Understanding the jurisdictional powers of the EA Court of Justice

Last week, from 30 January through 3 February, I had an opportunity to attend a training titled “the East African Court of Justice Rules of Procedure 2013 and the Arbitration Rules 2012” that was held in Kigali. To the trainees, including myself, it was a wonderful enlightenment and insight into the jurisdictional powers of East Africa Court of Justice (EACJ). More importantly, we learnt that the Court, in addition to hearing and determining disputes on the interpretation and application of the Treaty, disputes between the Community and its employees arising from the terms and conditions of employment or the interpretation and application of the staff rules and regulations, and disputes between the Partner States regarding the Treaty if the dispute is submitted to it under a special agreement”, has also jurisdiction over disputes related to arbitration. Arbitration is one of the modes of Alternative Dispute Resolution (ADR) contrary to the classic or traditional mechanism of dispute settlement by courts. Presently, the East African Court of Justice has a threefold role: to decide, in accordance with treaty and rules of procedures, on contentious matters arising out EAC Treaty within the meaning of Article 27, paragraph 1, of the Treaty, to give an advisory opinion in accordance with Article 36 of the Treaty and, finally, to entertain arbitral matters in accordance with Article 32 of the Treaty and rules of arbitration. Usually, a classic court that entertains contentious matters doesn’t entertain arbitral disputes. But, in the case of EACJ, it is unique because it has that hybrid function. To many EAC citizens, it is new but very important. This has been one of the key questions the trainees raised on how the EACJ can assume both roles which are diametrically opposed. At this point, anyone that had the opportunity to attend the training is quite convinced that the Court has the capacity to fulfill all its statutory mandate. So, what does it require for EAC Partner States, or companies/organisations or individuals to refer disputes to EACJ? Article 32 of the EAC Treaty provides that the EACJ shall have jurisdiction to hear and determine any matters: “arising from an arbitration clause contained in a contract or agreement which confers such jurisdiction to which the Community or any of its institutions is a party; or arising from a dispute between the Partner States regarding this Treaty if the dispute is submitted to it under a special agreement between the Partner States concerned; or arising from an arbitration clause contained in a commercial contract or agreement in which the parties have conferred jurisdiction on the Court.” Besides, under the Court’s rules of arbitration, specifically Rule 8 provides that “the appointing authority shall appoint, from among the Judges of the Court a panel to constitute the Tribunal to conduct the arbitral proceedings, unless the parties have agreed on a Sole Arbitrator who, in the like manner, shall be appointed from among the Judges of the Court. The Chairman of the Tribunal shall be appointed by the appointing authority from among the Judges constituting the Tribunal. In making the appointment, the appointing authority shall have due regard to the necessity to secure the appointment of independent and impartial arbitrators”. The provision enunciates that the President of the Court – who’s the President of the Appellate Division – appoints the judges or a sole judge to adjudicate the dispute in consideration of their expertise in that field. As learnt, all judges are trained in arbitration without exception. Anyone who would prefer to refer an arbitral dispute to the EACJ should do it confidently; the judges are well versed in arbitration. In circumstances where judges may need experts in certain fields beyond their technical knowledge, the Court may hire experts to assist the judges to get the information that may be required to guide them in arbitrating fairly and judiciously. This is well spelt out in Rule 26 of the Court’s rules of arbitration. Again, the EACJ rules of arbitration provide that an arbitral dispute will be decided in accordance with the law chosen by the parties. Here, the parties have the leeway to choose the suitably applicable law to their dispute. Once, they’re unable to do so they must grant the EACJ to adjudicate dispute under natural justice and fairness. And must be bound by the Award (decision). Still, under the EACJ rules of arbitration, specifically rules 21 and 22, the parties in the dispute must have stated in the agreement or contract the place of arbitration as well as the language in which the proceedings will be conducted. However, currently, be it in a contentious matter or arbitral dispute, the language of the EACJ is English. Even where documents or information is in a language other than English they must be translated to English. I wish to urge the EAC legal advisors who deal with agreements/contracts, that instead of providing a clause that refers the dispute settlement to arbitral tribunal beyond East African Community, to refer such disputes to the EACJ which is more cost-effective. The writer is an international expert.

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Understanding the jurisdictional powers of the EA Court of Justice