Addressing legal issues of challenging arbitral awards under the Rwandan Law.

Abstract

This study entitled ―Addressing legal issues of challenging arbitral awards under the Rwandan Law‖ had as objectives to deeply explore legal issues associated with challenging arbitral awards and therefore to suggest legal mechanisms that should be adopted in order to assure appropriate appealing procedures against arbitral awards. In order to reach these objectives of this study, documentary technique, exegetic, analytic and synthetic methods were used and were basically oriented to the analysis of the Law n° 005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters, the Law n° 51/2010 of 10/01/2010 establishing the Kigali International Arbitration Centre (KIAC) and the Ministerial order n° 16/012 of 15/05/20012 establishing rules of arbitration in KIAC, while comparing them with few arbitral cases that managed to be lodged before the Rwandan courts and with other arbitration systems, mainly arbitration rules of the the United Nations Commission on International Trade Law (UNCITRAL), the English and the Kenyan arbitration laws. Key findings demonstrated that the text of the Law n° 005/2008 of 14/02/2008 on arbitration has gaps related to both the qualification of procedures meant to revisit or challenge an arbitral award and the lack of a room for challenging an arbitral award on merit. It was found that various appellations were used without considering their specific meanings. Apart from the review, correction and interpretation of the award, as well as the issuance of an additional award; whereas the common expression as found in UNCITRAL rules is setting aside an arbitral award as a result of an appeal against an arbitral award, the Law n° 005/2008 of 14/02/2008 uses instead terminologies that include appeal and dissolution of an award (Article 48), the setting aside of an award (Article 47), annulation of an award (Article 49), and cassation of an award (Articles 47 and 49), in a disorganized manner, though the sought meaning is one – ―setting aside an arbitral award‖. Another thing is that the Law on arbitration in Rwanda mentioned above does not recognize appeal against an arbitral award as such, though the same law uses the terminology of ―appeal‖, because the court has no right to assess the substance of the award, but rather examines if procedural conditions were met by an arbitral tribunal and parties thereto, and send back the case to arbitration if the conditions were breached, which is known as setting aside an arbitral award. The study found however that in some legislations like English and Kenyan, appeal on merit against an arbitral award is allowed. It is against this summary of findings that the study recommended the legislative drafting bodies in Rwanda and the legislator to amend the arbitration law in order to correct drafting errors associated with revisiting and challenging an arbitral award and to recognize the right to the challenging of an arbitral award on merit, in case parties choose to do so. The study also recommended KIAC, arbitrators and parties about capacity building and awareness raising in arbitration matters