SUDAN Law and Practice Contributed by: Omer Ali Abdelrahman, Omer Ali Law Firm
• A condition for recognition and enforcement of an arbitral award under the Sudanese law is reciproc - ity, which is not a condition under the Model Law. 2.2 Changes to National Law There have been no significant changes to the national arbitration law in the past year. From the authors’ pri - vate contacts, it was learned that there are ongoing discussions over changes to the law such that the arbitration law would be more in line with the UNCI - TRAL Model Law. However, the authors do not expect any attempts for such change to take place except after restoration of political and security stability to the country. For any arbitration agreement to be enforceable in Sudan, it must satisfy the basic requirements for enforceability of contracts, which are provided for in the Civil Transactions Act 1984 – namely: • capacity of the parties to contract; • validity of the contract; and • compliance with any form required by law. Under Section 42 of the Arbitration Act, causes for annulment of an arbitration award include, inter alia, that: 3. The Arbitration Agreement 3.1 Enforceability • the arbitration agreement was non-existent; • the arbitration agreement was void or voidable; • the arbitration agreement’s term has expired; or • a party was under incapacity under the law govern - ing such party’s capacity. Section 8 of the Arbitration Act requires that an arbi - tration agreement must be in writing, otherwise it will be considered void. Correspondence between the parties through various communication means would be considered as writing. Under Section 10 (1), an agreement among parties to a dispute before a court to refer their dispute to arbitration would be consid - ered as an agreement made in writing.
In Mohamed Abdalla Mohamed Effendi v Terhaga Engi - neering Trading Limited , SC/CA/5/2003, the Supreme Court ruled that an agreement to arbitrate must be clear and unambiguous, and may not be inferred from reading between the lines; accordingly, an agreement to appoint an expert to examine accounts would not be considered an agreement to refer to arbitration. 3.2 Arbitrability The Arbitration Act limits arbitration to civil transac - tions, whether contractual or otherwise; however, it excludes any matter regarding which no conciliation ( sulh ) can be made. In Sudanese law (the Civil Trans - actions Act 1984), conciliation is defined as a contract whereby a dispute is resolved and litigation ceases between the contracting parties in a mutual manner. Under Shari’a, which must be respected in all legal aspects, there are certain matters that cannot be the subject of conciliation, such as personal status mat - ters. Another matter which the Supreme Court (in Flatco International Engineering v Amer Mohamed Ibrahim , SC/CA/645/2009) ruled as not referable to arbitra - tion is a dispute regarding an employment contract between an employer and an individual employee, as distinct from a collective agreement, which Sudanese labour law has permitted to be referred to arbitration. 3.3 National Courts’ Approach Sudanese courts respect the law governing the arbi - tration agreement. The courts enforce arbitration agreements, which are usually enforced once an application for enforcement has been made and the court is satisfied that there was ground for enforce - ment. In Sas Building and Construction Company v Abdel- fatah Abdelmo’ati Mohamed , SC/CA/1053/2008, the court referred the parties to arbitration because there was an arbitration clause in the contract between the parties. An arbitration agreement was prepared by the arbitrators; however, it was not signed by one of the parties. The award was challenged on the basis, inter alia, that it was not made within three months as stipulated in the arbitration agreement. The court took the view that, even if an arbitration agreement becomes void due to the tribunal’s failure to deliver
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