An Overview of South Sudan's Legal Framework on Arbitration
By; Adv. Monyluak Aguer Rou
-Advocate
-Former Advisor of Abyei Chief Administrator
Currently there is no independent arbitration legislation or independent act in South Sudan. Instead, domestic arbitration is governed primarily by the South Sudan Civil Procedure Act 2007. This framework has become a highly relevant topic in recent years due to the growing number of commercial entities and foreign investors operating across various sectors in South Sudan. Furthermore, commercial actors frequently encounter systemic delays and difficulties when trying to resolve complex business disputes through the traditional court system or court of law.
Historically, informal arbitration represents the oldest method of dispute resolution among South Sudanese communities. Within traditional customary law frameworks, respected third parties or community elders routinely intervene to mediate conflicts between disputing factions, guiding them toward a mutually agreed compromise..
Prior to South Sudan’s independence, the Sudan Arbitration Act 2005 governed formal arbitral proceedings. Following secession, South Sudan adopted the Transitional Constitution of the Republic of South Sudan 2011 (as Amended), which serves as the supreme legal foundation saving previous laws and outlining the state's recognition of alternative dispute resolution (ADR). Specifically, Article (43) of the Transitional Constitution integrates arbitration into the nation's core principles, stating: "Foreign policy of the Republic of South Sudan shall serve the national interest and shall be conducted independently and transparently with the view to achieving [...] respect for international law and treaty obligations, as well as the seeking of the peaceful settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication."
Additionally, the Constitution provides guarantees for valid awards, mandating that the National Government must honor and pay any funds arising out of litigation, court orders, or arbitral awards that carry similar legal execution power.
The South Sudan Civil Procedure Act 2007;
The Civil Procedure Act 2007 provides the explicit statutory mechanism for shifting disputes from the courts to private tribunals. Under the Act, parties may mutually agree in writing to refer an existing dispute to arbitration, or enforce an arbitration clause embedded within a contract regarding disputes that might arise during or after implementation.
Parties can apply to the court at any time before a final judgmentis pronounced to refer their dispute to arbitration. The court's subsequent order of reference must specify the names of the arbitrators, the precise matters submitted for determination, and a reasonable timeframe for rendering the award. If a pre-existing written arbitration agreement exists, any party may apply to a court of competent jurisdiction to file it, the court will then notify the non-applicant parties, requiring them to show cause within a specified time as to why the agreement should not be registered. If no sufficient cause is shown, the court will formally file the agreement and refer the matter to the chosen arbitrators.
If a party institutes a standard lawsuit in breach of a validarbitration agreement, the defending party may apply to the court to stay the litigation. This application must be made at the earliest possible opportunity and strictly before the substantive hearing on the merits has commenced.
Arbitrators are appointed in the manner agreed upon by the parties, who enjoy full autonomy over their selection and total number. However, if the parties cannot agree on a selection, each party nominates an
equal number of arbitrators, and the court appoints one additional arbitrator to avoid a deadlock.
The court also retains residual powers to substitute alternative arbitrators or supersede the arbitration entirely (returning the case to standard litigation) if an arbitrator dies, refuses to act, becomes incapable,
or leaves South Sudan under circumstances indicating they will not return within a reasonable timeframe.
The court assists the tribunal by issuing standard judicial processes (such as summon the witnesses) to compel the attendance of witnesses or the production of documents. Any witness who refuses to attend, defaults, or commits contempt before the arbitrator is subject to the same penalties and punishments they would face in a standard suit before a court of law.
The tribunal shall deliver its final award within the period specified in the court's order of reference, though the court may grant extensions upon showing reasonable cause. If the arbitrators fail to issue an award within the prescribed timeline without a sufficient justification, the court may supersede the arbitration and proceed to try the suit itself.
An arbitral award must address each referred issue separately, be determined by a majority consensus, and be signed by the making arbitrators. Once finalized, it is submitted to the court, which notifies the parties to attend the formal reading. The court holds strict supervisory powers to modify, remit, or set aside an award under specific conditions:
An application to set aside an award must be filed within ten days of the date the parties were notified of its completion. If no such application is made, or if it is filed and rejected, the court will pronounce judgment in accordance with the award, rendering it fully enforceable.
In Conclusions;
South Sudan currently lacks dedicated, modern arbitration legislation. Domestic arbitration relies heavily on the South Sudan Civil Procedure Act 2007, specifically under sections (137-154). However the Transitional Constitution of 2011 formally recognizes alternative dispute resolution (ADR) as a tool for international peace and guarantees that the government will implement and honor valid arbitral awards.
The courts maintain tight control over the process. They can stay lawsuits if a valid arbitration clause exists, appoint deadlocked arbitrators, and completely cancel (supersede) the arbitration if timelines are
missed. The parties have aremarkably tight 10-day window to apply to set aside an award oncenotified of its completion.