The role of an agent in the Court of Justice of the Common Market for Eastern and Southern Africa
Rule 31(3 to 8) of the Rules of the COMESA Court of Justice provides that:
“(a) For the purpose of the proceedings, the reference shall state an address for service in the place where the Court has its Seat and the name of the person who is authorised and has expressed willingness to accept service.
(b) If the reference does not comply with the requirements in paragraph (a), all service on the party concerned for the purpose of the proceedings shall be invalid, for so long as the defect has not been cured by registered letter addressed to the agent or lawyer of that party; and
By way of derogation from Rule 32, service shall then be deemed to be duly effected by the filing of the registered letter at the post office of the place where the Court has its Seat.
The agent of a party shall file with the Registrar a certificate that he is certified to practice before a Court of a Member State.
Where the reference seeks the annulment of a decision of an institution, the reference shall be accompanied by-
(a) Documentary evidence of the decision the annulment of which is sought; or
(b) In the case of proceedings against an implied decision, documentary evidence of the date on which the decision was by implication made.
A reference made by a legal person governed by private law shall be accompanied by-
(a) the instrument or instruments constituting or regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law; and
(b) proof that the authority granted to the applicant’s agent has been properly conferred on him by someone authorized for the purpose.
A reference containing an application to the Court to-
(a) give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Common Market; and
(b) resolve a dispute between Member States which relates to the subject matter submitted to it under a special agreement between the parties.
shall be accompanied by a copy of the arbitration clause contained in the contract governed by private or public law entered into by the Common Market or on their behalf, or, as the case may be, by a copy of the special agreement concluded between the Member States concerned.
(a) If a reference does not comply with the requirements set out in sub rules (4) to (7), the Registrar shall prescribe a reasonable period within which the applicant is to comply with them whether by putting the reference itself in order or by producing any of the above mentioned documents; and
(b) If the applicant fails to put the reference in order or to produce the required documents within the time prescribed, the Court shall, after hearing the agents, decide whether the noncompliance with these conditions renders the application formally inadmissible.
The task entrusted to an Agent appointed to handle the process/documents/References/Applications of the Court may appear simple but is delicate because while all Lawyers are competent to handle court process and are highly qualified, they are of very varied origin and practical experience. It is, therefore, important for an Agent to prevent those differences in practice from hindering the smooth operation of the Court by ensuring that the process documents/References/Applications of the Court passing through them conform to the requirements of the Court. As such an Agent is under the scrutiny of the Court and must often act as mediator between the Court and his Principals in so far as the filing of documents in the Registry is concerned. Pursuant to Rule 30(8) Parties through their Agents must ensure that pleadings are filed in the language specified by the Registrar. Currently the Court is using the English, French and Arabic languages.
Parties are served the process/ documents/ References/Applications of the Court through an authorised Agent by delivering them to an Agent, and such service is equivalent to personal service on the Party.
Rule 70(3) states that:
“Communications, documents or pleadings addressed to or to be served on the agents or representatives of parties or institutions shall be deemed to be addressed or served, as the case may be, to or on the parties or institutions”.
A request may be made to the Registrar by the Parties or through an agent to obtain copies of the record of proceedings of a particular Reference. In such cases Parties under Rule 10 of the Rules of the Court will be required to pay a sum of US$2.00 per copy or extracts of any document or any part thereof.