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Review COMESA Court of Justice Arbitration Rules (2003)

Organs of COMESA. The Court is comprised of two Divisions; the Appellate Division and the First Instance Division. The Court is composed of twelve Judges five of whom constitute the Appellate Division and seven constitute the First Instance Division.

The Court’s primary function is to uphold the rule of law in the enforcement of the COMESA Treaty by ensuring adherence to the law in the interpretation and application of the Treaty. Its general jurisdiction is to adjudicate as well as to give advisory opinions and arbitrate on any matters that may be referred to it under the Treaty. These matters may be between Member States, Member States and the Council, the Common Market and Member States, between Legal and Natural persons resident in Member States or between COMESA or its institutions and their employees.

Background
Reference is made to Article 28 of the Treaty which accords the Court special jurisdiction to hear and determine any matter:
(a) arising from an arbitration clause contained in a contract which confers such jurisdiction to which the Common Market or any of its institutions is a party; and
(b) arising from a dispute between Member States regarding the Treaty if the dispute is submitted to it under a special agreement between the Member States concerned.”

The current Arbitration Rules date back to 2003 and were formulated pursuant to Article 38 of the Treaty. Unfortunately, these Rules contain many lacunae and are in many instances wanting in terms of clarity and form. They have for example neither taken into account the two tier system of the Court nor the ad hoc nature of the sittings and do not incorporate the relevant changes brought to the 1985 Model Law on International Commercial Arbitrations which was amended and updated in 2006 and the UNCITRAL Arbitration Rules as revised in 2010. There is therefore need to revise the Rules in order to ensure that they are at par with the best international practices and meet the needs of the international arbitration community.

There is also need for the Court to come up with a framework for the use of modern technology in its procedures and this calls for the formulation of appropriate rules and procedures.

In tandem with the new Medium Term Strategic Plan (2016-2020) of the Court, court rules are required to provide greater access to justice and simplify conduct of proceedings and also facilitate the accelerated disposal of cases. The Court aims to develop new or amended draft Arbitration Rules by the end of 2017.

Click on the attachment below for terms of reference (TORs)

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