SUDAN Law and Practice Contributed by: Omer Ali Abdelrahman, Omer Ali Law Firm
an award within the agreed timeframe, non-validity would not extend to the arbitration clause which did not fix a timeframe for delivery of award, and hence the six months’ term in the law would prevail – and as the award was delivered within the term fixed by law, the award shall stand. On the same basis, if an arbitration clause under a contract is invalid because it did not set out the matters that would be the subject of arbitration, such matters can be determined later by the parties’ agreement. 3.4 Validity An arbitration clause will be considered valid even if the rest of the contract in which it is contained is invalid. The courts apply the rule of separability to arbitration clauses contained in invalid agreements. Section 6 (2) of the Arbitration Act provides that an arbitration clause shall be considered an agreement independent from the other terms of the contract, and the invalidity or termination of the contract shall not have any effect on the arbitration clause in the con - tract. The parties are free to appoint the arbitrators. How - ever, under Section 12 of the Arbitration Act, the num - ber of arbitrators shall be either one or a higher odd number; if the parties fail to agree, their number shall be three. 4.2 Default Procedures If the parties’ chosen method of selecting arbitra - tors fails, Section 14 of the Arbitration Act provides that in the case of an arbitration with more than one arbitrator each party shall appoint a similar number of arbitrators, and the arbitrators shall agree on the chairperson or on how to appoint the chairperson. If a party refuses or fails to appoint, or if the arbitrators fail to agree on a chairperson, such appointment shall be made by the competent court at the request of a party, and its decision shall be final. In the case of an arbitration with one arbitrator, the parties shall choose him or her or agree on the mechanism for his or her 4. The Arbitral Tribunal 4.1 Limits on Selection
appointment – otherwise, the competent court shall appoint him or her at the request of a party. 4.3 Court Intervention Section 14 (2) of the Arbitration Act provides that if a party fails to appoint an arbitrator, or if the arbitrators appointed by the parties fail to appoint a chairperson, such appointment shall be made by the competent court upon the application of a party, and the court’s decision shall be final. There are no limitations on the competent court’s power to appoint. 4.4 Challenge and Removal of Arbitrators Under Section 16 of the Arbitration Act, a party may challenge an arbitrator if: • circumstances arise that raise serious doubts regarding his or her impartiality or independence; or • the arbitrator becomes incapable of conducting arbitration proceedings, or he or she refrains from or discontinues from conducting the proceedings in such a manner as to cause unjustifiable delay in the proceedings and the parties cannot agree on removing him or her. Subject to the above, a party may not challenge an arbitrator appointed by it or in whose appointment it has participated, except for reasons that it becomes aware of after the appointment was made. 4.5 Arbitrator Requirements Section 15 of the Arbitration Act requires an arbitra - tor to: • agree to act as arbitrator in writing; and • disclose, in writing, any interest he or she may have or any circumstance which may raise doubts as to his or her impartiality and independence, with such disclosure to be made at the time of appoint - ment or at any later time. In Sudan Cotton Company v Metcot International Trade Limited 674/2014, one reason the arbitration award was set aside was the fact that one of the arbi - trators had acted as the lawyer of a party, and as such had given advice on the subject matter of the dispute.
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