Introduction
In a conflict of law case, a court is expected to address
three basic issues:
- Determining
the presence judicial jurisdiction
- Determining
the applicable law to solve the dispute
- Determining
whether a foreign judgment should be given recognition by domestic courts
Before these three issues are addressed, the court is
primarily tasked with determining whether the case is really a conflict of law
case or not?
So, how does a case become a conflict of law case? A short
to the question is that it becomes a conflict of law case, it contains a
foreign element. What then is a foreign element?
“When a case is said to contain a foreign element, the
reference(s) may be of three natures __ personal, local, or material __ in
that, respectively illustrated, if one of the parties of the case is a
foreigner (including one from another federating unit) or the transaction of
any nature took place, totally or partially, abroad (outside the forum state)
or, finally, the object of the dispute (property, esp. immovable property) is
situated in another state (including a member of federation); the case is said
to contain a foreign element.” (Araya Kebede and Sultan Kasim, Conflict of laws
teaching material, sponsored by Justice and Legal System Research Institute)
The draft conflict of rules also defines foreign element in
the following way.
Art.4. Foreign Element
Foreign element refers to:
- A
personal nature and may pertain to nationality, domicile or residence of
the interested parties; or
- A
local nature and may pertain to the place where facts occur or contracts
are made from which the juridical situation arises; or
- A
material nature and may pertain to the place where the property to which
the juridical situation applies is situated.
According to article 11 sub article 2 (a) of Federal Courts
Proclamation No. 25/1996, when a case is related to private international law,
the Federal High Court will have first instance jurisdiction to solve the
dispute. This article is not a conflict of law rule regarding judicial
jurisdiction in conflict of law cases. It simply gives exclusive material
jurisdiction to the Federal High Court, to address the above three questions of
conflict of law disputes. What follows is a brief summary of the way this
article is understood by lower courts and the cassation bench.
Conflict of laws in labour cases
Determining the governing law by the agreement of the parties
Applicant: Foundation Africa
Respondent: Ato Alemu Tadesse
Cassation File Number: 50923
Date: 19-9-2003 (E.C.)
An employment contract between the employee and employer
made in Ethiopia, for a work to be performed in Ethiopia, stipulating a foreign
law to govern any dispute arising between them is invalid. The presence of such
contract does not oust the ordinary material jurisdiction of first instance
court in labour disputes.
In a similar case, [C.A.S. Consulting engineers salezgiter
GMBH vs. Ato Kassahun Teweledeberhan Cassation File Number 54121 Date 1-3-2003
(E.C.)] where the parties indicated German Law to be the applicable law to
solve their disputes, it was held that such contractual provision is not valid.
The case by its nature is not a case “regarding private international law” as
provided in article 11 sub article 2 (a) of Federal Courts Proclamation No.
25/1996. As a result, it is the Federal First Instance Court not the Federal
High Court who has jurisdiction over such matter.
Employment contract made in a foreign country
Applicant: Ato Bezabeh Eshetu
Respondent: Salini construction
Cassation File Number: 60685
Date: 21-6-2003 (E.C.)
When the employment contract is made in a foreign country,
it is a case regarding private international law. Hence, the Federal High Court
will have first instance jurisdiction as per article 11 sub article 2 (a) of
Federal Courts Proclamation No. 25/1996. But, it should be noted that, this
does not imply Ethiopian courts will assume judicial jurisdiction merely
because the contract was made in a foreign country. The fact that a certain
case is a ‘case regarding private international law’ only confers a power on
the Federal High Court to determine whether Ethiopian courts have judicial
jurisdiction and if yes to determine the applicable law. In short, article
11 sub article 2 (a) of Federal Courts Proclamation No. 25/1996 simply gives
material jurisdiction exclusively to the Federal High Court.
Conflict of laws in civil cases
Extra-contractual liability
Applicant: Ethiopian Electric Light Corporation
Respondent: Dragados Construction
Cassation File Number: 42928
Date: 12-5-2002 (E.C.)
This case relates an action by applicant for compensation
for damage caused by respondent while doing business in Ethiopia. Respondent
argued that it a foreign company registered according to the law of Greece and
domiciled in Athens. It also stated that it is not registered in Ethiopia.
Based on these facts, respondent challenged the jurisdiction of the Federal
First Instance Court, because the conflict of law rules apply to determine
courts having jurisdiction and the applicable law. The Federal Instance Court
accepted this argument and ruled that it does not have jurisdiction over the
case. On appeal, the ruling of the lower court was affirmed by Federal High
Court on the ground that the mater falls within its first instance
jurisdiction.
The cassation bench reversed both decisions of the lower
courts. The bench in its reasoning stated that damage was caused in Ethiopia
while respondent was doing business in Ethiopia. The case was brought to the
court where the damage caused. Therefore, the Federal First Court should
exercise jurisdiction according to article 27(1) of the Civil Procedure Law.
Contract made in Ethiopia with a foreigner
Applicant: Global Hotel Private Limited Co.
Respondent: Mr. Nicola As Papachar Zis
Cassation File Number: 28883
Date: 26-3-2000 (E.C.)
The fact that one of the parties in litigation is a
foreigner does not automatically make the case ‘a case regarding private
international law.’ The defendant should necessarily challenge the jurisdiction
of the court on the ground that Ethiopian law is inconsistent with the law of
his nationality or domicile. If the foreign party does not invoke lack of
jurisdiction of Ethiopian courts, the case is not a private international law
case.
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