By Yehualashet Tamiru

Ethiopia has recently ratified the New York Convention on Recognition and Enforcement of foreign arbitral awards (commonly known as the New York Convention). Ethiopia has formally acceded to the Convention and as of November 22, 2020, the Convention becomes fully implemented. In the ratification Proclamation, Proclamation No. 1184/2020, Ethiopia has made two declarations and one reservation.
The ratification proclamation made two reservations: reciprocity and commercial reservations.
Reciprocity is one of the reservations recognized under the New York Convention. According to Article 1(3) of the Convention, Contracting States may declare that they will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. This principle of reciprocity can protect the nationals of the Contracting State where the enforcement of a foreign judgment is sought, against the bias of Contracting State where a foreign judgment or award was made. It also reaffirms the principle of state equality and mutuality in international relationships. The reciprocity reservation has been used by approximately two-third of the Contracting States.
Various courts have held that when a Contracting State makes the reciprocity reservation, it will apply the New York Convention only to the awards rendered in the territory of a state which is a party to the Convention.
In this regard, one of the controversial issues is whether the nationality of the litigant parties is relevant. Unlike the Geneva Convention on the Execution of foreign arbitral awards, New York Convention considers the nationality or citizenship of the parties irrelevant. Courts have consistently held that the nationality of the parties is irrelevant for the purpose of establishing reciprocity. What matters the most is that reciprocity exists between the State where the award was rendered and the State where recognition and enforcement were sought.
The second reservation is that the New York Convention only applies to disputes arising out of legal relationships considered as commercial under the national law of the State making such declaration. There are no clear criteria as to what constitutes commercial transactions.
As a matter of practice, courts have interpreted the scope of this phase to be broad. For instance, a court in India has construed the phrase as being one of the “largest import” encompassing “all the business and trade transactions are any of their forms.” A United States court has similarly held that the notion of “commercial relationship” is broad, noting that its purpose is only “excluding matrimonial and other domestic relations awards, political awards, and the like.
As a matter of practice in the area, the following legal relationship has been deemed to be commercial transactions: a cereal purchase contract, a charter-party, a contract for the provision of consulting service, a contract for the shipment of goods, an agreement for the division of property and businesses, a joint venture agreement to establish and operate a chain of stores, a seamen’s employment contract, a contract for the reorganization of a company and buyout of shareholders, a contract for the reorganization of a company and buyout of shareholders, a contract for the construction of a nitro phosphate plant, and dispute between corporate shareholders regarding the proceeds of a stock transaction.
However, in some cases, the courts have indicated non-commercial matters. For instance, an Indian court held that a contract for the supply of technical know-how in return for a fee was not a commercial contract. In another case, the United States court held that a dispute arising out of proceedings to disqualify counsel was non-commercial.
Ethiopia made a declaration that is not part of New York Convention. Article 3 of Proclamation No. 1184/ 2020 made a declaration as to the time of application. Accordingly, the Convention only applies in the Federal Democratic Republic of Ethiopia with respect to Arbitration Agreements concluded and Arbitral Awards rendered after the date of its accession to the Convention.
Normally, under Ethiopian law enforcement of foreign judgments and arbitral awards are executed as per the conditions laid down under the Civil Procedure Code. As per Article 468 of the Civil Procedure Code, foreign awards may not be enforced in Ethiopia unless the following conditions are met: Reciprocity, the award has been made following a regular arbitration agreement or other legal act in the country where it was made, the parties have had equal rights in appointing the arbitrators and they have been summoned to attend the proceedings, the arbitration tribunal regularly constituted, the award does not relate to matters which under the provisions of Ethiopian laws could not be submitted to arbitration or is not contrary to public order or morals, and the award is of such nature as to be enforceable on the condition laid down in Ethiopian laws.
Out of the above six conditions, the first requirement of reciprocity has practically made enforcement of foreign arbitral awards in Ethiopia impossible. For reciprocity to exist the parties must prove that the state where the award was made would, reciprocally, recognize and enforce arbitral awards made in Ethiopia.
The Federal Supreme Court has further interpreted the principle of reciprocity in the Paulos Papassinus case, stating that the only way to prove that another state allows execution of Ethiopian judgments is by producing a judicial assistance treaty signed between Ethiopia and the other State. Without such a treaty, the Court ruled that reciprocity is not considered to have been met. This meant that even if the party seeking enforcement could produce proof of recognition and enforcement of an Ethiopian award by the other state party, Ethiopian courts would not entertain it short of a judicial assistance treaty. There is only one such treaty with the Republic of China which was concluded in 2017.
However, this stance has been reversed by the Federal Higher Court decision in a case between Goh-Tsibah Menkresellassie v. Dr. Bereket Habte Sellasi, indicated that the absence of the treaty of judicial assistance should not limit the rights of private citizens: and that in the absence of an agreement to the contrary between the two states, it would be inappropriate to refuse the enforcement of a foreign judgment simply because there exists no treaty of judicial assistance.

Yehualashet Tamiru is Associate at MTA, Adjunct Lecturer at AAU and can be reached via yehuala5779@gmail.com

by Harsh V. Shringla

The country aims to be ‘a leader in thought and action on climate’, its foreign secretary says
Five years after the Paris Agreement, India is among the few developing countries that are not only meeting their “green” targets but are aspiring to more ambitious climate goals.
At the recent Climate Ambition Summit, Prime Minister Narendra Modi articulated the Indian approach. He said that we must set our sights “even higher”, even as we do not lose sight of the past. He added that India would not only achieve its Paris Agreement targets, but would exceed them.
At the U.N. Climate Action Summit in 2019, Modi said that an ounce of practice is worth more than a ton of preaching. We are taking practical steps across all areas, including energy, industry, transport, agriculture and protection of green spaces, in our whole-of-society journey to become a leader in climate action and climate ambition.
India recognizes that climate change cannot be fought in silos. It requires an integrated, comprehensive and holistic approach. It requires innovation and adoption of new and sustainable technologies. Conscious of these imperatives, India has mainstreamed climate in its national developmental and industrial strategies.
Energy is at the center of all climate strategies. We believe India has become a clean energy powerhouse and is a leader in energy transition from carbon dioxide-producing sources to renewables and non-fossil-fuel sources.
We intend to keep harnessing India’s renewable energy potential. Our renewable energy capacity is the fourth largest in the world and the capacity expansion being undertaken is also one of the largest in the world. The bulk of this will come from the cleanest energy source, the sun.
We are seeing progress already. We initially committed to 175 GW of renewable energy capacity by 2022. We have gone further and expect to cross 220 GW in the next two years. We have an even more ambitious target of 450 GW by 2030.
We are working to ensure that 40% of electric power in India is from non-fossil fuel sources by 2030. This clean energy push goes hand-in-hand with a parallel effort to reduce the emissions intensity of our economy by 33-35% (from 2005 levels) by 2030.
The Ujala scheme a national drive to use LED lamps is reducing CO2 emissions by 38.5 million tonnes every year. The Ujjwala scheme, under which over 80 million households have been provided access to clean cooking gas, is one of of the largest clean energy initiatives in the world.
Climate action and sustainability is being brought into government schemes across multiple sectors. Our Smart Cities Mission is working with 100 cities to help them become more sustainable and adaptable to the challenges of climate change. The National Clean Air Programme aims to reduce air pollution (PM2.5 and PM10) by 20-30% in the next four years.
The Jal Jeevan Mission, which aims to provide safe and adequate drinking water through individual household tap connections by 2024 to all households in rural India, has a strong sustainability focus.
More trees are being planted and degraded land is being reclaimed to create a carbon “sink” that can absorb 2.5-3 billion tonnes of CO2.
We are also working rapidly to create a green transport network, to offset a sector known for its polluting emissions particularly in our big cities.
India is building next-generation infrastructure such as mass transit systems, green highways and waterways. A national electric mobility plan is creating an e-mobility ecosystem with the aim to have over 30% of all vehicles on India’s roads to be electric.
These initiatives are for our own good as India is among the countries most vulnerable to the impact of climate change.
We recognise there is still a long way to go but these efforts are already paying dividends. India’s emission intensity has reduced by 21% over the period 2005-2014. Over the next decade, we are expecting even greater reductions.
India intends to be a responsible global citizen in the climate space. We are not only going beyond our Paris Agreement commitments. We are adopting innovative instruments to further international cooperation in climate action.
We have created international organisations like the International Solar Alliance and the Coalition for Disaster Resilient Infrastructure that are working on creating global low-carbon pathways. More than 80 countries have joined the International Solar Alliance, making it one of the fastest-growing international bodies.
This combination of national action and responsible international citizenship makes India unique amongst developing countries and is placing it on the path to realise its ambitions to be a leader in thought and action on climate.

Harsh Vardhan Shringla is Foreign Secretary of India. Views expressed are personal.