SUDAN Law and Practice Contributed by: Omer Ali Abdelrahman, Omer Ali Law Firm
States of the Organisation of the Islamic Confer - ence 1977; or • any other relevant agreement to which Sudan is party. 1.4 National Courts For international arbitrations, the court designated to hear disputes related to arbitration is the Khartoum General Court, unless the parties agree on another General Court in Sudan as the court to hear the dis - pute. For domestic arbitrations, it is the competent court (ie, the court that would have jurisdiction over the dispute if it had not been referred to arbitration). However, for a dispute regarding the annulment (set - ting-aside) of an arbitration award, the Court of Appeal is designated to hear the case. The national legislation that governs international arbi - tration is the Arbitration Act 2016, which also governs domestic arbitration. Section 7 of the Arbitration Act provides that an arbitration is categorised as “inter - national” if: • the main centres of the businesses of the parties to the arbitration are in two different countries; and • the subject matter of the arbitration is related to more than one country. Divergence From the UNCITRAL Model Law Broadly speaking, there are several areas where the Arbitration Act diverges from the UNCITRAL Model Law. The main areas of divergence are as follows. • The rules regarding interim measures are relatively restricted under the Arbitration Act compared with 2. Governing Legislation 2.1 Governing Law Law Governing Arbitration those under the Model Law. The Arbitration Act simply refers to the domestic rules under the Civil Procedures Act 1983 without any elaboration. The domestic rules are narrower compared with the rules under the Model Law. Also, the Model Law sets rules for recognition and enforcement of interim measures; there are no similar rules under the Arbitration Act.
• The definition of “international arbitration” is much narrower under the Arbitration Act (Section 7) com - pared to the Model Law (Article 1 (3)). • The Model Law limits the applicability of the Law only if the place of arbitration is in the territory of the enacting state with specific exceptions, which is not the case in the Arbitration Act. • The Model Law provides a high level of guarantee against intervention by local courts in the arbitra - tion proceedings by limiting court intervention to cases provided by the Law. There is no similar provision in the Arbitration Act. • If there is a challenge to an arbitrator, the Model Law provides that, pending the court ruling, the arbitral tribunal (including the challenged arbitrator) may continue the arbitral proceedings and make an award, whereas the Arbitration Act provides that the arbitration proceedings shall be suspended. • Under the Model Law, if there is a plea by a party that the arbitral tribunal does not have jurisdic - tion, the tribunal may rule on the plea either as a preliminary question or in an award on the merits, whereas the Arbitration Act directs the tribunal to make its ruling before hearing the case. • The Model Law gives the arbitral tribunal the power to decide on the language to be used in the arbitra - tion proceedings if the parties fail to agree, where - as the Arbitration Law makes the Arabic language the default language. • As regards the rules governing the substance of the dispute, if such rules were not designated by the parties, the Model Law empowers the arbitral tribunal to apply the law determined by the con - flict of laws rules that it considers applicable; the Arbitration Act provides for the application of the rules that the arbitral tribunal deems appropriate in the law most related to the subject matter of the dispute. In a related matter, the Sudanese law does not give the arbitral tribunal the power to decide the dispute ex aequo et bono or as amiable com - positeur (with the tribunal to consider the dispute according to what is fair and just under the particu - lar circumstances of the case, rather than strictly according to the rule of law), if so authorised by the parties, as is the case under the Model Law. Under the Sudanese law, this rule can be applied only if the parties authorise the arbitral tribunal to concili - ate.
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