DIREDAWA UNIVERSITY

COLLEGE OF LAW

INDIVIDUAL ASSIGNMENTS OF CONFLICT

OF LAW

NAME: ID.NO
MESUD GEMECHU........... .............. 1203164

SUBMITTED TO:
SUBMISSION DATE:
Table of Contents

Page

Chapter one : Status of conflict law in Ethiopia

1. Introduction ……………………………......................... ......................................

1.2 Subject matter of conflict of law in Ethiopia …………………………………………...

1.3 Legal and institutional framework designed by Ethiopia in relation to conflict of

law...........................................................

1.4 Historical antecedents of conflict of law in Ethiopia..............…………………

1.5 Rational behind to adopt conflict of law ……………………………………………………………..

1.6 Compare Proclamation No.25/1996 and proclamation

No.1234/21……………………………………………………….....................................................

Conclusion.................………………………………………………………

References...........................................................................
 CHAPTER ONE

Status of conflict law in Ethiopia

1.Introduction :

Before start discussions of status of conflict law in Ethiopia its better to understand What is the
meaning of conflict of law or private international law . Hence there is no single definition over
it .different writers concerned with different definitions that are given by different legal scholars.
Some of which are provided here under. In the words of Cheshire: “Private International Law then ,
is that part of law which comes in to play when the issue before the court affect some facts, events
or transaction that is so closely connected with a foreign system of law as to necessitate recourse to
that system1.In such circumstance application of a foreign law may be necessary to prevent in justice
.

In the words of Johnson: “Private International Law is the body of rules applied by a country
justifying and controlling the occasional application by the courts of foreign law instead of its own”.2

According to westlake conflict of laws is also the branch of law that aids the court to determined
whether it should give recognition and enforce the judgment and awards given by tribunal of
another state Finally each state has its own rules of conflict of laws 3

As Ethiopia is a country with no rules of Private International Law, courts may not know or find to
know what special procedures to follow in deciding matters in which foreign elements are involved.
As it is known that, up to now, Ethiopia has neither concluded a treaty nor entered in to a
convention on the basis of which its courts would recognize and enforce foreign judgments. The
provisions which guide its courts are those incorporated in the Civil Procedure Code (art 456-461)
under the section of the “Execution of Foreign Judgments and ArbitralAwards” Nevertheless, apart
from the fact, these provisions are difficult to understand, that they are very broadly formulated and
they cannot accommodate as many legal situations as either countries do 4.Generaly Ethiopia have
not codified conflict of law but if the problem arises with regard to conflict of law the court uses
the provisions of civil procedure code and Proclamation 25/1996 which is repealed by Proclamation
1234/2021 . But this is not efficient to solve the problem of conflict of law as the provisions is

1
Cheshire, Private International Law (8th . ed)p.5
2
Johnson, Conflict of Laws, ( 2nd . ed ) 1962, p. 1
3
West lake, Private International Law, (7th ed. ) 1925, p. 5
4
LL.B THESIS EXECUTION OF FOREIGN JUDGMENTS IN
PRIVATE INTERNATIOANL LAW: WITH SPECIAL REFERENCE TO ETHIOPIA BY: SAMSON WONDWOSSEN p-2
insufficient to cover all problems relating to conflict of law . After we say something from conflict of
law and its status in Ethiopia in this chapter we will discuss the subject matter of conflict of
law ,Historical development of conflict of law in Ethiopia,legal and institutional framework
designed by ethiopia, Rational behind to adopt it and we will discuss on comparative discussion on
court Proclamation 1234/2021 and 25/1996.

1.2 Subject matter of conflict of law in Ethiopia

When we see the subject matter of conflict of law as A General there are two views . The first view
is common law legal system view according to this view the subject matter of conflict of laws are
Judicail jurisdiction,choice of laws ,recognition and enforcement of foreign judgement and arbitral
awards are subject matter of confli t of law . The scond view is civil law legal sy system accordingly
Many civil-law legal system nations regard questions of jurisdiction and recognition and
enforcement of foreign judgments and arbitral awards as matters of international procedural law,
not issues of private international law. According to these countries, the discipline deals essentially
with choice of law problems. when we come to The subject matter recognized by Ethiopia its seems
that; In this connection, although it is obvious that Ethiopia does not have a codified and coherent
conflicts law, Art.11 (2) (a) and (c) of Proc. 25/1996 and proclamation 1234/2021 and the Civil
Procedure Code of Ethiopia (esp. the former) deliberately or not implies that (recognition) and
enforcement of foreign judgments is not part of conflicts discipline. On the other hand, Art.3 of the
Initial Draft Proclamation to Provide for Federal Rules of Private International Law prepared by the
Justice and Legal System Research Institute considers the three elements as parts of the discipline.
These three subject matters are ; Judicial jurisdiction, Choice of law and It is about the recognition
and enforcement of court judgments and arbitration awards rendered by foreign courts and
arbitration tribunals, respectively.

1.3 Legal and institutional framework designed by Ethiopia in relation to conflict of law 5

Untill, the Ethiopian legal system has been working without rules of conflicts. There is no law to
guide judges to the effect. However, it is a general norm or practice that any court is not expected to
reject a case for lack of law to resolve same.It is the responsibility of any court (of course, with
established jurisdiction) to dispense justice. To refuse to entertain a case for lack of law, inter alia,
while one has the power to entertain the case is to deny justice __ unfair! At any rate, a judge is
required to resolve any issue of a certain case brought before him.We have said above that Ethiopia
does not have defined rules of private international law. Nor does it have a well developed
precedent to enable courts assume judicial jurisdiction. Despite this fact, whenever Ethiopian courts
were confronted with a case containing a foreign element, they, in practice, have been resorting to
different methods for the purpose of determination of whether they have power of adjudication of a
certaincase.and There are some insufficient provisions of judicial jurisdiction scattered in different
codes designed for specific purposes. These provisions are Arts. 208 and 237 of the Maritime Code
that lay rules of judicial jurisdiction in respect of carriage of goods and for action of damages
incidental to collision, respectively. Moreover, Art. 647 of the Commercial Code captioned
5
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Conflict of Laws in Ethiopia
"Jurisdiction" concerning contracts of exclusively internal carrier by air. All these provisions employ
domicile to establish jurisdiction.In addition to the abovementioned provisions, it was claimed that
the Civil Code provisions of domicile (i.e., Arts. 183-191) were destined to serve private international
law. Jacquious Vanderlinden, in his Commentary on the [Ethiopian] Law of Physical Persons, in
confirmation to this argument amplified saying "domicile is indeed reserved for private international
law because nowhere in the [Ethiopian] Codes it is (but residence) used for purely internal
disputes."However, in sofar as the judicial practice is concerned, it is generalized that Ethiopian
courts seem to have adopted three different approaches to solve the issue of judicial jurisdiction.
They are: silence regarding judicial jurisdiction, recourse to the Civil Procedure Code, and recourse to
general jurisprudence.In this connection, although still, there are no rules to guide, it is to be
mentioned that matters of private international law and enforcement of foreign judgments are
entrusted to the first instance jurisdiction of the Federal High Court. (Art. 11 (2) (a) and (c) of Proc.
No. 25/1996) and( Art 11/2(a.) of proc.No.1234/2021) 6 .Incidentally, the power of deciding on the
application for the enforcement of foreign judgments and arbitral awards was entrusted, before the
present federal arrangement was introduced, to the then High Court pursuant to Art. 15 (3) of the
Civil Procedure Code.7

Regarding the choice of law problems, as there is no statute to the effect, looking to practice of
courts as to the "approaches" employed, is the only alternative. One can observe from the decided
cases of Ethiopian courts that about four "approaches", (if after all some of them are to be
considered as approaches) were practiced; viz. general jurisprudence, precedent, ignoring the
foreign element and simply applying the lex fori, and looking towards the spatial conditioning of the
internal rules.

1.4 Historical antecedents of conflict of law in Ethiopia

An examination of Ethiopian legal history reveals that, of all branches of law of the country, private
international law has received the least attention, hence it is an embryonic stage of development, 8

Until now The Ethiopian legal system has been working without rules of conflict 9. A number of
attempts have been made to draft the Private International law rules. The first attempt to codify
conflicts law was made during the time a civil code was drafted for Ethiopia. However, the Civil Code,
promulgated in 1960, was at the end of the day, without a section relating to the conflicts law. The
then Codification Commission, it is said, have rejected the section prepared for the discipline. Prof.
Renè David, the drafter of the Civil Code, has expressed his regret for the reason that "the matter of
conflict of laws, which was included in the preparatory plan has, for different reasons, been excluded
from the Civil Code

6
Art(11(2)/a) of proc.no 1234/2021 and Art(11/2)(a)and(c)of proc. No 25/1996
7
Art 15(3)Civil procedure code
8
Ibrahim Idris, Materials for a Study of Private International Law in Ethiopia, 1998
9
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Conflict of Laws in Ethiopia
Still another attempt to draft and proclaim a private international law was made in July 1976 E.C. The
Short-Term Law Revision Committee of the then Ministry of Law and Justice had prepared a
document on a draft along with its commentary of private international law

The document provides that the Committee on the preparation of draft of private international law
has referred to the Rene' David's unsuccessful draft, R.A. Sedler's personal draft (by the way R.A
Sedler, has "attempted to propose" a code of the conflict of laws draft), and mainly the draft
prepared by the (Imperial Regimes') Ministry of Justice, as the committee thinks. Furthermore, the
committee had consulted other countries' private international laws such as those of France and
Poland and had considered the then contemporary situation of the country Ethiopia.Any way,
whatever the reason may be, the draft was not, again, put into effectT .he internal Conflict of Laws
was not a problem in Ethiopia as she used to be a unitary state until 1991, after which division of
power and Federalism were adopted under the 1995 FDRE constitution. Conflict of Laws in Federal
Ethiopia may, therefore, be one of the areas of the law that need a special consideration more than
ever due to this fact. In other words, there is fertile ground for the development of Conflict of Laws
in the Federal Ethiopia, as a result of

which, it becomes necessary to make independent researches and studies in this field in order

to get the rules that govern Conflict of Laws within the Federal and the Conflict of Laws that involve
foreign elements Despite no Proclamation Courts entertain Cases of conflict of laws Ethiopian
courts assume Judicial Jurisdiction if:Defendant is Ethiopian national or domiciliary and if Cause of
action arise in Ethiopia and make Choice of law: Nationality and Domicile as connecting Factors . No
Consistent trend followed by courts resulted in hampered of case law jurisprudence.

The problem intensified by the Current Federal arrangement are Both Intera- state
(International)and interstate ( National ) Conflict of laws arise in Ethiopia 10.

1.5 Rational behind to adopt conflict of law

peoples live are not restricted within the boundaries of a single state or territorial unit, as they are
inconstant and continuous interactions through marriage, trade and other activities of daily life in a
foreign sate where in the courses of these relationships, disputes are invariably bound to arise 11. A
dispute which arises in a state between individual and among the same and/or different nationals
may be resolved in the same state. Because of the mobility of people and some other circumstances,
however, the just and fair disposition of such cases may demand the recognition and enforcement
role of another state .because of these adoption of conflict law is become necessary

and also There are certain factual and legal realities that necessitate the existence of the conflict of
law discipline. There is a fact, which all conflicts thinking is premised at, that some legal transactions
are somehow connected with more than one legal community, either because the parties to the
transaction are citizens or domiciliaries or residents of different jurisdictions, or because the
occurrence that gave rise to their legal relationship took place in another state and/or their own, or
because the object of their relationship is situated elsewhere. More overdifferent legal communities
have different laws. There is no universally established law governing relationships between private
10
Power point prepared by sultan kasim Haramaya colleges of law January 2012
11
THESIS ON EXECUTION OF FOREIGN JUDGMENTS IN PRIVATE INTERNATIOANL LAW: WITH
SPECIAL REFERENCE TO ETHIOPIA BY: SAMSON WONDWOSSEN p 38
parties. In other words, integration and diversity, the two dominant features of modern culture,
together give rise to conflicts cases. Different communities' cultures are naturally diverse and since
this feature cannot absolutely be done away with, practical necessity calls for harmonization or
integration as a sole alternate. because of The legal systems being diverse and the unavoidability of
commercial and other interaction among individuals across borders of states, in case of disputes
individuals will and courts will be faced with questions of : 12

Which court , the local or the foreign court can see the cas

 If a certain court has assumed jurisdiction which law is it going to apply to

remedy the dispute
 Even if the plaintiff may obtain a judgment here can she obtain enforcement
of the same in a foreign territory where the defendant has property etc

These are the main problems private international law is meant to alleviate. So the rational behind
to adopt conflict law is to resolve the problem which i try to mentioned above in addition the
rational behind to adopt conflict of law is to do justice in cases involving a foreign element.and also
to avoid forum shopping by adopting conflict of law is the rational behind to adopt conflict of law

1.6 Compare Proclamation No.25/1996 and proclamation No.1234/21 13

When we compare proclamation No.1234 /21 with that of proclamation NO.25/1996 As General it
have some change among those change the major changes defined under her:

.In new
proclamation Federal Courts are endowed with the common jurisdiction
of interpreting and observing the FDRE Constitution this is what not endowed in old proclamation

 In old proclamation Basic or fundamental error of law has not been defined. But now
with this new Proclamation it is defined. It is defined as judgment, ruling, decision,
order or decree a) in violation of the constitution; b) by misinterpreting a legal
provision or by applying an irrelevant law to the case; c)by not framing the
appropriate issue or by framing an issue irrelevant to the litigation) by denying to
award judgment to a justiciable matter; e) by giving an order in execution proceedings
unwarranted by the main decision; f)in the absence of jurisdiction over the subject
matter; g) an administrative act or decision rendered in contradiction with the law;
and h) in contravention to binding decision of the Federal Supreme Court Cassation
Division.
 On Civil Jurisdiction of the Federal Courts the following are two matters are added to new
proclamtion. One, issues in relation to bankruptcy fall under civil jurisdiction of Federal
Courts. Two, civil cases arising out of Addis Ababa (AA) and Dire Dawa (DD) are the Federal
Court jurisdiction other than those given by the City Charters to City Courts namely change of
name, guardianship, marital status certificates, possession or ownership of claims of City
administered houses, Edir(associations) cases, and cases of money, contracts, loans
involving up to ETB 500,000. And three cases specified by other laws shall also fall under
the civil jurisdiction of the Federal Courts.
12
Power Point prepared by sultan kasim Haramaya colleges of law January 2012

13
https://dmethiolawyers.com/major-changes-on-the-federal-courts-proclamation/
  In new Proclamation the First Instance jurisdiction of the Federal Supreme Court (FSC)
shrinks to change of venue issues. This seems to open the door for appeal right unlike the
previous Proclamation no 25/96 where offences by federal government officials,
ambassadors or consuls or representatives of international organizations were subject to first
instance jurisdiction of the FSC. However, the Proclamation maintains cases specified by
other laws may be included as first instance jurisdiction.
 In new Proclamation FSC Cassation Division (FSCCD) is clearly empowered to see cases
decided by Regional Supreme Court Cassation Divisions i.e cassation over cassation.
However such cassation over cassation is limited to basic or fundamental error of law
indicated on Article 2(4)(a) violations of the Constitution and (h) in contravention to binding
decision of the FSCCD. Moreover basic or fundamental error of law on Article 2(4)(b) i.e.
misinterpreting a legal provision or by applying an irrelevant law to the case, can make a
Regional cassation decision be seen by FSCCD where such a case have public interest
and national importance
 Federal High Court (FHC) first instance jurisdiction on civil matters is increased from the
previous ETB 500,000 to now an amount exceeding over ETB 10 million.
 FHC civil jurisdiction has new addition. Any person, it states, who has vested interest or
sufficient reason can institute a case before the FHC to protect the rights of his own or
others, using the Civil Code Procedure on Article 176-179. Thus FHC may render decision,
judgment or order to protect justifiable human rights specified under Chapter 3 of the FDRE
Constitution.
 On the previous Proclamation, appellate jurisdiction of the FHC was from Federal First
Instance Court (FFIC) only. But now cases specified by other laws giving FHC the appellate
power are also included here.
 An important judicial principle is included in the new proclamation. Decisions of the Federal
Courts SHOULD be executed throughout Ethiopia, it says. Any government body, institution or
non-governmental organization or person in any region shall have the obligation to execute or
cause to execute such order or decision. Failing to obey a court order or decision, hinders the
execution thereof or to cooperate or give assistance when so requested can make that
individual subject to simple imprisonment not exceeding 2 years or with fine not exceeding
ETB 5000.

When we come to compare proclamation No.1234/21 with that of proclamation NO.25/1996

only in relation to conflict of law both of them give the jurisdiction to federal high court to the
case involves foreign element and their issue relates to private international law pursuant to
Art 11/2(a and c)of proc.No.25/1996 and Art 11 /2(a)of proc.No.1234/21.

Conclusion : There is no single definition given for conflict of law or private international
law.different writer is concerned with different definitions these are definition given by different
legal scholars. Some of which are provided here under. In the words of Cheshire: “Private
International Law then , is that part of law which comes in to play when the issue before the court
affect some facts, events or transaction that is so closely connected with a foreign system of law as
to necessitate recourse to that system in such circumstance application of a foreign law may be
necessary to prevent in justice . In the words of Johnson: “Private International Law is the body of
rules applied by a country justifying and controlling the occasional application by the courts of
foreign law instead of its own. As Ethiopia is a country with no rules of Private International Law,
courts may not know or find to know what special procedures to follow in deciding matters in which
foreign elements are involved. As it is known that, up to now, Ethiopia has neither concluded a
treaty nor entered in to a convention on the basis of which its courts would recognize and enforce
foreign judgments. The provisions which guide its courts are those incorporated in the Civil
Procedure Code and court Proclamation 25/1996 which amended by 1234/2021court Proclamation

There are three subject matters that are recognized by Ethiopia these are; Judicial jurisdiction,
Choice of law and It is about the recognition and enforcement of court judgments and arbitration
awards rendered by foreign courts and arbitration tribunals, respectively. Untill a moment Ethiopia
doesn’t have Legally and institutionally codified conflict of law but when the problems arise the
court refer the provisions of civil procedure code and court Proclamation which include foreign
element. The historical development of conflict law in Ethiopia is that; There is no separately
enacted law of conflict of laws to guide judges in Ethiopia.A number of attempts have been made to
draft the Private International law rules.among these there is Renè David’s draft during civil code
codificationRejected for no apparent reason in 1976 E.C. there is also The Short-Term Law Revision
Committee and these is also remained and Not adopted another one is also there is R.A. Sedler's
personal draft and No Action taken. Additionally The Federal Draft Conflict of law Rules by the
Justice and legal Systems Research Institute and also these is Not adopted . Despite no Proclamation
Courts entertain Cases of conflict of laws Ethiopian courts assume Judicial Jurisdiction if:Defendant is
Ethiopian national or domiciliary ,Cause of action arise in Ethiopia.,Choice of law: Nationality and
Domicile as connecting Factors.No Consistent trend followed by courts resulted in hampered of
case law jurisprudence. The problem intensified by the Current Federal arrangement
Both Intera- state (International)and interstate ( National ) Conflict of laws arise in Ethiopia. In The
rational behind Ethiopia to adopt conflict of law is to promote justice ,to avoid forum shoping and
resolve in the case in easy way that involves foreign element and to give fair decisions .

There are some major change between proclamation No.1234/21 and no 25/1996 there is a clear
expression of power given to court in new proclamtion than the old and there is another issue
which is added to new proclamation which the old proclamation didn’t included in old
proclamation

References: . abyssinialaw.comhttps://www.abyssinialaw.com › 72...Conflict of Laws in Ethiopia,

.Norman Bentwich The International Law Quarterly Vol. 4, No. 1 (Jan., 1951), pp. 111-115 (5 pages)
Published By: Cambridge University Press,https://www.jstor.org/stable/763084,
. Ethiopian conflict of law Teaching materials ,

.Power point prepared by sultan kasim college of law Haramaya university,

. LL.B THESIS On EXECUTION OF FOREIGN JUDGMENTS IN PRIVATE INTERNATIOANL LAW:

WITHSPECIAL REFERENCE TO ETHIOPIA BY: SAMSON WONDWOSSEN,

. Wikipedia about conflict law , Ethiopian civil procedure code,Federal court Proclamation no
25/1996 and 1234/2021

. https://dmethiolawyers.com/major-changes-on-the-federal-courts-proclamation/