By: Husain Al-Hubaishi,
Former Minister of Legal Affairs
for the President and Prime Minister of Yemen

Considering that reforming the judicial system with separate or unified courts was almost an impossible task, the economists initially started thinking of referring their disputes for post- arranged arbitration. Secondly, jurists within and outside government bodies embarked on a campaign of legislation and activating for the process of attribution and establishing centers for that purpose.

There are certain advantages for the parties to a dispute to refer it to arbitration rather than take an action in the courts, the main advantages are as follows:
(1) The process can be expedient.
(2) Details of the subject matter can be kept relatively unpublicized.
(3) When the dispute concerns a technical matter persons chosen to arbitrate generally possess the appropriate qualifications
(4) The parties may choose or agree to the law and rules of procedure applicable.
(5) There can be a saving in costs.
(6) The parties have the convenience of considering the time and place of arbitration.

In Yemen the statutory definition of arbitration is as follows: "The voluntary choice of two parties, another person, or persons other than the competent court to arbitrate their differences or disputes."This kind of generalized definition helped those concerned in Yemen to think of arbitration as if it was CONCILIATION, or a sort of tribal arbitration by customs. Conciliation or mediation in Yemen does not need a written agreement, the conciliators are mostly persons not necessary versed in law or even specialists in one field or another. No specific procedure written or otherwise is followed and unless the conciliator or conciliators are men of power and authority, the decision of the conciliator is often ignored.

On the other hand, Yemenis of tribal affiliation think of arbitration, whether commercial or otherwise, as a kind of customary system
Al-A'araf (as it is known among tribes) are commonly enunciated and accepted norms of behavior and settlements of disputes. To give a provisional definition of the term 'custom' observed relatively by tribes, customary law is the body of accepted unformulated rules and principles instituted by human conduct for a lengthy period in accordance with accepted criteria and forming part of the imminent source of law as such certain legislations in Yemen try to introduce some of those rules in law and regulation governing Arbitration.

B. First legal Attempt Thwarted.
By reason of the above facts when law no. (33) of 1981 was promulgated with regards to arbitration, it comprised few rules of conciliations and many concerning tribal customs. As in conciliation, the law did not mention the law applicable or stipulated or the procedure to be followed. In article (22) the law envisaged a binding decision of the conciliator and in general used the word arbitrator in place of conciliator.
On tribunal customs, article (a) made it a condition that an arbitrator, if he were acquainted with Sharia, should also be familiar with tribal customary rules. Article (6) went further to envisage a situation where the whole tribe would be the arbitrators. Also article (16) tackled the cases of manslaughter and sedition and finally article (24) left the execution of the award to the guarantors of enforcement.

Thus the relevant statutory law governing arbitration was a blending of traditional rules of conciliation, tribal customs, Sharia and modern provisions and as such was born dead. However, arbitration under different names was practiced as an alternative to ordinary litigation in Yemen. Nevertheless no official tribunals were set up apart from some quasi-judicial committees on tax and customs tariffs. Although the law allowed the Chamber of Commerce to establish a tribunal for settling commercial disputes the Chamber never availed itself of this privilege.
Lastly, it will be interesting to note that in Aden at the time of the British rule arbitration ordinance as early as 19 March 1941 was promulgated concerning voluntary arbitration allowing that any court was enforceable as it was a decree of the court (article 13). However the court may set aside the award if it has been improperly procured. (article 13)

C. Call for Economic Reforms.
Yemen, like any other under-developed states, went through most of the economic conditions for a comparatively modern state; the development of non-agricultural society, the influx of some Arab and western capital and entrepreneurs, and the development of light industry. However, it was hindered by several political and economic factors which threatened its obsolete financial policy and hence it's political stability.

Since the middle of the nineties, the government has battled with intended reforms for economic and administrative issues. It succeeded somehow in regaining control over the financial situation, but not all of the economic situation reforms were achieved at the expense of the poor and middle-class in the short term. However, the government is reluctant for political and other reasons to go full ahead with administrative and judicial reforms.
To attract foreign capital, Arab and non-Arab alike, especially in the field of investment, the government promulgated acts concerned with the establishment of a semi-independent public authority for investment. The later authority adopted a reasonably hospitable law to investors, Yemenis and foreigners alike. One of the economic problems of Yemen is that Yemeni entrepreneurs prefer establishing limited family companies than the banks and selfishly less courageous to tap long term enterprises. Also there is a lot of unused capital in the country because of the lack of joint stock public companies.

Therefore the need is greater to attract foreign capital, Arab or otherwise. Still, that has to wait for concrete guarantees and facilities. As shown by world bank demand, the first prerequisite was to establish an efficient and just regular judiciary if not specialized system of courts to deal with commercial and financial disputes and with that or without it if that is difficult to achieve, any kind of legal system to settle disputes expediently and equitably.

D. New Law: A Leap Forward.
Governmental authorities concerned tried to respond to the first demand, but so far without result. It responded favorably to the second demand but had partial success. At the same time it elected to make a short cut to settlements of disputes and opted to enact a new statue regarding arbitration.
The idea was to promulgate a new law for arbitration which will make up for the old law, whence law no. (22) of 1992 was issued. It was a legal piece of diligence as a whole, however it has its pit-falls some of which we mention below:

1) The Arbitration Agreement:
We notice that article 2 of the above mentioned law defined arbitration according to the "Place" and not the "Party" contrary to other countries in the area. In addition the law did not expressly mention the need for mentioning the subject matter of dispute in the agreement. However, this unintended omission has been corrected by the amendment (article 15, law 33 of 1997).

2) Arbitration and Tribunal:
The legislator ignored what are obvious and well-used words in similar legislation, 1 and 2) the word "tribunal" and replaced with the word "committee". Also the law in paragraph (1) article 22 allowed the court concerned to choose the sole arbitrator without giving the choice to the parties, the law also allowed the parties to elect two arbitrators without an umbrae contrary to arbitration usage. Worse than that, article 6 specifies certain qualifications which are legality ambiguous such as "just" and "eligible" which are Sharia terms and needs time and knowledge to explain.

3) Procedure and Applicable Law:
Article 33 did not go into detail of equality of parties and assistants in their presence before the tribunal; "such parties should not be excluded without good grounds or the awards may be set aside." Furthermore, in case of a motion to remove an arbitrator, the request was to be forwarded to the tribunal, while in corresponding laws the request should be sent to the court. Article (45) did not differentiate between the laws applicable with regard to merit and procedure.

4) The Award:
The law did not consider the case of the parties repositioning the tribunal on a merit which has been ignored by the arbitration. Moreover, Yemeni legislators did not grant judicat to the award in spite of an action. The law also did not stipulate expressly that the award must comply with the submission or that the making of the award not be delegated to another person, "but a legal advisor may draw up the award" (Re Underwood & Bedford Ry 1861).

There are other comments and legal arguments on execution, but this is not the place to go into details. These comments do not belittle the serious attempt by the legislator to enact an up-to-date act of law. To close this article, I advise the removal of certain provisions which make non-Yemenis hesitate to refer disputes to the judiciary or even to arbitration in Yemen. This in turn, makes them hesitate to invest in Yemen,. When executing contracts in Yemen, they often insist on stipulating that litigation takes place outside of Yemen and that the applicable law or interpretation of procedure should be a law other than Yemeni law.
Furthermore, it is high time, if Yemen wants foreign capital and investment, to start negotiations of assessment to international agreements of settling disputes and execution of foreign awards.

E. Tribunals Arbitration Centers in the Making.
A few years ago Yemen had no official tribunal in the ministries concerned. The legal office of the state (The Ministry of Legal Affairs) set up in the seventies two quasi-judicial committees to arbitrate custom tariffs and tax disputes, and a third one to settle labor disputes.
In non-official circles, even though the law regulating the Chamber of Commerce was privileged with the right of setting up its own tribunal or tribunals, I cannot envisage a foreign investor having a dispute with a Yemeni businessman and trusting the settlement of that dispute to an institution set up by colleagues of his opponent in an underdeveloped country, and a corrupt one at that.

Since 1997, there has been a growing awareness of the importance of arbitration. A group of jurists and other professionals in cooperation with the Association of Banks and the Federation of Chambers of Commerce & Industry founded the Yemeni Center for Conciliation and Arbitration. As this center was doing well, other lawyers set up another center mainly for settling tribunal disputes.
In conclusion, I want to say neither the promotion of commercial courts nor the formation of arbitration centers can make up for the inefficiency of the judicial system in the long run. What counts is a persistent effort to make the three institutions run efficiently in a parallel manner.

 

Political Parties Series: #2

Starting with the last issue, the Yemen Times continues to run profiles of the political parties of Yemen.
We print the information as received from the parties.
The aim is to inform the public
- local and international.

The People's Nasserite Unionist party was founded in Taiz in December, 1965 as an expression of the aspirations and ambitions of the forces of modernization which began formation in Yemen following the 26th September Revolution.

Ever since its formation, the party included representatives of various social strata that were newly rising including intellectuals, academics, workers, and students from various northern and southern Yemeni governorates.
The party has effectively shared in various political and popular activities benefiting from the intensified membership of school students within the country and those sent on scholarships to other Arab countries.
It held its seven general conferences on a regular basis between its establishment and 1982. Prior to each of those national conferences an electoral session is held to elect leaders of the branches and partisan representatives to the national conference, according to the party's bylaws.

In all national conferences, political and general organizational reports are discussed and endorsed in addition to drawing its future policies and electing the central leading body.
Among the most prominent historical positions of the party's march before endorsing political pluralism that were announced with the re-unification of Yemen in 1990 are the following:

1-Rejecting a merger with the ruling party in the former southern part of the country in 1972 and as a result its branch leaders (in the southern part) were arrested and tried. Most of them were executed and the rest were thrown into prison for many years on charges of forming an opposition party under the ruling totalitarian system. However, they were later considered as martyrs to democracy by the Socialist Party's fourth general conference recently held in Sanaa in its capacity as the then ruling party in the southern areas of the country.

2-Forging an alliance with President of the northern part of Yemen, Ibrahim Al Hamdy, in 1974 which developed later in his secret admission into the party in 1976. The party during the short reign of President Al Hamdy, 1974-77, was able to launch a modernization process in the society and lay down the basis of a modern country. It also managed to secure an extraordinary economic development and his rule witnessed one of the best experiments of popular participation in economic and social growth in the Third World. That was the cooperative movement led by Al Hamdy who extended to it his utmost support and care. He further formed the corrective committees which represented an experiment in eliminating government corruption and administration modernization with the Nasserites being the basic form along with others.

3-One year following Al Hamdy's assassination and a few months after President Ali Abdullah Saleh took over power, the party led a corrective movement in October 1978 that was not successful. Most of the party's central and branch leaders were arrested, tried, and executed.

4-A number of party leaders were able to leave the country for the southern part of Yemen and other Arab countries and formed the June 13 front that practiced political and military opposition to President Ali Abdullah Saleh's regime in the northern areas. The party focused its calls then on Yemen's unity and political pluralism to replace the totalitarian and partitional regimes which were ruling in both areas of Yemen.

5-In December, 1989 and only few months before the declaration of Yemen's unity and the endorsement of political pluralism, the party declared itself in Aden as a civilian political party and gave up secret political and military activities. It also declared its open, democratic and peaceful methods, thus ending a period of underground work that coincided with the then ruling totalitarian regime and started a new era with the declared pluralism.
During the underground era of the party's history, 1965-89, which coincided with the cold war between the eastern and western camps in both sections of Yemen, the party led violent political and public confrontations with both camps. In Yemen, these were represented by adopting capitalism as the economic system, Islamic tenets as the creed, and severe conservatism as social values, and marxism with all its political and social dimensions. Amidst that acute contradiction, the Organization reoriented itself by adopting socialism and democracy in addition to modern social values. Thus it found itself confronting the major parties which run the affairs of the country.

In 1993, the party held its 8th convention which was the first following the new multi-party system of the country. This was preceded by party elections at various organizational levels attended by 26,800 members.
The convention was attended by 430 representatives as well as guests from a number of Arab parties in addition to senior state officials and other Yemeni parties.
The 8th convention endorsed the party's main documents including the political program and the bylaws which were re-worded to adjust to the new political system.
It also elected the central committee comprised of 89 members and the general secretariat, which is a 23 member politburo.

Abdul Malek Al Mikhlafy was elected as the new Secretary General in place of Abdul Ghani Thabet who had occupied the post in the period 1990-93.
In preparation for the 9th national convention, with the onset of 1998, a complete party-wide restructuring session was undertaken in which 51,680 members participated. New branch leaders were elected along with 560 representatives to attend the convention.
The convention is scheduled for the end of February in Sanaa. The agenda was determined following discussion and ratification of political and general organizational reports. Furthermore, the bylaws and political program were reviewed in light of previous experience in addition to electing the central leading body represented by the central committee, the politburo and the new Secretary General.

The most prominent highlights of the party's march during its open era:
1- Taking part in the first unified parliament which was formed in accordance with the two regimes ruling both sections of Yemen. It was represented by Abdul Qudoos Al Midwahy the party's political department head.
2- Effective participation in leading the opposition outside the parliament through the partisan formations represented by the parties' secretariat then the opposition's national bloc that was found in a general national conference attended by the party along with a number of other opposition parties.
3- The party shared membership with the higher elections committee that ran the first general elections in Yemen in April 1993. Abdul Malid Al Mikhlafy was chosen as chairman of the information and foreign relations committees. The party agreed to join the higher committee despite critical remarks and negative impressions of its work because it was formed out of all parties. The party, however, refused to share in the same committee that was formed after the 1993 elections because its formation was not balanced and the party had deep-rooted remarks on its formation and method of work during the preparation for the 1997 elections. Those remarks increased on the committee that was formed after the 1997 elections because it was not neutral and lacked the competence and capability that would ensure the integrity and neutrality of the general elections.
4- The organization participated in the first parliamentary elections following unification, receiving 53,000 votes and winning a seat by Sultan Hizam, member of the general secretariat.
5- In the wake of the acute national crisis that erupted following the 1993 elections, the party effectively participated in the national dialogue committee represented by the two members, Abdul Malik Al Mikhlafy, the Secretary General and Dr. Abdul Qudoos Al Midwahy, the political department head. They signed the national entente doctrine and the first project for the building of a modern Yemeni state.
6- The party adopted a strict, clearcut stance rejecting war and separation in 1994 which enabled it to play a prominent role after the war in stressing the continuation of partisan pluralism and the amalgamation of various opposition parties, including the Socialists, despite the difficult post-war circumstances. It also played a prominent role in forming the higher coordination council for the opposition parties.
7- The party advocated a strict stance, affirming the practicing of the minimum requirements of a democratic process despite all obstacles through its participation in the 1997 elections. Thus it was pursuing a distinctive position from the Socialist party and other members of the higher coordination council which boycotted the elections.
8- The party nominated 90 candidates and won 70,000 votes (including 15,000 supporting nominees backed by the party). It won three parliamentary seats, two in Taiz for Abdullah Mohammed Saleh and Sultan Hizam and one in Abyan for Ali Mohammed Al Yazidy. The later was the first won by the party in the southern areas.
9- It exerted intensified efforts to reactivate the opposition's higher coordination council, bypassing the effects of past positions of members toward the 1997 elections and succeeding in its efforts.
10- The party adopted the call for serious participation on part of the opposition in the first presidential elections which will take place in October 1999. It succeeded in convincing other members of the higher coordination council to declare their agreement to share in the elections with a unified candidate.
11- The party advocated democratic local rule, professional and labor syndicates and non-government organizations in their capacity as the most important democratic processes in Yemen.
12- The party issues a weekly newspaper 'AL WAHDAWI' along with other local bulletins.
13- It shares in membership of most non-government organizations concerned with human rights and democracy on the local and national levels.

In addition to the Nasserite Uninist Party, there are two additional parties that carry the name Nasserite. "These are splinter groups which were encouraged and financed by the Yemeni Socialist Party on the one hand, and the People's General Congress, on the other. With the relative decline of the YSP, their protege splinter group almost died away, while the protege of the PGC contionues to muddle through," said Abdul-Malek Al-Mikhlafy.

In the 1993 elections, the NUP succeeded in sending one member to parliament. In the 1997, it sent three members. "We hope to get 10 seats in the elections," Al-Mikhlafy said.

 

The next sitting of the court is scheduled for the 1st of February.
The case of the government against the accused seems to be strong. But because of transgression against the rights of the accused and inefficiency, it is expected to mismanage its own cards. Already, there is a rising international uproar against the alleged torture and refusal of the authorities to provide the lawyer of the accused the relevant documents.
As a result, the focus will shift from the crimes themselves to the shortcomings of the government in handling the case. That is why many individuals are already poised to intervene to strike a reconciliation.
One such effort is spearheaded by Mr. Ghayasuddin Siddiqui, leader of the Muslim Community in the UK.

He sent the following letter to Yemen Times.
On arrival in Aden, on Tuesday, 26 January, I made the following statement to the press.