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Chapter 3 a Critical Examination of the Sudanese Arbitration Act 2016

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Chapter 3 a Critical Examination of the Sudanese Arbitration Act 2016 The Sudanese Arbitration Laws in Transnational Commercial Arbitration and the Recognition and Enforcement of Foreign Arbitral Awards, under the Sudanese Disputes Settlement System By Salahaldin Abdelkader Jebarah (LL.B. AL-Nileen University, Sudan, HND De Vinci College, Netherland; LL.M. International Commercial Law, University of West London, UK) A thesis submitted in partial fulfilment of the requirements of the University of Wolverhampton for the degree of Doctor of Philosophy School of Law, University of Wolverhampton 1 DECLARATION This research or any part thereof has not previously been submitted in any form to the University or any other body whether for assessment, publication or any other use (unless otherwise indicated). Save for any express acknowledgements, references and bibliographies cited in work; I confirm that the intellectual content of the work is the outcome of my efforts and no other person. 2 Abstract The reason for writing this doctoral thesis was because of the development of the law and arbitration processes in Sudan and the issues which that process has left us with. Sudan is still going through another kind of social reform, particularly in view of the different faiths in the country, and an increasing propensity for the population to be conscious of their rights. Any single judicial process is likely to struggle to deal with such a wide range of issues, particularly in the context of increasing arbitration and transnational arbitration. The degree of uncertainty is exacerbated by the direct and indirect influence of Islamic jurisprudence on judicial outcomes. This research establishes that if the judiciary has not changed quickly enough to cope with the demands which these factors present and the development of the economy and society could be adversely affected. Furthermore, Sudan is now looking for private foreign investors, and there are reasonable grounds to conclude that the Sudanese judiciary may be inadequate to accommodate the inevitable commercial disputes which will emerge. Whether or not an effective system of dispute settlement through arbitration can be made in Sudan, it is apparent that unless Sudan gets appropriate arbitrators with sufficient knowledge of Sudanese society and law, it will be difficult for Sudan to attract much needed private foreign investment. This research engages in a critical analysis of the development of an appropriate arbitration system in Sudan and suggests that it is a condition precedent to the successful development of the Sudanese dispute resolution system. 3 ACKNOWLEDGEMENTS I would like to extend my thanks and gratitude to some people who helped, support, advised and encouraged me during my research. The guidance, valuable advice and help I received from my eminent supervisor Professor Haynes Andrew was excellent; it is hard to find words to express my debt to Professor Andrew; that is all I can answer. Also, Professor Charles Chatterjee, who was my second supervisor from the start until the end of my PhD, for his encouragement, suggestions and advice have given during my five years as a PhD student. His opinions and insights were of great value to the completion of the present research. He not only recognised I would be able to complete this research, but he also believed, more than I did, that I could get this job done. Also, I would like to thanks to Dr Metka Potocnik for her time, observations and encouragement. The lawyers, judges, and academics scholars with whom I conducted personal interviews were of great assistance to me. Moreover, a great appreciation goes to my Sudanese friends from abroad, the hospital Doctor Amin Al-Kondy who is standing with me in the most challenging circumstances. Also, Advocates Hayat AL Hassan, Advocates Mutasim Hassan, and the Chancellor Babikir AL-Teni who were ready at all time to supply for me the materials from Sudan, when I needed to find authorities and law cases that were not so easy to get. Unfortunately, during the preparation for the submission and discussion of this research, I lost very dear friend Mawlana/ Babikir Kbashi Al-Teni, who has been involved in this research since the first stage from the onset. Babikir was one of the closest persons to me; we share similar circumstances, feelings, academics and practical dreams. We made future plans to work together to develop laws and creating training courses for lawyers and legal staff in Sudan. Babikir, although you are not physically here at this moment, believes you are spiritual with us, you will always remain in our hearts and minds with gratitude your love and supports I highly appreciate the sacrifices of my wife Nahid and my children Omar, Mohammed, and Nzar for during the whole period of this study, and thanks to them for the support, love and patient during the difficult time, otherwise which the task would have been all the more difficult. In addition, I would like to thanks to my brothers, sisters and other relatives, 4 colleagues and friends for their encouragement. Also, I would like to thank the staff of the library of Khartoum Univesity, Alneelain University, and the Judiciary department in the Ministry of Justice in Khartoum for their help. However, any mistake or imperfection in the research is my sole responsibility. 5 DEDICATION Dedicate this work to my son, Omar, and we may ask God that is being handled mercifully… 6 Contents DECLARATION ............................................................................................................... 2 Abstract ........................................................................................................................... 3 Dedication .................................................................................................................... 6 Table of Terminology .................................................................................................. 14 Introduction ................................................................................................................ 16 Hypotheses ................................................................................................................. 17 Research Methodology ............................................................................................... 21 Literature Review ........................................................................................................ 24 Importance of the Research ......................................................................................... 26 Structure of the Research ............................................................................................ 26 Chapter 1. An Overview of the Historical Growth and Development of the System of Judicial Settlement in Sudan ........................................................................................... 31 1.1 Introduction .......................................................................................................... 31 1.2 The Background to the Sudanese Judicial System .................................................. 32 1.3 A Brief Account of the Judicial Settlement Procedure in the Islamic Kingdom of Fung /Sinnar (1504 – 1821) ........................................................................................ 33 1.4 The judicial system in Sudan under Turko-Egyptian and Anglo Egyptian rule ....... 36 1.5 The Judicial System in Modern Sudan ................................................................... 41 1.6 The Constitutional Court ....................................................................................... 45 1.7 The National Supreme Court ................................................................................. 46 1.8 The National Court of Appeal ................................................................................ 47 1.9 Other National Courts ........................................................................................... 47 1.9.1 There is a National Public Court .......................................................................................................... 48 1.9.2 The Court of First Instance .................................................................................................................. 48 1.9.3 The Cities and Rural Courts or Customary courts ............................................................................... 48 1.10 Sources of the Legal System in Sudan .................................................................. 49 1.11 The needs of the Sudanese Judiciary System ........................................................ 51 2.1 Introduction .......................................................................................................... 58 2.2 A Brief Account of Attitudes towards Arbitration in Sudanese Society. ................... 59 7 2.3 Advantages and Disadvantage of Arbitration as a Method of Settling Disputes in Sudan ......................................................................................................................... 65 2.4 Arbitration under Islamic Jurisprudence ............................................................... 68 2.5 Recognition and Enforcement of an Arbitral Award under Sharia law .................... 73 2.6 The Forms of Arbitration under Sudanese law....................................................... 75 2.7 International Arbitration under Sudanese Law ...................................................... 78 2.8 The Nature of Arbitration .....................................................................................
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