SUDAN Law and Practice Contributed by: Omer Ali Abdelrahman, Omer Ali Law Firm
5. Jurisdiction 5.1 Challenges to Jurisdiction
before which a dispute has been brought (regarding which there is an arbitration agreement) must dismiss the case for lack of jurisdiction if the respondent chal - lenges the court’s jurisdiction before or at the time of making its response to the statement of claim – oth - erwise, the respondent shall be considered as having waived its right to challenge based on the arbitration clause. 5.6 Jurisdiction Over Third Parties There is no express provision in Sudanese law that allows an arbitral tribunal to assume jurisdiction over individuals or entities that are neither party to an arbi - tration agreement nor signatories to a contract con - taining an arbitration agreement. An arbitral tribunal is permitted to award preliminary or interim relief, and such relief is binding. If the relief is required prior to the arbitrator’s appointment, it can be sought from the competent court. Section 11 of the Arbitration Act provides that any of the parties may request interim relief from the competent court before the tribunal is formed or from the tribunal after its for- mation. The competent court or the arbitral tribunal, as the case may be, shall make its orders pursuant to the interim relief provisions in the Civil Procedures Act 1983, and its decision shall be final. Such orders shall be enforced by the competent court pursuant to the provisions of the Civil Procedures Act 1983, and its enforcement order shall be final. 6.2 Role of Courts 6. Preliminary and Interim Relief 6.1 Types of Relief The types of preliminary measures that a court or an arbitral tribunal can grant are as outlined in the Civil Procedures Act 1983, Sections 139 to 156 (inclusive). These measures include: • power to arrest the respondent if there are grounds to suspect that he or she is about to leave Sudan, or dispose of or remove his or her property, pend - ing his or her provision of a deposit or guarantee; • power to attach property; • injunction against waste, damage or alienation of property in dispute;
Section 6 (1)(b) of the Arbitration Act provides that the arbitral tribunal shall rule on any challenge as regards the tribunal’s jurisdiction; hence, Sudanese law recog - nises the principle of competence-competence. 5.2 Circumstances for Court Intervention The Arbitration Act is silent regarding any reference to courts on the decision of an arbitral tribunal under Section 6, which provides that if a party challenges the tribunal’s jurisdiction on the basis that the arbitration agreement does not exist, is void or does not cover the subject of the dispute, the arbitral tribunal shall make a ruling on jurisdiction before hearing the case. In Ansan Wikfs (Sudan) Limited v Sudan Government & Another (KFIC/90/2014), the Khartoum Court of First Instance ruled to set aside an arbitration award on the basis that the arbitral tribunal based its award on both an Exploration and Production Sharing Agree - ment (EPSA) and a Joint Operating Agreement (JOA), despite the fact that the arbitration proceedings were made under the EPSA, and a party to the arbitration was not party to the JOA which contained an arbitra - tion clause different from that under the EPSA. 5.3 Timing of Challenge In the case referred to in 5.2 Circumstances for Court Intervention , the court treated the matter of challeng - ing the tribunal’s jurisdiction as a cause for annulment (setting-aside), the time limit for which is explained in 11.1 Grounds for Appeal (ie, two weeks from the date when the applicant became aware of the award). 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Generally speaking, the standard of judicial review is deferential. Sudanese courts usually support arbitra - tion proceedings; only in the case of setting aside an arbitration award may a party refer the dispute to the competent court. 5.5 Breach of Arbitration Agreement Sudanese courts are directed to suspend proceed - ings if brought in breach of an arbitration agreement. Section 9 of the Arbitration Act provides that the court
814 CHAMBERS.COM
Powered by FlippingBook