issue of judicial jurisdiction.

Next let us see theories of judicial jurisdiction. Coman law jurisdiction assumes jurisdiction
based on the physical presence of the defendant. In civil law countries they take domicile as
valid ground,when ever the defendant is is a domicile of a state. In both systems consent,and
fairness are considered. Power theory is or territory is a dominant one under a coman law. This
theory has it’s background in the concept of physical power of the defendant,this theory contains
some of the element of past approach. A court can exercise jurisdiction over a transient
defendant. The ground for defending judicial jurisdiction power theory is it lys on the it’s
significance for enforcement of judgment. State can enforce judgment renderd by it’s courts.
How ever this justification works only when the judgement debtor has a sourse a property when
within the territory of the forum. Upon final decision if judgment debtor or the looser party has
property within the territory of the forum state,still the forum state will demand enforcement and
recognition of judgment before foreign state court. The other theory is minimum contact theory
was developed to address the problem of power theory. It was developed courts in USA,they try
to define within the concept of due process of law. The due process concept is to establish
judicial jurisdiction,based on minimum contact theory. The due process principle can be serve by
courts of forum state,when the defendant is not physicaly present within the territory of of the
foreign state,this principle will not be affected when there is exists a minimum contact between
the forum and the defendant. When courts exercise judicial jurisdiction on none physically
present defendant they should be carefull not to violat these princeples. Fair play and substancial
justice should not be violated. How ever still this theory considered as vague in it’s
definition,and not maintaining due process of law,rather it results in more default judgment on
defendant. Because there is wider chance that the defendant will rash default judgement. When
cases are intertained under this theory, it takes into account situations, the first one is when the
litigation arises local and the second one is even if the cause of dispute is in another state,and the
result local,within the state. The other is fairness theory. This theory trys to address the issue of
judicial jurisdiction,requires state,to assume judicial jurisdiction,when ever it is convenient fair
and just for the parties. If decision is made based on fairness then there will not be problem of
it’s execution,because the world accepted fairness as coman value. This theory is characterized
by vagueness,because the idea of fairness,or justice is subjective. How ever proponents of the
power argue that the vagueness of fairness theory can be eliminated by establishing jurisdiction
based on certain situation. Like establishing relationship between the litigants and and the forum.
Or the relationship between subject matter and the forum.and third is the the substantive relation
of the case,with the forum. The litigational capacity of the parties also should be considered. Or
so called litigational capacity of the parties. The taste for establishing comparative litigation
capacity is which party has better litigational capacity to litigate before the others forum.

Domicile is base for exercising judicial power in civile law countries. Usually domicile is not
mentioned in laws,the Ethiopian legislation can be considered as an exception. Domicile contains
two elements,these physical presence and permanent intention to stay. But a difficult thing in
this concept is proving the intention of person to reside permanently. One principle of domicile is
every person has a domicile,and there is no plurality of domicile.

One of the criticism directed against domicile is the intention element for corporation. Which
place is considered as the domicile of a campany? Is it the place of registration? Or the place of
business? In the past there was an approach that considers corporation as the creation of the state
under the laws of which it registered. To day in modern time commercial transaction of
corporation goes beyond the territory of state.

What are the justifications for considering domicile as ground for exercising judicial
jurisdiction? The first one is familiarity of laws of the domicile for the defendant,the place of
domicile the place where the defendant has his social life,his place of business,the place where
habitual residing. Now days a corporation can conduct business even out side the territories of
it’s home state,because ofthis reason countries come up with relaxing the definition of domicile
for corporation. Therefor a corporation can have more than one domicile. Upon fulfillment some
craterias like permanency and independency states give domicile for corporation. The other
justification is benefit burdon rational. According this justification,state that gives privileges’ to
the defendant,or that affords protection to defendant and his properties can claim the defendant
before it’s courts. The criticism of this justification is,it disregards the convenient forum.

Lecture five. The theory of forum selection close is a prelitigation contract between the parties
that select a given forum,as not appropriate forum,for adjucating any controversy,that may
occurred in the past. Parties in their contract may insert a close that deal with the selection of the
forum,which will have jurisdiction,that determines controversies when ever such controversies
arise between the parties. This agreement can be made before or after. Even every choice of
forum is not possible,the validity of prelitigation contract,or and enforcement of foreign selection
of close is determined by state.

State may specify formal and none formal requirement. In the case of formal requirement,
theprelitigation contract giving forum selection clause should be in written form. None formal
requirement has to do with substance of the contract. there must be consent. It should be free
from defect of consent. It must also indicate specific forum.

Effect of choice of forum close is to grant jurisdiction to a selected court over a given case. This
forum may not have jurisdiction in first place but parties grant that jurisdiction by their
agreement. This principle has exception,it does not work nature of the agreement. This means
whether the agreement is made for the benefit of one party then thaoot party. the second
exception is subject matter of the dispute. If the dispute emanates from enshurance,consumer
contract,individual employment contract,then this theory may not work. If there is choice of
forum conserning the above contracts,it is not enforced immediatly,rather,it needs identification
whether the choice of forum close is made before or after the controversy,they are enforceable if
the choice of forum laws is made after the dispute.

When we talk about choice of forum law,the are two competing interests. The first one is
enforcing the agreement of the parties,the second one is the bargaining power of the parties not
balanced. When the bargaining power is in balanced,instead of enforcing the agreement of the
parties,state courts or may hold a position for protecting such parties. The justification for not
enforcing choice of forum closes made before such dispute is that the stronger party refuse to
accept unreasonable terms. Suits related immovable properties,they are within the exclusive
jurisdiction of the place of the court where the immovable is found.

Consent as ground to exercising judicial jurisdiction,can be understood in two contexts. Consent

can have aspect of agreement of the parties or or can have the aspect of submission. From the
plaintiff and defendant perspective which act constitute as acts of submission or implied
consent? For the exercise of jurisdiction by court? On the part of the plaintiff acts that constitute
submission to exercise of judicial jurisdiction are acts like ininistituting an action, he is
considered not submit exercise of jurisdiction by that court,not only for inistituting case but also
for related counter claim related and or related defense. On the side of defendant,appearance of
the defendant is before court is considered as submission of a to exercise a jurisdiction. But not
all appearances are submission. The appearance must be appearance to litigate on the merit of the
case,instead of appearance to contest the jurisdiction of the court,or appearance to raise
prelimininary objection. But in coman law legal system,they consider as sufficient ground if the
defendant is duely served,then it constitutes the submission of the defendant if he disappear it is
considered as acceptance,even if did not atake the summon but if he agreed to accept it is
considered as submitted the jurisdiction of the court.

Special and general jurisdiction. Special and general jurisdiction are is another classification of
judicial jurisdiction. The classification of courts into general and special is determined by
domestic law. Courts of special jurisdiction are those courts which can exercise jurisdiction over
cases listed under constitution,legislation,other rules of laws. General jurisdiction is a power of a
court to exercises over cases not specified under special jurisdiction. But the classification is not
same in all countries. In Switzerland what matters is domicile of a defendant, in Ethiopian draft
proclamation,does not have clear position,ast clasfication of jurisdiction into general and special.
Article nine talks about general jurisdiction,general jurisdiction is determined based on the
domicile of the defendant. Sub two of this Article says consirning disputes jurisdiction shall ly in
federal high court. Interstate matters are seen by federal high court. But there is
inconsistency,Article 10 talks about special jurisdiction even if the domicile of the defendant is
not in Ethiopia, but if the subject matter occurs in Ethiopia,Ethiopian courts shall have
jurisdiction. The other is nature of the dispute,example enshurance,related claim,these are special
jurisdiction of Ethiopian courts. So the classification of general and special jurisdiction is not
easily deligated. Domicile can be taken as basic ground for general jurisdiction,but the issue of
special jurisdiction is not addressed. Article 26 of the draft proclamation says matters which fall
under exclusive jurisdiction of a court are those cases that involve extreme difficults,for
enforcement,this may be due to the involvement of interust of third parties,Or matters which
needs accessibility of crucial evidence which are found within local area of a given forum.

Lecture 6.

Under this topic we will see federal and state jurisdiction. What is exclusive jurisdiction, what is
exclusive jurisdiction is another category of judicial jurisdiction,that may creat difficults
decesions and enforcement of law. One of the issues for difficulties in the enforcement of cases
that fall under exclusive jurisdiction of a court,can be the involvement of third party. Special
interust of parties,Or because of essential evidences,crucial evidences found under in the local
state. So a court that is found in that area must exercise exclusive jurisdiction. Under draft
international law under Article 26 the involvement of one of this interests Ethiopia courts have
exclusive jurisdiction. If dispute arise on Registration and deposition of trade marks,patent right
if they are rigestered in Ethiopia the Ethiopian courts have exclusive jurisdiction.the other is
questions relating enforcement of of foreign judgment. Again if the place of registration and
deposition is in Ethiopia Ethiopian courts have exclusive jurisdiction on the matter. State and
federal courts jurisdiction is another classification,under topic judicial jurisdiction. The division
of power between federal and state courts reflection of distribution of power between the two
government. The division of judicial power between federal and state court,does not reflect the
system of government. Even if a system is federal government,the type of court stracture may
not have devision of judicial power. The judicial system may be unitary system. So we have
unified and dual system. Canada,India and Australia have unified court stracture. In unified
judicial system there exists one line of courts,one high court,supreme court and appellate court.
The constitute state courts have high courts,and at national level there highest apliate court. The
highest court exercises original and concarant jurisdiction. In dual court system,both the federal
and state governments establish their own hierarchy of courts. Those courts have autonomy as
well as and they are independent to each other,they exercise jurisdiction only in respect to their
subject matters. But this does not mean that there is no relationship between the two level of
court. There exists relationship in exercising concarant jurisdiction. However the existence of
shared judicial power between the two level of governments does not make decision of state
courts final. In dual system there exists federal supreme court,which has the power of reviewing
the decesions of state courts over fedral matter. To which category do you categorize the
Ethiopian court system?

It is difficult to classify the Ethiopian federal court system either of into these catagories. It
neither exhibit unified nor dual court system. But we can argue the dominance of the features the
Ethiopian federal court system seems dual federal court system. Because of the fact that the
federal supreme court by virtue of Article 80 paragraph three paragraph A by virtue of this
provision the federal supreme court,it can exercise a cassation power over any court decesions
that contain error of law.

Which cases fall under federal matter? all cases involves federal matters, or federal matters
parties who are considered as representative of federal government,officials,inistitutions and of
federal government. Proclamation 2596,according Article 55 sub one,the house of people
representative shall have the power of legislation,on matters assigned on by this constitution,to
federal jurisdiction. Based on this the house of people representative inacted proclamation 2596.
This proclamation trys to enumerate the judicial power of the federal government,under Article
3. Those matters are it can be classified based on the parties,laws and places. These parties can
be explained under Article 5 of this proclamation. Places provided by the FDRE constitution like
Adis ababa and Diredawa,by proclamation 322/2000 are fall in federal jurisdiction. Article 3 sub
two laws of federal government includes all previous laws enforce,which are not inconstant with
the constitution. Article 55 sub one matters are listed on which legislative jurisdiction is
exercised. Like matters interstate commerce,invaromental laws issues or inactment of civil
law,which is necessary which is necessary for the establishment of one economic community.
Civile cases are listed under Article five of proclamation 2596. Some scolars argue that matters
which are not mentioned under this Article are matters which are not exclusively given for the
federal government,state courts can exercises concarant jurisdiction over it.

Next let us see choice of interstate jurisdiction. The rules of judicial jurisdiction,this principle
goes beyond the question of whether matter is federal or or state matter. The question certains to
whether which court among the various existing federal laws exercise jurisdiction,or which state
has jurisdiction on federal matter. In most federal countries, the issue of choice of issue of
jurisdiction,is governed by civil procedure code and conflict of law,other sub states exceptionally
choice of jurisdiction rules are regulated by the constitution. The FDRE did say nothing as far as
the rule of choice of judicial jurisdiction is consirned,so what is the way out? Whose has power
to inact rules on choice of jurisdiction? Is it the parlament? On the list provided under Article 55
paragraph two states can jurisdictionally reach their residents on cause of action that arise in
another state or a right created in another sister state,if it involves their resident. Every regional
state may claim to exercise jurisdiction in cases that involves that involves their residents,even if
the case does not arise within it’s territory. Because of problems related with the determination
of choice of jurisdiction rules by state,there is a need a uniform choice of jurisdiction. If there is
a single choice of jurisdiction rule,which is basically inacted by federal government,will help to
address problems of parallel litigation,and conflict of judgment that follows from parallel
litigation.

Can choice of jurisdiction of laws fall under Article 55 sub two the constitution? Are they
necessary to establish a single economic community? In order to make these grounds as bases for
the house of people representative,exercise of of legislative power. There must be a connection
between this choice of jurisdiction rule and and there importance for the purpose of establishing
this a single economic community,it can be argued in this way.

Lecture 7. In this discussion we will see jurisdictional related constitutional guarantee. There are
princeples provided to guarantee the exercise of jurisdiction by court. In federal constitutions
they provided guarantees for interstate jurisdiction. This constitutional guarantees may pertain to
they can be classified equal protection close,full faith and credit close.
The equal protection close is the most coman and found in most federal constitutions. this
commands each state,to provide protection,for any person under it’s jurisdiction. States must
extend The protection available under the laws and procedure to none resident and resident
litigants. The Switzerland constitution can be taken as good example. The protection must also
be a protection against the so called relitigation of the suit. If a case is litigated in court in the
court of sister state, then other states are obliged to give the due recognition to such decision.
This provide protection against multiplicity of litigation,relitigation. Under USA
constitution,equal protection close developed by the application of the laws and judicial
proceding of state in federation,to none state citizens,as well as protection against multiplicity of
litigation.

This multiplicity of litigation guarantee or the so called relitigation protection provided by the
due process is guarantee of notice and opportunity to be heared. Equal treatment of or equal
protection close incorporated under Article 37 of the constitution. Consirning multiplicity of
litigation,Article 50 guarantees which is the so called the mutual to respect close. It gives
protection against multiplicity of litigation. Hwen ever the requirement of notice and the
opportunity to defend,under our civile procedure code,not explicitly recognized under FDRE
constitution,it should be considerd as existing in countries legal system.

The other constitutional guarantee is full faith and credit. It obliges each state,to give full effect
or to laws,judgments,and judicial proceedings of other states. This principle is provided under
draft proclamation of private international law,explecitly envisages the full faith and credit close.
The full faith and credit close has to do with the issue of resjudicata, or the concept of declining
jurisdiction on the ground of prier litigation. The justification for res judicata is To protect the
interust of the defendantfrom farther litigation,or from multiplicity litigation,to avoid loss of
resourses of judiciary. it has the objective of respect and enforcement of judgment. judgment to
be enforced it should be respected and enforced there to be raise juriscata. The objective of full
faith and credit close is case prierly litigated,can be not be relitigated. Full faith and credit close
says each state within the federation each state shall give full effect and recognition and enforce
the laws,and the judgments and also shall give acknowledgement to the judicial procedures of
other sister state.
The other constitutional guarantee is imunities and privilege close. Each state is obliged to
extend the imunities and privileges available to it’s citizens,to other none residence. How ever
this principle is extended to only physical person. It is not applicable for corporation.

The last constitutional guarantee is the due process of law. This principle provides no person
shall be deprived of his life,property,liberty with out due process of law. Rights of litigants shall
not be determined or the right limited by state, in the exercise of jurisdiction,if the state does not
have connection with the litigants or or the subject matter of the case.

Full faith and credit suffers from exceptions,pertain to fraud,duress,evition by parties,principle of

jurisdiction and if it offends fundamental justice and public policy and absence of due process of
law. The draft Article of private international law,invisages full faith and credit close,however it
does not provide exception to this principle.

So proclamation 2596 under it’s Article five,under paragraph two clearly states that the federal
court can exercise jurisdiction if there is any dispute between two states. Diversity matters are
considered as federal jurisdiction. There are justifications garunting such judicial power. Even if
theoriticaly courts are supposed to be neutral the reality may not suggest the same,there may be
prejudices, state jelioucy,state attachment. Therefor federal courts are considered as the
appropriate forums. The other is by providing an impertial forum,the adjudication of state
dispute,can allow out of state litigates,or out of state interprise to engage in commercial
activities. To incourage out of state individuals or interprises to engage in commercial and other
activities. The other is to avoid hostilities between states.

Even if a court can exercise jurisdiction legally, because of for extra legal consideration, it may
be limited or suspended. These limitations are it pertains to extra legal factors. These legal
factors may be the issue of pendency,and issue of ousting of jurisdiction and forum none
convenience. To decline to exercise jurisdiction because of pendency,none
convinency/suitability and substantial step should be taken. The other is the court that intertained
the case at first should exercise jurisdiction over the court that intertained the case later.
Article 30 of draft proclamation says,case to be pending case,it should involve the same parties
and the same subject matter. Some countries may relax this criteria,even if the parties are same
the subject matter may differ. Ousting close by agreement is a court by it’s discretionary power
decline to exercise jurisdiction,they take into account none convinency principle. But this what
coman law countries follow,but in civile countries, they give full effect for the agreement.

Lecture 8

characterization is to mean categorization or classification. this is an important stage of choice

of law process to select the appropriate law among the competing laws. Before the court select
the appropriate law,it has to pass through a process called characterization. it can be classified
into three stages, this is a very important in choice of law. These are primary
classification,secondary classification and terrishary classification.

Primary classification has to do with characterization of the subject matter of the dispute.
Secondary classification has to do with characterizing the connecting factor,characterizing the
appropriate contact that indicate the appropriate law. Tertiary characterization in this we
characterize the applicable law. The scope of the application of governing law will be delimited.
So primary characterization the cause of action or the fact of case to the appropriate legal
category or the appropriate fields of branch of law,that may exist within the internal las of the
forum state. So it presumes the existence of different classification of within the forum state legal
system. Within a given countrys legal system there are different fields of law, law, of
sucsation,law of contract and property. Within these catagories of law the court in categorizing
the subject matter of the dispute,or fact of case,it has to classify those problems into the
appropriate fields of law., but the most important question here is,how would the classification of
the cause of action by each law,is it by using the law of the forum state? Or the law of foreign
state?

Because categorizing by forum law or by foreign state law,or categorizing either of this laws,for
the cause of action,would result in different consequences. One category of law exist in given
state may not exist in other legal system may not exist in other legal system. So what the forum
should do? So this is one of the controversies in categorization. For pragmatic or practical
necesity,the dominant approach is categorizing the case of action within lexfori the forum state
system of law. For the convenency of the forum court,this approach is the dominant one.

There are exceptions to characterize the cause of action,under forum system of law,the first one
is characterization of properties into movable and immovable. in order to categorize a given
property into movable and immovable,the court employs not the forum law,rather other state’s
law. The law of the state where the property is found. Or with regard to cause of actions,or facts
for which does not exist specific fields of law within the forum state, in such kind of
situations,characterization may be done using foreign system of law. Where an appropriate
category of law is absent in the foreign system. For example the issue of judicial separation and
space law does not exist in Ethiopian legal system,so when ever a controversy involving these
issue of law,comes before Ethiopian courts,Ethiopian courts should characterize facts using
foreign state of law. Again example betrothal does not exist under federal family law.

Article seven of draft proclamation regards characterization shall be made. The secondary
characterization of the connecting factor. After appropriate categorization of law has been
identified,the court to select the applicable law, it has to look for the appropriate connecting
factor. Among the different connecting factors,those connecting factors,has to be characterized
within either the forum law or the foreign law. The connecting factor can be personal law,it can
be place of transaction or the connecting factor can be place of performance,or it can be the
intention of the party. So what is the place of performance? Where was the place of contract?
what is the place of performance? By which law the place of contract made? By which law
performance of the contract determined?where is the place of sit us? Is it by forum law? Or by
foreign law? Connecting factors have different meaning in different legal systems. For example
consirning personal law domicile ,nationality and habitual residence. The meaning of properr law
differs in different legal system. So connecting factor indicates the law of performance. The
meaning that connecting factors have in different legal systems,determine the out come of the the
case. So which law we use to classify the connecting factor. Is it forum law or the foreign law.
The connecting factor should be by forum law. Because connecting factors are an integral part of
the choice of rule of the forum. There is a policy adopted in choice of law or forum. Connecting
factors are parts and parsel of of the choice of law of the forum. So the meaning that should be
given connecting factors should be in the context of policies adhered by by forum.

In the case of the third classification, the scope of application of the foreign law should be
determined. By exsent of application of the foreign law is determined by determining by the
nature of the foreign law,whether the foreign law should be interpreted as to mean the foreign
substantive law,or a foreign procedural law. it has to do with classifying the foreign law into
substantive and procedural law. What does the foreign law refers to? Does it refers to foreign
substantive law or procedural law?so if the foreign law is understood to mean if the meaning of
the foreign substanttive law and procedural law,as far as procedure is consirned always the
forums procedural law is applicable. The forum law only will only apply a foreign substantive
law. Procedural issue always governed by lexifori. If the question is the applicable law is the
procedural law or substantative,if it is procedural law it will be excluded, only substantive law
will be applicable. Still the question is which law should be used to classify foreign law as
substantive and procedural. Is it the foreign states law or the foreign state’s law?

Lecture 9 After going through three stages,of characterization,normally the presumption is it will
identify the applicable law,and finally it will settle the dispute. But that is not the case still there
is another process, the applicable has be to be defined, what the meaning given to the applicable
law? What is the applicable foreign law?after characterization what I is the meaning of foreign?
Does it is the foreign internal law? Or does it mean the all the foreign legal system including
private international law.

the foreign applicable law may interpreted to mean not only the foreign internal laws,but also the
foreign private international law. Such cases may give rise to the problem of sending back or
returning. But if the reference to the foreign law is only internal laws of the foreign state,it creats
the problem the problem of reference back or bouncing back. Sending back or returning some
thing the applicable law to the foreign law,it may amount the so called it may take the form of
remission or the form of transmission. So when the forum law selects the foreign law,as
governing law,and when such reference is interpreted to mean the foreign private international
law rules,the the foreign private international rules may be refered back to the forum law rules.
Or the foreign private international rules select the may select the forum law,the forum law as
governing law,that is the issue of renvo. This renvo problem can be characterized by this two
forms,it can be remission and transmission. remission is reference back to the forum law. But
transmission means reference forward to third state so when the forum law refers the foreign
law,the foreign law as reference the foreign law as applicable and also including private
international law, that inistitutes transcription.

to solve these problems there are developed theories. One of the solution to solve this problem is
accepting the renvo or the so called singular mattery accepting the renvo is accepting the
reference back or the so called single renva. This issue can also work in the case of transmission.
After accepting the reference back then they apply the internal law. So they solve the issue by
applying the domestic law. The reference is not refered to private international law but to the
internal law.so in this case private international law rules are excluded. This is incorporated
under Article 35 of Ethiopian draft international law .the renvoa theory may be totally in
contractual dispute.

excluded the theory is this is considered as the most logical way of dealing with renvowa
problem. rejecting renvowa internalotian., according to this approach when ever a state makes a
reference a foreign system of law,such reference must be understood to mean only a reference
internal rules of the forum state,excluding it’s private international law rule. It does not make a
reference to the all law of the foreign state.

The argument against renvowa is the search and application of the most connected law, or the
argument is ensuring legal certainty. The reason wy countries adopt the renvowa is to search
most connected law. Rejecting renvowa is for legal certainity.

The third approach is total renvowa. Or the so called the foreign law court theory. According to
this theory the forum court does not make reference only to the private international law rule of a
foreign state,but also it also adopts the renvowa approach. The forum cort will act in the issues’
of the foreign court,and it will dispense the case in the same manner foreigncourt would
adjudicate the case. This theory says the court checks the practice of the foreign court.when it
accept it does in same manner and when reject it, it apply the foreign law. The first criticism of
this theory is it results in endless cycle of reference.when foreign court adopts this theory,it will
not find a solution. The other problem is also the prove is as to the practice of the foreign court.
The prove relating to the renvowa theory of the foreign court. There will be dead law. The court
needs evidences to establish it. But the most important feature of this theory is it is dominant
commonwealth countries.

Article 37 of the draft proc. Talks about public policy,the concept of exclusion of foreign law on
public policy,ground has envisaged under this proc. it makes reference to the human right
criteria. This public policy is an exception for the normal applicability of the foreign laws. when
the foreign law is offense to deeply rooted attitudes of the foreign state,when it is contrary to
norms,values,moral,rules it’s applicability will be excluded. here the problem is not the foreign
law it self the problem is the out come of applying the foreign law. In such situation, rule of
immidate application or none application of foreign law.when foreign law is inapplicable the
forum state laws will come into picture. Article 38 of draft proc.Is an example. Foreign criminal
law,administrative law,tax law are excluded. If the case is expiration case presented in a forum
court,foreign administrative or tax laws are will not be applied. rule of immediate application
relating territorial laws the applicable law is the forum law.the application of either of this
public laws is an extention of the sovereign power of state.

Incidental questions are questions that involve conflict of law problem which is subsidiary to the
main conflict issue presented before the court.

Lecture 10.

Incedental question is a legal question,which appears with the main question,that comes before
the court. Incidental question has other names like piliminary question/subsidiary question. the
decision of the main question depends on the piliminary question. It is the piliminary question
that gives the answer for the piliminary question. The issue of incidental question should be
addressed by the court together with the main question;it should treated separately. The
applicable law for incidental question is in most cases the law applicable for the main question.

What is the status of foreign law before the forum law?,how a foreign governing law going to be
proved or a question of law. if the foreign law is considered as question of fact,then the forum
court is not expected to take judicial notice of foreign law.? The status of foreign law is whether
a foreign law should be considered as a question of fact the parties have obligation to plead the
existence of the foreign law’s content. But this not the case in domestic matters;judged should
take judicial notice in internal matters and parties expected to plead fact. In UK,France,the devil
USA foreign governing law is considered as fact. Internal matters judged should take judicial
notice but in foreign governing law judged are not expected to take judicial notice of foreign law
what is the reason? It because of extremely difficult because of the diversity of laws that exist
across the world;judges have duty to know only of knowing the internal law. In French there is
an exception the French legal system give to judges discretion to whether to take judicial notice
or not. So states can take judicial notice even though they are not duty bound. Parties have the
duty to prove the existence and the content of the foreign law. Other countries consider foreign
law as question of law, for example Italy,Germany,Netherlands, as well as Japan. they consider
foreign laws a question of law. so parties are not duty bound to prove foreign law. it the duty of
the judges to take judicial notice. so they have to contact the appropriate bodies of the foreign
legal system. Like foreign ministries of justice or foreign affairs ministers in order to ascertain
the existence and content of foreign law. in Italy foreign law is equivalent to domestic law where
as in Germany foreign law is not equivalent to domestic law. Therefor Italian judges are
expected to take judicial notice but judges in Germany are not duty bound to take judicial
notice.

What is the status of foreign law under Ethiopian legal system? Ethiopian judges are not
expected to take judicial notice,so foreign law is considered as question of fact. It is up on the
parties to plead foreign law. By virtue of proc. 196/34,the federal nagarit gazet all laws
applicable in Ethiopia shall be published by nagarit gazet’and Ethiopian are duty boung to take
judicial notice of only laws published under the nagarit gazet. The party who want to base his
claim or the party who want base his defense on foreign law has the burdon of of proving such
law. So what is that such party is expected to prove?the first thing what is expected to prove is
the fact that or the duty or the claim alleged by party emanates from foreign law question. and
the second thing expected from the party is the existence of the foreign law,whether the foreign
law is exists whether the foreign law is enforced in foreign legal system,whether the foreign law
is not amended or repealed. What kind of evidence should be admitted For proving foreign law?
Is it by witness?,is it experts?,is it documentary evidences? Or other modes of evidence is it by
testimony? Is it by oral evidence? In most countries the acceptable kind of evidence is expert
evidence. Expert witness/expert testimony is considered as acceptable.

who is qualified to prove foreign law? Is it a judges?,is it law pracsionor?,is it academician? Is it

lay man? If the interpretation is an issue,then the evidence should be collected from legal expert.
so issue is all about technique knowledge. But the existence of and contents of the foreign law
can be proved by others.this depends on the countries aproch. For example in England any one
who has a practical knolege who has prior contact with the foreign law is allowed to prove such
law. But when we come to interpretation and professional knowledge, should be proved by
expert.the Ethiopian approach is like French approach,it considers foreign law as question of
fact,but also gives courts discretion.so the court makes it’s own investigation as to existence of
the foreign law and content of foreign law or it can depend on it’s own evidence;even it can
disregard the evidences presented by parties. The other thing is if foreign law is partially or fully
not clear and it is impossible the Ethiopian courts apply the forum law. if it necessary.what will
be the consequence if the foreign law is not good? Or if the foreign law is not proved
adequately?so the way out is applying the Ethiopian law. But does it contradict the purpose of
conflict of laws;as we know one of the purpose of conflict of law is to do justice for the parties.

The next issue is about evasion and fraud as to applicable law.when parties evade the applicable
law? while the applicable law is the law of X they make Y’s law to be applied.the parties creat
false legal relationship;or they make creat false juridical act in order to invade the applicability
of the foreign law or in order to take the advantage of a foreign governing law. So parties in
order to escape stringent law requirement of their domicile;they will immigrate into an other
state and and conclude their juridical act they move back into their home state;so that is the issue
of invasion or fraud. Such kind of situation was present in draft private international law
prepared by Rain devid;there is provision prohibiting evasion or artificial relation. According to
Article 3360, of the civile code.this problem of evidence has to do with ascertaining/proving the
existence of the intention of the parties. this Article conten private international law provision,it
states that when ever there exists a legal relation and when ever such legal relationship crated for
the purpose of excluding the appropriate governing law for the purpose of excluding the
applicable law,such legal relationship will be considered as none and void. What is the reason
for such laws? Wy do we let people just to manipulate different legal system? To take advantage
of the benafits available in different legal system.

Wy state refuse to recognize such kind of relationship? One of the reason is the social value of
home state must be taken into account. So the interust of the parties should not be maintened at
the expense of the values of the forum state;here there is social value;social value should be
observed by all residents all people. So it will endar the social value of home state. There is a
problem as to this evasion of law;the evasion of the applicable law has the problem of proving
the intention of the party will be difficult. Draft international law proclamation talks about fraud
and evasion .the next is choice of law and inter state relation in Ethiopia. Or choice of law in
federal system. When we talk about choice of law in federal system we should talk about
constitutional constraints or limitations. Or mandatory provisions applicable for choice of law
issues. So all those princeples we discussed under chapter two or constitutional princeples on
jurisdiction are they are applicable for also for this issues. for example full faith and credit close
they are also they can be used in choice of law.others like due process of law equal protection
close privilege and immunity closes;they also applicable for this issue.

Lecture 11. In last class we started about interstate choice of law. As we discussed there are
some constitutional limitations or that states while exercising law making power,in choice of
law and exercising jurisdiction;in line with constitutional constraints. These constitutional
constraints are full faith and credit close,due process close,equal protection close,privilege and
immunity close. In USA system states have power to inact choice law rules. But states while
exercising the power of choice of law rules and apply it for interstate conflict situation; they have
to take in acount the above constitutional constraints. When states exercise the power of full faith
and credit close decisions if it contradict the constitution it will not have applicability. What
obligation do states have under full faith and credit close? This principle commands each state to
give full effect,to the laws and judgements of other sister state.so the right created under laws of
sister state;must be given effect.

Before American conflict law revolution American courts adopted a method so called the
vested right. This doctrine says if rights in given state are duely established then it will be
recognized. But this doctrine vested right ignored and another method so called content based
choice of law rule adopted.acording to this theory the governing law is selected by taking into
account the existence of substantial contact or a minimum contact. There must be substantial
contact between the state whose law is applicable and subject matter of the case. In insurance
case where insurance contract is made say in state X while the ensured is domiciled in other
state;in Y when distpute comes before state Y before the revolution of conflict of law in USA
vested right was adopted;so according to this theory in order to select the applicable law to be
in line with the applicable law must be the law of the state where the right is created.so here the
agreement is made by state X or the place where the insurance is made. But after the
abandonment of vested right theory;content based approach adopted. What is needed in this
theory is only minimum contact/substantial contact. So in this context minimum contact is state
Y the ensured is domicile in state Y. so state Y has interust in the dispute and in application of
it’s law. When states exercise the application of choice of law;the federal government controls
the consistency of these choice of law rules with the constitutional constraints. So this theory trys
to balance the interust of conflicting states interust. Due process in choice of law rule when state
apply her law or other states law as governing law;the selected mus have substantial contact
with dispute. So what is emphasized here is fairness to the parties and fairness to the outcome. If
minimum contact exist between the applicable law and the dispute then it can be said it fair. But
if there is no substantial contact between the applicable law and the dispute then it will be
unfair,arbitrary and unfair outcomes to the parties. If the case has strong relationship with both
states or both states have interust on the matter the court in which in the first place the case filed
can intertain the issue. The principle of privilege and immunity close says each state should
extend privilages and immunities available to none citizens,but this does not work foreigners . it
is only for domestic citizens and it does not apply for corporation;it only natural persons like
Kedir. The ffundamental rights available like the right to private employment,property
ownership,participating in trade should be available for all citizens in the devil USA. But there is
ae some rights available only for citizens of a given state by virtue of being residence of that
state. When there is justifiable ground,when discrimination is justifiable or positive
discrimination,reasonable it is allowed. But if it is arbitrary that is not acceptavle,for example if
the discrimination is based on none residence,racial discrimination that is immposible. Equal
protection close says state should apply her law for all citizens and none citizens. So this is all
consirningUS experience. Choice of law in the federal system of Ethiopia in Ethiopia which law
is the governing law in interstate conflict?Ethiopia or in diversity cases. If we argue that the
federal law is the governing law we are measuring rights created under state law,in line of the
federal law. So how it can be? So in diversity cases or in a involving residences of more than two
states,since right is created under regional law,it has to be measured or assessed in light of the
state that creat the right. Here let us raise one question,if dispute is between state A and STATE
b WHICH LAW IS APPLYCABLE? THAT IS DETERMINED BY CHOICE OF LAW RULE
IF STATE HAS CHOICE OF LAW RULE THAT WILL BE Applicable OR THE FEDERAL
GOVERNMENT WILL APPLY IT’S OWN CHOICE OF LAW RULE. IF THE REGIONAL
LAW Is IF THE FEDERAL COURT IS THE FORUM AND IF SUCH REGIONAL LAW IS
CONTRARY TO federal law, CONTRARY TO PUBLIC MORALITY THEN ACORDING TO
PROCLAMATION NO.2596 Article six the selected regional law must be excluded. When the
forum is state forum and that power is through deligation,it has to select it’s own choice of
law,when the selected choice of law is repugnant or against public policy then there is
constitutional guarantee full faith and credit close that may prohibits such court nnot to apply the
selected govern the federal law and also when there is contradict international treaties and federal
law the law will not be applicable. There may be difference between two or more states
policies or laws but this does not prevent a given state not give recognition for sister state. There
are special choice of law rules read it from draft proc. Private international law.

Lecture 12.

Recognition and enforcement of foreign judgment or arbitral award. Primarily we use the civil
procedure code. Before we talk about recognition and arbitral award; first we have to have under
stand the meaning of foreign judgement. So what is foreign judgement? What is foreign
judgement under Ethiopian law? Article 3 of civile procedure code defined as judgement of
foreign court. So irrespective of where the court is found, the court will determine foreign
judgement. So consistence with international practice of judgement rendered by international
organization or judgement rendered by foreign court,within the forum court such judgement is
considered as foreign judgement. There wore councilor courts in Ethiopian during emperor
Hailesillassie. According to 1922 treaty there wore councilor court to adjucate cases involving
foreign citizens. What is the difference between recognition and execution? When we talk about
recognition we are talking about the judgement having raisjuricata status and the judgement
having a conclusiveness the right and the duties of the parties. Subsequent or fresh proceeding
may not filed on the same matter. It may have status of raisjuricata. Recognition produce the
effect of valid judgement where as the same is not true for execution;when we talk about
enforcement of foreign judgement or arbitrial award,having the so called granting compulsory
relief. When judgement crediter demanding execution of foreign judgement,he is demanding
granting compulsory relief upon the judgement rendered in foreign court. The judgement creditor
may apply only for recognition leaving the issue of execution . so recognition can be demanded
by Its self without raising the issue of enforcement. That is the case for judgement of declaratory
nature. When the foreign judgment is a declaratory nature then recognition is the only thing that
could be demanded on the judgement. What are declaratory judgements? Those judgements
upon which recognition is demanded are declaratory foreign judgement or foreign arbitrial
award . or in other word declaratory judgement is that declares the right and duties of with out at
the same time ordering for relief. So the judgement creditor demands recognition of foreign
judgement; when he is settle with potential law suit and when he wants to to use the foreign
judgement or foreign judgement as defense. Recognition by it’s nature is of defensive or it is
invoked by way of defense. Either by way of counter claim, setoff or by way of any other. It just
to prevent any future potential law suit.

Declaratory judgement. Judgements which require precondition are declaratory judgements. But
execution goes farther one step than recognition it demands relief; it is invoked by way of
defense by way of counter claim.

The relationship between recognition and enforcement is,recognition is prerequisite for

enforcement. Or executing of foreign judgment implies recognition of foreign judgement.
Recognition can demanded with out execution,but the riverse is nottrue;execution can be not be
demanded without recognition;because recognition is prerequisite for execution.

Let us talk about conditions for recognition and enforcement of foreign judgement. One of the
preconditions for recognition and enforcement of foreign judgement is public policy,it has to
ensure that the foreign judgement is consistency with values and interust. It also has implication
on the sovernity of country. It jeopardize the independency and sovernity of state,because that
state indirectly she is being demanded to enforce in the issues of a foreign state. Because of
recognition and enforcement has implication on the sovereignty of state,states attach different
conditions before they recognize oar enforce foreign judgement. This works in global word even
if there is an argument the world is small village international trade should be conducted with
out barriers still there is states return their sovereign power. Here when we talk borendation ut
recognition an enforcement we are talking two states,the recognition forum and the rendition
forum. When we see the Ethiopian law also provides in line with justifications of exercising
sovereign power and priority given to interests while state is demanded recognize and enforce
foreign judgement. The Ethiopian law places condition for execution of foreign judgement
under Article 458 of CPC. This provision does not talk about recognition. Even this provision is
found under the caption execution of foreign judgement. Even the title does not talk about
recognition. So what is the way out? Should Ethiopian courts see general jurisprudence? Or
practice of other states? The practice of Ethiopian courts on the issue of recognition of foreign
judgement, resorts to two approach. First they try to use the execution conditions,under Article
458 of CPC. As execution implys recognition we can use conditions of execution for recognition.
The second approach is they resort to foreign practice. So in certain judgement,judgement
rendered by Ethiopian courts a judgement is considered as none recognizable and if it exhibit
one of those criterias. For example if the judgement is rendered by an incompetent
court,cjudgement rendered by conspiracy judgement not final and lack of due process of law;a
judgement rendered or providing with out opportunity to judgement debtor to appear and defend.
these are some of the features foreign judgement may not be recognized.

What is the advantage of recognition and execution of foreign judgement? One is reciprocity, it
facilitate international harmony. It reflects courtesy or a friendly relation of the recognizing state
to wards rendition state. The other is it facilitate international trade. The recognizing state
benafits from recognition and execution of foreign judgement;example judicial economy it helps
to save time and resourses relating with relitigating the case. It also discourages none
cooperating judgement debtor who engages moving from state to state or transferring assets
from state to another state. The last but not the least advantage is to attract foreign direct
investment. Investers first they see whether a states recognize the judgement of other states and
whether her judgment is recognizable before foreign courts. What is the effect of recognition?
Article 460 sub 3 of CPC talks about effect of recognition. Or we can infer from this provision
the effect of recognition means,recognized judgement if judgement is recognized under
Ethiopian law,it will be considered as if the judgement is rendered by an Ethiopian court. So it
may have the status of raisjuricata. So Article 5 of CPC apply. As she said there is no provision
talks about recognition;Article 460 paragraph 3 it talks about execution issue and conditions for
execution for execution applys for recognition. Regarding to execution of foreign judgement or
arbitral award there two approaches internationally recognized. The first approach talks about
the execution of foreign judgement by looking into the condition; or enforcing after checking the
fulfillment of conditions. Condition of execution, and declaratory judgment.This approach
applys for civil law countries. The second approach judgement will be excuted after another
judgement is rendered. So the second approach is known as judgement upon judgement. There
will be relitigation of foreign judgement. Relitigation may not constitute full litigation,it may
held hearing it may request the parties submit pleadings. When does this it applys it’s own law.
This approach applys for coman law countries. Specially European and latin American. Under
which approach the Ethiopian case fall? The cumulative reading of Article 459 specially
paragraph 2 and 460 sub 1 of CPC indicates that the Ethiopian approach is the second one. The
Ethiopian courts see not only the conditions under Article 458 of CPC but also they will see
more detail things. So it is in exceptional situation the court decide,for some special reason the
court will decide to hear the parties or will fix a given date;even if the hearing may not be the
full one or the relitigation is not the full one. The special issue should be recorded. The rule is
when there is application for execution;Ethiopia courts excute foreign judgement based on the
application without introducing new change.

Procedure for application of recognition and enforcement.

Under Article 456 sub 2 of CPC a foreign judgement may not be excuted unless application is
made. So in order to foreign judgment to be enforced application should be filed. The application
must be filed before appropriate court. But one point that we forgot while we talking about
conditions of recognition and execution, we had to raise one point; under Article 456 sub 1, says
unless other wise expressly provided by international conventions foreign judgement may not be
excuted in Ethiopia except in accordance with the provision of this chapter. So this Article is
talking a about the condition for execution/enforcement of judgement. So those conditions go to
international conventions;in the absence of conventions Article 458 apply. So if there is any
international convention to which Ethiopia is party,Article 458 will be displaces and Article 456
sub 1 apply.

Is there any convention or treaty to which Ethiopia is party in forcing foreign judgment
execution and enforcement? Still now Ethiopia made treaty with Djibouti for recognition and
enforcement of judgement. So in order to excute or recognize judgements rendered by Djibouti
courts the applicable Article is not 458 but Article 456 sub 1. So by virtue of Article 456
paragraph 3 an application under under sub Article 2 shall be made to the devision of high
court,on sir cute in Tklay gizat where execution is taken. Article 456 sub 2 has been repealed by
Article 11 of proc. 2596 .so the appropriate court will be the federal high court;it should be
inistituted before federal high court. The application shall also take special form it must be in
written form as clearly stated under Article 457,it must also accompanied by certain document
like a certified copy of the foreign judgement under a certificate signed by the president or the
registerar of foreign court to the effect that the judgement is final.
How foreign court judgement is certified? The practice of Ethiopian courts with to certification
or authentication of foreign judgement,indicates that Ethiopian courts require authentication of
foreign court judgment not by the state where the foreign court is found but by the Ethiopian
consular office which is found the rendition court.

What about the procedure? The procedure is found under Article 459;the procedure that the court
follows while recognizing or enforcing foreign judgement. It reads,the court to which the
application is made shall enable the party against whom the judgement is to be excuted to present
his observations within such time and as it shall fix. So the court to which an application is made
it has to notify the judgement debtor whether he has observations upon which the judgement
will not be enforced or will not be recognized. So the first procedure is the court should serve
summon for judgement debtor then the the judgement debtor will get chance to appear and to be
heared. Then the judgment debtor can raise objections the judgement should not be enforced.
The same provision talks the court shall decide where pleadings are submitted. So first he must
be served then the court decide whether pleadings can be submitted by the parties. In the case of
doubt the court may suspend it’s decision until all doubts are clearified;the same also under 460
paragraph 1. 460 paragraph 1 reads the decision shall be made on the bases of the application
unless the court for some special reason decide between the parties. So this is another procedure
the court must follow. It can be considered as exception.

Lecture 13.

In last class we started discussion on conditions for recognition and execution;we continue from
that.

An application for enforcement of judgement should be fulfilled. there are five conditions listed
under Article 458. The first condition is reciprocity, reciprocity as condition it should be
fulfilled. so that the judgmement can be recognized or excuted.Ethiopian courts or judgement
renderd by Ethiopian courts will be enforced by judgement rendering state,qualifys
normally;reciprocity is interpreted as a judgement renderd by Ethiopian courts also the same
time enforced by judgement rendering state. Resprocity as principle for enforcement of foreign
judgement has a relitariat effect. Or considered as a retaliation against state that renderd the
judgment when rendering state refuse to enforce the judgements of recognizing state. This
accepting and refusing policy has the tendency to victimize innocent individuals. recent trend
shows that this condition or the principle of resprocity is being relaxed or totally countries
reject this conditions. For example many countries of the Newyork convention on recognition of
foreign arbitrial awards they were trying to relax the condition of resprocity .so the principle of
resprocity is relaxed. However,this is not the case as this condition stands in the to day
Ethiopian laws.because Ethiopia is not yet become party to this convention. This condition has
not been revised under it’s CPC. so the condition of resprocity continue to produce effect. this is
what provided under sub 1 of 458. However the court practice or interpretation of this principle
shows other trend or amounts wrong interpretation. it also shows inconsistence interpretation of
this provision. The Ethiopian courts in the sense that it means the existence of treaty of judicial
asistance.or they equate the principle of resprocity means treaty of judicial assistance between
the rendering court and Ethiopia. so in order to resprocity to be established the judgment creditor
has to produce a treaty or has to support her or his application for execution of foreign
judgment,with a treaty. but it does not seem the intention of the legislatur under this paragraph.
Conditions under Article 458 are in the absence of a treaty. Normally countries use resprocity as
sulfur measure. So the objective of resprocity is ensuring the execution and recognition of
judgement of state . so in Ethiopian case resprocity should not considered as treaty of judicial
assistance. It is up to the judgement debtor to prove or disprove the existence of resprocity;by
producing evidence after evidence is produced by judgement debtor it can establish either the
existence ore none existence of resprocity. So the presumption is reciprocity unless the contrary
is proved. The second condition is judgement rendered by dually established and constitute
court. so what is duly established and which law is used establish the duely establishment. Is it
the rendering judgement court?,or the recognizing state? It is the rendition court because a court
established in one state may not exist or unknown in other state. So as far as duely establishment
of the ccourt rendering the foreign judgement is concerned the taste should be the law of the
rendition. A court exist in other country may not exist in Ethiopia for example admiralty courts,it
deals with maritime officials. the due constitution of the court is the jurisdiction of foreign
court.it is about ascertaining the validity of court. There are various of form to establish the
validity of jurisdiction of forum court. angloAmerican courts use the rendition court.
Continental law countries use the law of recognizing forum. Some countries like Venezuela use
international meaning of jurisdiction.
Which of them are the best one? All of them have defects. if we use the rendition forum it may
contradict with recognition forum. If we use the recognition law forum it may not acceptable or
exorbitant. when we come to international meaning of jurisdiction/still now there is no developed
international principle on jurisdiction. The Ethiopian courts in principle they should use the law
of foreign state;but exceptionally when they exercise of jurisdiction by forum laws of the
foreign state violate the exclusive jurisdiction of rule of the forum state Ethiopian courts reject
or should consider the exercise of jurisdiction by foreign court invalid. For example if the
foreign court exercises jurisdiction on immovable property found in Ethiopia or patent right or
any matter that fall sunder exclusive jurisdiction of Ethiopian courts. So either of the 3 aproach
by themselves or with out any reservation qualification;it is better not to adopt it.so the Ethiopian
courts do not adopt the jurisdiction of foreign court with out any reservation or condition or
exception the law of the foreign state, on jurisdiction. Countries are recommended on to
interprate public order as a ground of rejecting the enforcement of foreign judgement by giving
it an international meaning. in stead of the meaning they have in domestic law. So international
meaning should be given to interpretation of public order and morality.

Next let us see recognition,enforcement of foreign arbitral awards. even if the execution aspect
of foreign arbitral award is what has been delt; by 461 of CPC;by meaning that we give for
enforcement and to implicate recognition also:we attached them to execution of foreign arbitral
award ;by same reasoning. Ethiopia is not party to the 1958 Newyork convention on recognition
and enforcement of arbitraal awards. so even if Ethiopia is not party to the convention it has
incorporated a single provision under CPC that deal with the issue of recognition of arbitral
award. So Article 461 talks about enforcement of arbitral award.

So first we hav to clarify arbitral award. What is arbitral award? When arbitral award is
considered as foreign arbitral award?the meaning of arbitral award is not provided under Article
3 of CPC just like recognition of foreign judgement and execution. The place where the award is
rendered,if the substantive and procedural law of foreign law is used,nationality some times
arbitrators. These conditions make arbitral award. The Newyork convention defined arbitral
award as to mean award renderd by the forum state or within state but rendered by foreign
arbitrators,using foreign procedural and substantive law. Making distnigshin between domestic
award and foreign awardis important for judgement creditor and judgement debtor. Let us see
Article 461 paragraph 2 of CPC. This provision trys to make reference to those provisions on
execution of foreign judgement. It reads the provisions of the preceding Articles shall apply by
analogy to enforcement of arbitral award. so those provisions from 456 up to 460 should make
use when ever they are considered as appropriate for foreign arbitration issue. So if there is any
treaty/convention to which Ethiopia is party,those convention will be applied,the other is form of
application Article 457 are also applied. When we come to the court to which the application is
filed the federal high court. Article 11 paragraph 3 of proc. 25/96 come to picture. But this
provision says only foreign judgement. Does the issue of enforcement of foreign
awards.provision deliberately exclude? also the other problem is under the same Article
paragraph 8 because it talks about private international law. So the question is what is the reason
to make distinguishing between private international law and foreign judgment? Does not the
term private international law includes foreign judgement? So it is difficult to get the logic
behind for such distinguishing. Similarly Article 459 of CPC talks about the procedures for the
application and enforcement of foreign judgement;it is also used for foreign arbitral award.
Paragraph 2 of Article 460 makes connection enforcement of foreign judgement and enforcement
of foreign arbitral awards.

Lecture 14.

Conditions for foreign award we are going to refer those conditions prescribed under Article 461
sub,1 of CPC .there are around six conditions for enforcement of arbitral award.they are similar
for conditions prescribed for recognition and excution of foreign judgement. Take the condition
of reciprocity the condition of valid arbitration agreement. Under the condition of resprocity,it
has to be fulfilled,or what is to be checked by recognition court is that whether the state in which
the foreign award is given enforces awards given in Ethiopian territory.as we said in last
class,wrong interpretation of reciprocity is at it stake. So the issue of reciprocity which are
provided under Article 458 sub 1 of CPC for recognition and execution also apply for this issue.
The other issue is ascertaining existence of a valid arbitration agreement. Sub B of Article 461
paragraph 2 of CPC the award been made following a regular arbitration agreement or other
legal act in the country where it was made.in Ethiopian law arbitration agreement refers to;an
arbitration clause or an arbitral submission. It can take either of these forms. But the civil code
does not make distinctions between arbitration closes and arbitral submission. When we say
arbitration agreement there may be submission or there may be close;before dispute arises then
they agree in the contract that any thing relates to the agreed contract will be submitted or settled
using arbitration as dispute settlement mechanism.but arbitration submission comes into picture
after dispute has arises. The arbitration should be a regular agreement.

What is regular arbitration agreement? It has to do with following the legal requirements. The
arbitration agreement should be made following the legal requirement in the country where it
was rendered. So the term regular indicates whether the arbitration agreement has been made
following the mandatory legal requirement of the rendition state.

What does mean other legal act in the country where it was made? It is the place where an
arbitration agreement is deemed to has been made in the place where arbitration was held or sit
of the arbitration is considered as the place where the arbitration is made. So the place of
arbitration determines the validity of or regularity of arbitration agreement. So when valid
arbitration agreement is made by the above two ways,it has to fulfill all mandatory requirements
of the place where the arbitration agreement was made. This has to deal with all mandatory
requirements of contract because an arbitration agreement is a contract;so it subject to all
principle of contract. So the contract laws of the place where the arbitration is made will govern
or will regulate the validity of or regularity of the arbitration agreement. The Newyork
convention talk about the capacity of the parties;parties to the arbitration agreement whether is
made by way of submission or close,parties should be capable.

The third requirement is equal treatment of parties. The parties have had equal rights in
appointing arbitrators and had been summoned and their participation in proceedings of the
arbitration. Due process of law should be fulfilled.

The fourth requirement has to do with regular constitution of the arbitration tribunal.

What does this mean? In Ethiopia an arbitration tribunal shows a sole arbitrator or a panel of
arbitrator. So the jurisdiction of or the competency of arbitration tribunal should be validly or
regularly established in the place where the arbitration is made. What matters here for regular
constitution of arbitration tribunal is the mandatory rules of the place where the arbitration close
is made. So for example in Ethiopia an odd number of arbitrators is mandatory. An even number
of arbitrators is invalid. A tribunal that consists even number of is considerd as invalid. If the
parties to an arbitration proceding select a foreign procedural law for the arbitration process then
the constitution of arbitration tribunal must be in line with what has been prescribed or
considered as an appropriate constitution by the law of foreign state.

The fifth requirement is arbitability of the matter and public order. arbitability refers to the
subject in which the dispute that submitted before the arbitration tribunal should be some thing
that can be settled by arbitration tribunal. It raises questions like is the subject matter of the
dispute can be settled by arbitration? What is considered under Ethiopian law not a subject of
arbitration settlement? For example disputes that arises from an administrative contract can not
be subjected to an arbitration settlement.

Which law should be used in order to chek the arbitability of a dispute or the subject matter upon
which foreign award has been rendered. Is it the law of the forum or the law of foreign law. Sub
Article E says the award does not relate to matters which unless the provision of Ethiopian laws
could not be submitted to arbitration or not contrary to public order or morality. So upon which
an arbitration award has been rendered arbitrable or not in foreign state this is not up to
Ethiopian judges. Whether the matter is arbitral or not it has to be examined in light of the
forum law. This accepted practice in international arbitration.

What do you think/what is the justification? What is the logic behind arbitability matters are seen
in the light of their own law? From very beginning if the matter was not arbitable the foreign
arbitration tribunal would not render award. So the arbitability of the subject matter of a dispute
in light of foreign has to be checked by the foreign court or by foreign arbitration award. So it is
up to the foreign court to check it. The forum court only check the arbitability of the matter in
light of their own law. So take note difference of standard of Article 461 sub B and E of CPC.
What we have under sub B is regarding the validity of an arbitration agreement it can be checked
in light of a foreign standard or the place where the award has been rendered. But not for sub E.
the subject matter of a foreign award should be consistence with the public policy and morality
of the state. It should not contradict conduct,custom of the society. Even if the subjectivity of
morality and public policy different from countries to countries can agree on some international
public policy;like the issue of corruption,partiality of the arbitrators,absence of due process of
law,absence of equality of the parties these may be grounds that may amounts to foreign arbtral
award contrary to international public policy. So there is consense among countries on this issue.

The last requirement is finality and enforceability. Of the arbtral award. Paragraph 8 says the
award of such nature has to be enforceable on the conditions set down by Ethiopian laws. So it
should be enforceable under Ethiopian law;but the issue of finality should also be another
criteria,because by virtue of Article 461 sub 2 of CPC ew make reference to another relevant
provisions that are applicable for enforcement of foreign judgment. So one of this provision can
be Article 457 of CPC. So the issue of finality under Article 457 sub B and and we make
reference to Article 461 paragraph for enforcement of foreign judgement.

When is a foreign arbitral judgment is considered as final. Ethiopian courts should check
whether the foreign award has exhausted all possibilities that make judgment set aside or being
revoked. According Ethiopian law as stated under Article 356 sub B of CPC arbitrators should
act togetherly. If they disagree to reach on certain judgment one of the parties to an arbitration
agreement or or one of the party to arbitration proceding can invoke Article 356 sub B of CPC to
set aside the decision of the tribunal. The court should check apealability of the decision in light
of the foreign law;because Article 357 says the issue of finality and enforcement should be
checked in light of foreign law. But Article 461 says enforcement should be checked in light of
the Ethiopian law.the award creditor has to prove the awardy is enforceable;because the remedy
can be enforced using all the legal sanctions available in enforcing state.

So these are all the conditions provided under Article 461 paragraph of CPC.

Articles to be read,Article 3,5,6,8,11 of proc. 25/96. Article 456 up to 461; Article 356 357;
Article 3,5,8,19,20 of CPC.Article 647 of commercial code. Article 208;237 of maritime code.
Article 183 up to 191 of civil code. Article 37,Article 50, of FDRE constitution.

Instructor her exlency Asnekech serious.Prepared by Kedir.