The issue of Sudan’s accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Award 1958 (otherwise known as New York Convention) has not yet been definite or confirmed within the Sudanese judicial bodies, as there is intense debate on this matter. Sudan ratified the Convention in March 2018 however, Sudan has not made any declarations, notifications or reservations regarding the application of the Convention. The national courts have also not dealt with any disputes in accordance with the New York Convention.
It is, therefore, doubtful that the New York Convention will have any legal effect in the Sudanese judiciary system since it was just a formal ratification by Sudan. The reason behind this assertion is that the Ministry of Justice, and the President of the Judiciary have still not empowered the courts to apply the Convention in the Sudanese judicial system. It appears that the procedures that preceded Sudan’s accession to the New York Convention were not agreed to or ratified by the President of Sudan and National Assembly, which usually, undertakes the study and review of any proposal for ratification for the Convention or treaty.
Furthermore, an accession document must be submitted to the President of State for final approval. Article 58 (k) of the Sudanese Constitution of 2005 (subsequently amended) states: “The President of the Republic directs and supervises the foreign policy of the state and ratifies international treaties and agreements with the approval of the National Legislature.”
Therefore, the procedures that were followed for Sudan’s accession to the New York Convention failed to comply with the provision of the constitution, and the process taken was different from instances when Sudan joins international conventions, treaties, or regional agreements.
This situation may create a dilemma between Sudan and the international arbitration community, in addition to reducing the confidence of foreign investors in the Sudanese judicial system. It may also raise a problematic legal challenge; whether Sudan is still a Contracting State Member of the New York Convention, or not.
In this regard, the author interviewed the Undersecretary of the Ministry of Justice, Mowlana Sawsan Shandi who strongly denied Sudan’s accession to the Convention, and made it clearly stated that: “the Ministry of Justice (which usually has the duty of applying for accessions to treaties and conventions) did not deposit its instrument of accession to the Secretary-General of the United Nations to join the New York Convention, nor did not commission anyone to do so. Furthermore, it was an individual act of one of the members of the Sudanese embassy in New York.” Accordingly, she affirms that Sudan is not concerned with the New York Convention, and the national courts are incompetent to hear any case related to the rules of that Convention.
Furthermore, Mawlana Dr Abdullah Dirar, the head of Arbitration Unit in the Court of Appeal, explained that: ‘The appeals courts have not yet proceeded any application regarding enforcement of foreign arbitral award based on the rules of the New York convention, the reason for this is that Sudan’s membership to the New York Convention has not yet been confirmed.’
Formally, Sudan has fulfilled all the conditions for accession and become the 159th Contracting State to the New York Convention. By virtue of article XII (2) of the New York Convention, it has entered into force in Sudan since July 2018. Accordingly, Sudan has been placed on the list of member states of this Convention. Therefore, the author found it necessary to alert the legislative and executive bodies that this critical issue must be addressed by the National Parliament as soon as possible.
This author held seminars in Khartoum in August and December 2019 to discuss aspects of the dilemma with decision-makers in the judicial and executive bodies. The outputs of that seminar summarized that what went wrong in depositing its instrument of accession to the Secretary-General of the United Nations to join the New York Convention, does not excuse Sudan from announcing its ratification of the Convention and will not be considered as a ground for the government of Sudan to refuse the acknowledgement of Sudan’s membership in the New York Convention.
Finally, the government of Sudan should implement the New York Convention, as stated in the accession agreement. Otherwise, Sudan may under Article XIII (1) of New York Convention, denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.