SUDAN Law and Practice Contributed by: Omer Ali Abdelrahman, Omer Ali Law Firm
arbitration is regarding financial or banking business adopting the conventional, as opposed to Islamic, system of finance. Legal Costs As regards legal costs, the general rule under the Civil Procedures Act 1983 is that the cost shall be borne by the party against whom the judgment is made, unless the court decides otherwise. In practice, in arbitration cases a “costs follow the event” approach is followed. An arbitration award is final, binding and shall be exe - cuted automatically or upon written application to the competent court (Section 41 of the Arbitration Act). The only ground to appeal an arbitration award to courts is under Section 42 of the Arbitration Act and only on the ground of annulment (setting-aside) of the award for one of the following reasons: • if the arbitration agreement is non-existent, void or voidable, or its term has expired; 11. Review of an Award 11.1 Grounds for Appeal • if, at the time of making the arbitration agreement, a party was under incapacity according to the law governing such party’s capacity; • if a party could not present its case due to lack of proper notice as regards appointment of arbitra - tors, the arbitration proceedings or for any other reason beyond the party’s control; • if the award excludes application of the applicable law as agreed by the parties; • if the arbitrators were appointed in a manner con - trary to law or the parties’ agreement; • if the award contains matters not within the scope of the arbitration agreement – however, if it is pos - sible to separate the parts of the award within the scope of the arbitration agreement from those that are not within such scope, and nullity can be as regards the parts not within the scope of the agree - ment; or • if the award or the proceedings were induced by nullity in a manner affecting the award.
Application for nullity shall be made to the court of appeal, which may annul an award on its own motion if the award is contrary to public order in Sudan. Appli - cation shall be made within two weeks from the date when the applicant became aware of the award, or the date when the award was declared if the applicant was given proper notice but failed to appear. 11.2 Excluding/Expanding the Scope of Appeal The general rule followed by Sudanese courts is that the parties cannot bar a court from exercising its juris - diction, such exercise being a matter of public policy. Accordingly, despite the fact that the law is silent as regards whether the parties can agree to exclude or expand the scope of appeal or challenge an award, in light of the above general rule, the courts would not
allow such exclusion or expansion. 11.3 Standard of Judicial Review
If an arbitration award is set aside, the dispute may be referred to the competent court at the request of a party (Section 45 of the Arbitration Act).
12. Enforcement of an Award 12.1 New York Convention
In 2018, Sudan acceded to the 1958 New York Con - vention on the Recognition and Enforcement of For - eign Arbitral Awards, and thus became the 159th Con - tracting State to this Convention. On 26 March 2018, Sudan deposited its instrument of accession to the Convention with the UN Secretary General, and, in accordance with Article XII(2) of the Convention, the Convention entered into force in Sudan on 24 June 2018. 12.2 Enforcement Procedure Under Section 41 of the Arbitration Act, an arbitration award shall be enforced by the competent court if not complied with voluntarily. Section 47 of the Arbitration Act sets out the require - ments for enforcing an arbitration award as follows. • A copy of the award is enclosed with the applica - tion for enforcement.
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